Uhuru had a lot of doubts about gender quotas

President Uhuru Kenyatta had reservations about prescribing quotas for a particular gender in the composition of elective posts.

Mr Kenyatta raised concerns during a meeting of lawmakers to discuss the draft constitution at the Great Rift Valley Lodge in Naivasha in 2010.

It was at this meeting that MPs deleted an initial general clause on “gender equity in elected bodies” and replaced it with a more specific requirement, which they have failed to implement, prompting a call to dissolve Parliament. 

Parliamentary Select Committee on Constitutional Review members at the time unanimously approved insertion of the “not more than two-thirds of members of an elected body shall be of either gender” clause.

Before its approval, Mr Kenyatta – then Deputy Prime Minister and Minister for Finance – questioned if the allocation of a quota did not contradict another constitutional provision

“Mr Vice-Chairman, help me understand how that principle that you want to incorporate there in 2(b) sits with the same Article 43 that we were deliberating on – the political rights of citizens” he said.

“We have said that every citizen has the right to free, fair regular elections for any elective public body or office established under this Constitution and (b) any office holder for any political party. How then do you make political parties say you can start and you cannot start? What will be the basis of denying an individual the chance for competitive politics?”

Open elections

It was a reaction to committee chairman Abdikadir Mohammed who justified the principle, arguing that it was impossible to achieve gender equity in open elections without support from the law.

Mr Abdikadir said MPs needed to go further by taking other actions that would give effect to the gender equity principle.

He added that nations that typically stressed “just go ahead and vote” ended up with skewed composition.

Women lawmakers at the time constituted just 11 per cent.

Mr Abdikadir said that was the rationale of reserving a percentage of the seats to be filled on proportional representation.

“I agree that we cannot force voters to elect one person or another. But parties can be forced to nominate one way or the other during primaries,” he said.

The MPs then set out to amend the general principles for the electoral system and process under the chapter on representation of the people during the proceedings of January 19, 2010.

They were reviewing the draft submitted by the Committee of Experts.

Gichugu MP Martha Karua cited the “gender equity in elected bodies” clause, proposing it had to be more specific by stating “not more than two thirds of either gender”.

“It is there in the Political Parties Act, though it does not go as far as one would like,” Ms Karua said.

“When you say that a party should ensure at least one-third of its candidates are women, it is up to that party to internally put the machinery into place. If we put the principle here, we shall not put the details. The details belong to the Political Parties Act, either as it is or amended.”

But the then Foreign Affairs Minister Moses Wetang’ula interjected, saying political parties were obligated by law to ensure a third of their candidates were men or women, depending on the case.

“After you unleash them to competition against other parties, how would you eventually ensure the outcome to achieve the objective contained in that principle?” Mr Wetang’ula, now Bungoma senator, asked.

Vote determines winner

“When you put ‘one-third women candidates’ and my party puts up one-third male and we go to the field, the vote will determine the winner. How would you determine an outcome to achieve that one-third?”

Mr Abdikadir said the two articles dealing with Senate and National Assembly provided for not more than two-thirds representation by either gender and how that would be achieved.

“We need to agree that that limitation is put in, and then we can set aside, not necessarily all the 30 per cent, but say, 20 per cent and hope that the other 10 per cent will filled,” the committee chairman said.

“We have to address ourselves to the principle of gender equity,” Mr Wetang’ula interjected, to which Mr Abdikadir responded: “Why not be more specific?”

The chairman then went on to explain reserving the gender quota, at which point Mr Kenyatta raised his concerns about apparent contradictions with the constitutional provision on right to contest an elective seat.

The Deputy Prime Minister said he was concerned the gender principle appeared to contradict the provision that every citizen has the right to free, fair and regular elections for any elective body or office established under the Constitution.

He was supported by Mr Wilfred Ombui who said: “We know an election is based on the performance of an individual. Suppose women are not ready to contest for seats in a specific area? Will we force them? You cannot force parties to nominate specific people too. We can leave this one here as a general principle so that other things can be taken into account by parties.”

The then Agriculture Minister William Ruto said if the intention was to have at least one third women in representation categories, the chapter was where to place the principle.

After the matter was resolved, Justice Minister Mutula Kilonzo proposed the new clause stating: “The principle that not more than two thirds of the members of elective or appointive bodies shall be of the same gender shall not be abridged.”

Ms Karua, however, suggested that limiting it to “elective” to leave out appointed was sufficient.

“I liked it because it was broader. Let us just say elective is applied,” Ms Karua said and Lands Minister James Orengo seconded it.

That is how the “not more than two-thirds of members of an elected body shall be of either gender” came to be.

The subsequent Parliament would fail to enact the necessary legislation despite multiple court orders, prompting Chief Justice David Maraga to advise President Kenyatta to dissolve it.

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