THE TWO-THIRDS GENDER CONSTITUTIONAL RULE: A workable proposal at minimal additional cost to Taxpayers

gender rule
the two-thirds gender rule

By Dr Charles Kirudja

In the October issue (No. 23) of this publication, we ran a proposition titled “Freebie Candy Bars for Hungry Dames: How to Resolve the Gender Rule Constitutional Crisis”. It was presented as a “play in five parts”; but it was a serious proposition intended to resolve an endless debate on gender parity since Kenya gave itself a new constitution in August 2010.

We return to the subject. Why? The issue is back in Parliament again given the order by Justice Mativo that parliament enacts a law within 60 days to implement the constitutional gender parity requirement. As in previous attempts, the approach in Parliament seems wrong -headed, a déjà vu all over again. Specifically, they want to stick up the Kenyan taxpayers with even more bloated, do-nothing MPs, without a commensurate value from any additional seats demanded for women, over and above those constitutionally provided now.

I shall not rehash the first four parts of the think piece published in October 2016. It is reprinted elsewhere in this edition. It explains why the fresh effort to merely increase seats in Parliament, designated as “women seats”, will remain a repugnant proposal doomed to fail again and again.

What was suggested in the fifth part of the published proposition, however, is a ready and practical solution empowering women representation, first in the Senate and eventually in the National Assembly. The proposal immediately guarantees women representation in the Senate at a 50-50 percent equality with men’s representation. Further, the proposal restores legislative parity between the two chambers of Parliament.

The solution so offered leaves unchanged the total number of all seats in Parliament (416), as constitutionally provided now. There is, however, a necessary re-allocation of those same seats between the two chambers, that is, the Senate and the National Assembly, to correct a mischief wrought by the 10th Parliament. Here below are the details of the proposal as first published.

What is suggested is a minimum set of constitutional amendments to make a real difference for many of the unsettled causes among national minorities. We as a country are, after all, a nation of minorities, ethnic and otherwise. We are also a nation whose population is about 52% women, majority of them under 35 years, among whom are to be found the poorest, most disadvantaged, or marginalized Kenyans.

The mischief by the 10th Parliament essentially created two upside-down Houses of Parliament; with a virtual “Upper House” that is our rogue National Assembly, and a virtual “Lower House”, that is our virtually impotent Senate. It will necessarily take a constitutional amendment exercise that, first and foremost, expunges the “bad seed” left over by the 10th Parliament.

That “bad seed” deliberately sneaked in by a myopic group of MP’s at the Naivasha consensus talks was a monumental mistake intended to weaken the Senate; it’s an even bigger mistake to imagine progressive or continued success in counties without a Senate altogether, or with a continued weak and powerless one. The suggested amendments that follow herein are made against that background and purpose.

First Set of Amendments:

The first set of amendments serves to restore functional parity between the two chambers of Parliament so that each House effectively checks the excesses of the other. This is informed by the reality that all bills and policies with implication for the national level of government will always impact the county governments.  So, within the constitutional provisions captioned “role of the Senate (Article 96):

1.1 *Article 96 (2) is deleted. It is replaced by the text: “The Senate shall participate in all legislative functions of Parliament as provided in Articles 109-113”. (as amended herein).

The effect of this first amendment, obviously, is to remove the present ambiguity as to whether or not a particular bill is or isn’t of interest to counties; or is or isn’t an exclusive preserve of a particular House. Each House gets to have a say in each legislation commensurate with the special role of the particular House.

Somewhere within the provisions captioned “the legislative process (Articles 109-115), insert as appropriate the following new text:

1.2 *“A bill, except money bills or special bills concerning counties, may originate in any house of Parliament, and before it is signed into law by the President, it shall have passed both houses in identical form and language”.

1.3 * “A money bill may only originate in the National Assembly, but before is signed into law by the President, it shall likewise have passed both houses in identical form and language”.

1.4 *“A Special Bill concerning counties may only originate from the Senate, and before it is signed into law by the President, it shall likewise have passed both houses in identical form and language”.

Thus Articles (94-96) stating the respective roles of the two houses, and Articles (109-114) on procedures for enacting legislation or delineating bills concerning counties, will need technical revisions (not dealt with here) individually and collectively in order to harmonize or conform with the principles embodied in the text of this first set of amendments.

The overall effect of the first set of amendments as herein proposed, it should be evident, is to restore parity between the two houses while preserving their special constitutional roles as currently designated……READ FULL ARTICLE ON THE APRIL EDITION


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