In Kenya, the law is always very clear until it is not. A few months ago when opposition was toying with the idea of the People’s Assembly, politicians from both sides kept shouting the law is very clear and then would proceed to make very incoherent statements that left the public more confused.
This week, the Kenya National Commission on Human Rights (KNCHR) was at the Supreme Court once again to get a proper interpretation on Chapter Six of the Constitution in a bid to guide vetting institutions such as the IEBC when deciding candidates who’ve met the integrity chapter. Never mind this case has been in court since before the elections and several individuals unfit for office and re-carded by the civil society under the Red Card campaign were elected.
The thing is despite having a Constitution touted as the most progressive yet; it appears to be lame and ineffective or has too many grey areas on key issues. For instance, the ongoing debate on gender inclusivity is absurd considering the Constitution is quite explicit in Article 27(8) that Parliament should not have more than two-thirds members from the same gender.
Indeed in accordance with Article 27(6) the 11th Parliament attempted to legislate the constitutional directive before the August 27th 2015 deadline but failed. The Bill on two-thirds gender was brought back to Parliament following the extended deadline of August 27th 2016 and failed again.
Consequently, in a case filed by the Center for Rights Education and Awareness (CREW) in 2017 challenging the failure of Parliament to enact a law that will satisfy the two-thirds gender principle in the Constitution, the court stated that, “Parliament’s failure to enact the required legislation amounts to failure to recognize the important task conferred on the Legislature by the Constitution to respect, protect, promote and fulfill the rights in the Bill of Rights.” And further gave the 11th Parliament 60days to enact the said legislation.
The electorate also failed to elect enough women to meet the two-thirds principle in the August 8th 2017 elections. Meaning, the 12th Parliament is just as unconstitutional as the 11th and hence the ongoing debate.
The Green Amendment campaign (GAC) is therefore on track but the objective of the campaign is undermined in part by the media’s focus on the scrapping of the 47 women rep positions without elaborating on the details.
Firstly, we ought to realize that the GAC was established to pursue a popular initiative under Article 257 of the constitution. The campaign wants to ensure Parliament meets the two-thirds gender principle and at the same time safeguard quality of members coming into the house under this principle.
As things stand we have 47 women representatives representing each of the 47 counties and 12 positions reserved for the youth, persons with disabilities which party leaders often use to nominate women for purposes of gender parity. The danger here is that, these party nominations may undermine the quality of persons coming to Parliament as the favorites may not have the mental rigor to offer any value in Parliament.
The GAC is proposing to scrap the 47 positions of Women Reps and have 136 constituencies created after twinning (merging two constituencies per county that will have a woman as the candidate). For instance Lamu County that has only two Constituencies (Lamu East and Lamu West and a woman candidate elected for Lamu East and West).
While critics arguing that it is not wise because of the wage bill are missing the point. Firstly, the Women Rep position while may have solved this issue partly has made them appear less of lawmakers to the other MPs. In fact that is where the idea of bonga points came from. This campaign resonates well with the Constitution because it doesn’t just ensure not more than two-thirds gender is in Parliament but it also brings equality in the sense that it removes that bonga points tag.
Additionally, the bill has a sunset clause meaning after 10 years, we shall revert back to normal. In a sense the GAC realizes that the electorate need to be encouraged to elect women and the 10 year period that they will get to elect women might serve to help them change their thinking around women leadership.
We need to be sober about this two-thirds gender debate and put our money where our mouth is. An unconstitutional Institution should not be able to carry out a constitutional mandate. As things stand, Parliament is unconstitutional.