Constitution bill seeks expanded Parliament

The number of MPs and senators in the next Parliament could shoot up beyond the numbers provided for in the Constitution.

Thanks to the draft Constitution Amendment Bill which seeks to switch the elections date from August to December, the exact number — including that of county assembly representatives — would only be determined after an election.

The increase would be in the form of seats created specifically to fill anticipated gender gaps after elections.

Any gender shortfall would see an increase in House seats by the same margin.

The Cabinet has proposed amendments to the Constitution that give room to political parties to nominate more women or men to fill the gaps to satisfy the Article 27 principle of gender balance.

Political parties will draw a “standby” list of both men and women which will be used to fill up gender gaps in case the election results do not meet the requirement on gender representation.

The list will be deposited with the electoral commission before the election.

In the amendments which are now before the attorney-general, the government intends to amend Articles 97 and 98 on the composition of the National Assembly and Senate to provide for special seat members necessary to ensure that no more than two thirds of the membership are of the same gender, at all times.

“We will no longer be able to determine the number of MPs and senators until after the voting when the political parties would be called upon to fill any gender gaps using the special seats,” said Justice minister Mutula Kilonzo when contacted.

“The greatest challenge would be if we end up with two thirds as women in addition to the 47 from the counties,” he said.

The constitution provides for 290 elected MPs and 47 women picked from counties adding up to 337. To meet the principle, the country must elect at least 117 women or men.

If the 117 mark is not met, then the new arrangement captured in the amendment requires that political parties provide names of the disadvantaged gender from the list to comply with the Constitution.

For instance, if the country elects 250 men, and the 47 women, this would be only 87 women in the National Assembly, a shortfall of 30.

In this scenario, the number of MPs in that House will go up by 30, all women picked by parties according to their parliamentary strength. The same would apply for Senate and County Assemblies.

The Cabinet also intends to change the Constitution to move the election date from the Second Tuesday of August of every fifth year to the third Monday in December.

They argue that this would settle the controversy and doubts surrounding the date of the next election.

The Cabinet argues that the changes would bring clarity and certainty to the term of the current Parliament.

But the Charles Nyachae-led commission on implementation of the constitution has described the Cabinet plan as an extension of impunity and maintained that the polls should be held in August next year.

While the CIC supports the gender balance amendment, they have sought the direction of the Supreme Court on the election date.

The government plans to table the proposals in Parliament immediately MPs return from recess on October 11.

To enact such an amendment, Article 256 requires participation by the public for three months after it has been introduced in the House.

This means that if accepted, the amendment would come into force in mid January at the earliest.

The amendments on composition of the Legislature are designed to prevent a possible constitutional crisis after the elections next year.

“The Bill seeks to give lasting solutions to the issues of gender parity and equity in elective positions and more specifically in the National Assembly and Senate,” reads the amendments.

The government says the decision is primarily aimed at giving full effect to articles 27(8) and 81(b) which safeguard the gender balance principle.

Article 27 says that the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.

Cabinet had formed a committee of nine ministers to come up with a formula of ensuring the next election delivers the required proportion of men and women.

According to Mr Kilonzo the Cabinet was confronted with two options:

First, to amend Article 27 which is in the Bill of Rights or 81(b) of Chapter Seven on representation.

It would require a national referendum to amend any article in the Bill of Rights while the latter would a two-thirds parliamentary majority.

However, the Cabinet appeared to have hit a brick wall since Article 81 cannot be amended without upsetting the spirit of Article 27(8).

Therefore, it was resolved that the team focuses on Article 97, 98 on composition of Parliament and Senate as Article 100 on promotion of marginalised groups including women and youths.