CABINET has decided most or all of the 80 new parliamentary seats should be reserved for women.The new constitution passed in August 2010 stipulated that the number of parliamentary seats should be increased from 210 to 290. Until now the extra constituencies were going to be geographical but Cabinet has decided that they should be allocated through proportional representation.
Women will be the first choice until Parliament fulfils the constitutional requirement of being at least one-third female. The resolution was passed last week in Cabinet and the relevant Bill has already been published ready for debate when Parliament resumes next month. "There was no other way of addressing the two thirds gender rule demanded by the constitution. We tried all available formulae and the best was to give all these seats to women," said a Cabinet minister.
According to the proposed Bill, Kenyans will still elect men and women of their choice in the 210 existing constituencies. However political parties will submit lists of names to the Registrar of Political Parties before the election. After the election, Parliament will look at which house has not met the two-thirds rule and will then use the nomination list to ensure the gender rule is met.
The seats will be filled on the basis of proportional representation with the largest party providing the most additional women. Once the gender balance is met, it will be possible for men as well as women to be made MPs from the party nomination lists. This formula will also apply to the counties.
Cabinet decided to incentivise MPs to pass the new law by including the change of election date from August to December 2012. Most MPs are not keen on cutting short their time in office by accepting an August 2012 election. The Bill to change the election date is also ready for debate in Parliament and will not require a referendum as the constitutional amendment can be made in Parliament.
"There was serious debate about the election date and again several options were floated. In the end, Cabinet decided not to be vague. That informed the decision to move the election date to December. This is a sweetener that will ensure that the current Parliament serves its full term and the next one also serves for five years," explained another minister.
The government has been under pressure from some MPs who insisted that they must serve their full five-year term from December 2007 when they were elected although the new constitution specified that the election should be in August 2012. MPs had already raised the matter with Speaker Kenneth Marende pointing out that their full term is protected under transitional provisions in the new constitution.
Parliament is supposed to be dissolved two months before the election which will also mark the end of Tenth Parliament. Along with Cabinet, the Interim Independent Electoral Commission had suggested that the first general election under the new constitution be held in December.
However the Commission for the Implementation of the Constitution chaired by Charles Nyachae has maintained that the polls must be held on August 14 as stipulated in the constitution. The Supreme Court has now been asked to decide the date of the next election but is yet to rule on the case. Once introduced for the first reading, the two Bills for the December election and the extra women MPs will not be read for the second time until after 90 days.
The constitution requires that such an amendment be approved by both National Assembly and Senate but the Senate is yet to be established. Therefore the approval by just the MPs will be considered procedural and legal, Cabinet believes. "Parliament shall publicise any Bill to amend this Constitution, and facilitate public discussion about the Bill," provides Article 256 (2) of the new constitution.
Two weeks ago Cabinet approved an amendment of the constitution to change the election date to December 2012. But it also resolved that the one-third rule on gender balance was impossible to achieve and set up a task force to look into the matter. "With regard to the requirement for one third representation in Parliament by either gender, Cabinet decided to set up a task force to prepare a constitution amendment Bill to deal with this important requirement that is technically impossible to achieve under the current stipulation," the Cabinet brief said.
It is the Task Force that has now prepared the Bill for the extra women MPs. Chapter 16 of the constitution stipulates that the constitution can only be amended through a referendum on issues related to supremacy of the constitution, territory of Kenya, sovereignty of the people, national values and principles, the Bill of rights, the term of the President, independence of the Judiciary, commissions and independent offices, functions of Parliament, objects, principles and structure of devolved government.
However, the section that Cabinet proposes amending is contained in Chapter Seven on representation of the people and will not need to go through a referendum. Moreover, to the Cabinet's thinking, the Bill of Rights is "aspirational" or "progressive" in approach.