IT'S now official that groups of four constituencies will be clustered and lots cast to determine which one of the four will field women parliamentary candidates in the next general election. This is the proposal the Interim Independent Electoral Commission (IIEC) is seeking to entrench in the Elections Bill to achieve the "not more than two thirds of either gender" principle enshrined in the constitution.
Commission chair Issack Ahmed confirmed to the Star that the commission is writing to the Commission for Implementation of Constitution (CIC) and the Kenya Law Reform Commission (KLRC) to make this change in the Elections Bill. He said the proposal was floated at the National Women's Consultative Conference on the Constitution which was concluded last Saturday at KCCT-Mbagathi and forwarded to the commission as a communiqué. "This is what we will be proposing to avert a possible crisis. I have heard people say this will infringe on the rights of men in the affected constituencies but they should understand that the very constitution allows for such infringements," Issack told the Star at his office. Article 24 (1) provides for limitation of rights through the law "to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom."
According to the proposal, the four constituencies to be clustered must be adjacent to each other in order to present a national spread of the resulting 72 women-led constituencies. For example, Embakasi will be clustered with Makadara, Kamukunji and Starehe as they all border each other.
The new Parliament will comprise 350 MPs including 290 elected in the constituencies, 47 women elected in the counties, 12 nominated from party lists and the Speaker who is an ex-officio MP. The IIEC says two thirds of 350 is 233 MPs and no gender should have more than that number. The other gender, in this case the women, must take the remaining seats which add up to 117 seats. And since women have been assured of 47 seats plus six drawn from the party lists, the remaining 64 seats is what the IIEC is seeking to fill through the rotational formula.
Under the proposed formula, one of the constituencies in the proposed clusters will field women candidates in one election. Such a constituency will not be balloted for in the next election. The other three will be left to ballot. In the end, all the four constituencies will have fielded women MPs and affirmative action will have been achieved. "If a woman MP is elected outside this arrangement, it will be considered accidental in the circumstances but it will not present any problem because it is their democratic right to be elected anywhere. The idea here is to achieve what the constitution desires," Issack said.
According to the communiqué issued by the Women's Conference and obtained by the Star, the system is "realistic, predictive, non-discriminative in application, simple and inclusive." "The balloting will be done before the election which gives any male candidate interested in representing the electorate ample time to vie for any other elective position," the communique says, adding that the formula would avert a constitutional crisis. Other proposals which were considered but found wanting at the moment by the IIEC include the option of amending the constitution as well as designating half of the 80 new constituencies to be created by the new polls body as "women's constituencies".
The constitutional amendment proposal would make the process of achieving this principle easier; it would do away with it or otherwise would occasion a referendum because it's a matter contained in the Bill of rights. The viability of a referendum on or before the election was found wanting. The proposal to have half the proposed 80 new constituencies allocated to women was also found wanting because the new constituencies are not evenly spread across the country. Moreover, this would result in only 40 constituencies, creating a deficit of 24 seats for women.
University of Nairobi's Prof Migai Akech said including the principle in the constitution was "politically naïve" and suggested that a simple amendment would make do. "I know it's not easy to amend the constitution but this is the most pragmatic approach for now. To implement this principle is highly restrictive of the choices at hand. You cannot force people to achieve the result of an affirmative action," he says.
His colleague at South Eastern University College Dr Koki Muli said the IIEC must somehow find ways of implementing the principle because it is provided for in the constitution. She suggested that a quota system as happens in Rwanda be applied. In that country, there are certain constituencies where men do not run. Other options included offering incentives to political parties to field only women and massive empowerment of the women to participate in elections.
The IIEC is also proposing the use of the same formula to achieve the principle in the Senate which must have at least 24 women members out of the 68 MPs. It's however easier to achieve the principle here since 16 senators will be women nominees and the four will represent the youth and people with disabilities.