Kenya: Constitutional Crisis Looms Over Two – Thirds Gender Principle
By Lilian Museka
On 11th December 2012, the Supreme Court of Kenya delivered a majority decision that the realization of the two-thirds gender principle under Article 81 (b) is progressive. In its ruling, the Supreme Court directed that Parliament is under an obligation to have a framework on realization of the two third Gender Rule by 27th August 2015.
The Hon. Attorney General Githu Muigai had filed a request in the Supreme Court for an Advisory Opinion as to whether the two-thirds gender principle was to be realized by the first general elections (under the new Constitution) i.e. in March 2013, or over a longer period of time.
Following the Supreme Court ruling, the Attorney General constituted a technical working group (TWG) on 3rd February 2014, that included NGEC (Convener and Secretariat); Ministry of Devolution and Planning, Attorney General’s Office, Office of the Registrar of Political Parties; Independent Electoral and Boundaries Commission; Commission on Administrative Justice, Commission on the Implementation of the Constitution; Parliament (Committees on the Implementation of the Constitution and Legal Affairs, respectively); Kenya Women’s Parliamentary Association- and FIDA–Kenya representing civil society.
The TWG’s role was to develop a mechanism for the implementation of the Two-thirds principle and to ensure this mechanism is ready within the deadline provided.
For the last one year, the TWG has sought and received various proposals from the public and experts on potential viable formulas. The Group has meticulously analyzed and processed all those proposals and considered the merits and demerits. All proposals have been shared with the Hon Attorney General for his input
After engaging with Kenyans and stakeholders and both local and international constitutional experts on the matter, the team has concluded that the only proposed formulae that will realize the two third gender rule with precision is amending the Kenya Constitution 2010.
The amendment is to use the formulae that has worked for the county governments after the 2013 elections thus lifting Article 177 (1) (b) and (c) of the Constitution and importing it in Article 97 and 98 of the constitution for representation in the National Assembly and Senate accordingly
The proposal was to lift the Provisions off Article 177 (b) and (c) to Articles 97 & 98 of the Constitution of Kenya 2010 .This proposal utilizes the self-regulating mechanism set out in Article 177(1) of the Constitution. It is a topping-up mechanism where members are elected proportionately on party list from qualifying political parties to meet the two-third- gender threshold. The Constitution of Kenya (Amendment Bill 2015) has been drafted and will be initiated immediately.
The proposal guarantees precise realization of Article 81 (b) on the two -third gender rule in political representation after the 2017 elections, Increased number of members of marginalized groups including persons with disabilities and the youth, enacting of the law envisaged in Article 177 (1) (c ) and 100 of the Constitution of Kenya 2010 that calls on parliament to enact such law promoting representation of the marginalized groups who include women, persons with disabilities, youth, ethnic and other minorities and marginalized communities
National Gender and Equality Commission (NGEC) communication officer Daniel Waitere says It is expected that Parliament will rise to the occasion and do the right thing to avert a constitutional crisis after the 2017 election.