The gender principle: Here's what needs to be done
There are various disappointments about failures to implement or comply with the Constitution – notably Chapter 6 on leadership and integrity. But, generally, law that was required to be passed, by Schedule Five, has been. It may not be ideal. Sometimes it was rushed because of the National Assembly’s fear of being ‘sent home’ for failure to pass the necessary laws.
But this did not work for the requirement to ‘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’ (Article 27(4)). This is despite a Supreme Court order, and what can only be described as a directive from the Chief Justice to the President dissolve Parliament (Article 261).
We have not done too badly with appointive agencies, though even the President, and county governors, have problems (or obstinacy?) when it comes to appointing their cabinets. And this is despite court cases.
The government appointed a Working Group; its central objective is to ‘develop and recommend a framework for the implementation of the Two-Thirds Gender Principle’. This agency invited public comment. This piece summarises some of my own thoughts.
Why more women?
This is an effort to ensure inclusion of a substantial section of the community. This requires addressing attitudes towards the role of women: assuming that women have no place in public life, and do not have the qualities for it.
This involves discrimination. But it is not best dealt with as a discrimination issue. Deeply rooted prejudices mean that many women would never dream of trying to be involved in public life, so could never show discrimination.
For some people a major objective of achieving women’s presence is to change that sort of attitude by showing that indeed women can perform in public life. So they welcome almost any measure that would get the numbers.
There are also other hoped-for implications of women’s presence. Women’s voice, it is argued, would be saying things that are not adequately said in elected bodies. First, obviously, is raising ‘women’s issues’ – of particular concern for women and on which men would likely have a different view or simply be unconcerned about.
Second is the women’s angle on issues that are relevant to everyone but may affect women differently. Public transport, public participation, urban planning, healthcare are among the examples.
Third, it is sometimes said that women sometimes have a different perspective on issues, even if those issues affect everyone. Peace, environment, children are among the issues.
What’s the ideal?
Now we have women who come into elected bodies in different ways: (i) representing ordinary constituencies/wards where they stand for election on the same terms as men, (ii) those elected for constituencies (counties) for which only women can stand and (iii) list members - some of them just as women, others representing other groups but via a list system.
In my view, ideally women would come in representing only ordinary constituencies/wards, where they had competed against others who probably included men. Women coming in by other routes cause resentment, tend not to be regarded as ‘real’ members, sometimes have a far more difficult job than their male counterparts (like women county reps who represent constituencies several times larger than most men), have a less clear role, and their existence discourages parties from nominating women for ‘ordinary’ constituencies.
Here I focus on possibilities without changing the constitution.
This requires law to promote representation of women and other groups. Kenya could reduce by law the fees paid by women candidates to parties. The IEBC distinctions between candidates (giving concessions for women, youth and persons with disability) are already in law.
Do women candidates get effective protection during elections? Is abuse of women candidates and members taken sufficiently seriously? Taking these issues seriously might be one way to encourage women candidates.
Children (future voters and candidates) should learn about elections, and gender inequality in school.
Kenya should make more use of the potential of the Political Parties Fund as an incentive to parties to have and support women candidates. This should happen already. At least 30 per cent of money received by a party must be spent on ‘promoting the representation in Parliament and in the county assemblies of women, persons with disabilities, youth, ethnic and other minorities and marginalised communities’ (s. 26). How much money reaches parties because of the gender requirement? And how much is actually spent on the gender issue? Are these issues monitored?
Operationalise the role of parties and IEBC
In Katiba Institute v IEBC the court said, ‘the [IEBC] has an obligation to obey the constitutional command, … to reject any nomination lists that fail to comply with the two-thirds gender principle.’
This can surely mean only one thing: that each party’s list of candidates for constituencies/wards/counties must have no more than two-thirds men. One third candidates does not necessarily translate into one-third members. But it would help.
Earmarking about one-quarter of the NA 290 constituencies for women, would guarantee enough women: 47 county women, plus 72 from constituencies, plus perhaps five ‘nominated’ would be 124. A small number of women might still be elected from other constituencies (the system would be a failure if this did not happen increasingly).
To minimise the impact on potential male candidates, the earmarking would rotate: any one constituency would be earmarked for only one election in four – and after four elections maybe the system would no longer necessary.
One advantage is that the ‘new’ women would come in as MPs for constituencies on almost the same basis as almost all the male MPs. There would be no doubt about their role. After their one women-only election they could stand again for that constituency the following election - maybe against the man who had previously held that seat.
India has finally adopted this system for Parliament – but the details of how have not been decided.
Objections based on the right to vote and stand (Article 38) are I believe spurious (for another time).
Two person tickets
This would require every constituency candidate to appear on a two-candidate ticket (a woman and a man). A party would put their preferred holder of the seat first. The ballot paper would require the voter to vote for a party ticket (or for one person within a party ticket). If there was a shortfall of women, the IEBC would identify the parties whose tickets had won but least convincingly, and if the person winning was a man, he would be passed over in favour of the woman on the same ticket, until the required number of women was achieved.
Why has the principle not been implemented?
For male MPs the idea that they might be debarred from competing for one election is anathema - which has led to their rejection of the two preceding suggestions. It is for this reason that the most prominent solution has been to do what the Committee of Experts proposed for the National Assembly (and did for the county assemblies): extra, ‘top-up’ women to ensure the gender requirement is met.
This was also proposed by the BBI, and passed, but killed by the courts. The BBI was a package deal and included other things that MPs wanted (including 70 more constituencies, of benefit to some of them), so they had to accept the change to have more women MPs.
Why did MPs not even turn up in sufficient numbers to consider the various constitutional amendment Bills specifically on gender? One thing I suggest is that at bottom MPs don’t want more women in Parliament, even as list members.
Government has given no leadership on the specific measure on gender. (It was in the BBI to appeal to women, among with various other ideas to garner support, for an enterprise that had narrow, political, personality driven, aims). If the President wants something done in Parliament it will usually be done. Presidents have not been too bothered about women and their role in public life.