Peeved women can’t let up now; they have the Constitution on their side

The commentary by veteran journalist Sarah Elderkin titled “There is need to rethink this one, dear ladies” (DN, July 26) deserves an immediate response.

She expresses her sadness about the women who have filed suit over the appointment to the Supreme Court of only two women.

She acknowledges the argument that the appointment does not meet the requirement in the new Constitution that not more than two-thirds of any such body be composed of people of one gender.

But having admitted that the argument by the women is “perfectly correct”, she then proceeds to unjustify the argument on other subjective considerations.

It is this approach that I find deserving of an emergency response, lest it misleads citizens unfamiliar with constitutionalism and the rule of law.

First, the timing of her article is suspect. It comes at a time when each of the argument she raises is a subject of active litigation in the courts. This, in legal parlance, breaches the rule of sub judice. It should not happen.

It is not the women in court who demand that not more than two-thirds of any elective or appointive body shall consist of people of the same gender. It is the Constitution.

The Constitution is the supreme law. It must be complied with to guard against arbitrariness.

A defence of the Constitution is a defence of our common good. It must be encouraged. Small violations always lay the ground for massive violations. We must nip constitutional violations in the bud.

According to the writer, “is this how we are going to live, arguing over 4.76 per cent? Is this going to be the kind of issue that will tie up our courts, and no doubt cost millions of shillings every time a decision is made?”

Yet again, the writer misses the point. The only way to avoid “arguing over 4.76 per cent” is for the decision-making bodies to read, understand the Constitution and comply with it. Those who go to court early as the women have done prevent similar transgressions.

They then save us the agony of perpetually fighting over 4.76 per cent. According to the writer, because the US, the UK and Russia have fared no better, the women of Kenya should make do with constitutional transgressions.

This argument is unfair. It presumes that Kenya is perpetually cursed to remain behind the likes of the US, UK and Russia.

The women of Kenya are asserting the right of Kenyans to blaze the trail in certain situations, this time, in gender representation.

The writer does not give us the source of her data on these three countries. The data may be, prima facie, inaccurate. Kenya’s timing is not naïve. It achievable.

The Constitution of Kenya is not a collection of platitudes. It is a legal document to be implemented. The writer does not see this.

She thinks “crafting a constitution in theory is different from implementing it in practice, and there are going to be some areas where we need to say, OK, it was a brilliant idea, but it is beyond what can be managed immediately”.

Unfortunately, she does not give us a catalogue of those areas. Her proposal is dangerous thinking. Constitutionalism and the rule of law demand fidelity to the Constitution and the law.