Polls body to reject all nomination lists flouting gender rule
Barely a week after overcoming the challenges of nominations, political parties face yet another hurdle placed by the Independent Electoral and Boundaries Commission (IEBC).
In a communique to the parties yesterday, IEBC warned that it would reject nomination lists that don’t meet the two-thirds gender requirement as ruled by the High Court in 2017.
The warning caught political parties unawares, as it came on the last day they were required to compile and submit the list of all their candidates.
The High Court had ruled that at least one-third of elective seats in the National Assembly, Senate and County Assemblies should be occupied by women.
Despite the country’s 2010 Constitution stating that no more than two-thirds of any elected or appointed body can be of the same gender, the National Assembly has continued to operate with only 22 per cent of the seats held by women, while the Senate has 31 per cent.
This is despite several court rulings since 2012 that have directed Parliament to pass a legislation to enforce the gender rule or risk being dissolved. Several attempts have failed, with female members of Parliament blaming their male counterparts.
Failure by Parliament to enact the required legislation prompted former Chief Justice David Maraga to advise President Uhuru Kenyatta to dissolve Parliament in 2020. But the President ignored Maraga’s advisory on grounds that it was not binding for him to dissolve the two houses.
“There is no doubt that dissolution of Parliament will cause inconvenience and even economic hardship. The fact that Kenya is in the midst of the coronavirus pandemic only exacerbates the potential impact of the decision,” Maraga stated then.
“Yet that is the clear result Kenyans desired for parliament’s failure to enact legislation they deemed necessary. More often than not, there is no gain without pain.”
In the latest bombshell, IEBC chairperson Wafula Chebukati was categorical that all candidates on the lists presented by political parties that fail to adhere to the requirement, will not be eligible to contest in the August 9 election.
All short of the law
Observers say the latest communication by the electoral agency could be a powder keg to almost all political parties. Sources at IEBC intimated that most parties that had already submitted their lists fell short of the requirement.
“You are reminded that all political parties participating in the upcoming elections must comply with the existing statutory obligations and ensure all lists of candidates for the 290 constituency-based elective positions for members of the national assembly and 47 county-based positions for members of the Senate must comply with the two-thirds gender rule,” Chebukati said in the statement.
He added: “Note that a revised list that does not comply with the two-thirds gender principle will be rejected in its totality,” as well as all the candidates on the list.
Chebukati, however, said the Commission would give parties an opportunity to revise the lists and re-submit within 48 hours of receipt of IEBC’s communication.
In a letter to all parties, Chebukati said the commission’s decision is based on a court judgment delivered in Constitutional Petition No. 19 of 2017 by Katiba Institute, where the court ruled that parties were bound by provisions of Articles 10, 19, 20, 27, 28, 56, 81(b) and 91(1) of the Constitution.
Therefore, any action undertaken by them, including the nomination of candidates for Members of Parliament, had to comply with the requirements of those provisions.
In addition, it ruled that Articles 10, 19, 20, 27, 28, 56 and 91(1) of the Constitution obligated IEBC to reject any list of a political party for its candidates that did not comply with the two-third gender rule.
ODM’s Secretary-General Ewin Sifuna, while speaking on behalf of the party’s director of National Elections Board, Catherine Muma, said IEBC was only acting on court orders.
“It is something that we anticipated and we navigated our nominations with that in mind. Dr Muma is compiling the final list for submission to IEBC. We hope to meet the requirement,” he said.
His United Democratic Alliance (UDA) counterpart Veronica Maina said she was “busy compiling the final list” and was not in a position to talk. “Just give us time to finish this and we’ll talk to you. There is a lot of pressure to beat the deadline,” she said.
Jubilee’s Jeremiah Kioni disclosed that the party was working on the issue. “We are aware of the two-thirds gender rule and are working on it,” he said.
In the judgment, the court also directed parties to formulate rules and regulations to ensure compliance during nominations. It asked the commission to devise an administrative mechanism to ensure that the requirement was realized among political parties during nomination exercises.
In a public notice last week, the commission told parties to submit the names of nominated candidates in printed copies and electronic versions (Microsoft Excel).
Parties had until the end of business on April 28 to submit lists of their nominees.
The push to have the said rule passed into law has previously been futile, with the latest being the rejection of the Constitution of Kenya (Amendment) Bill 2019, by senators on grounds that it was retrogressive and infringed on the rights of the public by imposing who they should vote for.
The Bill co-sponsored by Makueni Senator Mutula Kilonzo and his nominated counterpart Senator Haji Farhiya Ali had proposed to amend Article 97 of the Constitution to give effect to the two-thirds gender principle through the creation of special seats.
Unlike previous attempts, the Bill proposed to give political parties authority to nominate members to the Houses until they achieved the two-thirds gender rule.
This was the fifth time such a Bill had been rejected, yet it was supposed to have been enacted within the first five years of the new Constitution. Currently, men dominate the National Assembly, as only 59 out of 349 MPs are female.
Section 27 of the Constitution requires both levels of government to ensure that neither gender has more than two-thirds of public officers, whether elected or appointed.
Under the rule, the dominant gender should only occupy 66 per cent of public offices.
Currently, men dominate the National Assembly, as only 59 out of 349 MPs are female.