CJ’s gender advisory off the mark

After nine years of prevarication on the constitutional issue of gender equity in elective positions, court cases and several attempts to legislate, the Chief Justice issued an advisory this past week as required by Article 261 of the Constitution for the President to dissolve Parliament. The advisory has raised a heated debate on its constitutionality, implementation, and consequences. The words that “the law is clear” sounds like a mirage in these instances.

Upfront, this decision does not solve the problem the country has. It is based on shaky analysis of the constitutional provision. Unfortunately, the Judiciary has over the years, in trying to provide a roadmap to solving the problem, compounded rather than helped the issue. The problem arises from the linkages between the requirements of Article 81 that provides that the electoral system should comply with, amongst other things, the gender principle. In dealing with this issue, arguments and analysis and court determination have done so within the context of the other provisions on gender equality and equity, including Article 27 and article 100, the latter of which requires a law on special interest groups.

The court decision culminating in the current advisory of the Chief Justice is predicated on the failure of Parliament to enact the required legislation. The key question must be which legislation is contemplated by the Constitution. A reading of the Constitution will reveal that the failure does not start with Parliament but with the drafters of the Constitution.

The electoral system is a feature of and is defined by the Constitution. If we are honest with ourselves, we would realise that the failure to ensure that the electoral system complies with the provision of the not more than two-thirds gender principle is derived from the failure to elaborate on and provide for it in the electoral system design by the Constitution.

The challenge with this seemingly minor but fundamental lapse was that efforts to try and deliver on the mechanism is problematic until and unless one amends the Constitution. This explains why the previous efforts in Parliament have revolved around amending the Constitution.

To deliver on the constitutional guarantee one must amend the Constitution to have the electoral system design, which is about the size of Parliament and the mechanisms for electing people, be it party lists, direct elections or mixed member representation.

To then argue that all that is required is legislation and blame Parliament for not enacting that legislation is to fail to appreciate this constitutional reality. Unfortunately, past efforts to have this candid discussion have not borne the requisite consensus. The consequence is the constitutional, political, and legal quagmire that the country finds itself in.

Solving the problem requires that there be honesty in the discourse. If we continue with the ongoing legalistic argumentation, we may not find a way out of the current situation. There is need to get back to basics on the issue.

The first basic is that constitutionalism is not a choice but an imperative. The relationship among the branches of government, has, however, been based on disregard for constitutional fidelity.

Several times, Parliament has treated the Judiciary with contempt and so has the Executive. Not surprisingly when one reads the advisory of the Chief Justice you can see a sense in which he responds to that treatment too. Some comments on his decision continue that unfortunate trend. It is important that this cease.

He exercised powers that the Constitution vested in his office. The problem is not his person. It is the context in which the decision is made and the history of not interpreting the constitutional provision accurately. Having said so, the Chief Justice should have considered the context and not fallen into the same trap that has bedevilled the past relationship.

The way forward must involve an honest debate about our electoral system and tweaking it so that we have one that delivers greater equity in politics.