Gender rule still defies Kenya’s top law brains

The Supreme Court may be asked to help unravel the confusion surrounding attempts to implement the gender rule that threatens to plunge the country into a constitutional crisis next year.

The Constitution requires that at least a third of members of the National Assembly, at least 117 members, be of either gender. The rule applies to all elected positions, including County assemblies.

Since there is no way to guarantee women’s election freely and fairly and since everyone has a right to contest, ensuring fair representation of women in compliance with the Constitution has become a problem.

Yet, if more than two-thirds of MPs in the next Parliament are men, then the Constitution will have been violated and Parliament will almost certainly be disbanded by the courts.

To prevent a constitutional meltdown next year, a raft of solutions have been proposed. One proposal is to remove the gender rule through an amendment.

This is very unpopular with women leaders and lobby groups as well as the Gender and Equality Commission. Another idea is to have a normal poll, and if less than a third of MPs are women, make up the shortfall through nominations.

The problem here is that the House will have dozens of unelected members. Besides, the Constitution stipulates that the maximum number of MPs in the Lower House is 349 and 67 in the Senate. This will also produce a bloated, costly Parliament.

Room for nominations

Some MPs have suggested that the 80 new constituencies be scrapped to create room for nominations. On Tuesday, the agencies charged with implementing the Constitution held crisis talks to try and find a way to resolve the Article 27 problem.

The AG, Prof Githu Muigai, Constitutional Implementation Commission chairman Charles Nyachae, the Gender Commission, Justice Minister Eugene Wamalwa and his Gender counterpart Naomi Shaban, as well as Parliament’s Constitutional Implementation and Oversight Committee and the Justice and Legal Affairs Committee are in this team.

Commission on Revenue Allocation chairman Micah Cheserem attended the meeting at Parliament on Tuesday. The CRA says the country risks losing billions through nominations if Kenyans fail to elect the constitutional one-third quota for women. (READ: Kenyans to pay Sh4bn as gender rule crisis looms)

The Cabinet has thrown its weight behind the Bill, which would amend the Constitution by removing the maximum number of MPs to create room for whatever number of nominations required.

After Tuesday’s meeting, Mr Wamalwa was asked to withdraw the Bill, which was to be debated starting on Tuesday, allowing room for the matter to be referred to the Supreme Court, with a request for a phased implementation of the rule.

“One of the options is the possibility of seeking an advisory from the Supreme Court on whether this matter can be implemented in a progressive manner.

"We want to be advised whether it can be staggered until we attain the threshold as set in the Constitution,” he said.

This would mean the number of women required in the National Assembly can be staggered over a period of two elections instead of being attained at once.

The second option floated by Yatta MP Charles Kilonzo was for the election of two county women representatives instead of one, bringing the total to 94.

“This is just to ensure that majority of the women MPs in the next Parliament are elected and not nominated as proposed in the (Constitution of Kenya Amendment) Bill,” Mr Wamalwa said.

“I was asked not to move the Bill because we could not raise 148 MPs to allow the two principals to take it from the Cabinet level down to their MPs to support the Bill,” he said.

“Party leaders will be requested through Parliamentary Group meetings to lobby their members to support it so that when we come back from a two week break, we pass it without any problems,” he said.

Prime Minister Raila Odinga, Vice-President Kalonzo Musyoka, deputy PM Uhuru Kenyatta, and United Republican Party leader William Ruto have asked their MPs to support the crucial Bill.

Reported By Bernard Namunane, Njeri Rugene and Isaac Ongiri