The Harmonised Draft Constitution is finally out! And now we all have 30 days to read it and submit any last comments we might have on the same before the process moves from the Committee of Experts (CoE) to Parliament.

I have not finished reading it, having so far focused, like most people will, I imagine, only on the areas of particular interest to me. But even with what I’ve read, the first bit of advice I’d offer (unsolicited) is that we all also read the accompanying Preliminary Report of the Committee of Experts. Because the draft contains some surprises, even for those who’ve followed the process quite closely. And some of those surprises are explained in the accompanying report.

One such surprise has to do with the electoral system, particularly given the recommendations of the Independent Review Commission last year on the electoral system as a whole. For the draft does not give us, as anticipated, a move towards a more proportional system. It gives us the current system, but now obviously at three levels, with clear stipulations on women’s political representation (framed in a gender-neutral manner), as well as on the political representation of people with disabilities and the youth.

What happened?

The explanation is found in the accompanying report. The report notes that all three of its core reference documents – the CKRC (Constitution of Kenya Review Commission) draft, the Bomas draft and the so-called Wako draft – propose slightly different electoral systems. The CKRC draft proposed mixed member proportional representation. The Bomas draft proposed direct representation (constituency-based), but with the direct representation of women from each district and the representation of 14 persons from marginalised groups elected from electoral colleges of the same. And the so-called Wako draft reverted to the CKRC proposal, with the addition of ‘special constituencies’ for women’s direct representation as well as the allocation of some seats in proportion to the votes received by political parties.

So far, so good. Where the CoE arguably went wrong is in analysing the three proposals from only the standpoint of how best to ensure women’s political representation – and the political representation of other marginalised groups – namely, in its mind, people with disabilities and the youth, as well as (albeit more implicitly) ethnic minorities.

For the report notes that the resistance to proportional representation was twofold: that it would place responsibility for determining women’s political representation in the hands of political parties that are, as it puts it, ‘notorious for having reneged on their representation promises to women'; and that proportional representation, simplistically understood, ran the risk of ignoring the manner in which discrimination can compound on multiple grounds – that is to say, for example, that a political party required to nominate women could potentially nominate all women from the same ethnic community.

Both assertions and concerns are fair. But the solution – throwing out the idea of proportional representation altogether – ignores the ways in which the CoE clearly addressed these concerns in other sections of the draft. The provisions on political parties, for instance, stipulate that they must ‘respect and promote … gender equality and equity’, and that they cannot ‘be founded on a … linguistic, racial, ethnic, gender or regional basis’, implying that intersectionality (addressing compounded or multiple discrimination) would be taken into account. It further stipulates that they will ‘not be eligible for financial support … if more than two thirds of its registered national office holders are of the same gender'. And so on.

What the report – and therefore the draft – ignores is that mixed-member proportional representation was also proposed for reasons other than more equitable political representation. It was also proposed because citizens wanted both parliamentarians whose primary purpose was to respond to constituency-based needs as well as parliamentarians better suited to responding to national needs. And the latter – politicians with a more nationalist bent – have no small difficulty getting in under direct representation. Just take Professor Wangari Mathaai, for example. My own family, who happen to come from her constituency, expressed no small amount of irritation at her trying to explain to them, post-Nobel Prize, why she would now have to focus on issues of less parochial concern. They did what they saw as the necessary and resolutely booted her out in the next election. And yet, clearly our legislature also needs politicians of her ilk.

Despite the three different levels of legislature proposed by the draft, this need is clearly not addressed. The members of the National Assembly come from the constituencies, meaning that those of Mathaai’s ilk would still have to fight it out at that level to get in. Excuse the anecdotal example – it is merely to make the point. And the separation of legislative responsibilities between the three levels is not, I think, sufficiently clear.

What is to be done?

We need to engage and submit on the choices made and why, and to remind ourselves – as I’m trying to do on this issue – that the ultimate choice made is not about form, but about substance, whether or not the motivation for change – or rather, motivations plural – are best served by that choice. I’m sure the draft will reveal many more surprises. Let us all make the best use we can of our 30 days (fewer now) to address them.

BROUGHT TO YOU BY PAMBAZUKA NEWS

* L. Muthoni Wanyeki is the executive director of the Kenya Human Rights Commission (KHRC).
* Please send comments to [email protected] or comment online at Pambazuka News.