Use BBI referendum to fix two-thirds gender rule

Kenyans have since late last year been locked in a fierce debate on whether time is ripe to make changes to the 2010 Constitution or not.

There are those who feel a time has come to fix the glaring defects in the country’s supreme law that have been uncovered in the past decade; and those who do not see a plebiscite as a priority.

It is a debate that should now come to an end after the reality check provided by Chief Justice David Maraga’s advisory to President Uhuru Kenyatta to dissolve Parliament for failure to enact the two-thirds gender rule.

Courtesy of a provision that some Kenyans feel is not implementable, the country is now staring at a costly and endless constitutional crisis that could see the electorate subjected to a vicious cycle of parliamentary polls.

While Parliament and the Attorney General Kihara Kariuki are set to challenge Maraga’s advisory in court, with the President also having absolute discretion to ignore or shelf it, look no further than the crisis the two-thirds gender rule could trigger to appreciate why Kenyans must go to a referendum as soon as is humanly possible.

Article 81(b) of the Constitution, which is based on the principles of the electoral process, dictates that a mechanism be put in place to ensure not more than two-thirds of members of elective public bodies are of the same gender.

The rule was, notably, agreed on during the drafting of the 2010 Constitution as a compromise to stabilise the country and cool tempers.

But actualising the constitutional requirement that there be at least 117 women in the National Assembly and 23 in the Senate has proved to be a hard nut to crack. There are currently 76 women in the two houses, leaving a deficit of 41.

Despite the law putting the House at risk of dissolution, Parliament has on five occasions failed to muster the quorum of 233 members required to pass it. This is not surprising; given attaining gender balance has proved impossible even in some of the most advanced democracies in the world.

Kenyan lawmakers have repeatedly urged the citizenry to wake up to the reality that it is virtually impossible to force individuals to vote for women candidates in a democratic exercise; hence the need remove the requirement through constitutional amendments and only observe the ratio in appointive positions.

They have a point. Gender disparity should not be addressed by meddling with the choices of voters at the ballot.

Compelling citizens to vote for a specific gender is a travesty of democracy that takes away their right on who to vote for.

There have been calls to reserve some constituencies for women, or even increase the size of the National Assembly in a bid to comply with the gender rule.

But such calls do not sit well with majority of Kenyans, coming in the wake of growing calls to ease the financial burden on the taxpayer by, among others, scrapping the Women Rep position that was introduced in the 2010 Constitution as part of affirmative action to increase representation of women.

Women Reps have been labelled ‘flower girls’ among other unsavoury terms as the position is widely deemed not to add any value other than merely increase the number of females in political leadership.

While a referendum will allow the repealing of seemingly unrealistic and costly provisions that continue to perilously drag the country through constitutional moments, it will also accord Kenyans an opportunity to determine workable ways to ensure gender parity, not just in elective politics, but across all sectors.

The first Building Bridges Initiative report proposed that political parties be compelled through the Political Parties Act to meet the gender rule. More formulas could still be added since this is work in progress.

Kenyans should look forward to endorsing the same in a plebiscite while also righting the wrongs in the 2010 constitution.

-Mr Kwinga is a political scientist. skwinga@gmail.com