Virtual Constituencies created for the 2013 Elections

 

Beyond geographical representation of population groups and areas, the Constitution of Kenya 2010 has gone to considerable lengths to provide for representation of the individual as part of a larger group with similar interests and rights - what we have referred to previously as virtual constituencies. To demonstrate these diverse forms of representation, we will next examine the various proportions of representatives that constitute the national and sub-national legislative assemblies.

To help us better understand this, let us consider the example of a young disabled working minority woman voter registered at a given constituency. She will be represented in multiple forms both at the National Assembly as well as at the Senate. At the National Assembly she will, at the very least, be represented by 3 groups of Members; a directly elected Member of her Constituency, 47 Women Representatives from the Counties, and marginally, by 12 nominated members of that House in various combinations because she has a disability, because she is a youth, a worker, and comes from a minority community. Excerpts from Chapter 8, Part 2 - Composition and Membership of Parliament:

97. (1) The National Assembly consists of— (a) two hundred and ninety members, each elected by the registered voters of single member constituencies; (b) forty-seven women, each elected by the registered voters of the counties, each county constituting a single member constituency; (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; and ........

Table 4.1 below, captures these divers forms of representation (for the woman in our example) at the National Assembly: 

 

Table 4.5 Geographical & Virtual Representation at the National Assembly

 

Representation at the National Assembly
Representation
Geographic & Population Representatives
Virtual Representatives
Constituent
General Population Women Youth Disabled Workers Ethnic and Other Minorities Marginalised Communities
Members of the National Assembly
290 47 12 12 12 12 12

 

Similarly at the Senate, she will be represented by the Senator of her County, by all of 16 nominated women, one other man and woman because she is a youth, plus one other man and woman because she has a disability. Excerpts from Chapter 8, Part 2, Article 98:

98. (1) The Senate consists of— (a) forty-seven members each elected by the registered voters of the counties, each county constituting a single member constituency; (b) sixteen women members who shall be nominated by political parties according to their proportion of members of the Senate ........; (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; and .......

 

Table 4.6 Geographical (County) & Virtual Representation at the Senate 

 

 
Representation at the Senate  
Representation
Geographic & Population Representatives
Virtual Representatives
Constituent
General Population Women Youth Disabled Ethnic and Other Minorities Marginalised Communities
Members of the Senate (Senators)
47 16 2 2 ?* ?*
Gender
Both Female Man and Woman Man and Woman Both Both

 

*Although the Senate represents the interests of the Counties (where minorities and the marginalised are to be found), the New Constitution has not specifically assigned a particular group of Senators to champion those special interests. Having said that though, and from foundational reasons of its very existence, the Senate will, as a whole, be expected to champion such interests.

A second feature of the form of representation that will be present at the Senate that may interest the reader, has to do with voting rights. Senators from one County will have a combined count of 1 when voting for a matter concerning the Counties. Chapter 8 - The Legislature, Part 5 - Parliament's General Procedures and Rules:

123. (1) On election, all the members of the Senate who were registered as voters in a particular county shall collectively constitute a single delegation ........

However, when voting on other Bills, each Senator will have a single vote, and consequently giving a greater voice to such constituencies as women, youth and the disabled.

(3) When the Senate votes on a matter that does not affect counties, each senator has one vote.

Hence Counties with higher Senate representatives may, albeit slightly, enjoy more clout at the Senate.

As we have seen so far, Kenya's New Constitution provides the woman voter with many compelling reasons to own the entire electoral process and its outcomes (campaign and voting). As Adams Oloo says (while quoting from the IDEA, 2005) in Elections, Representations and the New Constitution: "This increases the voters’ perception that it is worth making the trip to the polling booth at election time, as they can be more confident that their vote will make a difference to the election outcome, however small" (Oloo, 2011).

