Persons with disability, youth, workers and other special interests: they were supposed to get recognition and representation in Parliament under the Constitution.
This was supposed to be a new era; not like the old Constitution under which twelve nominated members were "to represent special interests", but it was rarely clear what those special interests were, and the seats were sometimes used for electoral rejects. A judge did decide that small marginalized communities like the Il Chamus were a "special interest".
Now we have a new special interest: presidential candidates. It sounds like a joke. But because they cannot be both MP and president, they faced a dilemma - where to go if they failed in their presidential bids? Who is responsible for their dilemma? Politicians of the PSC: who changed the system of government at Naivasha to the US system and took the head of government out of Parliament.
The PSC also removed a requirement that at least 5% of the National Assembly be persons with disability and at least 5% "marginalized communities, marginalized groups, the youth or workers", and introduced the existing provision about their just being "represented", as well as the vague "special interests including youth, persons with disability and workers".
At first the IIEC, as it was, was at least thinking about how to achieve this representation of special interests. But no attempt was made in the Bill eventually published to ensure that lists either comprised those members or even represented those groups.
When the Bill was being rushed through in late August 2011, Danson Mungatana moved an amendment: "...a candidate nominated for election to the position of President or Deputy President may be nominated for election to one other elective position under this Act". The MPs rejected it.
But later in the Bill they found a provision stating very clearly: "The party list shall not contain a name of any candidate nominated for an election under this Act." Mr Mungatana returned to the fray and the following took place:
Mr Mungatna: I move to amend Clause 34(9)---
The Temporary Deputy Chairlady (Dr. Laboso): It is 35! Mr. Mungatana: Clause 35, sorry! Madam Temporary Deputy Chairlady. I stand corrected! I have given notice that it will be an amended version.
"The party list may contain a name of any Presidential or Deputy Presidential candidate nominated for an election under this Act"
Yes Madam Chair, I was explaining and now if--- The point I wanted to make---
Hon. Members: It is okay! Sawa!
Mr. Mungatana: Madam Temporary Deputy Chairlady, if it is okay, then I do not need to explain.
And that was it. What happened to those members who defeated the earlier amendment? Not a voice was raised to protect the interests of those who were supposed to be represented by the 12 members.
The note-takers seem to have misunderstood it, too and it was recorded with "not". The Attorney-General corrected this - rightly, Justice Majanja said.
Suppose each of six candidates does this. Their party puts them (Presidential and Deputy Presidential candidates) at place 1 and 3 on their list (not many of the presidential candidates seem to be planning to have running mates of the opposite gender, but the lists must alternate men and women).
One of these is actually elected President. Five are not, but their parties all win enough parliamentary seats to entitle them to at least one seat from the lists.
Five of the 12 seats that the constitution earmarked for "to represent" persons with disability, workers youth and others have gone, more if a party gets 3 of the 12 seats and its defeated Deputy Presidential candidate sails in, too.
Justice Majanja was asked to rule on whether this was constitutional. He had no problem with it. He said, "'special interests including' must have a broad and expanded meaning to cover interests identified by the political parties and not restricted to the categories of interest or groups identified by the Constitution." The Constitution was not explicit enough to prevent this reading, he said.
Because of their important role, the courts must not weaken parties, and "inclusion of the Presidential and the Deputy Presidential candidates to represent legitimate and indeed special interests from the political party's point of view is within the Constitution."
There is no discussion of the nature of the new system, with its US style distinction between legislature and executive. His reading did not, he insisted weaken the protection for the groups mentioned, because of "the already existing provisions that provide for representation of special groups and interests".
Next shall we see the parties allocating elderly party hacks without disability the two seats in Senate "representing" the youth and the two "representing" persons with disability? Actual members of those groups would have to be satisfied with the county assemblies where youth, persons with disability and (perhaps) other marginalised groups members will share four seats in each assembly. What a betrayal. By the PSC, the CoE, the IEBC, Parliament and the parties. And now, one hates to say it, by the courts.
The writer is a director with Katiba institute