KENYA: Rule On Gender Parity Can Be Met

Source: All Africa
So the Cabinet thinks that the requirement of no more than two-thirds of either gender in any elected body is "technically impossible to achieve under the current stipulation".

And they propose to amend the Constitution to deal with "this important issue". Everyone seems to assume they mean to remove the requirement. But on the face of it the statement does not say that - so let's assume they actually want to make it "technically possible", rather than to betray the women of Kenya.

In fact there is no "technical" reason why the two-thirds requirement cannot be satisfied within the Constitution as it is. The latest draft Elections Bill included a procedure that would ensure slightly over one-third women in the National Assembly. One quarter of the 290 constituency seats would be allocated, by rotation, to one gender (obviously for some time to come that would have to be for women only).

The proposal is controversial-not just in Kenya. Space makes it impossible to consider the objections here. In reality, some form of quota system for seats is the only way to guarantee the two-thirds requirement would be met, under the Constitution as it is. Something like the proposed procedure has been passed by the Indian Upper House, but has not been acceptable to their Lower House (for the same reason as here: MPs not wanting not to be debarred from standing for "their" constituencies).

The Parliamentary Select Committee removed another method at Naivasha: the CoE's suggestion, in their "Revised Harmonised Draft" (RHD), for extra seats, if needed, to bring up the number of women to one third (as well as persons with disability to 5%, and 5% being in a broad class of other marginalised groups). It was impossible to know how many extra would have been needed, because the CoE, wisely, did not specify the number of geographical constituencies. It was a form of Mixed Member Proportional system-because the extra members would have been taken, from party lists, in proportion to the number of votes cast for each party in the constituencies.

Something similar survives in relation to county assemblies, but the CoE itself changed the distribution based on proportion of votes to a system based on proportion of seats won in the wards. A constitutional amendment could return to the RHD approach for the National Assembly. But would the MPs buy it, having got used to the idea of 80 new constituencies? If they insisted on keeping 290 constituencies, and having extra seats for women etc., would the electorate buy it? Already 349 MPs seems a lot. It might be necessary to have a body of about 400 (assuming 10% women were elected to constituencies, roughly 50 more women would be needed to get up to one third women). Also the size of the National Assembly would not be fixed.

If the Cabinet really wants to deal with "this important issue" by amending the Constitution to ensure it is "technically possible", there are other ways. They could permit a system under which certain larger constituencies would have two members each - one man and one woman. Or have only even larger constituencies with at least one of each gender plus one from either, and no county women seats.

They could have a true MMP system, with only 210 constituencies, and 80 list members, the latter allocated on the basis of votes received. This would produce a house roughly proportional to the votes cast (making the perpetuation of the existing very unequal constituencies less important). Either all the 80 could be women, or as many as needed to produce one-third women.

Or they could adopt a purely proportional representation system (there are several methods, though not all are "simple" as the Constitution requires). Proportional representation has a natural tendency to produce legislatures that reflect the make-up of the country - because the parties want to appeal to all sectors in their choice of candidates. This idea has a lot to recommend it, including removing or reducing the burden of constituency boundary redrawing - but it does not guarantee the two-thirds rule is satisfied.

To amend the Constitution would require 90 days between the first presentation of the Bill in the National Assembly (reading) and the second reading; the second reading is usually followed by a committee, which could comprise all the members. For the Bill to pass, two thirds of the members of the House of Assembly would have to support it on both the second and the third readings.

Some would argue that this would infringe a provision of the Bill of Rights - Article 27(8) which says the State must do what is needed, including legislation, to achieve the two-thirds principle. Such a change requires a referendum. But the point is arguable, while removing Article 81 (b) about every legislative body satisfying the not more than two-thirds principle is not part of the human rights provisions.

After amending the Constitution, the new Elections Act might have to be amended. More important, perhaps, and something people should consider very seriously: do we want the constitution to be amended at this point at all? What are the possible implications? Should the message not be "Hands off Katiba Yetu"?

The writer is a director with Katiba institute.

Kenya