This is important from a woman's point of view because electoral politics in Kenya is today still, by far, a male-dominated process. The two tables above i.e., Tables 4.5 and 4.6 only give minimum levels of virtual representation for Women; but with one stroke of the pen, the New Constitution threw a spanner in the works by declaring that "....... (b) not more than two-thirds of the members of elective public bodies shall be of the same gender;....." in Article 81 (b)! 

Not surprisingly, questions had been raised in various quarters, on the practicality of immediate implementation of the one-third gender rule. This debate became a matter of wide discussions as the date of the (first) general elections under the new constitution quickly approached. The matter was eventually referred (by the Attorney General) to the Supreme Court in 2012 and an advisory opinion was given by the Court in December of the same year. The opinion essentially spelled out that the one-third gender rule would be "progressively realized" over several years or two election cycles and not immediately with the 2013 elections. In fact, the Court did specify a timeline for the realisation of the principal of one-third gender rule:

[79] Bearing in mind the terms of Article 100 [on promotion of representation of marginalised groups] and of the Fifth Schedule [prescribing time-frames for the enactment of required legislation], we are of the majority opinion that legislative measures for giving effect to the one-third-to-two-thirds gender principle, under Article 81(b) of the Constitution and in relation to the National Assembly and Senate, should be taken by  27 August, 2015.

It may interest the reader that this opinion was a majority decision not shared by the Chief Justice, who felt that the one-third gender rule could be realized by the 2013 elections if the Tenth Parliament could be so inclined to pass and enact the necessary legislation. (The different view of the Chief Justice on the matter can be found towards the end of the same ruling mentioned above).

As would be expected, the matter did not rest there and more questions continued to be raised on the long-term objectivity of giving women a "direct pass" so-to-speak, to what are traditionally (direct) elective positions in a society that has traditionally demarcated gender roles. For instance, Kiriro wa Ngugi firmly asserts, "If Kenyans, in exercising their sovereignty at the (2013) ballot, do not collectively obey the one-third rule, it would be manifest that the rule does not reflect the way they live or want to live." (Ngugi, 2012).

In a similar opinion, Nic Cheeseman calls this 'tokenism' and posits that, " ........ there is no clear relationship between the quality of democracy in a country and the representation of women." According to him, numbers alone are not a sufficient indicator or guarantee that women will be better represented in the political sphere. Like Kiriro wa Ngugi, Cheeseman challenges the women to raise the legitimacy of their appointments by capturing direct affirmation at the ballot: "...... how women enter the legislature may be as important as how many women enter the legislature."

Cheesman essentially said that in order to match their men counterparts, they (the women) must, like their male peers, be able to muster popular support at the grassroots: "If women are to exert an influence on government policy, it is important that they are seen to hold their positions legitimately, and to be representing a genuine constituency." (Cheeseman, 2013). 

When in March 2014 the National Assembly passed the controversial Marriage Bill 2013 in a process that appeared to have been largely driven by male Members of the House, various commentators were quick to accuse the women members of the National Assembly of lacking a strategy and unity of purpose in driving the agenda of the women of Kenya. "........ it appears the women MPs approached their work on the Marriage Bill with a total lack of strategy", wrote Dr Joyce Nyairo in the The EastAfrican, adding that, "they never really tried" to influence its content.

In a followup article, Dr Nyairo called the women members "an unmitigated disaster" and went on to question the very concept of affirmative representation of women. "We fell for the common fallacy that by having more women in Parliament we would automatically achieve agency and better representation on (women’s) issues." In the article, she highlights various legislative achievements ably made by both elected and nominated women members in previous Parliaments at a time when the concept of affirmative representation was nothing more than a mention, and their numbers in the House were barely at 5 percent. "Quantity does not always translate into quality", she said.

Echoing Cheeseman, she is firm that, "....... we must reconsider the whole function of Women’s Representatives. Maybe, like all affirmative action, this one has become a site of tokenism. The kind that, sadly, breeds mediocrity and entitlement in equal measure", she concluded. (Nyairo, 2014).

