Keeping faith in the Constitutional Reform – Part 2

THE LEGISLATURE

The new Kenyan Constitution provides for two Houses of  Parliament, the National Assembly and the Senate. The composition of these Houses is interesting in light of the proposals contained in the Constitution Bill 2009 which were rejected in the referendum of last November. Those proposals represented an innovation, in that, in addition to the seats decided on a constituency basis under the first-past-the-post system, Section 67 (2) (b) provided for a number of “Party Representatives” elected on a proportional representational basis.{{more}} This proposal, of which I was never enamoured, was supposed to take the place of a Senate. It in fact also sought to circumvent civil society participation in Parliament, as originally proposed by the Constitution Review Commission (CRC).

The Kenyan Constitution while still providing for the bulk of the Members of Parliament to be elected on the traditional first-past-the post system, in respect of both Houses, introduces proportional representation for members to supplement those elected in the usual manner. In the case of the National Assembly, twelve members are to be nominated under Article 8:97 (1) (c) “by parliamentary political parties according to their proportion of members of the National Assembly.…” This is a similar process to the one proposed in SVG, except that these are not to be party hacks, but must “represent special interest persons with disabilities and workers”. Quite different from what was proposed here!

The same principle is prescribed for the Senate, where in addition to the 47 members elected on a single member constituency basis, article 8:98 (b) provides for 16 women “who shall be nominated by political parties according to their proportion of members of the Senate elected”. Again, a form of proportional representation.

GENDER AND CIVIL SOCIETY

Since we have touched on these aspects of representation, it is instructive to note how the Kenyan Constitution addresses gender and the representation of special interest groups. Foremost in this regard is Article 8:100, which I quote here in full:

Parliament shall enact legislation to promote the representation in Parliament of:

(a) Women; (b) persons with disabilities; (c) youth; (d)ethnic and other minorities; (e) marginalized communities.

While entrenching the role of political parties as the basis of representation in Parliament, the 2010 Constitution ensures that there is strong gender representation. Thus, under Article 8:97 (1) (b), in addition to the 247 elected constituency representatives, provision is made for “forty-seven women, each elected by the registered voters of the counties”. So there MUST be women in the National Assembly even if no woman was nominated to contest, or contested and lost, any seat.

The same principle holds for the Senate as outlined above. Besides the 16 women in 8:98 (b), among the representatives of youth and persons with disabilities, one each of the two seats set aside for each category must be female. Gender representation is also ensured in the articles governing political parties. Article 7:91 (f), commits every political party to “respect and promote fundamental rights and freedoms, and GENDER EQUALITY AND EQUITY” (emphasis mine).

Interestingly, for those of our sisters who sometimes romantically dream of a women’s political party, 7:91 (2) explicitly forbids this by saying that, “a political party shall not (a) be founded on a religious, linguistic, racial, ethnic, GENDER or regional basis.…” Gender balance is also ensured by the provision of 7:81, (Principles for the electoral system), which makes it clear that “not more than two-thirds of the members of elective public bodies shall be of the same gender”. There are other provisions for gender representation in various Commissions.

The modern and enlightened nature of the Kenyan Constitution is evident not only in ensuring representation in the National Assembly as noted above but in other sections as well. In the principles for the electoral system, “fair representation of persons with disabilities” (7:81 c), is guaranteed. In article 8:98 (d), provision is made in the Senate for “two members representing persons with disabilities”. In other words, there must be no discrimination on whatever grounds.

This insistence on civil society representation in Parliament (women, workers, youth, persons with disabilities ethnic minorities, etc (strangely I don’t seem to see any special provision for farmers), is a very noble and democratic feature. If only our Parliamentarians, from both sides, had the vision to accept the proposals of the CRC, gathered from extensive consultations, perhaps we may have been in a different situation now.

POLITICAL PARTIES

The new Kenyan Constitution does not leave the governance of political parties to chance. Having entrenched the party system as the basis of its politics, it outlines regulations governing these parties. In 7:91 it spells out that:

(1) Every political party shall (a) have a national character as prescribed by an Act of Parliament; (in other words no small group masquerading as a bona fide party).

Sections (b) to (d) speak of intra-party democracy, good governance and commitment to national unity. In the latter case it would have been very interesting had we had such a provision in our Constitution at the time of the Grenadines Declaration in 1980!

Another noteworthy introduction is contained in 7:91 (2) which forbids parties from engaging in or encouraging “violence by, or intimidation of, its members, supporters, opponents, or any other person” (2) (b). It also states that a party shall not “engage in bribery or other forms of corruption” (2) (d).

Finally there is a comprehensive section, 7:92 which requires Parliament to pass legislation to provide for:

(a) The reasonable and equitable allocation of airtime, by state-owned and other specified categories of broadcasting media, to political parties either generally or during election campaigns;

(b) The regulation of freedom to broadcast in order to ensure fair election campaigning;

(c) The regulation, roles and functions, registration and supervision of parties;

(d) The establishment and management of a political party’s fund;

(e) The accounts and audit of political parties;

(f) Restrictions on the use of public resources to promote the interests of political parties.

These are far-reaching provisions which have very positive implications for governance. Perhaps before we get hot and sweaty about political choices, it might do us some good to reflect on these and to find out the views of the respective parties on such issues.

FINAL SECTION NEXT WEEK

Renwick Rose is a  community activist  and social commentator.