By Shadrack Muyesu
“A provision of the Constitution cannot be declared unconstitutional for the simple reason that there would be no other constitution against which this constitutionality may be assessed. A provision of a constitution may however be construed ambiguous and therefore subject to the interpretation of the court. Even then, though court decisions are legally binding, they may not be conceptually correct” ‒ Unknown
As 2016 ushers in the year of woman, being in celebration of the 30th anniversary of the African Charter on Human and Peoples Rights and the 36th anniversary of the Coalition on Elimination of all Forms of Discrimination against Women, a few curious provisions of our constitution come to fore. Naturally, the gender provisions of the Constitution with regard to the implementation of the two thirds gender rule come to mind. These include Article 27 (3) which states that “the state shall take legislative and other measures including affirmative action programmes and policies to redress any disadvantage suffered by individuals or groups because of past discrimination”; Article 81 (b) which provides that “not more than 2/3 of members of elective public bodies shall be of the same gender”; and Article 177 (b) and 197 which are very explicit that “gender principles must apply in County Assemblies and the County Executive Committee”.
Currently, women only compose 19pc of the National Assembly.
While the question of the implementation of the gender rule continues to stir opinion, several very important observations need to be revisited, alarmingly so, since only a proper answer to these observations can beget the best implementation mechanism of the rule.
The first observation to be made (and indeed a question) is whether the secretariat of any elective or appointive body stands separate from the substantive body. Answered, does the rule by law extend to the secretariat or does it stand fulfilled as long as the substantive body meets it?
Second, is the two thirds gender provision predominantly a women rule (issue) as some, “experts” or otherwise have led us to believe or is it a gender issue and therefore one that matters to all genders, including the “unwanted” Gay Lesbian or Bisexual community?
Third is the most important – or perhaps most petty – of the observations. Ignoring the queries raised above, and as guided by the actual legal definition of the term “gender” vis a vis “sex”, were the drafters of the Constitution in massive error to structure the law as they did or are all efforts to realise two thirds sex ratio in blatant disobedience to the Constitution?
The legal definitions of “body” or even “body corporate” do not offer much of an insight as regards the distinction quagmire. Problematically, jurisprudence, within and without on the composition of “body”, or even its relationship with its secretariat, remains relatively thin.
An attempt at this answer may, however, be picked from the courts on the extensively argued matter of the composition of the Ethics and Anti Corruption Commission in relation to its constitutional functions. In “Thuita Mwangi -v- EACC High Court Petition No 153 of 2013” the court opined that functionality of an elective or appointive body cannot be hampered by a vacancy, whether in the secretariat or for the rest of the positions. This position may be taken to mean that a secretariat is only a part of a body whose presence, though integral, cannot have fatal consequences on the general operations of the body. By and large, secretariat is only part of a larger body and not an entity on its own. The court stated:
“…Whereby or under a written law, a board, commission, committee or similar body, whether corporate or un-incorporate, is established, then, unless a contrary intention appears, the powers of the board, commission, committee or similar body shall not be affected by (a) a vacancy in the membership thereof; or (b) a defect afterwards discovered in the appointment or qualification of a person purporting to be a member thereof.”
A similar position was also adopted in “Ruth Muganda v Kenya Anti-Corruption Commission and Director of Public Prosecutions Nairobi HC Misc. Crim. Appl. No. 288 of 2012” and echoed in “African Centre For International Youth Exchange (ACIYE) & 2 Others -v- Ethics And Anti-Corruption Commission & Another, Petition 334 of 2012  eKLR”. In holding that the members of the secretariat of the Commission were properly in office, Achode J. in Ruth Muganda, held that:
“…. Thus this Court is alive to the fact that the envisaged transitional period prescribed in the statute could not foresee all transitional challenges, bearing in mind possibilities of litigation as in the case here affecting the appointment of the chairman and therefore assumption of office by members of the Commission.  A purposive approach to this issue requires the Court, in the spirit of the Constitution, to promote the continuing and intended objects and functions of the Commission throughout the transitional process as opposed to extinguishing its existence.”
