Source: The Star
The Bill to amend the Constitution has been published, providing for extra seats to ensure that there are no more than two-thirds from either gender in the National Assembly or Senate. This is similar to the CoE's suggestion, rejected by the Parliamentary Select Committee in Naivasha. Like the provision for counties in fact.
Many Kenyans are fearful that any amendment will be just the thin end of the wedge that might eventually crack open the entire constitutional settlement. The IIEC's suggestion – one-quarter of the seats in the National Assembly to be reserved, in rotation, for women candidates only – may remain impossible to "sell" to the incumbent MPs. This is true in India, despite support of the Prime Minister and Sonia Gandhi (and the women's cause does not have such high-powered support in Kenya).
But other possibilities seem possible without amendment: that is not contradicting the specific provisions on elections and – though limiting the choice of voters and candidates – satisfying Article 24 on limiting human rights, in the public interest. What greater public interest can there be than complying with a constitutional directive?
An ingenious "best runner-up" system was put to the IIEC. Each party contesting in a constituency would put up a "ticket" – a woman and a man. The voters would vote for the ticket (or perhaps for individuals as usual). Initial results declared would be in terms of which party, not which candidate, won.
When all the results were out, seats would be filled by the man or woman heading the ticket (or the person within the ticket preferred by the voters). But if this would lead to more than two-thirds of the seats being filled by one gender (let's say by men), the women, and not the men on the tickets would take the seats until the balance was achieved. The constituencies to "suffer" this would probably be those where the winning tickets won by the smallest margin (the least successful winners). Alternatively, if voters expressed their choice of individual not party, the tickets to be reversed could be those where the gap between the women and the men was least, but would this produce too much rivalry between two candidates on the same ticket?
If amendment to the Constitution is inevitable: one problem about the solution apparently proposed is that one-third would be the ceiling as well as the minimum for women (extras would only be taken as far as needed to produce the gender balance required). It also increases the number of MPs, maybe by quite a large number.
Is there a better solution? The press indicated recently that the idea was to use the 80 new seats. This would mean keeping the existing 210 constituencies, and filling the others from party lists published in advance. If not immediately, over time constituency boundaries would have to be adjusted so that the National Assembly more accurately reflected the electorates' overall party preferences, and that the votes cast in small constituencies count for no more than those in more populous ones.
There would be three ways to allocate the 80 list seats:
- To allocate them (as in the case of the 12 special seats for the National Assembly) according to the constituency seats won by parties
- To allocate them according to the percentage of the vote won each party in the country as a whole (called the parallel system)
- To allocate them according to the percentage of the vote won in the country as a whole, but taking into account the seats won in the constituencies and using the seats to achieve, as far as possible, proportional representation as a whole (called mixed member proportional or MMP system).
The first actually increases the non-proportionality of the overall results. It also means that a party that does not win a single constituency seat cannot get any list seat even if it should win as much as 5% of the national vote! The second method would mitigate both these problems – the first to only a limited extent.
MMP would produce a house close to proportional in the classic sense. It is used in Germany and New Zealand (though there voters have separate votes for their constituency MP and for party; but this is not essential). It would make the inequality between constituencies much less important: it evens out the problem of votes of unequal value.
In terms of gender, it would be possible to build into any list system the same rule that women would be taken from the list only until the necessary balance was achieved. This would again mean that one-third women would be the maximum for some time to come. Also MMP has the disadvantage that the women taken from the 80 seats would be unevenly spread between parties – how important would this be?
No system is perfect. But should there not be a national discussion about the various possibilities on such a major issue, not just a Bill drafted, and probably passed, to suit the desires of the present MPs?