By: David Kinyanjui
When the drafters of the Constitution 2010 were coming up with the document, they carried with them visions of a different country. A nation where people had access to equal opportunities, where despite your gender, race, social origin, status, political affiliation and religion each person had an equal chance to pursue personal and communal prosperity. Some of the groups of people who were looking forward to the August promulgation of the Constitution were the youth, persons living with disabilities and women.
In the 18th century another civilization had the same aspirations. That was the American civilization under the leadership of George Washington, James Madison amongst other American Fathers. Envisaged in their Declaration of Independence was the statement that everyone had a right to pursue happiness. It was almost the same before 2010 for Kenyans. The New Constitution promised a path to happiness to different people groups in Kenya.
The country has witnessed the significance of having the input of women leaders in political office within our country. When we examine the lives of leaders such as Wangari Maathai, Martha Karua, Charity Ngilu we see a level of resilience that has been of great benefit to the country. However, eight years after promulgation of the Constitution, the controversial Gender Bill is still a mirage despite three attempts to have Parliament pass it.
First, former Justice and Legal Affairs committee chair Samuel Chepkonga’s proposal to have the gender principle implemented progressively elicited sharp reactions from the Bill’s proponents. While those opposed argued that, unlike what a Supreme Court advisory had said, it was not specific on timelines. The second bid by Majority Leader Aden Duale (Garissa Township) to push the Bill through Parliament flopped.
The two attempts flopped after only 178 out of the 199 MPs present in the House supported it. Another 13 MPs opposed the Bill while five lawmakers abstained from the vote. Former nominated Senator Judy Sijeny’s attempt to push the legislation through Senate last year also suffered a similar fate. She failed to get the numbers to move the Bill to the next stage as only 23 out of the 67 members were present during the vote yet at least 45 senators are required to support the legislation. This time round, President Uhuru Kenyatta appeared ready to stamp his authority to ensure the controversial Bill is passed. He rallied Jubilee legislators ahead of the vote. His deputy President William Ruto and former Prime Minister Raila Odinga also supported the Bill and also whipped their allies to pass it.
The Constitution has not outlined mechanisms that will realise this principle. The Attorney General, in 2012, filed an application at the Supreme Court seeking an advisory opinion on how to implement the principle. The Supreme Court ruled that there were no concrete provisions to realise gender balance. The court also gave a timeline of August 27, 2015 to have mechanisms that will actualise the two-thirds gender principle. Parliament, however, requested for an extension of the deadline by a year which lapsed in 2016.
As a result of this, in September 2016, two NGOs – Centre for Rights Education and Awareness and Community Advocacy and Awareness Trust filed a petition at the High Court seeking a declaration that the failure by Parliament to enact the legislation within the set timeline by the Supreme Court advisory opinion and the Constitution was a violation of the law.
In March 2017, High Court Judge John Mativo declared that failure by Parliament to enact the legislation within the set timeline was a violation. The 12th Parliament now risks dissolution for breach of the Constitution and members are not leaving anything to chance. In August, more than 40 lawmakers caused a stir in the House when they threatened to stage a sit-in every Wednesday afternoon to pile pressure on the leadership to prioritise the Bill.
Public Service Cabinet Secretary Margaret Kobia, Council of Governors vice chair Ann Waiguru, Kenya Women Parliamentary Association chairperson Wangui Ngirici and National Gender Equality Commission commissioner Priscilla Nyokabi among others are pushing for the passage of the controversial Bill. But the bill is running into headwinds because of lack of serious lobbying.
The penultimate attempt to have the bill passed was in 2016. This stunted development shows that deferment as led by Honorable Duale is the only way that will make the bill alive and therefore relevant to the next session of the House. This is because Standing Order 141 (1) of the National Assembly provides that a bill, the second reading or third reading of which has been rejected, may be introduced again in the next session, or after the lapse of six months in the same session but subject to fresh publication. However, if sub clause (2) provides that a bill whose second reading has been concluded at the end of a session it was published, shall resume in the next session of the same parliament at the stage where it was interrupted.
The women legislators are also using the courts to threaten their male colleagues that if they do not support the bill, Parliament will be dissolved. The Constitution provides that if the August house doesn’t implement the gender parity rule it would be dissolved by the President under the advisement of the Chief Justice. Immediately after the 2013 elections a petition was filed by the highest court in the land asking the court to determine whether Parliament should be dissolved for not fulfilling the two thirds gender rule. The court then decided that the implementation of the rule would be “progressive” and the progress has been stunted ever since.
Currently Chief Justice Maraga has the option of leading the Supreme Court to review the Mutunga led Court’s decision and declare the Kenyan Parliament dissolved and a new bunch of legislators is elected. This would serve as a necessary impetus to drive the appreciation of women’s rights in Kenya. However this option is not financially tenable especially with the current state of our economy. However, this does not mean that shallow remarks concerning “slayqueens” is a dignified way of having legislative discourse. Parliament must find tenable ways of enhancing women participation in governance that involves empowering women for political office, if not they must pass the gender bill. For example engineering a country wide civic education that aims to teach voters that women too can lead is a simple way to go.