Friday, December 14, 2012

See the positive.

The Supreme Court has spoken and it has done what we hoped it would not do: take pragmatism to ridiculous heights. By reading the Two-thirds Gender Rule as progressive, and not mandatory, it has given Kenya's vacillating National Assembly time to finally arrive at a solution that promotes the interests of both genders in the governance of Kenya. The Opinion of the Supreme Court has not gone down well with the representatives of women organisations. Maendeleo Ya Wanawake's Rukia Subow and ex-FIDA Executive Director Grace Maingi are livid at the timidity of the Supreme Court; they would have preferred the Court to hold the Parliamentarians feet to the fire and compel them to do the right thing, even where the right thing meant a constitutional crisis in 2013.

With the Court's Opinion, Kenya is set for a period of great disappointment, especially for gender (read, women) activists. In recent years they have scored great successes, bar one or tow embarrassments. Indeed, it is slowly becoming fashionable even for women to talk about the marginalised boy-child, something that still amuses the hell out of many when one considers that it is men that make all policy in Kenya; it is men that implement all policy in Kenya; and it is men that are traditionally looked at as leaders and opinion-makers in all sorts of organisations and institutions, even where they are patently unqualified to make decisions. Many women leaders will no doubt feel cheated by the Supreme Court but one would urge caution; their frustration should not cloud their judgment, for in the opinion of the Supreme Court lies an opportunity that may not come again.

The Two-thirds Gender Rule was a mistake; it should never have formed part of the Bill of Rights. Its implementation was always going to be seen as a Western-sponsored project to undermine the foundations of Kenyan society and an attempt to re-make the nations in the image of the decadent West. In fact, if one examines some of the reasons for the great faith-based opposition to the Right to Live Provision, one sees the same kind of rhetoric being employed against the Two-thirds Gender Rule. Until the ill-fated Fourth World Conference on Women in Beijing in 1995, Kenya was well on its way to re-defining gender issues. If the women movement had not been co-opted for selfish political ends by Daniel Toroitch arap Moi's KANU, and if the so-called Kenyan feminists had not allowed it to happen, there would have been little need for the Rule in the Constitution.

In 2013, women may or may not be elected in sufficiently large numbers to make the Rule a reality, but surely the likes of Rukia Subow and Grace Maingi must realise that the next government cannot be effective without partnering with at least half the population. This gives them and the institutions or organisations they represent leverage. The Equality Provision in the Constitution is pretty clear; the State cannot discriminate on the basis of sex (and by extension, gender). Therefore, if in its policies it fails to take into serious consideration the needs and aspirations of one-half of the population, the recent Supreme Court victory will be its last. No one is proposing governing through the courts; but the Supreme Court has attained a mythical status in its short period of life and it should be wielded as a threat against the State every time it seems to be vacillating over important issues.

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