Gender rule needs more than judicial fiat

Chief Justice David Maraga has a knack for making highly explosive but poorly thought-out decisions.

People hail this as courage.  But all he does is just add more confusion to that already created by a constitution he says he acts upon.

Parliament’s two-thirds gender principle cannot be enforced by judicial fiat. By all means, the President can go ahead and dissolve the Legislature.

But who really believes the subsequent Parliament would have anywhere near the elusive one-third of elected (and nominated) female membership? Such hopes are a pipe dream.

That is not to denigrate women. Not at all. It's simply how things are in Kenya.

Gender balance is certainly easier to achieve in appointive positions.  For all his ventilating, Maraga has not pushed for that in his Judiciary.

Stiff threshold

 The solution to the conundrum in Parliament has previously been sought in nominating more women.

However, the Constitution puts limits on how many MPs can be nominated and indeed the overall number of MPs.

To change that, the Constitution would have to be amended, with a stiff threshold of two-thirds majority vote in both the National Assembly and the Senate.

It has been tried severally and failed, most famously under the former National Assembly Majority Leader, Mr Aden Duale.

There’s no guarantee that a new Parliament will show a change of heart. Indeed, under what mandate can MPs be compelled to vote a certain way?

Nomination top-ups are generally unpopular with the public. One reason is cost.  Already, with 416 MPs, Parliament is way too bloated.

Two-thirds gender rule

Adding dozens more to satisfy the two-thirds gender rule won't fly with the taxpayer.

Other stratagems have previously been proposed to deal with the two-thirds gender headache.

One is to pass a law that sets aside guaranteed seats for women from existing constituencies. Problem is, which constituencies to pick, and using which criteria?

Another suggestion is for political parties to pack more names of women candidates in their party electoral lists.

This has its pros and cons. The fundamental objection, though, is that the Kenyan voter feels he has an inalienable right to vote for whomever, and not necessarily for a woman on a party list.

I was not surprised when the Parliamentary Service Commission met and faulted Maraga for failure "to exercise wisdom and circumspection" by rushing to create “a constitutional crisis”.

Maraga has been criticised before for not weighing carefully the full ramifications of some of his decisions, actions and public statements.

More so a decision as far-reaching as the premature dissolution of Parliament. Had he considered whether the IEBC is in shape to conduct mass elections? Was there a budget?

Had he forgotten, in the excitement of the moment, that not just the IEBC but the entire government – the Judiciary included – survives from appropriations that must be authorised by Parliament?

Issuing edicts to dissolve the body without looking at the broader picture is to waste everybody's time.

The Constitution’s own contradictions and impracticalities are at the heart of the matter (“an NGO document”, the late Mutula Kilonzo dismissively remarked in a moment of candour in Naivasha in 2010 when the draft was up for its final panel-beating).

Limited erudition

Maraga’s lack of nuance when applying this 'katiba' is part of the problem.

His jurisprudence, such as it is – there is no politer way to say this – is widely considered insubstantial. His erudition, too, is limited.

This transfers into the rather simplistic way he interprets matters of constitutional-cum-political import that relate to other arms of government.

It’s no secret the Executive has a dim view of him and the generally unbalanced drift in the Judiciary during his tenure.

Picking an additional political fight with Parliament clothed in legalisms was not very smart on his part.

No sir, you can't win this one. The crowd may cheer him on, depending on the prevailing temper, but that should be no comfort.

Kenyans can be notoriously two-faced. On one hand they are applauding the prospect of Parliament’s dissolution, yet on the other they (men especially) are telling anybody who will listen that they dislike the two-thirds gender rule.

Kill BBI

There is a suspicion circulating in Parliament that Maraga is being used by forces out to kill BBI.

That is not my opinion. It is what you hear from various MPs. Kisumu West MP Olago Aluoch said it openly on the parliamentary floor.

Dissolving Parliament will disable the BBI process for sure.  However, it could backfire by accelerating the regrouping of the pro-BBI forces in an even more fired up way.

Another serious blowback could be to the Judiciary itself, judging from the foul mood in Parliament.

By the way, the Judiciary is very much an interested party as it fears the unaccountable power it enjoys could be brought under check in a new constitutional structure.

 In the end, Maraga’s memo may have damaged his own institution irreparably.  Sad.

[email protected]