The requirement that at least a third of MPs in the next parliament be women can only be amended through a referendum, the National Commission on Gender and Development has said.
The Commission’s chairperson Dr. Regina Mwatha said that neither parliament nor the cabinet has a mandate to change a constitutional principle contained in the Bill of Rights.
“According to Article 255(1) of the constitution only Kenyans through a constitution can change this principle,” Dr. Mwatha said.
Dr. Mwatha was reacting to media reports that the cabinet was considering amending the provision in article 34 of the Elections Bill, which provides that some constituencies have women only candidates for elections on a rotational basis.
She termed such a move as an attempt to take away affirmative action ‘through the back door’ and called on parliament to retain all clauses on affirmative action as they are in all bills brought before them.
Although the fair representation principle is contained in the chapter on the Bill of Rights, the structural requirement is contained in article 81(b), which is not part of the protected clauses and hence does not require a referendum to be amended.
However, article 97(2) of the constitution says: “Nothing in this Article shall be construed as excluding any person from contesting an election under clause [97] (1) (a).” This partly implies that no candidate should be barred from contesting in an election on the basis of gender.
It is this particular clause that women leaders want amended so as to prevent the ‘women only candidates rule’ from being seen to be inconsistent with the constitution.
“Affirmative action is about bending backwards and it requires a great deal of goodwill on the part of parliament. If we leave it open, we are not likely to attain the two thirds requirement and thhat might lead to a constitutional crisis,” said Dr. Mwathe who is also the vice chairperson of the expanded Kenya National Human Rights and equality Commission.
No comments:
Post a Comment