Gender movement must do politics to have its way

In what will be the first formal attempt to amend the new Constitution, the MP for Ainabkoi, Mr Samuel Chepkonga, who is also the chair of the National Assembly’s Justice and Legal Affairs Committee, presented a Bill in the Assembly last week, that seeks to amend the Constitution to provide for a gradual implementation of the constitutional requirement that no gender should occupy more than two-thirds of elective or appointed public positions.

A provision of this nature already exists in the Constitution. The problem, however, is that it lacks a mechanism for enforcement.

As a result, when the country went into elections in 2013, the outcome significantly failed to meet the constitutional gender requirement.

Only 16 women (4.4pc) were elected to the 350 seats in the National Assembly. All the 47 open seats in the Senate were won by men, with women only occupying the 16 seats that the Constitution specifically reserves for them.

Therefore, Parliament (the Assembly and the Senate) has a total of 418 seats, of which only 83 (or 19.8pc) are occupied by women.

This number is below the minimum one-third (33.3pc) that the Constitution requires, and is also the lowest in the East African Community.

Rwanda has 63.8 per cent women legislators, Tanzania, Uganda and Burundi have 36.5pc, 35pc and 30.5pc respectively.

Women did not do well in the county-level elections, either.

All the 47 county governors are men. Only 6 of 47 deputy governors are women. Only 82 women were elected to the 1,450 seats for members of county assemblies (MCAs), forcing the nomination of a further 581 women to the county assemblies to attain the minimum one-third quota required by the Constitution.

DISAPPOINTING JUDGEMENT

In the lead up to those elections, doubts as to whether the gender rule would be met led the Attorney-General to filing a suit in the Supreme Court seeking an advisory opinion on what to do if the quotas were not met.

In a judgement that greatly disappointed the human rights movement, the court held, in effect, that the constitutional provisions on gender equity were not mandatory for the 2013 elections but should be realised over time, on a progressive basis.

The court provided a deadline of the August 2015 for the government to put in place measures for the implementation of the constitutional gender provisions.

In the intervening period, the Attorney-General and the National Gender and Equality Commission established a technical committee to advise on how to realise this provision.

Last month, the committee reported that the only way in which the gender rule could be met in future elections would be to amend the Constitution to insert the missing mechanism.

While the gender movement was expecting that the Attorney-General would now introduce a constitutional amendment Bill in the Assembly to give effect to the recommendations of the committee, the Chepkonga Bill, which has come as a surprise and without consulting the movement, does not meet the recommendations of the technical committee, or the interests of the gender movement.

The main difference is that whereas the gender movement contemplates a mandatory mechanism for attaining gender quotas in the Constitution, which would apply in the next elections, the Chepkonga Bill seeks to entrench in the Constitution, the idea that gender quotas should be realised on a progressive basis.

The Chepkonga Bill is not the only show in town. In 2013, another MP, Agostino Neto, obtained the permission of the Speaker to introduce a Bill that would address the gender rule.

Neto’s approach is different and would require a reduction in the existing number of constituencies in the Assembly, to make room for more women representatives.

The main consideration seems to have been that giving effect to the gender equity should not lead to a more bloated legislature than is currently the case.

SAME SPACE

The agitation for a constitutional amendment to meet the gender rule must negotiate in the same space as other endeavours to amend the Constitution.

The first is the Okoa Kenya movement led by the opposition, Cord, which rolled out a draft constitutional amendment Bill last week.

The second is the Pesa Mashinani movement, supported by a number of governors, which seeks a constitutional amendment to guarantee more financial resources for the county governments. Both these movements have aroused resistance from the political establishment, which sees them as hostile to its interests.

An amendment to give effect to the gender rule conceivably provides leverage to these other amendment endeavours. No political side, whether government or opposition, has the numbers to pass a constitutional amendment on its own.

Assuming that Mr Chepkonga’s Bill has the support of Jubilee, what will the governing coalition give to secure the support of the opposition without which the Bill cannot pass?

Further, why would the government side allow the Chepkonga Bill to thrive when it offends the recommendations of the technical committee which the AG instituted?

The gender movement’s ability to negotiate has been weak, believing, it seems, that the justice of a good fight alone will be sufficient to carry the day.

The movement has remained within the realm of law, avoiding political confrontation or alliances, including the possibility of leveraging on either the Pesa Mashinani or Okoa Kenya movements, to increase its own merits.

The reason, obviously, has been a fear to offend the political establishment. While the legal track is necessary, it is insufficient and the movement must now do politics since, at the moment, the movement has little leverage for ensuring that its preferred amendment is the one that gets discussed, not other people’s.

As Fredrick Douglas said, power concedes nothing without demand. It never did and never will.

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