Though hardly explicit, the position of Kenyan courts in this issue may be understandably concluded to mean that the secretariat and the substantive bodies are not separate entities. Reading this position into the two thirds gender issue, it is the position of this paper that the gender rule ought to stand fulfilled if not more than two thirds OF THE SUBSTANTIVE BODY, are of the same gender regardless of the composition of its secretariat. The general practice of invoking the rule when making secretariat appointments apart from the general substantive body is what may be generally termed as good practice. Good practice is not legally binding unless it is in fulfilment of the gender requirement of the entire/ substantive body.
A gender rule, not a woman rule
On a lighter note, quite a lot of disservice has been done to the gender provisions by selling them as women provisions. The general assumption, with the politicians especially, is that only ladies suffer the brunt of gender discrimination – a fallacy. Important too is the interpretation of the gender provision in the gender rules. Everyone, including the courts, the purported custodians of the law, seem to misconstrue this provision by defining gender as a biological existence in being a man or a woman. The correct definition of gender, however, is that it is a social construct hinged on the roles that persons play or the tendencies they exhibit without undue regard to what their physical biology says about them. Should the latter be taken to be the true purport of the gender rule provisions, persons belonging to the Lesbians, Gay and the Bisexual group (persons who have adopted behaviours that do not match their physical sexes) would emerge in consideration when seeking to fulfil the two thirds gender rule. Most curiously, this new interpretation would also change the general perception on the Lesbians, Gay, Bisexual, and Transgender and Intersex (LGBTIQ) communities.
In addition, in line with the social construct interpretation, the gender rule would stand fulfilled when there is the acceptable ratio of “men playing traditionally female roles or women playing traditionally male roles” regardless of whether the entire body is composed of either men or women.
Sceptics would argue that adopting these actions would amount to sanctioning homosexuality. While not wishing to come across as an advocate for the said societies, the Constitution has remained silent on the actual position of these groups though impliedly protecting them through its non discrimination provisions. The Penal Code and the sexual offences act, while criminalising the actual act engaging in sexual behaviour with members of the same sex, does not condemn the homosexual existence. Such persons are therefore exclusively protected as a “third gender” with a right to be considered in implementing the two thirds gender requirement.
According to this interpretation, while having an appointive or elective body composed of both men and women in the prescribed ratios passes as a fulfilment of two thirds gender rule, this is not the only way of fulfilling the rule. “An entity comprising all men with a third of them being openly gay” ought to stand as having passed the Constitutionality test. It is uncontested that an article in the Bill of Rights ought to be interpreted in way that sees the widest application of the Bill of Rights. Invoking an originalist and purposive interpretation of the constitution, surely the drafters wouldn’t have intended that the LGBTIQ be left out when considering the gender rule. Selling the rule, therefore, as a woman rule threatens the LGBTIQ’s right to recognition.
The only problem with the view this article takes is that it leaves the appointing authorities with discretion as to whether to implement the rule in a mixture of men and women or consider the LGBTIQ. An originalist interpretation of the Constitution, however, positions the constitution as a legal document and therefore one to be interpreted according to the wishes of the drafters. These wishes are very clear when the preamble and among others, Article 10 on constitutional values are considered. The legibility of the LGBTIQ to the benefits of the gender rule automatically ceases to be a discretional matter. A properly constituted body should therefore have male men, female women and either a lesbian, gay person, a bisexual a transgender, an intersex or a queer person… Rather complex.
The position of “sex” we have adopted presents such a narrow and simplistic interpretation. It does not recognise the status of the gender status of the gay and lesbian community. Worse, the “sex” position we have adopted has proved difficult to implement thus far. The drafters may have intended that gender and sex be used interchangeably; then why is it that some clauses of the Constitution deliberately mention “sex” and “gender” as say different grounds of discrimination while other clauses, such as the gender provisions quoted above, remain explicit on “gender”?