Two-thirds gender rule still elusive after 10 attempts

Until the promoters of the Building Bridges Initiative (BBI) came up with a proposal to amend the 2010 Constitution to actualise the elusive two-thirds gender rule, Parliament had tried 10 times without success.

The various attempts to have the law enacted, stretching all the way from the 10th, 11th and 12th parliaments have always faced a bumpy ride. 

The attempts were geared towards giving effect to Articles 27 (8) and 81(b) of the Constitution so that not more than two-thirds of members in appointive and elective public bodies are of the same gender.

Failure to enact the law saw Chief Justice David Maraga deliver an advisory to President Kenyatta that he should dissolve Parliament as it had failed to act as required by the Constitution.

The law was supposed to have been passed by 2015, five years after the enactment of the 2010 Constitution, but subsequent amendments to the fifth schedule of the Constitution by the MPs saw the timeline extended.

Already, the Parliamentary Service Commission (PSC), which National Assembly Speaker Justin Muturi chairs, has gone to court to challenge CJ Maraga’s advisory on account that it is “ill-advised, premature and unconstitutional”.

One reason Mr Maraga advised the President to dissolve Parliament is that despite failing to enact the law, its composition violates the two-thirds gender requirement.

The National Assembly has 75 elected and nominated women MPs, translating to about 21.48 per cent of the 349-member House. This means about 42 women MPs would have to be nominated to comply with the gender principle.

Of the 67 members in the Senate, there are 21 female senators — three elected and 18 nominated.

In November 2018, an attempt to have the Bill enacted aborted after the then leader of majority and mover, Mr Aden Duale (Garissa Township), withdrew it at the debate stage.

This was after he sensed there were not enough MPs in the House to send it to the Third Reading stage.

The Constitution provides that at least two-thirds majority or 233 of the 349 MPs in the National Assembly are required to be present before such a constitution amendment Bill is voted for so as to proceed to the next stage.

Read: Parliament fails to beat deadline on gender rule

The collapse of the Bill saw Mr Duale and his Kiminini colleague, Dr Chris Wamalwa, accuse women MPs of skipping House sittings at a time they were required to be present to support the Bill.

“Every time we were discussing the Bill, the women were out of the country — they went to New York. In 2018, more than 32 women were missing in this House,” Mr Duale said of his failed Bill.

Had voting on the Bill proceeded despite the quorum hitch, it could only have been reintroduced after six months, thanks to the Standing Orders.

That is the reason it was reintroduced in February 2019, but again it failed at the debate stage, as there were not enough MPs to see it progress to the next level.

Interestingly, only about 20 women MPs were in the House at the time their support was highly required to move it forward.

“We have been in this Parliament and when voting was going on here, they were away to gain allowances as opposed to advancing this cause. The two-thirds rule was not achieved because of their selfish interests,” Dr Wamalwa said.

A sneak peek of the journey the two-thirds gender Bill has travelled takes us back to the 10th Parliament.

Then Justice and Constitutional Affairs Minister Mutula Kilonzo, who has since died, sponsored the Constitution of Kenya (Amendment) Bill, 2011 to address the gender puzzle in the elective and appointive public bodies. But the Bill lapsed at the end of the 10th Parliament before it could be debated.

In 2015, another Constitution of Kenya (Amendment) Bill by former Ainabkoi MP Samuel Chepkonga was published.

Voting threshold

The proposal sought to have the gender principle achieved progressively, but it lapsed before conclusion of debate at the end of the 11th Parliament.

The Constitution of Kenya (Amendment) Bill, 2015, sponsored by Mr Duale, was published and introduced in the 11th Parliament.

It was, however, lost at the debate stage after failing to get the required constitutional voting threshold to move to the Third Reading as required by the Constitution. Mr Duale would again have another Bill in 2015, but it lapsed at the end of the term of the 11th Parliament.

Electoral laws

The Election Laws (Amendment) Bill, 2015, which was sponsored by Mr Duale, was another attempt to solve the gender issue. It sought to amend the various electoral laws to give effect to Article 81(b) of the Constitution, but was lost.

Mr Duale had another Election Laws Amendment Bill published, which proposed to give effect to Article 100 of the Constitution and promote the representation in Parliament of women, youth, persons with disabilities, ethnic minorities and marginalised communities.

It proposed to amend the Elections Act, the Political Parties Act, the Independent Electoral and Boundaries Commission Act and the National Gender and Equality Commission Act. The Bill lapsed at the end of the term of the 11th Parliament.

The Two-Thirds Gender Rule (Amendment) Bill, 2015, sponsored by Mr Chepkonga, was published and proposed to give effect to Article 100 of the Constitution, but lapsed at the end of the term of the 11th Parliament.

The Political Parties (Amendment) Bill, 2016 sponsored by Mr Chepkonga, which required each political party to include special interest groups in its governing body in accordance with Article 100 of the Constitution, was assented to on June 30, 2016.

But the political parties are yet to actualise this.

[email protected]