assembly

Women Representatives in the National Assembly: The Constitutionality of a male Candidate.

If elections were to be held today then radio personality Maina Kageni will finish third behind Esther Passaris and Rachael Shebesh according to an opinion poll by Trends and Insights For East Africa (TIFA Research). The polls indicate that Passaris and Shebesh will have a share of 57% and 25% of the votes, the Classic FM presenter will garner 1%. According to official data released by IEBC, Nairobi has a total of 2,250,853 voters. This means that Maina Kageni is projected to garner over 20,000 for the post of Nairobi women representative. His inclusion as a candidate in the poll may have been premised on a two minute video clip in June where he announced his bid as an independent candidate with a weave as his symbol and even went ahead to reveal what appeared as a clearance certificates by the Independent Electoral and Boundaries Commission (IEBC) and the registrar of political parties.

Can a man vie for the post of woman rep?

Article 97 (1) (b) of the Constitution of Kenya 2010 insinuates that the position of Woman Rep is a preserve of female candidates. It stipulates that the National Assembly consists of;

“forty-seven women, each elected by the registered voters of the counties, each county constituting a single member state,”

This then means that if in the unlikely event IEBC clears a man to vie in the post of Woman Rep and that man garners enough votes and IEBC declares him as the winner, then IEBC will be acting in breach of the Constitution. Anyone can go to court and successfully challenge the constitutionality of such an election.

What is interesting is, whereas the Constitution is clear on a Woman Rep being a woman it is not does not specifically prohibit a man from running for the same seat. We can only make an assumption on the thoughts of the framers of the Constitution.

The creation of the position of Women Representatives in Article 97 is an outcome of the two-third gender rule that aims at increasing representation of women in Parliament. Article 81(b) says that,

“Not more than two-thirds of the members of elective public bodies shall be odf the same gender”.

Article 100 recognizes women as part of the marginalized group who in Article 27(3) have a right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. Article 27 (6) stipulates that, to give full effect to the realization of the rights guaranteed under the Article, the state shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination while Article 27 (8) also stipulates the following–

“In addition to the measures contemplated in clause (6), the state shall take legislative and other 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.”

Functions of women representatives

The role of Women Representative in the National Assemblies goes beyond that of other MPs. The women are supposed to represent the interest of women and girls in their counties. They should develop policies and sponsor bills in Parliament that target to bring a solution to issues concerning women and girls. The other roles are outlined in the Article 95 of the Constitution. These include representation, legislation and oversight of the executive. They can use their positions in parliament to lobby and advocate for equal opportunities for women and funding of projects that fit their cause.

Conclusion

If men like the popular radio presenter were to be allowed to vie for the post of the Woman Representative then the purpose of which it was created by the framers of the Constitution will be rendered nugatory. The membership of women in the 11th Parliament currently stands at 23% which is way below the two-thirds law of 33%-we are expecting a constitutional crisis if the two-thirds gender rule will not be met by the electorate come August.

BY FELIX OMBURA

This article appears in our digital law newsletter, The Deuteronomy Vol 7, Issue 1 of July 7th, 2017

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