Panic buttons as full import of gender law on political careers hits
Early in July, what was billed as the Fourth Working Draft of the proposed Elections Bill was published.
It contained a controversial clause that was not in the previous drafts: That come the elections, a quarter of all Parliamentary constituencies be reserved exclusively for single gender — euphemism for women — candidates.
The proposal, backed by the Interim Independent Electoral Commission chaired by Mr Issack Hassan, the Commission for Implementation of the Constitution headed by Mr Charles Nyachae and various women rights lobby groups, sought to satisfy Article 81 of the new Constitution which provides that “not more than two-thirds of the members of elective public bodies shall be of the same gender.”
It also sought to bring the updated election laws in conformity with the Bill of Rights which provides 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.”
The complications that proposal would bring were not immediately apparent.
They essentially meant that the Electoral Commission would, by some random method, designate a quarter of the 290 Parliamentary seats for women as a means of ensuring that the one-third quota was achieved.
On the surface, it looked like a simple and realistic solution, until the full import of what it might mean for individual political careers hit.
It meant that, for instance, Mr William Ruto could suddenly find himself without a constituency if his Eldoret North seat was designated exclusively for women candidates.
The same fate would befall Vice President Kalonzo Musyoka in Mwingi North, Prime Minister Raila Odinga in Langata, Deputy Prime Minister Uhuru Kenyatta and Musalia Mudavadi in Gatundu North and Sabatia, respectively, and other male candidates whose constituencies were arbitrarily declared women only.
Women candidates of course would be free to vie anywhere they choose.
The same principle of seats reserved exclusively for women candidates would be extended to the contests for Senate, Governor and County Assembly seats.
This is the version of the Elections Bill that was published by Justice and Constitutional Affairs minister Mutula Kilonzo and presented to the Cabinet.
And it was in the Cabinet that the full import of the proposals were realised and effectively thrown out.
Other than the potential impact on the careers of individual politicians, the proposals could be deemed unconstitutional insofar as they bar some candidates from vying in their constituencies of choice; and in denying voters their candidates of choice.
The problem was that the Constitution, in an effort to ensure equitable representation and redress the historical imbalance in women’s representation, had more or less set the affirmative action proposals in stone.
No constitutional provision entrenched under the Bill of Rights can be amended by a mere vote of Members of Parliament; any proposed amendments must be subjected to a public referendum open to all Kenyan voters.
That is a measure neither the Cabinet nor the various bodies involved with driving the implementation of the constitution and enactment of the enabling laws would want to contemplate.
While the Cabinet grapples with the tricky issue, it clearly also does not contemplate dropping the one-third minimum representation of their gender. It is more focused on finding a way to retain it without introducing a formula that would be discriminatory and unconstitutional.
But first will be the challenge of navigating what might be angry voices from women’s lobby groups alarmed that the gains they fought so hard for are being taken away.
Even trickier might be the task of shepherding proposed amendments to the constitution through a deeply divided Parliament where almost anything, however innocent, often falls hostage to partisan feuds.
