I have written about the failure of imagination that infects the constitutional two-thirds gender rule. I believe this is a hangover from our fidelity to the Westminster parliamentary model, founded as it is on the division of the country into political constituencies that largely mirror ethnic or linguistic divisions. For example, the central Kenya constituencies are largely occupied by the Kikuyu-speaking peoples, the Nyanza constituencies are largely occupied by the Luo peoples, the Ukambani constituencies are largely occupied by the Wakamba, et cetera. The Westminster parliamentary model may have been jettisoned in principle -- we are now a "presidential" system -- but its vestiges can be seen in the language of Articles 97(1)(a) and (b) and 98(1)(a), which speak of "single member constituencies".
It was a mistake that we didn't push the Committee of Experts hard enough to consider alternative ways of constituting Parliament. In Nairobi City County, for example, the Independent Electoral and Boundaries Commission claims that there are over two million and three hundred thousand voters in its seventeen constituencies, which works out to just under 136,000 constituencies per member of the National Assembly. This is too large a number, even for the most conscientious MP, to handle face to face or, as is common, through barazas. Email, letters, text messages or phone calls will surely overwhelm the elected representative too. The constituency system is familiar and it explains its resiliency in our politics but it is outdated and no longer effectively represents the people.
However, our constitution proposes new political values and principles, including non-discrimination which are intended to foster greater national cohesion. While national power and fiscal resources have been devolved to the counties and thereby, beginning the task of promoting equity in the sharing of the "national cake", the national political arrangements have exacerbated existing inequities and inequalities and none more so than the poor representation of women in Parliament or the national executive. Article 27(8) proposes a ceiling beyond which members of one gender shall not breach in regards to elective position but Articles 97 and 98 are insufficient to ensuring that the proposal is implemented without constitutional amendment to provide for greater numbers of nominees to Parliament's two chambers.
If constitutional amendments are ever to be successfully processed in our fractious political system, I would propose the amendment to Articles 97 and 98 to delete the words "each elected by the registered voters of single member constituencies", and "each elected by the registered voters of counties, .each county constituting a single member constituency". I would also delete Articles 97(1)(b) and 98(1)(b). I would then amend the Elections Act to make provisions for how political parties would have to publish party lists that reflected the two-thirds gender principle and have the voters cast their ballots in favour of the party that best reflected their political visions. Once the votes have been counted and the tally of each political party determined, parliamentary seats would be allocated proportionately to each party -- first to reflect the party's strength from the total votes cast and second to reflect the two-thirds gender principle in the elected representatives of the party in Parliament. Because there would be no constituencies from which to choose individual MPs, there would also be no need for independent candidates (a compromise that will irk many but reflect the needs of the majority nonetheless).
The same wouldn't be necessary at county level; ward representatives deal with smaller numbers of constituents and more effectively too. The impact, I believe, would be greater national cohesion. No party would be allowed to participate in an election if it didn't publish party lists that represented every community in Kenya or reflected the two-thirds gender principle. Marginalised communities would be protected and given a say as well. Elected representatives wouldn't have to pander to the needs of ethnic or linguistic communities; after all, as "national" politicians, their focus should be on making effective laws that benefit everyone, while their oversight powers are actually exercised with the aim of keeping the national executive in line. As a bonus, Parliament could then compel the national executive and the Judiciary, the other arms of government, to actually implement the two-thirds gender principle too.
If we are serious about making this constitution work for us, then perhaps it is time we abandoned the received wisdom of the Westminster model or the U.S. presidential system. Perhaps, we should start thinking for ourselves and devise a political system that is an honest reflection of all the lessons we have learned from our history over the past sixty years.