Failure of imagination

Must you elect a man or woman who comes from the political or administrative unit you come from? In other words, must your senator, member of the National Assembly or member of the county assembly come from the county, constituency or ward that you reside in?

Ideally, the only elected representative that should come from the political or administrative unit is the member of the county assembly but taking into account that the principal roles of elected representatives are -- or should be -- law-making and oversight of the executive (with representation being reflected in the laws, especially the budget, that are being made for the welfare or benefit of the people), there is no reason why the MCA should also come from the same constituency as his or her electors. 

With this in mind, there is also no reason why the constitutional gender rule in  Article 81(b) shouldn't be met while still satisfying the requirements of Articles 97(1) and 98(1) on the membership of the National Assembly and the Senate. This constitutional imperative can be achieved by amending the elections laws that require that parties must nominate candidates to stand in elections to represent specific constituencies; the laws could simply provide for the publication of party lists with slates of candidates nominated by the parties who should be nominated in such number and using such party mechanisms to ensure that the rule in Article 81(b) is satisfied.

Indeed, the nominees contemplated under 97(1)(c) and 98(1)(b) shouldn't throw each party's calculations out of whack; given that these nominations take place after the general election, the nominees will simply represent the party's strengths in the respective legislative chambers and, where the party lists were drawn up to strictly meet the Two-thirds Gender Rule, the other nominees will bolster the numbers of the minority gender -- a political and social good -- without offending the non-discrimination provisions of Article 27(4), but promoting the overall goal of 27(8).

Our failure to give effect to Article 81(b) is a failure of imagination, not a failure of the Constitution.