Syengo’s proposal to increase number of nominated MPs gathers steam in Senate
Nominated Senator Beth Syengo and Narok Woman Representative Rebecca Tonkei after addressing journalists in Nairobi on December 16, 2022. Ms Syengo has tabled a bill to increase the number of nominated senators.
A proposal to increase the number of nominated lawmakers, significantly raising the membership of Parliament beyond 416, is gathering steam in the Senate.
The National Assembly has 349 members and Senate 67, including 12 and 20 nominated MPs respectively.
Should the bill pass, the nominated lawmakers will exceed the 32 by far.
The number of MPs will increase in 2027 should the push by a senator to amend the Constitution to realise the two-thirds gender principle succeed.
It will see the creation of more special seats and consequently increase the wage bill of the National Assembly and Senate.
The proposals are contained in the Constitution of Kenya (Amendment) Bill, 2023, sponsored by nominated Senator Beth Syengo.
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The bill, first read in the Senate on May 4, has been committed to the Justice and Legal Affairs Committee and is due for second reading and debate on August 1.
Senator Syengo proposes changes to four articles of the Constitution – Articles 80, 90, 97 and 98 – to entrench the two-thirds gender rule.
She seeks to add a second clause under Article 81 to compel the government take legislative, policy and other measures – including the setting of standards – to realise the principle.
“These measures will be expected to resolve the gender representation matter once and for all,” the Orange Democratic Movement (ODM) party lawmaker says.
The bill proposes to amend Article 97 on the composition of the National Assembly by introducing a paragraph in clause (1) to ensure that the composition complies with the requirement that not more than two-thirds of its members are of the same gender.
The new paragraph will require the election, through party lists, of the number of special seat members necessary to ensure no more than two-thirds of the membership of the National Assembly is of the same gender.
The bill also proposes that the number of special seats under clause (1) shall be determined after the declaration of the results of a General Election.
Article 97 (1)(c) states that 12 members will be nominated by parliamentary political parties according to their proportion of members of the National Assembly in accordance with Article 90, to represent special interests – the youth, the disabled and workers.
Further, the senator wants the addition of a clause (1B) to ensure the members referred to in clause (1)(c) and (ca) will be elected in accordance with Article 90.
Article 90 of the Constitution states that election for the seats provided for in Articles 97(1)(c), 98(1)(b)(c) and (d) and 177(1)(b) and (c) shall be on the basis of proportional representation by use of party lists, with the Independent Electoral and Boundaries Commission (IEBC) being the agency tasked with ensuring compliance.
The National Assembly consists of 290 elected members, 47 woman representatives and 12 nominated by parliamentary political parties, according to their proportion representing special interests – young people, the disabled and workers.
There are fewer than 100 female MPs in the National Assembly, a number way behind the two-thirds gender rule.
With the proposals not only limited to the National Assembly, Ms Syengo wants Article 98(1), touching on membership of the Senate changed by inserting paragraph to ensure the House complies with the requirement.
The new paragraph would require the election, through party lists, of the number of special seats necessary to ensure no more than two-thirds of the membership of the Senate is of one sex.
The Senate is composed of 47 members, each elected in counties, sixteen women nominated by political parties according to their proportion in the House, two members, being one man and one woman, representing the youth and a member of both sexes representing people with disability.
This brings a total of 67 senators, with 21 women – only three were elected on August 9, 2022.
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The amendment calls for a new paragraph to ensure the creation of special seat members necessary to ensure that no more than two-thirds of the membership of the Senate is of the same gender.
The number of the special seats should be determined after the declaration of the results of a General Election.
Article 98(2) should also be changed to capture the new paragraph in its expression, Senator Syengo says in the bill.
The bill also proposes to amend Article 90(1) by inserting clause (1A) which would require individuals to be nominated to the senate, the National Assembly and county assemblies only once.
The paragraph states that a person who has been elected for a party-list seat under clause (1), whether in Parliament or a county assembly, shall be eligible for election under this Article once.
Should the bill pass and is signed into law by the President, it will be cited as the Constitution of Kenya (Amendment) Act, 2023.
The new law will not affect the current Parliament.
The idea of the two-thirds gender rule came to life with the 2010 Constitution but has not been effected more than a decade after the promulgation of the supreme law.
Attempts to increase women representation in the National Assembly, Senate and county assemblies have always failed as the Constitution does not offer guidelines on how to implement the rule.
Garissa Township MP Adan Duale – now Defence Cabinet Secretary – sponsored the Constitution of Kenya (Amendment) Bill, 2018.
The bill stalled for lack of quorum despite gaining support from top politicians, including then-president Uhuru Kenyatta and his March 9, 2018 handshake partner Raila Odinga.
A year prior, nominated Senator Judith Sijeny had sponsored a similar bill but was not passed.
In 2015, Justice Mumbi Ngugi ordered the Attorney General and the Commission for Implementation of the Constitution to ensure the legislation was passed.
High Court judge John Mativo in March 2017 advised that if the gender rule was not implemented by the end of that year, anyone was at liberty to write to the president of the Supreme Court who would, in turn, advise the president of the republic to dissolve Parliament.
Following the dilemma, the office of the AG sought the advice of the Supreme Court.
The apex court said the gender principle was not a full right yet and as such, it could not be subjected to direct enforcement, meaning the guidelines could only be implemented progressively.
In 2020, then-Chief Justice David Maraga advised President Uhuru Kenyatta to dissolve Parliament, in line with Article 261(7) of the Constitution, for its failure to enact legislation on the two-thirds gender rule. Mr Kenyatta never acted on the advisory.
Incumbent President William Ruto says he is “committed to all efforts that will help us avert a similar constitutional predicament”.
In a memorandum to Parliament with proposals to amend the Constitution, President Ruto outlined his plan to meet the two-thirds gender rule.
“I propose that, if Parliament concurs, a constitutional amendment be enacted establishing a formula to guide the computation of the gender ration in the National Assembly based only on the numbers of those members elected from the constituencies (National Assembly) and counties (Senate) per Article 97(1) (A) and 98 (1) (A) respectively. The proposed amendment can be set out under Article 97(3),” the President proposed in the memo.
For the National Assembly, the President explained, the effect of this formula would establish one-third at 97 members.
“The maximum number of seats required to fulfil the constitutional threshold would therefore be 50 only,” he said.