As the August 27th 2015 date drew closer apparently without any clear and definite indication of on-going legislative or constitutional changes that would deliver the one-third gender rule, the rights group - Center for Rights Education & Awareness (CREAW), petitioned the High Court saying that there existed a real risk or threat to violation of the Constitution of Kenya 2010's provisions that it must be fully implemented 5 years from its promulgation (it was adopted on the 27th of August 2010). CREAW also reminded the Court of the Supreme Court's Advisory Opinion on the same issue given in December 2012.

In its ruling, given on the 26th of June 2015, the High Court basically directed both the Attorney General and the Commission for the Implementation of the Constitution CIC to get cracking and prepare the necessary bills required to entrench the one-third gender rule. Said the Court,

"112. In the circumstances, I am satisfied that the petition has merit, and I therefore issue the following declarations and orders:

a. It is hereby declared that to the extent that the 1st and 2nd  Respondent have this far failed, refused and or neglected to prepare the relevant Bill(s) for tabling before Parliament for purposes of implementation of Articles 27(8) and 81(b) of the Constitution as read with Article 100 and the Supreme Court Advisory Opinion dated 11th December 2012 in Reference Number 2 of 2012, they have violated their obligation under article 261(4) of the Constitution to “prepare the relevant Bills for tabling before Parliament as soon as reasonably practicable to enable parliament to enact the legislation within the period specified”.

b. It is hereby declared that the foregoing failure, refusal and or neglect by the 1st and 2nd  Respondent is a threat to a violation of Articles 27(8) and 81(b) as read with Article 100 of the Constitution and the Supreme Court Advisory Opinion dated 11th  December 2012 in Reference Number 2 of 2012.

c. An order of Mandamus be and is hereby issued directed at the 1st and 2nd Respondents directing them to, within the next Forty (40) days from the date hereof, prepare the relevant Bill(s) for tabling before Parliament for purposes of implementation of Articles 27(8) and 81(b) of the Constitution as read with Article 100 and the Supreme Court Advisory Opinion dated 11th December 2012 in Reference Number 2 of 2012."

Moving on, allow me to draw your attention to one fact of default that arises from the fact of having a Senate: and that is, to counter the potential  domination of the National Assembly (and hence the politics of the day) by the larger populations. The small matter of the mathematics of Kenya's ethnic composition is such that the Luhya, Kikuyu and Luo ethnic groups account for more than forty per cent of the country's population, and therefore could potentially dominate the Assembly's proceedings and influence its workings to the exclusion of other groups. Therefore the Senate is in part designed to mitigate against this potential domination in Parliament by any one or a few interest groups, not least because quite a few of the minority communities have a Senator of their own in the house. As can be noted from our discussion on the colonial legacy that is the basis of the tribal boundaries that define our present Counties, "The Senate reflects the equality of the counties ......." (Osoro J B, 2013).

Finally, at the County Assembly level (a form of local Parliament under the devolved system of government in Kenya), where no more than two-thirds of the members will be of the same gender, the woman voter in our example will continue to enjoy a higher level of positive discrimination; and this, not only at the legislative assembly, but also in the executive government of her County: 

197. (1) Not more than two-thirds of the members of any county assembly or county executive committee shall be of the same gender.

In the same vein, going forward, political parties will, before an election, be required to publish party lists of representatives of minorities and special groups (in which the woman in our example belongs) of candidates who would be included in the lists of nominated members in both the houses of Parliament. Consider Article 90 that guides the composition of party lists. Excerpts: 

90. (1) Elections for the seats in Parliament shall be on the basis of proportional representation by use of party lists.
(2) The Independent Electoral and Boundaries Commission shall ensure that—
(a) each political party participating in a general election nominates and submits a list of all the persons who would stand elected if the party were to be entitled to all the seats provided for under clause 197. (1), ....... ; (b) ....... each party list comprises the appropriate number of qualified candidates and alternates between male and female candidates in the priority in which they are listed; and (c) ....... each party list reflects the regional and ethnic diversity of the people of Kenya.

