By EMEKA-MAYAKA GEKARA gmayaka@ke.nationmedia.com AND NJERI RUGENE nrugene@ke.nationmedia.com
Posted Friday, August 19 2011 at 22:30
Posted Friday, August 19 2011 at 22:30
The number of MPs in the next Parliament could exceed the 349 provided for to satisfy the constitutional requirement for gender balance.
The revelation came as women MPs and lobbies opposed a Cabinet plan to amend the gender principle in the Constitution, with some threatening to move to court to block it.
The Cabinet is sitting this morning — the third time in a week — to approve four other Bills to beat the August 27 deadline to avoid a constitutional crisis.
On Friday, Justice minister Mutula Kilonzo said increasing the membership of Parliament was one of the options the Cabinet was exploring to prevent a possible constitutional crisis after the next General Election.
Already, the Supreme Court is in limbo after women’s rights campaigners moved to court to block the swearing-in of judges, saying the one-third gender rule was violated in their appointment.
They argued that Judicial Service Commission violated Article 27 of the Constitution, which provides for gender equity.
Article 27 (8) says: “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.”
Besides, Article 81(b) says that not more than two-thirds of the members of elective public bodies shall be of the same gender.
The other option is to move to the Supreme Court for interpretation of the matter once it is constituted.
The Saturday Nation has learnt that the Cabinet on Thursday resolved that the gender balance principle in the Article must be implemented to the letter.
Consequently, a committee of nine ministers has been formed to come up with a formula of ensuring the next election delivers the required proportion of men and women.
Mr Kilonzo said the Cabinet was confronted with two options — to amend either Article 27(8) which is in the Bill of Rights or 81(b) of Chapter Seven on representation.
Bill of Rights
The first would require a national referendum since it is contained in the Bill of Rights while the latter would require a two-thirds parliamentary majority.
However, the Cabinet appeared to have hit a brick wall since Article 81 cannot be amended without upsetting the spirit of Article 27(8).
It was then resolved that the Cabinet taskforce to be chaired by Public Service minister Dalmas Otieno be given the responsibility of finding the way forward.
The team will focus on Article 97 and 98 on composition of Parliament and Senate, and Article 100 on promotion of marginalised groups, including women and youths.
“We are not against the gender principle. It is non-negotiable,” said Mr Kilonzo on Friday.
‘Sacred clause’
He continued: “We are not planning to touch Article 27 because it is sacred. We are looking for a constitutional procedure that would actualise the gender principle at the ballot box without violating people’s rights to vote for a candidate of their choice.”
The minister described Article 97 as their “primary focus”.
Mr Kilonzo said the Cabinet was advised by Attorney General Amos Wako that the gender principle did not provide a procedure for ensuring the required numbers of men and women were met.
“We cannot afford to reduce the number of seats set aside. We’ll look for other ways and one of them is to increase the membership of seats in National Assembly to accommodate more women,” the minister said.
Another Cabinet minister who spoke on condition of anonymity said: “In Tanzania, for instance, there are special constituencies that have been set aside for women and we can do it here. Today, there is Cabinet meeting and we are going to ask what the task force has to do,” she said.
The Cabinet team, according to Mr Kilonzo, could also borrow the system in countries that allow political parties to provide a list of nominees to fill positions as required by law.
The electoral commission had suggested a formula to enable the country meet the requirement.
The formula, which was accepted by some women groups, is to divide the proposed 290 constituencies into clusters of four.
Lots would then be cast among these clusters, so that one constituency in each group will have to ensure that all candidates for the post of MP are women.
Using this formula, 72 constituencies will have women.
Add this to the 47 women to be elected from each county and the six nomination slots and you get 125, which is slightly more than one third of the 349-member National Assembly.
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