- The elusive two-thirds gender rule remains the stumbling block as the Sword of Damocles hangs over Parliament.
- The gender agenda could provide fresh impetus to BBI, if a referendum asks voters to decide again if they want gender fairness.
The elusive two-thirds gender rule remains the stumbling block as the Sword of Damocles hangs by a thread over Parliament.
This precarious situation prevails, even as it appears the advisory by Chief Justice David Maraga to dissolve Parliament for failing to enact the Gender Bill has provided fresh impetus to the Building Bridges Initiative.
Facing limited options following Maraga's advisory, the President could dissolve Parliament and send home all 416 MPs so the next Parliament can pass enabling legislation, the Gender Bill, to implement the two-thirds rule enshrined in the Constitution.
The President could also exploit the lacuna in the law, which does not provide timelines for him to act on Maraga's advisory on dissolution – ensuring Parliament finally enacts the law that male lawmakers have resisted.
Whichever way he decides, analysts say, the President must at some point act on Maraga's advisory and dissolve Parliament, albeit after dilly-dallying to comply with the supreme law of the land he is sworn to uphold.
Otherwise, the head of state risks being cited by the courts for gross violation of the Constitution by failing to act on a constitutional requirement.
Gross violation of the Constitution is a ground for impeachment of the President but given the current scenario in which MPs are fighting to complete their terms and enjoy their salaries and perks, that would be unlikely.
On the other hand, legal experts express concern any business Parliament transacts henceforth could be null and void, the argument being that MPs are in office unconstitutionally after Maraga's move.
As the country ponders the next steps to resolve the two-thirds gender problem, politicians pushing for the BBI have signalled the gender agenda could be a key plank in referendum campaigns.
None other than ODM chief Raila Odinga, the key proponent of BBI, has indicated a referendum would give Kenyans an opportunity to make a final decision on the two-third gender rule. They approved it once in the constitutional plebiscite.
Voters – in a patriarchal society – could decide if they agree that not more than two thirds of any public elected or appointed body should be comprised of either gender. In effect, men could not represent two-thirds plus one.
The voters could approve a constitutional amendment scrapping the gender rule.
“In the circumstances where institutions have failed as in the case of Parliament, the Constitution gives power to citizens to act directly and not through their elected representatives to have their aspirations realised,” Raila said in a statement on Wednesday.
This was Raila's clearest signal that he backs a referendum as the most effective way to sort out the gender fairness issue threatening to sink Kenya into a political, economic and constitutional morass.
However, Raila's proposal that the BBI sort out the two-thirds issue could cause cracks in the force pushing for constitutional amendment, after some women objected to it.
The Kenya Women's Parliamentary Association (Kewopa), the caucus of female parliamentarians, has flatly opposed BBI addressing gender fairness and changing the law.
“There is nowhere in the BBI the two-thirds gender principle is indicated. It is just power division where we are talking about opposite gender appointments,” Kewopa chairperson Gathoni Wamuchomba said.
The Kiambu woman representative said BBI should not be used as a remedy to realise fair representation of women and men in all sectors.
“The two-thirds gender principle is not about division of political and economic power. It instead fosters the principle of gender mainstreaming in every sphere of life,” Wamuchomba said.
But some allies of the President and Raila have set the stage for BBI taking the lead role to accept - more probably to scrap - the two-thirds gender principle.
They have warned that Maraga's call to dissolve Parliament may not be the panacea to end the crisis, saying there are contradictions in the Constitution that must be addressed.
Some of the contradictions cited by MPs are that Article 267 giving the CJ the guaranteeing free, fair and regular elections based on universal suffrage.
“These are the kind of issues that are ideal to be considered in a referendum when you are amending the Constitution, especially as the BBI report is about to be released,” Rarienda MP Otiende Amolo said.
National Assembly Majority leader Amos Kimunya said Parliament must start pulling together, even if that means revisiting BBI with an open mind.
“Perhaps we need to revisit the BBI initiative and pull together, not just thinking of BBI as a political thing but as a vehicle towards changing the laws of this country to actualise the desires of the people,” Kimunya said.
However, there are concerns that Kenyans already spoke emphatically about what they wanted during the historic plebiscite on August 4, 2010, which ushered in a new constitutional dispensation.
“Subjecting the gender issue to a referendum again, 10 years after Kenyans expressed their desire on how they wanted women treated, would be a deliberate effort to scuttle their rights,” rights activist Anne Wanyoike said.
She said the current government has the responsibility to ensure the Constitution is implemented fully without subjecting Kenyans into a “circus of sorts".
“Those pushing for a referendum just want to get something popular to latch onto and win the support of the millions of Kenyans - that amounts to double costs to taxpayers,” she emphasised.
The country is already navigating uncharted waters after Maraga's advisory.
The President is between a rock and a hard place - he either upholds the supreme law and sends MPs home or sacrifices constitutionalism at the altar of political expediency.
Proponents of the two-thirds gender principle argue the President must move swiftly and dismiss the bicameral Parliament in accordance with the Constitution.
Seen as the last resort, the radical constitutional provision gives the CJ powers to advise the President to dissolve Parliament if the House fails to take legislative steps to address the gender agenda.
“If Parliament fails to enact legislation in accordance with an order under clause (6) (b), the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament,” Article 261(7) reads.
In another of Maraga's historic surprises [the Maraga-led court annulled the President's election in 2017], the CJ on Monday invoked the dissolution provision by writing to the President to dissolve the 12th Parliament.
Constitutional experts have said the provision must be seen as punishment of Parliament for failing to perform its constitutional duties.
In fact, Maraga had written that Kenyans deliberately designed a radical remedy in case the political elite blocked what he termed a “transformational agenda".
"Kenyans clearly understood the possible cultural resistance to the transformational ideas on gender equality the Constitution would face,” Maraga said.
Even as the two-thirds gender rule is seen as a timely propulsion for a national referendum, critics warn it would not be a walk in the park for the political elite that opposes the gender fairness role.
The President is already on the horns of a dilemma over the Maraga earthquake as leaders urge him to consult widely before making a final decision.
One thing is clear: The country has a long way to go to achieve gender fairness and enact the two-thirds gender rule, even as 416 MPs risk being sent packing by the stroke of a pen.
Experts have warned that divisions among women politicians - some oppose the dissolution of Parliament - could scuttle the much-needed momentum to expeditiously sort out the gender mess.
"Unless women unite and speak in one voice, they will lose out. We must stand up and demand our right," Nyamira Woman Representative Jerusha Momanyi said.
The divisions among female politicians, who until now have been aggressively pushing for the implementation of the gender balance law, could threaten the push for gender fairness.