Is it possible to implement section 116 of the new constitution?


The Sunday Nation


18 September 2005


Last week’s analysis of Article 116 of the proposed new constitution revealed that it will be difficult to balance the numbers of members of parliament as required by the law. By doing a quick calculation for a house with 200 elected MPs (180 men and 20 women), we found that there would be an additional 100 nominated members (25 male and 75 female).

But these numbers do not satisfy the requirement of clause 2(c) – namely, that no more than two thirds of total membership should be the same gender. In a house with 300 MPs, our calculation yielded 95 seats for women instead of 100 – a shortfall of 5 female members.

The problem with section 116 of the new constitution is that it defines the number of nominated MPs in terms of the total members in the House. However, it does not say what this total membership is.

Thus, if we increase the number of women to satisfy subsection 2(c), we will also automatically increase the total membership. Consequently, the members nominated under 2(a) and 2(b) will also need to be increased because they must make up ten percent of all MPs. This can easily turn out to be a vicious cycle.

Nevertheless, assuming that that all the nominees under subsection 2(b) will be men, we can set up and solve the relevant mathematical equations and hence determine the numbers to be appointed under each clause. The results are:

6 women and 10 men under subsection 2(a); 16 men for 2(b); and 77 women for 2(c). The total membership comes to 309. If you work out the ratios, you will see that they satisfy the new law.

However, this does not call for celebration: we have assumed that all the MPs appointed through 2(b) will be men while in reality some of them might be female. This is a catch 22 situation: we can only find out the gender ratios for nominees under 2(b) AFTER they have been nominated, but at the same time, political parties won’t know how many MPs to nominate BEFORE the these same gender ratios are worked out!

In short, it is impossible to implement section 116 (2) of the proposed new constitution. I challenge Attorney General Amos Wako to show us how it can be done.

In case you are wondering, the Bomas Draft Constitution did not have this problem. Article 123 clearly stated that “The National Assembly shall consist of (a) one member elected from each constituency…(b) one woman elected from each district… and (c) fourteen members elected by marginalized groups…”

Simple, clear and no complicated mathematics.

The argument that we can pass now and amend it later is also flawed. Article 282 (1) (c) states that “A bill to amend this constitution shall have been enacted by parliament when parliament has passed the bill…by not less than two-thirds majority of the TOTAL MEMBERSHIP…”

Now, because of the problem in section 116, the total membership of the House cannot be determined. Therefore, the number of votes that will make up a two-thirds majority is also not known. Consequently, if this constitution is passed as it is, Parliament will never be able to amend it.

Indeed, Parliament will never be able to conduct any business because under section 130, “the quorum shall be thirty per cent of all the members of Parliament”. Again, this number can never be known.

There is an interesting end note to all this: the Popular Version of the new constitution published by the Review Commission states on page 29 that “Among the members nominated by political parties five percent of the members must be persons with disabilities, and…five percent…shall represent special interests…”

This is not true! The new constitution says five percent of the total membership of Parliament; not five percent of the nominated members. If the brilliant minds at the CKRC secretariat can get it wrong, do you think Wanjiku will understand it?

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