The Gender Rule and Intersectional Lenses in Kenya’s Governance

23 Sep

By Javas Bigambo

Intersectional methodologies are a vital ‘lens’ in analysing critical power structures in Kenya, and the extent to which they affect multifarious governance frameworks.

The recent advice by Kenya’s Chief Justice David Maraga to President Uhuru Kenyatta to dissolve Parliament for failing to enact legislation to give statutory effect to the constitutional provision of two thirds gender rule in the Constitution, makes lovely fodder for debate on intersectionality in Kenya’s politics.

The Executive and the Judiciary have had a long push-and-pull relation. President Kenyatta and CJ Maraga started working together with great smiles, now such cannot be afforded by either party.

Kenya’s judiciary has affected government’s balance of power in many ways that are historical. The Supreme Court affected the Executive arm of government by overturning the re-election of President Uhuru Kenyatta in 2017. Now the Chief Justice has advised President Uhuru Kenyatta to dissolve Parliament (National Assembly and Senate) on the strength of Article 261(7) for failure by Parliament to pass the Two Thirds Gender rule. This will invariably affect the balance of power and polity in Kenya.

With a single jaw of a donkey, Biblical Samson killed 1,000 Philistines. So it is with Maraga, that with the single stroke of his pen through his advice to the President, Chief Justice has thrown the Kenyan polity and ruling class into a constitutional dilemma.

The participation and contribution of women on governance matters is no longer insular and discreet. In the words of Thomas Sankara, “Women’s fate is bound up with that of an exploited male. However, this solidarity must not blind us in looking at the specific situation faced by womenfolk in our society.”

Dissolving Kenya’s Parliament would be a Molotov Cocktail to the BBI. The role of the Executive will be adversely affected without Parliament in place. So Raila and Uhuru are not in favour for the dissolution of Parliament for political reasons and interests. If they forestall the dissolution, then such disrespect for the Constitution would make it meaningless to pursue constitutional changes through BBI if they are not constitutionally cultured.

This places the President and his political interests between very huge hard rocks, limited leg room and limited head space.

When assuming the Executive Office of the President of the Republic of Kenya, President Uhuru Kenyatta swore and stated that “ I Uhuru Muigai Kenyatta, I swear that I will truly and diligently serve the people and the Republic of Kenya in the office of the President/ Acting President of the Republic of Kenya; that I will diligently discharge my duties and perform my functions in the Office of President/Acting President of the Republic of Kenya; and I will do justice to all in accordance with this Constitution, as by law established, and the laws of Kenya, without fear, favour, affection or ill-will. So help me God”.

He has many times been called upon by circumstances to live out the significance of that oath. Now the challenge has been brought to his doorstep.

An analysis of the political happenings in Kenya’s political spaces depict lucidly that conscious prejudice in Kenya is distressingly encyclopedic, intensely celebrated and humorously embraced, making us lose direction from the true North of reason in political and development affairs.

Such prejudices are informed by the shadows of patriarchal dominance; class structures; dynasties driving politics; tribalism; nepotism; and at times false egos and attitudes of self importance.
Social forces in Kenya, which include socioeconomic factors, unfair nomination practices within political parties, poor governance practices, cultural and societal values and norms that hamper women’s advancement, altogether influence the manner in which women continue to struggle in Kenya.

Gender parity concerns in Kenya have to be seen through the lenses of dialectical materialism. On my part, it is easy to live with the memory of Bukina Faso’s late President Thomas Sankara who quipped that “The importance of dialectical materialism lies in going beyond the inherent limits of biology, rejecting simplistic theories about our being slaves to the nature of our species, and, instead, placing facts in their social and economic context.”

In light of the historical and vital advice of the Chief Justice to the President of Kenya to dissolve Parliament, for failure to enact a law to operationalize the constitutional provision on two thirds gender rule.

Various petitions were filed with regard to failure by Parliament to enact enabling legislation for the operationalization of the gender rule. On record, the Speaker of the National Assembly Hon. JB Muturi and Speaker of the Senate Hon. Ken Lusaka filed preliminary objections, citing vital points of law that Articles 97 and 98 have set a ceiling on the composition of the two Houses of Parliament, it is impossible to enact legislation to give effect to the two-thirds gender rule without violating the citizens’ political rights to vote for candidates of their own choice and/or vie for any elective position in any public body or office.

The political hurdles intertwined with the legal challenge in the face of the CJ Maraga advice to the President for dissolution of Parliament makes things even more intriguing. The President could advice the AG to go to court for constitutional opinion and further interpretation. Uhuru Kenyatta may use the CJ’s advise as a powerful political tool for political expediency, but side-stepping the advice to dissolve Parliament will also portray the Executive arm of government as rogue and spitting at the rule of law. Is the IEBC (as presently constituted) ready to conduct elections for 337 parliamentary positions? Is President Kenyatta ready and willing to dissolve Parliament? I doubt.

Now that the Chief Justice has played his part, every other office/ institution must play their part too. Either the Attorney General approaches the court for interpretation of Article 262(7) and for weighting the political and legal implications of the possible dissolution of Parliament (it is the role of the courts to interpret constitutional provisions and statutes), or the President proceeds to do the needful. The choices are very stark.

Javas Bigambo works with Interthoughts Consulting.

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