It’s back to the drawing board for MPs after another gender Bill flop

Parliament’s failure to pass a Bill that would realise implementation of the two-thirds gender principle has sent its proponents back to the drawing board.

Passage of the constitutional amendment required the support of at least 233 MPs but only managed to get 178 legislators to vote in its favour when it came up in Parliament. Up to 16 MPs voted against it, while five abstained. This was the second time the Constitution Amendment Bill (No 4) 2015 was being tabled in Parliament.

So what options remain for proponents of the Gender Bill?

One is to wait for the requisite six months before the Bill can be reintroduced, an option proponents of the Bill are wary of given the limited time left to the 2017 elections.

“There is the option of someone going to court to challenge the constitutionality of Parliament but this would be premature at this time. We are looking at introducing another Bill in Parliament that still satisfies the principle and will be having a meeting of stakeholders this week,” says ODM deputy organising secretary Rosa Buyu.

The Supreme Court, in a majority ruling in 2012, gave an advisory opinion directing that realisation of the two thirds gender principle be progressive.

The advisory gave a timeline of August 27, 2015 by which Parliament was supposed to have come up with a mechanism to realise the gender principle.

Parliament voted to extend this deadline by a year to August 27th, which means it must arrive at a conclusion on the matter by this time or risk having someone going to court seeking to have it dissolved.

Implemented progressively

Says Buyu: “The Bill was a result of consultations of many groups and we will not let it die now. The other option that is currently in Parliament is the Chepkonga Bill, but this has its challenges,” she says.

Justice and Legal Affairs committee chair Samuel Chepkonga’s proposal to have the gender principle implemented progressively elicited sharp reactions from those pushing for the Gender Bill.

Those opposed to it argue that, unlike the Supreme Court advisory, the Chepkonga Bill is not specific on timelines.

Outside Parliament there still remains the option of the Green Amendment Campaign, which some observers say seeks to overhaul the election system. It seeks to do away with the post-election ‘gender top up,’ as happened in the county assemblies and proposes an amendment to Article 177 to provide for twinning of adjacent constituencies to provide 725 seats for women.

The campaign is a popular initiative that seeks a petition to have the Constitution amended through the collection of one million signatures.

National women steering committee convenor Daisy Amdany says failure of the Gender Bill in Parliament last week was illuminating in some respects.

“Its failure to pass, is a good thing in a way because it gives a conclusive result to an issue that the country has been dancing around. But it brought home the harsh reality that women have no place in the political formation.”

Amdany dismisses as ‘publicity stunts’ statements by President Uhuru Kenyatta and Opposition leader Raila Odinga rallying legislators to pass the Bill.

“Why would MPs heed the President’s call to vote for the Bill when the Cabinet he appointed in November 2015 and recent appointments made of parastatal heads do not meet the two thirds threshold?” she asks. Ms Amdany says women legislators ceded ground on implementation of the gender rule through successive events in and outside Parliament.

“Kenya’s cases at the International Criminal Court were a huge distraction for Jubilee which had promised implementation of the gender rule. A well orchestrated campaign was waged in 2014 on the burden of the wage bill with fingers pointing at over representation of the electorate in Parliament. Some legislators used this to point to the women representatives seat and proposals to have more women in Parliament as part of the factors that were a burden to the taxpayer. Even when the Cabinet was constituted last year and failed to meet the threshold, the women leaders were largely silent. Why then would we expect a different result on the gender Bill?” she poses.

Lawyer Harun Ndubi says the courts remain the main option proponents of the gender Bill, have at the moment. An attempt to introduce laws to shield the National Assembly from obeying court rulings will not succeed, he says.

A proposed legislation fronted by Homa Bay Town MP Peter Kaluma seeks to insulate the National and County Assemblies from ‘interference’ by the Judiciary on matters pending before the House.

“Any law approved by the State office must protect the purposes and objectives of the Constitution. In this case Parliament is obligated to come up with legislation to achieve the two thirds gender rule,” Ndubi says.

And speaking at a fundraiser in Samburu, Nairobi Women Representative Rachel Shebesh said the Gender Bill will reduce gender imbalance in Parliament.

– Additional reporting by Michael Saitoti