On The 2/3 Gender Principle and the Potential Constitutional Crisis

The government has flip-flopped several times on the issue of the gender parity principle contained in the constitution.  Yet the constitution’s position on the gender parity is pretty clear, Article 81 (1) (b) requires that, “not more than two-thirds of the members of elective public bodies shall be of the same gender.” This provision applies to all elective bodies the National Assembly, the Senate, and County Governments. Further the principle is reiterated severally through out the constitution Article 175 (c) on principles of devolved government, 177 (b) on Membership of county assembly, 197 (1) on County assembly gender balance and diversity etc.

Last year the Cabinet suggested scrapping two third gender principle declaring that the meeting the principle for elective public bodies was “technically impossible.” At the time the Presidential Press Service released a statement that went, “With regard to the requirement for one third representation in Parliament by either gender, Cabinet decided to set up a task force to prepare a Constitution Amendment Bill to deal with this important requirement that is technically impossible to achieve under the current stipulation.” At the time the Cabinet gave no indication of why it was technically impossible to adhere to the two third gender principle.

Following this the then Minister for Justice and Constitutional Affairs, Mutula Kilonzo, introduced a Constitution Amendment Bill that tied together proposals to amend the date of the next election with provisions to ensure that the gender parity as envisioned would be attained.

When the two issues were tied, the government seemed very amenable to ensuring the gender parity was met if only to ensure that the provision to postpone the election was passed as well. However since the date of the next election was resolved by means other than the proposed Constitutional Amendment it seems that the government has lost interest in ensuring the two-third gender principle is upheld.

Recently MP Charles Keter proposed getting rid of the 2/3 gender principle all together, and is quoted as stating, “We (the government) should remove the clause on two thirds principle from the constitution.” A section of MPs has opposed the nomination of women candidates as means to ensure that the next parliament is gender compliant. According to newspaper report a majority of MPs that include Cabinet Ministers Fred Gumo and Dalmas Otieno as well as MPs Charles Kilonzo, and Charles Keter have objected to “women being accorded easy passage to Parliament through nomination by Parties.” This week several MPs opposed the proposal that special seats be created after the election to ensure that the two-third gender principle, stating the proposal would increase the cost of National assembly exponentially and is unsustainable. Deputy Speaker Farah Maalim put the cost of creating special seats at an additional 4 billion shillings per year.

In the meantime parliament’s Constitutional Implementation Oversight Committee (CIOC) has proposed a quota system be used to ensure that the constitution’s requirement on gender balance in the National Assembly is met. The proposal requires that political parties submit party list containing equal number of men and women to the Independent Electoral and boundaries Commission. This list is to be used to nominating MPs to fill any deficiency occurring in the National Assembly after the elections. However Parliament, and political parties are yet to agree to the proposition and the IEBC has admitted the potential difficult it will have convincing political parties to accept the proposal.

It seems that in spite of the constitutional crisis (Article 3 (2) of the constitution declares (2) Any attempt to establish a government otherwise than in compliance with this Constitution is unlawful) that will result if the government fails to ensure that the next National Assembly meets the gender requirement set out the constitution the issue of how meet gender requirements is still in flux.

Why has enacting a legislation ensures that the next Parliament is constituted according to the provisions of the constitution on gender so difficult: And why the continual flip-flopping on the issue of the implementation of the 2/3 gender principle?

Posted by Mzalendo Editor on Sept. 24, 2012

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