“Victory is won often in inches not miles, but every inch captured can build into miles of triumph”
– Napoleon Bonaparte
I find the raging debate on the constitutional principle of two-thirds gender equilibrium quite apt.
We are in the infancy of rolling out the new dispensation and it is absolutely essential that both the letter and the spirit of the Constitution be well understood and fully appreciated.
Otherwise the country could make some costly errors that would compromise the fresh beginning that has imbued Kenyans with so much hope. This kind of debate therefore helps to illuminate the salient issues, while appropriate judicial interventions mark the beacons on the evolutionary path of our new constitutional jurisprudence.
The gender equilibrium principle is anchored in Article 27, the non-discrimination clause that provides, inter alia, that “the State shall 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”.
This is further augmented by Article 8, which sets the general principles that the electoral system is required to comply with, including that “not more than two-thirds of the members of elective public bodies shall be of the same gender”.
The bazillion dollar question is whether this principle is to be implemented instantly, or whether it is an aspirational target to be achieved progressively over time. Related to this is the subsidiary headache of whether the principle can be applied to elective positions in similar manner as to appointive ones.
Two schools of thought have emerged on both issues. One holds that the principle must be applied pronto, without variation or prevarication. It is pointed out that if the intention had been to make it a progressive agenda, the Constitution would have simply said so, expressly and unequivocally.
Indeed since promulgation of the new Constitution, there has been intense scrutiny of the composition of public institutions.
The landmark suit by six women lobbies that has delayed the inauguration of the Supreme Court and the intense focus on how to apply the principle to elective offices illustrates this.
In Parliament, the principle has since become holy writ, applied with divine zeal in virtually all instances of determining the membership and leadership of House committees. It is in similar light that the recent reconstitution of the leadership for the defence forces raised more than eyebrows as all the top positions were handed to bearded sons of Adam.
The opposite view is that gender equity is to be pursued progressively, and further that while it may be achieved faster in respect of appointive positions, it might take much more effort and time to reach its fullness for elective offices.
This school of thought avers that makers of the Constitution must have had very good reasons for repeatedly referring to this target as a “principle”.
It is argued that this reference was deliberate with the intent being to make it aspirational. Proponents of this viewpoint add that a holistic reading of Article 81 reveals that the two-thirds principle sits side by side other aspirational targets, including “fair representation of persons with disabilities” and therefore to argue that gender equity must be instantaneous would mean that what constitutes fair representation of persons with disabilities must also be determined now and similarly applied instantly.
All these are fundamental issues that require careful consideration since whichever way the questions are determined will bear monumental ramifications. It is unfortunate that this important debate has often degenerated to pettiness, selfish posturing and hot air passions. We have witnessed proposals that do not seem to have been thoroughly sieved or sufficiently baked.
One alarming option that has been put forth is to set aside some 74 constituencies, picked by a casual picky-poky “ballot” and designate them women-exclusive electoral units – in addition to the 47 reserved in the National Assembly and 16 in the Senate.
With due respect, such a measure would not only manifestly offend democratic tenets of universal suffrage and unfettered exercise of free franchise, but it would also violate such key constitutional principles as “freedom of citizens to exercise their political rights” and “universal suffrage based on the aspiration for fair representation and equality of the vote”, both of which are enshrined in Article 81 alongside the gender equilibrium principle.
We cannot violate one part of the Constitution while supposedly pursuing realisation of another. Let us consider reasonable options that are in consonance with both the letter and spirit of the Constitution.
Among the measures that we can start with is to transform our political parties in such a manner as would give special consideration to women while nominating candidates for elective offices.
We also should level the playing field by addressing pitfalls like violence and campaign funding which have traditionally discouraged women from contesting leadership positions. And, by the way, wouldn’t it be so nice to always count our blessings, aware that incremental gain is just as much gain as instantaneous gain.