On 21 November 2018, MPs opened a heated debate on the Constitution of Kenya (Amendment) Bill, 2018, as Parliament moved closer to a vote on whether to enforce the two-thirds gender rule in the National Assembly and Senate.
The Bill, sponsored by Majority leader Aden Duale, seeks to align the House with Article 81 of the Constitution, which requires that not more than two-thirds of elective public bodies be of the same gender. MPs were expected to either approve or reject it on Thursday.
At the centre of the dispute was the size of the gender gap in Parliament. The National Assembly had 76 women at the time: 23 elected from constituencies, 47 women representatives and six nominated. The Senate had 21 women senators, including 19 nominated members and three elected senators — Fatuma Dullo of Isiolo, Margaret Kamar of Uasin Gishu and Susan Kihika of Nakuru.
If the proposal applied to the current term, the National Assembly would need 20 more women and the Senate two more women to satisfy the constitutional threshold. The National Assembly has 349 members and the Senate 67, meaning the proposed changes would raise the total number of MPs to 438.
President Uhuru Kenyatta, Deputy President William Ruto, ODM leader Raila Odinga and Wiper leader Kalonzo Musyoka had all urged their party MPs to back the Bill. Duale told the House that Parliament had delayed too long in implementing a constitutional requirement that has been in place since 2010.
“We need to make a decision as a House to actualise a provision in the Constitution which has not been implemented since 2010.”
Opposition to the Bill came quickly from Kimilili MP Didmus Barasa, who argued that the proposal did not explain how women would be selected to meet the threshold. He warned that women at the grassroots could be sidelined if nominations were controlled by political party “owners”.
“I ask my fellow MPs to reject this Bill as it is because it does not give an opportunity for the rural woman to choose who will represent them in Parliament. It instead grants political parties’ leadership powers to bring slay queens through nominations,” Barasa said.
“We have seen people nominating their girlfriends. It is true we need women in active political leadership but they must be women of substance. I want to tell the Majority leader that this Bill is dead on arrival,” he said.
Duale dismissed the criticism and said Parliament had a duty to pass the measure in order to comply with the Constitution. He said Barasa, as a Jubilee member, was among the lawmakers he intended to persuade.
“Barasa is one of my members in Jubilee and it is my business as Majority leader to convince him among other members. Parliament looks very bad in terms of legislation because it has implemented all other pieces of legislations and left out this crucial one,” Duale said.
“It is s high time that Parliament rose to the occasion in defending the Constitution of Kenya. Women must be present at the decision-making table,” he added.
The Bill needed support from 233 MPs, which is two-thirds of the House, to pass. If approved by Parliament and later assented to by the President, it would take effect after the 2022 General Election.
During the debate, Duale also pushed back against claims that the proposal would inflate the wage bill. He said governance and democracy come at a cost and that women’s role in leadership should not be dismissed.
“Those who claim that we are going to increase the wage bill should know that democracy and governance is always expensive. The role of women in governance should not be underestimated.”
Kangema MP Muturi Kigano tried to have the Bill rejected, arguing that any change to the Constitution should go through a referendum. He said the proposal touched on the sovereignty of Kenyans and could not be implemented by Parliament alone.
“For the Constitution to be mutated, it has to be through a referendum. This Bill is unconstitutional because it does not make reference to a referendum,” Kigano said.
Minority leader John Mbadi took the opposite view, saying MPs should pass the Bill first and deal with any referendum question later if it arose during presidential assent.
“Let us pass the Bill as it is and if it will require a referendum during presidential assent, we will tackle the issue then. But this Bill does not touch on the sovereignty of the people of Kenya.”
The proposed law also included a sunset clause of 20 years, with an option to extend it for one further fixed period of 10 years. The Bill said the arrangement was intended to give the country time to make gains in gender parity among elected MPs. It also sought to limit nomination of a person to Parliament or county assembly to two terms.
A similar Bill had failed in the previous Parliament after male lawmakers walked out and defeated the motion. This time, the Kenya Women Parliamentary Association, KEWOPA, stepped up lobbying efforts by meeting political party leaders, the Kenya Editors Guild, fellow parliamentarians and civil society leaders.
KEWOPA chairlady and Kirinyaga Woman Representative Wangui Ngirici said the constitutional requirement had already been delayed for too long. KEWOPA vice chairlady and Kisumu Woman Representative Rosa Buyu, together with Kandara MP Alice Wahome, praised Uhuru and Ruto for supporting the Bill.
“It is a constitutional requirement that we must meet at all costs. We are already late on this. The time is now to ensure fair gender representation in parliament,” Wangui Ngirici said.
Uhuru defended the proposal by saying the earlier version had been amended and the number of reserved seats reduced in line with the Constitution. He urged MPs to pass it and show that Parliament had complied with the law.
“I know some people are saying that the Bill will increase the country’s wage bill. But the earlier Bill has been amended and the seats that have been set have decreased according to our Constitution. I therefore humbly request the MPs to pass the Bill so that we can prove that we have fully heeded to what our constitution requires of us”.
Raila said Parliament had repeatedly denied women equal opportunity by failing to create more seats. He argued that the Bill was meant to advance equality and freedom from discrimination under the 2010 Constitution.
“The Bill being tabled is meant to help the country realize the right to equality and freedom from discrimination for women as stipulated in the 2010 Constitution,” Raila said.
If the Bill passes in its current form, Kenya would spend up to Sh500 million every year for 20 years starting in 2022 to meet Parliament’s two-thirds gender requirement. Institute of Economic Affairs chief executive Kwame Owino said the cost would be less than one per cent of total government expenditure.
Kenya’s representation of women in Parliament remained low at 22 per cent, far behind Rwanda at 61 per cent and Ethiopia at 50 per cent, the only African countries cited in the source as having attained two-thirds gender parity according to World Bank data.
The debate showed how sharply divided lawmakers were over whether the Constitution should be enforced through additional seats, a referendum, or another political compromise. The House was set to decide the fate of the Bill on Thursday.
