Why Chepkonga Bills won’t enact gender principle

It is now obvious that those charged with the responsibility of implementing the constitutional principle of not more than two-thirds of either gender representation in Parliament are hell-bent on delaying it.

And the National Assembly’s Justice and Legal Affairs Committee, led by Ainabkoi MP Samuel Chepkonga, seems to be at the core of these delaying tactics. The committee has proposed a constitutional amendment Bill to change Article 81(b) by stating that the two-thirds gender requirement be implemented progressively. The intention, evidently, is to ensure that the principle will never be implemented.

One of the arguments in this debate by the Executive is that implementing this principle will be expensive. I hope Kenyans can ‘‘smell the coffee’’ and prepare for the bigger picture.

If the equal participation of women and men in decision making in this nation is too expensive then be ready for the re-writing of the Constitution to reverse devolution. This is because the sharing of power and authority between the two levels of government is even more expensive than including women in Parliament.

The equitable sharing of national resources, including the establishment of the Equalisation Fund to address years of exclusion of some regions will definitely be costly. The setting up of affirmative action funds and procurement opportunities for the inclusion of youth, disabled people, the elderly, women and others will cost the taxpayer a lot of money. Should we rewrite the Constitution to postpone their implementation?

How about the requirement for equal employment in the public service; its implementation is also expensive. Why must the minority groups be included when the majority groups can do the job for them?

It is puzzling why the Chepkonga committee published these Bills yet they had better proposals on how to implement the principle and the Supreme Court’s advisory.

CONSULTATIONS

In the last session of Parliament, the committee received views from different stakeholders on how to facilitate implementation. One of the outfits that extensively engaged with the Committee is the Technical Working Group (TWG) that was set up by the Attorney General to consider and advise on the different possible formulae for implementing this principle.

The TWG comprised of representatives of the AG, five constitutional commissions, the Ministry of Devolution, the Registrar of Political Parties, and FIDA, representing the civil society, among others. It was chaired by the National Gender and Equality Commission.

Consultations were held with different interest groups in many parts of the country. Among those consulted were political parties, MPs (both the Senate and the National Assembly), the Ministry of Devolution, the women’s movement, representatives of youth and persons with disability.

The final TWG report indicated that the team had considered eight options and had settled on the mechanism that is currently used for County Assemblies.

In determining what option to recommend, the TWG asked itself a number of questions.

1. Can the implementation of this principle be achieved only through legislation and without amending the Constitution?
2. If any constitutional amendments are required, is it possible to come up with an option that does not require a referendum given the huge expense that will be required to organise a referendum?
3. What option resonates best with the tenets of the principle of affirmative action?- ‘a special measure, that is not permanent and one that will have the effect of empowering the beneficiary group and educating the society at large with a view to achieving, in future, the result of equal consideration of men and women in elections.

They settled on the formula that already exists in the Constitution and is currently applicable to the county assemblies. This is the combination of the ‘‘first-past-the-post’’ and ‘‘proportional representation’’.

In this formula, equal opportunity to compete for elective positions in the elective constituencies is given to all persons; men, women, youth, persons with disability, minorities and the marginalised. After the elections, the top-up formula is applied if necessary, to fill up the number of seats required to achieve the constitutional minimum gender ratio and representation for the other interest groups.

The top-up is achieved by election from the party lists by way of proportional representation of the political parties according to their strengths in Parliament. The Constitution requires that the elections for party lists be held within political parties but under supervision of the electoral commission.

The recommended formula is also phrased in gender-neutral language that equally applies to men and women and, therefore, respects the fact that the two-thirds principle is not about either of the genders. The formula also meets the tenets of affirmative action in that it is applied only when necessary; the numbers of nominees are limited to only those required to meet the minimum threshold and will not apply if the minimum constitutional quota is achieved from the competitive elections.

Finally and most important, this formula only requires a parliamentary amendment; the National Assembly and the Senate will, therefore, bear the greatest responsibility, credit or blame for the success or failure in achieving the implementation of this principle.
Among the other formulas that have come up in this discussion is one by Ndhiwa MP Agostino Neto.

His proposal seeks to achieve the minimum constitutional gender ratio while also reducing the number of seats in Parliament. It proposes the twinning of two constituencies/wards to form one for a woman’s seat. This is to prevail for 20 years and then cease.

The TWG and the Chepkonga committee discussed this formula and found that it has the following disadvantages;

1. By creating separate constituencies only for women, it excludes them from effective participation in competition with men for elective seats.
2. It will evacuate the right already entrenched in Article 177 for the county assemblies, so it is a claw-back.

To keep it within the affirmative action requirements, Mr Neto proposes that the mechanism cease after 20 years. Women will then be required to come back and compete in the constituencies that have only had men and somehow survive and achieve the minimum constitutional gender ration requirements.

This formula will lead to further marginalisation and will in fact delay the period within which women can be empowered to become equal competitors in elective positions.

Mr Neto may not have considered this but I believe this option will further entrench the socio-cultural beliefs that women can only be included through the creation of women only constituencies.

Affirmative action is intended to be temporary but at the end of it is expected to have empowered for equality; with this formula, we shall be at the drawing table again as soon as the 20 years are over, indeed further behind than we were when we began the implementation of the strategy.

It is also a mechanism that can at the earliest be implemented in 2018 when the eight-year minimum period since the last delimitation of constituency boundaries was done.
What did the Supreme Court advisory state?

It said that the two-thirds principle is progressive and did not have to be in place before the 2013 General Election. It then finalised by stating that “legislative measures for giving effect to the one-third-to-two-thirds gender principle, under Article 81(b) of the Constitution and in relation to the National Assembly and Senate, should be taken by 27 August, 2015”.

The main reason given for the decision that the principle is progressive is the fact that it cannot be effected without certain steps being taken; that it will involve “protracted measures, legislative actions, policy-making or the conception of plans for it to be attained”. That since these measures for implementation necessarily require some time to develop then implementation cannot be said to be immediate.

SET A DATE

Will the Chepkonga Bills implement the Supreme Court advisory?

As indicated earlier, the Chepkonga Bills do not contain any provisions for the implementation of the two-thirds gender rule. It is indeed amazing that the committee keeps emphasising the fact that the Supreme Court stated that the principle is progressive. One wonders why the committee should spend their energies and public resources to propose an amendment that repeats what the Supreme Court has already confirmed.

Did the Supreme Court in any way suggest that the implementation of the two-thirds principle is optional so it can be determined at the discretion of Parliament or the Executive? In my humble view, not all. The court set a date within which the preliminary steps to implementation will be taken. At the very least it is expected that whatever mechanism will be adopted should be applied at the 2017 elections to ensure that the House is compliant with the constitutional gender minimum after the elections.

I would like to believe that the intention of the Committee on Justice is to implement the two-thirds gender principle by August 27, 2015. I actually believe that the main reason that the Chepkonga team is proposing the amendment to the Constitution is to ensure that Parliament does not get dissolved, since the Supreme Court in the Advisory Opinion proposed that if Parliament failed to have a law that implements the two-thirds rule by set time, a possible consequence would be its dissolution.

But for Mr Chepkonga and his supporters it will not be so easy. At the moment, the committee is proceeding in the belief that its amendment will easily be passed by Parliament and will not require a referendum. But they are misinformed.

The two-thirds principle they wish to amend is deeply rooted in Article 27, and specifically Article 27(8) – which is a provision within the Bill of Rights. The Constitution is clear that no provision in the Bill of Rights can be amended without requiring a referendum.

Ms Mumma is an advocate of the High Court and a human rights lawyer.