Sovereign will cannot be unconstitutional!

By Lukoye Atwoli
Sunday Nation 16 December 2012

Last week, the Supreme Court ruled that the one third minimum gender requirement for elective bodies will be realised progressively, and appeared to give an August 2015 date as the deadline by which legislative and policy steps must be taken to achieve it. In my opinion, this was a ruling that reflected the situation on the ground, even if it can be argued that the judges neglected to go as far as either party would have liked.

A commonly held view was that there would be a constitutional crisis if Kenyans did not elect sufficient numbers of either gender to Parliament, given that the constitution binds us to ensure that our supreme legislative body obeys the gender rule. This raises fundamental questions on the role of constitutions in the governance structures of constitutional democracies.

In my view, a constitution is a statement of intent from the sovereign. In the past, this sovereign would be the monarch whose word was law and had to be obeyed by everyone in the realm. It would be useful to consider a scenario in which a sovereign chooses not to obey an edict he has issued. What would law enforcers do? Would they attempt to compel the sovereign to obey the “constitutional” edict? How would they effect this?

My contention is that the sovereign does as the sovereign pleases, and it is not possible to enforce any law against such a person. In our own constitution, we declare ourselves collectively to be the sovereign. We make and give the constitution to ourselves and to future generations, the same way a sovereign would make decrees to govern the people for all posterity.

Keeping in mind that we cannot compel the sovereign to act in any particular way, is it possible to declare any sovereign action “unconstitutional” or even unlawful? Elections are the most powerful expression of our sovereignty in which we delegate legislative authority to a Parliament we have elected ourselves. Whoever we elect to Parliament represents our sovereign will. In my view, it is therefore ludicrous to argue that a product of a free and fair election could be anything but constitutional!

How, then, can we reconcile our sovereign intention of having fair gender representation in elective bodies with the reality that elections are unpredictable affairs where the people could elect anyone?

In my opinion, we should focus on the process leading up to the election itself. The problem with elections, however free and fair, is that the voter’s choice is restricted to candidates presented by the electoral commission. The commission, in turn, relies largely on candidates presented by political parties. The processes involved in selecting these candidates can be tweaked by legislative or policy measures to ensure that both genders are represented equally among the candidates. This will ensure that the voter has a fair chance of electing either male or female candidates, increasing the probability of achieving the gender requirement.

The electoral commission ought to make rules compelling political parties to have equal representation of the genders among their candidates, and further, to have party lists with such gender representation that it would be possible to nominate only candidates of the “minority” gender should the need arise.

This, in my view, can still be done before the next General Election. 

Dr Atwoli is secretary, Kenya Psychiatric Association and senior lecturer, Moi University School of Medicine. lukoye@gmail.com; twitter @LukoyeAtwoli