On Monday, each national English language daily carried on their front page something about Raila Odinga and William Ruto choosing a running mate.
On page 4 or 6, or in the Nation page 12, they got to the parties’ failure to respect the two thirds gender rule. (To be fair, the Nation had that on their Sunday front page).
Doesn’t it show you something about the media’s priorities? And the parties’.
The latter are more obsessed with how to get one community on their side through a running mate without losing the votes of another. The assumption does not seem to be that having a woman running mate would much enhance the chance of women voting for them.
It maybe tells you something about women, too. It seems many do not feel common cause with other women. On the other hand, maybe they do not see how having women in Parliament actually benefits them. If so, it is revealing – if not surprising – about parties’ inability to articulate policies appealing and credible to women.
HOW DID WE GET HERE?
No one interested enough to read this will not know the Constitution has a principle of “not more than two thirds of either gender” in public elected and appointed bodies.
And many will know that after the 2017 elections, there were 75 women in the National Assembly (of a total of 349 members) or 21.5 per cent, and 21 women in the Senate or 31.3 per cent.
In situations in which men and women contested for seats, the figures were less encouraging: 7.6 per cent of constituency seats in the National Assembly and 6.4 per cent of the directly elected senators.
In the county assemblies, women do make up one third because of the extra seats to ensure the gender rule is met.
What this principle actually meant in practical terms was put to the Supreme Court before the 2013 election. Most of the judges said if Parliament did not meet the gender rule after the coming election, it would not be unconstitutional.
Chief Justice Willy Mutunga disagreed. But the majority said the Constitution required that law to achieve the rule (or principle) must be passed by 2015. Parliament first treated that as meaning 2016, but dismally failed to pass any such law – till today.
The only direct consequence of this parliamentary failure was the direction by Chief Justice David Maraga to the President to dissolve Parliament (call an election) for failure to pass this law – on the basis it was required by the Constitution, Article 261 and Schedule 5. This - surprise surprise – did not happen. No space here to go into why, and whether that was a bad thing.
The biggest obstacle to achieving the two-thirds result has undoubtedly been the reluctance of male MPs to change the law, backed up by their sense of entitlement.
A contributory factor has been the difficulty of deciding how to achieve it. This is because the only way of doing so without changing the Constitution would involve preventing men from taking some seats in Parliament (back to the male sense of entitlement).
The only remotely serious efforts in Parliament to address the issue did involve changing the Constitution. The BBI would have done so, too.
Faced with that stalemate, Katiba Institute in 2017 sued the Independent Electoral and Boundaries Commission. Justice Chacha Mwita decided that political parties and the IEBC had a constitutional responsibility to contribute to achieving the two thirds principle.
He ordered that parties “take measures to formulate rules and regulations for purposes of actualizing the two-third gender principle during nominations for the 290 constituency based elective positions for members of National Assembly and 47 county-based elective positions for the members of Senate within six months from the date of this judgment”.
There is a bit of a problem about this: No political party was a party to the case. Second, some parties did not even exist then (such as UDA).
The best hope was the IEBC. The judge ordered that it must reject any party nomination lists that did not comply with the two-thirds gender rule — so far as the candidates for National Assembly and senators were concerned. That is what the IEBC is doing or threatening. It recognises that it has an obligation. It did not appeal against the High Court decision.
The judge also ordered the IEBC to “devise an administrative mechanism to ensure that the two-thirds gender principle is realised among Political Parties during nomination exercises.”
What does the court mean by parties complying with the gender rule? The minimum must be that if a party submits 290 candidates for election to the constituency seats in the National Assembly, at least 97 of them must be women – and so on, depending on how many a party nominates.
There is of course the risk that a party would nominate women only for seats it has no hope of winning. But it would be a beginning.
WHAT HAPPENED NEXT?
In late 2018, the IEBC wrote to parties on the matter. And in October 2021, it met the Political Parties Liaison Committee and the IEBC chair said, “The Commission [would] comply with court order by ensuring that political parties’ nomination lists for elective positions in the Senate and National Assembly comply with the two-third gender rule”.
Did the IEBC produce any “administrative mechanism”? It is not clear. But they did require parties to include mechanisms for ensuring the gender rule in their nomination rules that they were required to supply, late last year. But if parties had compliant rules many seem to have ignored them. Even parties led by women.
Certainly, parties could not pretend they knew nothing about their obligations. Did they believe thE IEBC would take no serious steps to comply with the court’s directions? Do they share the all-too-common attitude of so-called leaders that court orders are to be disobeyed with impunity?
WHAT DOES CONSTITUTION REQUIRE ?
Politicians have been falling back on the Bill of Rights (something they usually easily ignore). We find them saying, “It is against Article 38 to insist on a certain proportion of women candidates.
That Article says “Every citizen is free to make political choices.” This includes voting by secret ballot. Actually, it does not say that choice is unrestricted. You can only vote for candidates, which, if standing for parties, will be nominated in accordance with the Constitution and the law.
And the Constitution also puts an emphasis on the two-thirds principle. It makes affirmative action for those disadvantaged by past discrimination compulsory – and includes the gender principle in that Article (27).
No part of the Constitution can be held unconstitutional – even if it limits a right. That is obvious – and courts have made that clear.
If any rights are limited by ordinary law, it must be for a valid purpose. But fulfilling a constitutional directive must be a valid purpose.
Another obvious common sense point is that it cannot be necessary to fulfil a constitutional principle, to amend the Constitution. There is no way the Constitution is saying “You must achieve this and must change the Constitution to do it”.
Some are saying they will go to court using Article 38 as the basis. In some countries, women-only lists for certain constituencies have indeed been held unconstitutional. But those countries do not have our constitution and the two-thirds principle. And some countries do have laws limiting choice.
India, for example, has some constituencies in which only members of certain disadvantaged groups can stand – under the Constitution. And in local bodies some seats are reserved for women.
It is nearly 10 years since the Supreme Court said the principle should be implemented – and by 2015. Parliament and parties have made nonsense of this. Will the courts finally say “Enough is enough” and uphold Justice Mwita’s ruling?
And suppose that does not produce a two-thirds compliant Parliament – would the Supreme Court finally declare Parliament unconstitutional?
Isn’t it all just as important as the running mate issue?
