The Commission for the Implementation of the Constitution’s (CIC) attention has been drawn to the ongoing debate on the principle of affirmative action in respect of gender representation in elective and appointive bodies as prescribed in Article 81(b) of the Constitution. The implementation of this principle in respect of the National Assembly, poses a challenge in light of the provisions of Article 97 of the Constitution.
Article 81 (b) of the Constitution provides that―
“ the electoral system shall comply with the following principles––
(b) not more than two-thirds of the members of elective public bodies shall be of the same gender;”
Article 81 reiterates and reinforces the principle of affirmative action as prescribed in Article 27(8) of the Constitution, which provides:
“In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.”
The two thirds gender ratio is also a requirement at the county level and is adequately provided for in the constitution. Article 175(c) states that County governments established under this Constitution shall reflect the principle that “no more than two-thirds of the members of representative bodies in each county government shall be of the same gender”. According to Article 177(1), a county assembly consists of, among other members,
(b) “the number of special seat members necessary to ensure that no more than two-thirds of the membership of the assembly are of the same gender
(c) the number of members of marginalised groups, including persons with disabilities and the youth, prescribed by an Act of Parliament;”
Article 197 (1) also reiterates this principle and states that “Not more than two-thirds of the members of any county assembly or county executive committee shall be of the same gender”.
There are many other provisions in the Constitution that address the principle of affirmative action. Nevertheless, Article 97 of the Constitution does not provide for the methodology to be used to ensure implementation of Article 81 (b) in the event that results of an election for the National Assembly does not achieve the required constitutional gender ratio prescribed by Article 81(b). Unfortunately, none of the State organs charged with the responsibility of implementing the Constitution has a practical solution to this difficulty. Consequently, the Elections Bill cannot be finalized to give effect to the contingency likely to be faced in light of Article 81(b) of the Constitution.
CIC has considered differing interpretations to the effect that ―
(a) the two-thirds principle expressed in Article 81(b) is progressive and does not require immediate realisation;
(b) the principles of affirmative action and the two-thirds gender ratio demand realisation in the forthcoming elections as well as in all future elections to the National Assembly.
CIC is of the view that―
(1) The principles of affirmative action and gender ratio prescribed in Articles 27(8) and 81(b) of the Constitution are not progressive. They demand immediate realisation if the letter and spirit of the Constitution are to be respected.
(2) The use of the word “progressive” in the Constitution is specific to those provisions to which the principle of progressive realisation applies.
(3) The Elections Bill cannot be finalised without providing an effective mechanism for the implementation of Article 81(b) of the Constitution, which clearly requires that electoral system provides a mechanism for achieving the two-thirds gender ratio.
CIC and other stakeholders have explored various options, but none would effectively address the requirements of Articles 27(8) and 81(b) of the Constitution. Consequently, CIC is of the opinion that the most prudent option would be to import the provisions of Article 177(1) (b) of the Constitution to the provisions of Article 97 of the Constitution (with necessary modifications).
The effect of the proposed amendment would be that, if the required gender ratio is not achieved through the elections, political parties would be required to nominate additional Members of Parliament to meet the gender requirement in the Constitution.
Whereas it is proposed to amend Article 97 of the Constitution, it is imperative that the proposed amendment only serves the purpose of realising the provisions of Article 81(b) of the Constitution. The proposed amendment would greatly benefit from the constitutional formula provided for the composition of County Assembly in Article 177(1) (b). Importing the provisions of Article 177(1) (b) into Article 97 would also require amendment of Article 90 (1) to include the new provision in Article 97.
If amended, Article 97 would now read as follows:
Membership of the National Assembly
“97(1) The National Assembly consists of—
(a) two hundred and ninety members elected by the registered voters of single member constituencies;
(b) forty-seven women each elected by the registered voters of the counties, each county constituting a single member constituency;
(c) twelve members nominated by parliamentary political parties according to their proportion of members of the National Assembly in accordance with Article 90, to represent special interests including the youth, persons with disabilities and workers; and
(d) the number of special seat members necessary to ensure that no more than two- thirds of the membership of the Assembly are of the same gender;
(e) The Speaker, who is an ex officio member.
(2) Nothing in this Article shall be construed as excluding any person from contesting an election under clause (1) (a).”
In addition to the foregoing, Article 90(1) would require amendment to provide that any extra seats arising out of the application of Article 97(1) (d) would be on the basis of party lists.
ADVANTAGES OF THE PROPOSED AMENDMENTS
(i) The proposed amendment does not require a referendum. It can be carried out in Parliament in accordance with Article 256 of the Constitution.
(ii) The amendment would save the country from repeat election in the event that the gender ratio prescribed in Article 81(b) of the Constitution in relation to the National Assembly is not realised.
(iii) The amendment will prevent the possibility of a constitutional challenge on the composition of the National Assembly where the mandatory provisions of Article 81(b) of the Constitution are not met.
(iv) The clause brings uniformity in addressing the gender quotas in the elective offices at National and County Assemblies.
ANTICIPATED CHALLENGES
The proposed amendment only one year after promulgation of the Constitution raises fears that this might open the floodgates of amendment, which would undermine the sanctity of the Constitution. Whereas this fear is legitimate, the proposed amendment, nonetheless, necessary to facilitate the effective realization of the gender ratio stipulated in Article 81(b).
CONCLUSION
CIC wishes to underscore the following ―
(a) the provision introduced by the amendment will only be invoked if the elections fail to raise the number of men and women to meet the recommended constitutional gender ratio prescribed in Article 81(b) of the Constitution.
(b) failure to constitute a National Assembly that meets the prescription of Article 81(b) of the Constitution;
(c) in turn, failure to constitute a legally elected National Assembly means that the Assembly (as elected) would have no power to effect any constitutional amendments (or pass any legislation) to cure the anomaly; and
(d) consequently, this would present Kenya with a crisis of such magnitude as cannot be wished away.
CIC would like to bring to the attention of Cabinet and Parliament the fact that the full implementation of the Constitution requires the full application of the values and principles of the Constitution, and that this is the only way that we can achieve constitutionalism as envisaged in Article 249 of the Constitution.
At the core of democratic governance, is the principle of equality and inclusion where affirmative action lies. This principle is part of what will ensure social justice. Indeed, the inclusion of the principle of affirmative action in the Constitution takes into account the fact that this country has historically made it difficult for women and other minority groups to be elected.
It’s our opinion that any action taken to address the two-thirds principle should be designed to only reinforce implementation. Otherwise, any action purporting to claw back on this principle is outrightly unconstitutional.
(Mr Nyachae is the Chairman of the Commission for the Implementation of the Constitution)
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