These representatives will not be directly elected by the people. They will be nominated by political parties represented in the respective legislative Assemblies. Their mandate will be to represent minorities and special interests. The part to be played by these nominated members cannot be overstated for the simple reason that given the integration (ethnic, social, cultural, etc) levels that have taken root in Kenya today, coupled with high levels of migrations in the last 100 years, significant minorities will be found in most, if not all Counties.
177. (1) A county assembly consists of— (c) the number of members of marginalised groups, including persons with disabilities and the youth, ........
Positive affirmative action for women is a dominant theme in the Constitution of Kenya 2010, to balance the political space that has historically been dominated by men:
177. (1) A county assembly consists of— (b) the number of special seat members necessary to ensure that no more than two-thirds of the membership of the assembly are of the same gender;
97. (1) The National Assembly consists of— (c) twelve members nominated by parliamentary political parties according to their proportion of members of the National Assembly in accordance with Article 90, to represent special interests including the youth, persons with disabilities and workers .......
98. (1) The Senate consists of— (b) sixteen women members who shall be nominated by political parties according to their proportion of members of the Senate elected under clause (a) in accordance with Article 90; (c) two members, being one man and one woman, representing the youth; (d) two members, being one man and one woman, representing persons with disabilities; ........
Table 2. Nomination via Party Lists
|Nominated Senator||Senate||Persons with Disabilities||Both||2|
|Nominated Member for Constituencies||National Assembly||Youth, Persons with Disabilities, Workers||Both||12|
|Nominated Member for the Wards||County Assembly||Marginalised Groups, Persons with Disabilities, Gender||Both||Top up count*|
* Top-up count - so not more than two-thirds of the members of the Assembly are of the same gender.
From Table 2 above, there will be at least 18 women out of a total of 67 Senators in the Senate. This will represent just 26.7 percent - less than the required "........ no more than two-thirds of the membership of an elective body be of the same gender" Constitutional provision. The hope was (unless legislation is introduced on time before the 2013 General Elections), that some 5 Counties at the very least, will directly elect a woman Senator in the elections, to achieve the minimum requisite ratio of 44 men and 23 women in the Senate. However, the Supreme Courts opinion was sought on the matter and it (the Court) made a (majority) ruling that the said constitutional provision be realised progressively within two election cycles.
The National Assembly on the other hand, will have 47 directly elected Women Representatives for the Counties. At present, women MPs make up just 10% of the membership in the 10th Parliament. If the same trend is maintained at the 2013 elections, then about 29 women will secure direct membership into the Assembly. Add that number to the 47 and the next Assembly is assured of at least 76 women Members. If that be the case, and gender parity is adopted in the nomination rules governing party lists (Table 2), then the proportion of women in the Assembly will be 82 (including the 6 nominated by party list) out of 249 or 33.0 %, just about adequate as provided for in the Constitution.
The New Constitution is silent on whether independent candidates who get elected will have any voting right in the determination of those to be nominated via party lists.
NB. Detailed discussions on the politics, the concept and the various forms of representation as provided under the Constitution of Kenya 2010 can be found here or within the menus under the Representation link on the main page of this website.