In an opinion published on November 20, 2018, constitutional lawyer Kibe Mungai argued that the push to implement Kenya’s two-thirds gender rule through a constitutional amendment was unnecessary and legally misguided.
He anchored his argument on the Supreme Court’s advisory opinion delivered on the eve of Jamhuri Day in December 2012, when the court said legislative measures to give effect to the one-third-to-two-thirds gender principle under Article 81(b) of the Constitution, as it relates to the National Assembly and Senate, should be taken by 27 August 2015.
Mungai said the required measures never materialised because government lawyers had treated the issue as one that could only be solved through a constitutional amendment. In his view, that reading was wrong.
He pointed to the 2010 Constitution, which already created 16 women seats in the Senate and 53 seats in the National Assembly, including 47 county women representatives, as part of an effort to address the historically low representation of women in Parliament. He also noted that the 210 constituencies could not be abolished, which led to the creation of 80 additional National Assembly seats to try to balance regional and ethnic representation.
According to his reading, the National Assembly was fixed at 349 members, and the Constitution expected each gender to have at least 117 members through the 53 women seats and further legislative action by Parliament. He said the law did not require Parliament to enlarge itself in order to meet the gender threshold.
Mungai criticised the Constitutional Amendment Bill then being fronted by Majority Leader Aden Duale, saying it sought to create special seats to be filled by political parties so that no more than two-thirds of elected members would be of the same gender. He argued that the Constitution only called for legislative measures, not a constitutional rewrite.
He said the relevant national laws were the Political Parties Act, 2011 and the Elections Act, 2011, and maintained that amendments to those statutes could have been used to advance the gender principle. As an example, he suggested that parties led by Uhuru Kenyatta, Raila Odinga, William Ruto, Kalonzo Musyoka and Musalia Mudavadi could have been required to nominate one-third of parliamentary candidates in each county from each gender.
The writer then set out five reasons he believed the Bill should be rejected. First, he said the Constitution did not contemplate expanding Parliament to satisfy the gender rule, but instead required compliance within the existing 349-member National Assembly and 67-member Senate structure.
Second, he cited Article 27(6), which requires the State to take legislative and other measures, including affirmative action programmes and policies, to redress historical disadvantages. He argued that the gender debate had crowded out other disadvantaged groups and said the same approach could be used to improve women’s representation in mid-level public appointments through the Employment Act and public service regulations.
Third, he said Kenya could not justify creating more political positions at a time when the country was burdened by Chinese debt and struggling with stalled development projects. He described the proposal as a costly way of creating jobs for a relatively small number of middle-class women, many of whom, in his view, would likely come from the circles of political families and allies.
Fourth, he argued that although the amendment was being sold as a women’s empowerment measure, it would in practice strengthen the influence of the political bloc he described as the “pentagon” of Uhuru, Ruto, Raila, Kalonzo and Musalia, because they would decide who got the special seats.
Finally, he invoked Article 201 on prudent use of public funds, saying the Consolidated Fund was already under pressure and that any increase in political spending would leave less money for ordinary Kenyans. He also linked the issue to wider social hardship, saying the Constitution should not be read in a way that tolerates street children and scavenging in urban areas.
Mungai concluded by urging President Uhuru Kenyatta to withdraw the Constitutional Amendment Bill.
The writer is a constitutional lawyer ()
