A new formula to ensure that at least a third of the politicians who win in the next polls are women has won the support of the elections manager.
The formula will see lots cast among all the constituencies in the country, with the result being that 72 of the constituencies will be forced to choose a woman, and only a woman, as their MP in 2012.
According to the Interim Independent Electoral Commission (IIEC) chairman, Mr Issack Hassan, the outcome of the 2012 elections has to ensure that there are at least 116 women MPs in the National Assembly and at least 23 women in the Senate.
If this does not happen, Mr Hassan said, then there would arise a real danger of the country ending up with an illegal government.
Speaking at a one-day conference on constitutional transition, the IIEC boss noted that if the number of elected women did not hit the one third mark, then the Senate and the National Assembly would be “unlawful”.
“Article 3(2) of the Constitution says that any attempt to establish a government otherwise than in compliance with this Constitution is unlawful.
“We have to be careful with the way we interpret the provisions of the Constitution, because the next elections may result in a very unlawful government,” the country’s elections chief noted.
Ms Wambui Kanyi, the executive director of Women’s Political Alliance, said the formula would work in a rotational manner, to ensure that men are not eternally discriminated against from vying for seats as MPs in some constituencies.
The idea is to divide the country’s 290 constituencies into groups of four constituencies.
Then the lots are cast among this group of four, so that in 2012 one constituency will have to ensure that all candidates for the post of MP in the polls are women.
“This constituency can only elect a woman. Then in the next election, this goes to the next constituency, then the next until all the four are done. So, every four elections, the constituencies will know that they have to elect a woman,” Ms Kanyi said.
Using this formula, 72 constituencies will have women. Add this to the 47 women to be elected from each county and the six nomination slots and you get 125, which is slightly more than one third of the 349-member National Assembly.
“It may look very controversial, but this is the only way to get out of the impending constitutional crisis,” said Mr Hassan.
According to Ms Kanyi, they’ve tried other formulae, like using counties, but this has come short of the 116 MPs required to meet the constitutional requirement at Article 27(8), which obligates the State to make laws and policies to ensure that “not more than two thirds of the members of elective or appointive bodies shall be of the same gender”.
With a history of a heavily male Parliament, this is a first tricky situation that both the IIEC and the government have to work around to ensure that they do not end up getting sued for breaching the Constitution or, in the case of the government, being illegally constituted.
“There are those who argue that this requirement is an aspiration; that it should be gradual and should be implemented over a period of time.
“But then, there are those who argue that this is a new beginning, and it being a constitutional provision, then it has to be fulfilled immediately,” said Mr Hassan, noting the contention over the matter.
But the IIEC chief doesn’t have to worry about when the directive should take place, because according to the Constitution, if no time is prescribed within which to perform a required act, then “the act shall be done without unreasonable delay and as often as occasion arises.”
Ms Judy Thong’ori, an advocate of the High Court, who together with other women have filed a case in court over the representation of women in the Supreme Court, said the provision ought to be respected at all costs.
Ms Thong’ori promised to go to court “the very next day” to stop Parliament from sitting if the numbers of either gender exceed the two thirds mark.
The issue to work around, for example in the Supreme Court case, is that the men exceed two thirds majority and that ought not to be the case.
Only one woman, Ms Njoki Ndung’u, was picked to sit in the Supreme Court. She’ll be there with Deputy Chief Justice Nancy Baraza.
Being a seven-member court, with five men; the women are clearly outnumbered, but mathematically, with a rounding up, it can be argued that women occupy one third, although it is precisely 28.5 per cent, and not at least 33.3 per cent as prescribed in law for the minimum of either gender in any public body.
“We don’t want to deal with universally accepted mathematical principles. We need to follow universally accepted constitutional principles,” said Ms Thong’ori, noting that the Constitution is not just about “not more than two thirds, but about equality.”
Her worry, like that of many women, is that if the Constitution is breached ab initio it will be difficult to correct the errors later, and that’s why “it has to be respected”. “We were told that implementation will be very difficult; but we never expected it to be this difficult.”
The electoral commission and the Commission for the Implementation of the Constitution have been pondering about the way forward in handling the issue of women representation in the light of the requirement that no gender should exceed two thirds, and this formula, could just provide the answer to their backroom tribulations.
But the formula has one major challenge, because it will limit the right of men to vie for elective posts, a right granted to every Kenyan under the Constitution.
However, picking among two devils, the proponents of the formula are optimistic that its simplicity, predictability (because of the rotational nature), and its making it easier for more women to enter politics knowing they’ll be competing against fellow women, will go a long way into “socialising the communities into the idea of women leadership”.
Electoral violence, poverty and lack of political base plus the relegation of women to home-making and the kitchen are some of the challenges that women have to overcome to compete with men in Kenyan politics.
The lack of money to mount political campaigns is also likely to hinder them from running as independent candidates.
For now, the women have to struggle to make sure the formula makes its way into the Elections Bill under review by the CIC, the Attorney General and the Kenya Law Reform Commission.
The IIEC chairman said the Elections Bill was “still being worked on to include things to do with gender and devolution”.