To elect or nominate women? The dilemma Kenya faces

Kenyan women continue to push for a high proportion of representation in political leadership. So far, electing or nominating them are the only avenues provided for in the Constitution.

And the question remains, should they be elected or nominated? To which of the houses? National Assembly, Senate or County Assembly?

The number of women elected, for instance in the 2017 General Election, into both Parliament and the 47 County Assemblies is pitiful. Thus the need for the top-up through party nominations.

A total of 96 women were elected as Members of the Assembly (MCAs) against 1,334 men, provides data from the Independent Electoral and Boundaries Commission (IEBC).To achieve the two-thirds gender balance, 650 women and 97 men were nominated

Similarly, 18 female senators were nominated to add up to the three that were elected out of the 47 counties.

Nominated members are, however, a weaker cluster of members in either Senate or County Assemblies. They also carry along the tag of their political parties to whom they must pledge and honour their loyalty.

As per Article 123 in the Constitution on decisions of Senate and Clause 78 of the Senate’s Standing Orders, nominated senators cannot vote in any matter affecting the counties.

Hence, they are left out on crucial matters such as division of revenue among the counties, despite the fact that women are disproportionately affected when devolved functions like health and agriculture are ineffectively delivered.

Last year, a nominated female senator confessed to be voiceless at the time the house was divided on the debate on the revenue sharing formula.

Contrary opinion

"You know, I cannot comment because I am not part of the delegation (senators allowed to vote),” she said.

Although she held variant views, she preferred not be quoted as giving a contrary opinion to her party amounted to disloyalty. The problem rolls over to the county assemblies.

It took the intervention of the National Gender and Equality Commission (NGEC) for nominated MCAs at the Nakuru County Assembly to be re-instated as chairpersons and vice-chairpersons of house committees. NGEC filed the petition at the High Court in Nakuru, 2019 consequent to the judgment that shelved the discrimination. The assembly had in 2018, de-whipped nominated female MCAs from the positions on grounds that they represented no geographical constituency.

Similarly, nominated MCAs in Kisii County regained power to vote in 2019, a year after the assembly approved an amendment to its Standing Orders restraining non-elected members from “voting in the assembly on any question.”

This is after the High Court in Kisumu found the amendment discriminatory and unconstitutional following a petition by 15 nominated MCAs.

Now, the Constitution of Kenya (Amendment) Bill, 2020 introduces a rather give and take strategy for meeting the two-thirds gender threshold in elective positions.

First, it proposes amendment to Article 98, which expressly provides that of the 94 Senators to be elected from the 47 counties, each will have to vote in a woman and a man at the same time. Thus, no more nomination of women to Senate.

Secondly, 70 more MPs will be elected from single and multiple member constituencies to add up to the currently elected from 290 constituencies through an amendment of Article 97 of the Constitution. This takes away the elected 47 County Woman Representatives and further nominations to the National Assembly.

Thirdly, it refers to Article 91 on basic requirements for political parties that would be amended to mandate political parties to “take measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.”

County assemblies

Thus, parties will be forced to field proportionate men and women. However, should they unsuccessfully compete, then they will be considered for nomination to the county assemblies. 

“The nominations now will be based on those that had contested… those are already leaders because they had already expressed interest to lead (and) had made very progressive steps towards being elected,” explained Commissioner at  NGEC Ms Priscilla Nyokabi during a January 14, Women and BBI (Building Bridges Initiative) webinar organised by Women Political Alliance – Kenya.

National Assembly Speaker Mr Justin Muturi, however, holds that too many of nominated members is a spoiler to Kenya's democracy.

"There are 1,450 wards in Kenya. So 1,450 elected MCAs but you know we have over 800 nominated MCAs, that again is not good for democracy because you have people who are not elected having too much weight in democratic decision making processes," he argued during a television interview aired on a local station on January 6.

So should the nomination to the National Assembly, where non-elected women are allowed to vote remain?

Former chairperson of National Gender and Equality Commission (NGEC) and gender expert, Ms Winfred Lichuma argued: “The actual debate in terms of development agenda is in the National Assembly."

“So we lose the 47 that we were guaranteed…then we leave the women in limbo. They have to go and struggle out for the 290(constituencies) plus the 70.We do not know how many we will get," she said during her presentation in the Women and BBI webinar.

A win gives the women a voice. But it’s a tough ride.

A report by International Foundation for Electoral Systems Violence against Women in Elections: A Framework for Assessment, Monitoring, and Response for instance, exemplifies a case of online harassment in which a Kenyan woman lost the race for Member of the County Assembly seat because she was depicted as a lesbian in doctored photos.

Well, a nomination gives the women an alternative voice. But it comes with less power and strings attached.

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