• People have understood that the BBI proposes for the Senate just 94 members: One man and one woman representing each county. No list members.
• Most confusion has arisen over the National Assembly. The 47 county women seats and 12 'nominated seats' would be abolished.
People elected to represent geographical areas are now the core membership of elected institutions.
In the National Assembly, there are 290 MPs for single member constituencies, and 47 county women. There is one elected senator for each county and one member for each ward in the county assemblies.
Each institution has party list members: 12 in the National Assembly, and 16 women in the Senate, plus two other women and two men representing youth and persons with disability. In each county assembly, four people represent 'marginalised groups' plus enough women to bring the assembly into compliance with the 'no more than two thirds of either gender' principle.
All these 'extr'” members are taken from lists, which must be submitted by parties before the election. Voters should be aware of who parties have on their lists, and maybe make it a factor in their voting. This is why it is not right to call them 'nominated membe'”. How the members to sit are taken from the lists depends on how many seats each party has won. If a party is entitled to, say, two women members of a county assembly, the first two women on the gender county list are taken.
Overall, 21.5 per cent of the National Assembly members are women, as are 31.3 per cent of the Senate and 34 per cent of the county assembly members.
WHAT IS BBI RECOMMENDING?
List (for 'nominated') members
The BBI suggests it is unsatisfactory to have different types of members (some for geographical areas and some from lists). It is true that the role of the list members — especially the 16 women in the Senate and the top-up women in the county assemblies — has been a bit mysterious to many, because people are accustomed to representation of geographical areas. Most of the list members are women, and they, particularly, are often regarded as not 'real' MPs or MCAs.
People have understood that the BBI proposes for the Senate just 94 members: One man and one woman representing each county. No list members.
In counties, the seats for marginalised communities and groups, and the top-up women would remain. But there would be three changes. First, there would be a new statement: That each party list must include “women, persons with disabilities, youth, ethnic and other minorities, and marginalised communities”. This is neither very clear nor very helpful.
Second, list seats would be allocated on the basis of votes received not seats won. And, third, list seats even in county assemblies would cease to exist soon. (I shall come back to these below).
Most confusion has arisen over the National Assembly. The 47 county women seats and 12 'nominated seat'” would be abolished. Seventy new seats would be created. Some people have read this as meaning that these 70 seats would be list seats. This comes from reading the BBI’s proposed amendments to Article 90 which speak of allocating list seats on the basis of votes received – but without realising that the only list seats left would be those in county assemblies.
EQUALITY OF VOTE AND PROPORTIONALITY
The BBI aims to achieve greater equality in voting – so that each person’s vote counts for roughly the same. This is an objective of the Constitution as it is.
The system we have now produces grave imbalances in terms of representation and equality of vote. The population of constituencies varies enormously. Lamu has three MPs, while Nairobi with 32 times the number of people as Lamu has 18 MPs. These figures include the woman representatives.
Because the list seats are allocated on the basis of the number of seats parties have won, they tilt the balance towards the parties that have won more seats — to them that have shall be given.
The BBI proposals would deal with this issue in several ways. Abolishing the 47 women seats in the National Assembly could improve it somewhat. So would allocating the list seats in county assemblies on the basis of votes received and not seats won.
Finally, the 70 new National Assembly seats would be allocated among existing constituencies, making some multi-member constituencies – giving more seats to areas with more people.
However, progress towards equality of vote could have been made by the IEBC modifying constituency boundaries while retaining 290 constituencies. But presumably the BBI has experienced a familiar problem: Current MPs feel a vested interest in their constituencies and would resist their abolition.
NOT AN MMP SYSTEM
Some misunderstanding is also partly because the body of the BBI report speaks of 'Mixed Member Proportional systems'” - MMP). This (used for example in Germany and New Zealand) involves having one-third of seats or more from party lists – and assigned on the basis of votes received by parties.
In those systems, the allocation of seats from lists is also adjusted to take account of the fact that a party may have got more or fewer seats already than its voter support in the election justified – this is common with our type of electoral system.
However, when the BBI report speaks of MMP it is reporting what people suggested, not its proposals. Even when it does recommend allocating party list seats on the basis of votes received it does not also propose that adjustment for existing or- or under-representation. And they are only recommending the votes-received basis for county assemblies – the only planned use of the list system.
At one point, the BBI report suggests it has fixed this issue (“The Bill further proposes to amend the composition of Parliament to give effect to the gender equity principle.”) The Senate would of course be precisely 50 per ent women. And the BBI has recently said that that having 360 MPs would enable the gender requirement to be addressed.
But even if every one of the new seats was occupied by a woman (which is not the idea), and no other, the National Assembly would be 19 per cent female. If the same percentage of 360 seats were occupied by women as now is the case with the 290 constituencies, we should have 28 women (as opposed to the 75 we have now, with 23 fewer MPs). (Of course, parties might (ought) to nominate more women for constituencies because of the removal of the women county seats and the 'nominated' ones.)
The situation in county assemblies on gender would not change. But there would be a new provision: the list systems would cease to operate after two more general elections. The last vestige of guarantee of seats for women would disappear.
The BBI does propose a provision that parties are expected to comply with the two-thirds rule in nominating candidates. But we already have a High Court order to this effect. And there remains doubt as to what this means. Could parties say “we have complied” when they have, indeed, 33 per cent women candidates but mostly assigned to constituencies the party has no real chance of winning?
Finally, the idea that every candidate for governor should have a running mate of the opposite sex – which many women liked last time – has been watered down to every candidate should “consider” a running mate of the opposite sex.
OTHER MARGINALISED GROUPS
Admittedly, because of loose provisions in the Constitution and the law, various non-marginalised people have come into the National Assembly. And in county assemblies th'“marginalised group'” members are sometimes unbalanced in terms of gender (three of one sex) or nature of special interest (one county has all four in the category of 'ethnic minority').
Despite some ideas that are not essentially bad, overall the proposals do not meet the most urgent problems, and indeed make some things worse, yet increase the total membership of Parliament by 44. It is clear which groups carry most weight in the eyes of the BBI group.
Adding yet more statements about how principles on gender and marginalisation must be complied with will not help. There are plenty in the Constitution already; the problem has been to make them concrete.