The Constitution provides that Parliament is the supreme law-making body in Kenya and is the only body vested with power to make provision having the force of law. Parliament’s legislative authority is derived from the people and so Article 94(4) commands Parliament to protect the Constitution and “promote the democratic governance of the Republic. Specifically, Article 1 of the Constitution recognises that sovereign power belongs to the people of Kenya and it delegates their law-making power to Parliament and the legislative assemblies in the county assemblies.
In order to realise the reality that Kenya shall be a multi-party democracy, the Constitution has established Parliament which shall consist of the National Assembly and the Senate. It is important to underscore that the Constitution has created 53 special member seats for women in the National Assembly and 18 in the Senate. This is because even as the Constitution acknowledges Kenya is a democratic Republic, Article 94(2) provides that Parliament should manifest “the diversity of the nation, represent the will of the people, and exercise their sovereignty.” I have chosen to restate these first principles of our Constitution because since 2010, important stakeholders seem to have forgotten them.
Understanding these first principles, it should be easy to appreciate why Parliament cannot have too many special seats and nominated members without subverting and making a mockery of democracy. Ultimately, these special representatives and nominated members derive their true mandate from political parties and their owners as opposed to the people. Forgetting his rough tone, nominated MP David Sankok is right that affirmative action for elective seats does not seat pretty with the concept of people’s sovereignty.
Discounting the reckless temptation to label as chauvinists the hidden majority of MPs who on a rare occasion have obeyed their conscience to oppose the Constitution of Kenya (Amendment Bill), supporters of the Bill should acknowledge the valid concerns and objections being raised against it. Stripped of rhetoric there are three things we need to reflect on as we wait for Parliament to vote for the Gender Bill in February next year. First the starting point in this debate is not really to fight for the two-thirds gender principle but to implement it. Secondly, we need to understand why owners of political parties and elite women leaders are determined to defy the Constitution and push for its amendment instead of providing for this rule through national legislation that can be passed by women MPs alone. Does it matter whether the gender rule is achieved through legislation or constitutional amendment?
It does matter for three reasons. First, the constitutional amendment route expands the size of Parliament to create additional special seats for women whilst national legislation route retains the current size of Parliament but demands the sharing of the 290 seats in the National Assembly and 47 seat in the Senate to achieve the gender rule.
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Secondly, creation of special seats through a constitutional amendment gives a head-start to the women elite with access and audience in major political parties’ headquarters to share them whilst a national legislation will give a head-start to grassroots women leaders with the electorate’s favour.
Reason three is that a constitutional amendment tightens the grip of national leaders on Parliament as they will have additional seats to give to their favourite women and relations of their cronies. On the contrary, national legislation will reduce the power of political parties’ owners as they must nominate electable women to comply with the two-thirds gender principle. To its credit the acrimony over the gender Bill proves that Kenya’s political elites can easily close ranks whenever their shared interests are threatened.
The third thing we need to reflect upon is the danger of trivialising and risking the gains made in the struggle for political, human, ethnic and gender equality. We must avoid a scenario where affirmative action becomes a dirty word because of the selfish arguments over the gender Bill.
Finally, in 2020 the electoral commission will be reviewing constituency and ward boundaries and this must be the only occasion in which the size of Parliament may be increased to make Kenya a more perfect democratic Republic. The Constitution has adequately provided for gender diversity. However, a Constitution that creates a devolved system of government must at the very minimum guarantee each county of three seats in the National Assembly irrespective of its population.
- The writer is a constitutional lawyer (kibemungai@yahoo.com)
