Ever since I wrote about the ludicrous proposal to reserve 72 constituencies for women in elections, I got the sense that the proposal was impractical. After listening to so many people give their views, I get the sense that only a judicial declaration that the principle of "not more than two thirds of either gender" in elective and appointive posts will sort out the matter.
I pray that the declaration labels the principle as one that is aspired bearing in mind the robustly patriarchal nature of the Kenyan society. That, to me will be the best way out as women will become emboldened to go out there and compete.
There are those who insist that the Constitution should be amended in the sense of deleting clause 27(8) or just amending it to read 'appointive' and not 'elective' . To people who know about the affirmative action debate, this is a joke. A rude one! And should not be entertained. But then if the judges rule otherwise, what are the alternatives?
I don’t think it will be prudent to amend that section because it will mean we’ll need a referendum just to delete one word or one clause… just check article 255(1)(f) of the Constitution. But if the judges insist on an immediate application of the principle, then an amendment to that clause or if someone comes up with another super formula that does not breach the Constitution, then we're game.
And even if we decide to amend the Constitution to have an easier life, it can’t happen before the next polls, because, folks will be busy campaigning for their political survival to be distracted by a ‘little’ Bill in the House on affirmative action. (It’s possible that they can hack it just to get on with their lives).
So, if in the 2012 polls we don’t get two-thirds, that Parliament will be illegally constituted, so it will not have the legitimacy to conduct business. Judy Thongori (Omtatah's equivalent in matters activism) has vowed to go to court the 'very next day' to oppose a Parliament with more than two thirds men.
If she gets her way, we won't have a Parliament to amend the Constitution even if we want it amended.
If for some miracle the egg-chicken scenario is sorted, and an amendment is proposed, a referendum will be coming so close to the General Election…the whole thing doesn’t look rosy.
Or may be, as MPs make a law to ensure there’s affirmative action regarding the one-third principle, and the likes of Ababu and Kanjama on the other hand saying the “not more than two-thirds” thing is aspirational, is it possible for them to go the Burundi way and co-opt women, so that after the polls, if we don’t have 116 women, we just ask political parties to top up their quotas (not nomination slots) with women?
But then this will be a form of nomination, which will push the number of MPs beyond what constitutes Parliament as prescribed in the Constitution. That will call for an amendment for the membership of Parliament. And the nominations sounds like “Appointive” so men will also need to be taken on board so it is not more than two thirds chosen in that manner.
Okay, what are the options for women? Or are we looking at an amendment?
PS: If CJ Dr Mutunga looks at it sweetly, with Deputy CJ Baraza’s acquiescence, I think, we’ll just say the “not more than two thirds” is an aspiration. Let’s see how that case on the Supreme Court judges pans out, it will solve more problems.