As we have noted, the Constitution of Kenya 2010 endeavoures towards the fair, equitable and inclusive representation of every person in the country. From its very beginning, the New Constitution does well to acknowledge and affirm the diversity that is its people and how they together, form one nation. The Preamble:
We, the people of Kenya— PROUD of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation:
COMMITTED to nurturing and protecting the well-being of the individual, the family, communities and the nation:
RECOGNISING the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law:
Hence as a key constituent of governance, our structures of representation must ensure that all Kenyans are fully and equitably able to participate in the political process and governance of their Nation. Chapter 2 - The Republic:
10. (2) The national values and principles of governance include–– (a) ....... sharing and devolution of power, ........, democracy and participation of the people; (b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised;
Inclusive representation, the CoK 2010 continues, must cut beyond tokenism especially around superficial political participation, by not only recognising diversity, but by actively promoting the same in everyday life:
11. (2) The State shall— (a) promote all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage; (b) recognise the role of science and indigenous technologies in the development of the nation; and (c) promote the intellectual property rights of the people of Kenya.
(3) Parliament shall enact legislation to— (a) ensure that communities receive compensation or royalties for the use of their cultures and cultural heritage; and (b) recognise and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya.
Fair, equitable and inclusive representation is a component of the Bill of Rights belonging to every citizen. Chapter 4 - The Bill of Rights
19. (2) The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings.
(1) The Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies.
Because the Bill of Rights aims to give the same freedoms and dignity to all, proper representation also encompasses equitable access to resources by the individual and any group into which they associate or may be classified:
20. (5) ....... (b) in allocating resources, the State shall give priority to ensuring the widest possible enjoyment of the right or fundamental freedom having regard to prevailing circumstances, including the vulnerability of particular groups or individuals; ........
Hence by the single-minded and determined pursuit towards the equality of all, the people of Kenya hope to lessen the exposure of vulnerable groups:
21. (3) All State organs and all public officers have the duty to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities.
Indeed, the New Constitution singles-out these groups and in making specific references to them, makes clear provisions for their representation - respectively, persons with disabilities, youth, minorities and marginalised groups, and older persons. Part 3 - Specific Application of Rights:
54. (2) The State shall ensure the progressive implementation of the principle that at least five percent of the members of the public in elective and appointive bodies are persons with disabilities.
55. The State shall take measures, including affirmative action programmes, to ensure that the youth— (b) have opportunities to associate, be represented and participate in political, social, economic and other spheres of life;
56. The State shall put in place affirmative action programmes designed to ensure that minorities and marginalised groups— (a) participate and are represented in governance and other spheres of life;
57. The State shall take measures to ensure the rights of older persons–– (a) to fully participate in the affairs of society;
In effect, a complete paradigm shift on governance, participation and inclusivity. Part 3 - Rights and Fundamental Freedoms:
27. (6) To give full effect to the realisation of ........ rights guaranteed ......., 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.
(8) 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.
In a nutshell, the specific objectives in the Constitution of Kenya 2010 with respect to representation, are to give a voice and opportunity for participation and access to resources for everyone and every group; either directly or through both elected and non-elected representatives. To this end, it goes as far as providing for various levels of apportionment of electoral (and executive) positions to ensure that every person or group is not only equitably and effectively represented at the national law-making processes in the Houses of Parliament, but locally, at the County Assemblies as well. In a nutshell: "to achieve the principal of equal weight to each vote."
The foregoing notwithstanding, old habits die hard. As was expected, following the gazettment by the Independent Electoral and Boundaries Commission IEBC of the March 2013 nomination results, the Commission had to listen to and resolve numerous disputes arising from the nominations of Members to the County Assemblies. Clearly, most of the disputes touched on the constitutional requirements discussed above, i.e., on the need for the politics of the day to align and conform to democratic ideals.
The Commission highlighted the key points that cut across most of the complaints raised as touching mostly on fairness and inclusivity - and more so, in political representation: (a) That the final allocation lists for each County Assembly did not reflect regional (meaning a distribution of the seats amongst the various constituencies/wards in Counties) and ethnic diversity; (b) That political parties had breached their nomination rules in submitting names; (c) That the names submitted by the branches had been changed by the headquarters and the Commission should revert back to the names on the lists by the branches. (d) That the process of short-listing by the political parties was riddled with nepotism, corruption and bias and the lists therein should be annulled; (e) That persons nominated as representatives of Persons With Disability (PWD), youths and marginalized groups were not qualified to represent the said interests; (f) Issues as to the definition of Persons with Disability; (g) That certain categories of disability were not catered for; (h) Definition of marginalized groups; (i) That certain marginalized categories were not represented; (j) Complaints that certain nominees were relatives of politicians, party bosses or other influential persons; (k) That certain persons nominated were not from the political parties that were entitled to the seats in question; (l) Whether party nominees should be registered as voters in the respective counties; (m) Whether party nominees should be residents of the respective counties; (n) The accuracy of the number of seats allocated by the Commission to political parties; (o) Legality of coalition agreements where parties donate seats allocated to them to coalition partners; (p) That certain persons nominated were public officers at the time of their nomination. (IEBC Website. Accessed Aug 2013).
After listening to the various complaints and issues raised on party nominations, the IEBC' Dispute Resolution Committee did amend and publish a final list of County Assembly Nominees.