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EDITORIAL: Time for reality check on two-thirds gender law




Last week, the National Assembly again failed to pass the two-thirds gender law. This time though lack of quorum led to the Leader of Majority Aden Duale moving the Bill be deferred to a future date so as to avoid the danger of it being lost on a vote as happened previously on the floor of the House.

There is outrage over the failure by the National Assembly to deliver on this promise in the Constitution, an issue that has been affirmed at the High Court and Supreme Court.

It is important that we take a critical look at the journey we have travelled on this issue as a country and ask ourselves whether we are doing the right thing. Firstly, the need to represent the diversity of society in all spheres of life is an important aspect of representative democracy.

To the extent that our leadership continues to be male dominated is an issue that raises moral, legal and constitutional issues. Resolving this must therefore be a necessary focus of the society.

The 2010 Constitution made important strides in dealing with this past challenge. While the two-thirds gender principle is the most talked about, there are several other constitutional innovations, including the position of county women representatives, the top-up seats in the county assembly and the nominated women senators.

The first big question that we have to grapple with is what happens now that Parliament has failed on numerous occasions to legislate on the two-thirds gender rule? The Judiciary has held that Parliament can be dissolved for non-adherence to the rule since it would be unconstitutional.

The Bill that was before the National Assembly sought to amend the Constitution to ensure that the gender principle is realised. While this debate has been going on for some time, it is necessary that we face the reality as a country. It is difficult to see how the argument continues that a Parliament that is elected by voters in accordance with the Constitution can be held to be unconstitutional.

What is even more interesting is that the solution to that problem is to amend the Constitution. If this is not about shifting goal posts, I wonder what is. It is necessary that we accept that the gender principle as captured in Article 81 cannot supersede the provisions of articles 97 and 98 which stipulate the composition of both the National Assembly and the Senate.

The push for implanting the gender principle by proceeding on the basis that to fail to implement it would be unconstitutional, is to miss the point. This is not to argue against increased representation of women in elective office. It is to say that as long as that push is based on the above interpretation then it proceeds on a false premise. It makes it tenuous to sustain the argument. It also justifies the difficulty in actualizing it.

The focus of the country may be better served by focusing on Article 100 of the Constitution which calls for legislation to promote the representation of several categories of people in Parliament, including women, youth, persons with disabilities, ethnic minorities and other marginalised groups. This approach will ensure several things.

First it will result in taking tangible measures to increase the representation of marginalized groups freed from the shackles of the interpretation of the gender rule. Had we focused on this approach we could still not be at the debate stage eight years after the enactment of the Constitution.

Secondly the increase will be for all marginalized groups to avoid the whispered questions about the other marginalized groups. In addition, it will ensure that the options for increasing representation is much wider than the current efforts to amend the Constitution so as to make it Constitutional.

So as opposed to burying our head in the sand, time may be ripe to reflect on the reality of the gender debate and avoid taking the country through another circus of drafting another Constitutional amendment, public discussions on why it must be passed into law, a series of lobbying efforts and then eventually failing to raise the requisite Constitutional threshold to enact it and make it a reality.

This is doing the same thing over and over again and expecting different results that ends up making a mockery of our Constitution. We have to determine a better route to solving the gender issue.