How to solve the gender equity puzzle in parliament
The Sunday Nation
Nairobi,
17 July 2011
Apparently, a
constitutional crisis is looming. It arises from the way the law
attempts to attain gender equity in parliament. Article 27 (8) of our
new constitution says that “…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.”
In addition, article
81 (b) of the laws says that the electoral system shall comply with the
principle that “not
more than two-thirds of the members of elective public bodies shall be
of the same gender”
However, the constitution is unequivocal about the number of members of
parliament. Article
97
(1) says: “The National Assembly consists of – (a) two hundred and
ninety members,
each 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 Speaker, who is an
ex officio
member.”
This makes a total of 350 members (including the speaker). Two-thirds of
this number is 233.33. Thus according to articles 27 and 81, there
shouldn’t be more than 233 members of the same gender in the National
Assembly.
However, article 97(1) specifically lists only 47 women out of the 350
members. There is no guarantee on the gender ratio of the remaining 290
elected and 12 nominated MPs.
Now, 350 minus 233 is 117. Since the constitution reserves 47 seats for
women, it appears that we need a formula to ensure that at least 70 out
of the remaining 303 members are women.
I submit that such a formula would be complicated and that it is
unnecessary.
One proposal on the table is to have a system that designates certain
constituencies for women candidates only. The 290 constituencies will be
divided into groups of four – for now, never mind that 290 is not
divisible by four!
Then in the first general election, one constituency in each group will
be designated for women candidates only. In the subsequent election, the
designation will be passed on to another constituency in the group.
This way, each of the constituencies will have carried the “women
candidate only” designation after four electoral terms.
Complications will arise from two sources: first, what if, as a result
of the newly found political confidence women win more than 114 of the
remaining 218 undesignated constituencies? Won’t that break the
two-thirds rule, this time in favour of women?
Secondly, won’t designating any constituency to be for women only be in
itself unconstitutional? It will be locking out male candidates simply
because they are men. Isn’t that gender discrimination?
In my view, these complications are unnecessary. There are two ways out.
First, we can ignore articles 27(8)
and 81(b) and implement
97(1) as it is. After all, the former are not superior to the latter.
The second solution is to amend the constitution by deleting the word
“elective” from articles 27(8) and
81(b).
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