Table 4.7 below, captures these divers forms of representation (for the woman in our example) at the local County Assembly: 

 

Table 4.7 Geographical (Ward) & Virtual Representation at the County Assembly 

 

Representation at the County Assembly
Representation
Geographic & Population Representatives
Virtual Representatives
Constituent
General Population Women Youth Disabled Ethnic and Other Minorities Marginalised Communities
Members of the County Assembly
Equal to No. Of Wards At least 1/3 of all Members ?* ?* ?* ?*

 * Top-up (or deficit) count - so not more than two-thirds of the members of the Assembly are of the same gender.

 

As an example, Lamu County with just 10 Wards and the fewest among the 47 counties will have a county assembly of only ten directly-elected members. If the County voters directly elect 10 men, its Assembly must nominate 5 women from the political parties lists in the County to top-up the women count to provide for at least 1/3 of the total in the Assembly. For the predominantly-Muslim Lamu with an important tourism segment, perhaps the nominated members in its assembly will also double up to represent the interests of other faiths and those of the tourism sector.

On the other hand, Kakamega - predominantly a Luhya community region with 60 Wards - and the second highest after Nairobi's 85 wards - is expected to nominate members to its assembly who will represent smaller ethnic and minority groups such as the Luo, the Kikuyu and Kalenjin, Muslims, Kenyans of Asian extraction, etc. Geographical County boundaries are expected to have taken care of cultural, clan and sub-ethnic history, affiliations, and ties etc (Article 89 (5) (b)); seeing that in our example, the Luhya people have about a dozen sub-language groups with some more dominant than others within the county.

While discussing political representation at the legislative assemblies and governments, let's not loose sight of one other important form of representation that the woman in our example stands to benefit from. As a worker, she can represent herself singly or in a group whenever she wishes to express an opinion, feeling, thought, request or desire. Chapter 4 - The Bill of Rights:

37. Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.

In effect, the worker has been assured of rights and fundamental freedoms:

41. (2) Every worker has the right— (c) to form, join or participate in the activities and programmes of a trade union; and (d) to go on strike.
(3) Every employer has the right— (e) to form and join an employers organisation; and (f) to participate in the activities and programmes of an employers organisation.
(4) Every trade union and every employers’ organisation has the right— (a) to determine its own administration, programmes and activities; (b) to organise; and (c) to form and join a federation.
(5) Every trade union, employers’ organisation and employer has the right to engage in collective bargaining.

Oftentimes and in reality, the dynamics of representation can be too complex to capture effectively in the letter of the Constitution. The spirit of a good constitution must therefore, invite the cooperation of and appeal to the moral and ethical soul of the majority, to protect the interests of the minority. "The protection of minority rights is best achieved and articulated through a combination of majority sensitivity and minority inclusion" (Oloo, 2011). Indeed, according to Reginald Oduor, there exists "a rationale for a set of moral principals to serve as a basis for the constitutional protection of ethnic minorities in Kenya's emerging democracy."(Oduor, 2011).

In conclusion, representation remains a work in progress for years to come and hence is likely to dominate future politics (and division of resources), elections and even amendments to the New Constitution. What is important to keep in mind is that (affirmative) representation is a desirable concept in modern democratic systems and we should therefore take care not to second-guess ourselves for passing it along with our constitution when those elected/nominated to champion minority interests fail to deliver on those promises.

Indeed, it wasn't until sometime in September 2015 that the public's perception of the effectiveness of women representatives began to change when a civil rights organisation Mzalendo, that monitors parliamentary activity, published a report to demonstrate that women members of Parliament contributed their fair share in the two houses especially with respect to the passing of bills and oversight roles. Said the report, "....... women have earned the political positions they hold and make valuable contributions." In fact, the research report directly contradicted the widely held view discussed earlier that implied that affirmative representation of women amounted to nothing more than tokenism: "....... there is no marked difference in contributions of women Parliamentarians whether elected, nominated or selected under affirmative action. They all provide quality contributions to national interest issues. (Mzalendo, 2015). 

 

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