Newspaper readers will have seen full-page advertisements from the IEBC, in small print, requiring parties to submit lists of nominees for membership of legislative bodies, through the party list system, by the day this article will appear in the Star.

They may also have seen, recently, that around 10,000 people have applied to be on those lists, 6,000 to Jubilee. One wonders how the parties will winnow out such large number in such a short time.

In 2013, this aspect of the elections was a mess. Parties did not understand it. Voters did not understand it. There were a large number of court cases about it. And lists were being changed even after the election.

THE SYSTEM

In the National Assembly there are 12 seats filled through lists: Those people are to “represent special interests, including the youth, persons with disabilities and workers” , according to the Constitution. In the Senate, 16 seats for women are filled through party lists, plus one man and one woman, representing youth, and one man and one woman, representing persons with disabilities.

In every county assembly, there are to be four members of marginalised groups, including persons with disabilities and the youth. These come from party lists.

If — after the results are available for a county assembly, including for these marginalised group members — more than two thirds of the assembly members are men, enough women must be taken from party lists to ensure that the men are not more than two-thirds. (Of course the law says “no more than two thirds of either gender” but — let’s be realistic — there is no chance of any county finding it has more than two-thirds women in its assembly.)

In 2013, in some counties no women were elected for wards. Not a single county had as many as one-third women, so every county assembly had extra women from party lists. Lamu — with 10 wards — had to have six extra women, which, with the marginalised group members, produced an assembly of 20. Overall, in county assemblies there were about 680 women from those party lists.

Each party that puts forward candidates for constituencies (including counties or wards) in a legislative body must put forward lists for the list seats.

HOW DOES IT WORK?

A party must put forward a separate list for each type of list-filled seat. Each list must be in order of preference: The party’s first choice at the top. When the results for constituencies/counties/wards are known, the IEBC will say how many members from each list a party is entitled to.

The number of these lists seats a party gets depends on how many seats for constituencies/counties/wards it has won. This is what the Constitution means by “proportional representation”.

In the National Assembly in 2013, TNA won 86 seats, including county woman seats (25.5 per cent of all), URP 72 (21.4 per cent), and ODM 93 (27.6 per cent), Wiper 25 (7.4 per cent), UDF 11 constituency seats (3.7 per cent) and Ford-Kenya 10 constituency seats (3 per cent). A number of other parties got between one and six seats. There were just 12 list seats to be filled. Multiplying 12 seats by the percentage shares of the parties meant that the first three listed here each got three of the 12 seats. The next three parties listed each got one of the 12 seats.

JUSTICE AND DIVERSITY

The law tries to achieve certain constitutional objectives: Gender fairness, diversity (mainly in terms of ethnicity, with particular concern for minorities, but also of region), and representation of groups and communities that are marginalised, including youth and persons with disability.

First, every list (other than the Senate women list) is to alternate men and women: Either man woman, man woman etc., or woman, man, woman, man etc.

It is more complex where disability, youth, or marginalisation is concerned. The law, with IEBC guidelines, now lays down some rules. Out of eight names on a county marginalised group list, two must represent youth, two persons with disability and two marginalised groups. For the National Assembly list, the top four names must be of a youth, a person with disability, a worker and another “special interest” representative: the party must explain its use of this concept.

And on broader diversity issues, the IEBC says some lists must not have more than one —sometimes not more than two — from the same county or the same ethnic group. And if there is more than one, they must not appear next to each other in the list. But there is no requirement of this sort for the lists for county assemblies.

POTENTIAL PROBLEMS

Gender results are fixed for the 20 Senate list seats (18 women and two men), and for the extra-gender seats in county assemblies. The desired outcome in other cases is not guaranteed.

Let’s start with gender. It is no surprise that last time, many lists began with a man. If such a party were entitled to one, three or five seats from a list, there would be more men than women. That is why of the 12 special seat members in the National Assembly, only five are women. TNA and URP — to their credit — had women first on their lists (so from each two women and one man got seats). ODM had a man first so two men and one woman got seats. And the lists of Ford-K, UDF and Wiper were each list headed by a man — and each got only one list seat. If TNA and URP had had lists headed by men, only three of the 12 would have been women.

Despite the IEBC’s best efforts to support diversity, if, for example, every party begins its list with a person with disability, the other categories of marginalised groups have much less chance to get list seats.

In a county, many parties might get seats. Any particular party might get only one list seat. If all parties gave the same marginalised group priority in its list, all marginalised group members might be from the same group.

And it is a pity that no effort seems to be required to ensure that the party lists of potential top-up women in county assemblies—the largest category of list members by far—are diverse in terms of ethnicity and region within the county. Nairobi has 38 of such members.

THE RIGHT AND RESPONSIBILITY OF VOTERS

I do not refer to these list members as “nominated”. They are elected: Who becomes a list member depends on how the voters vote for constituency/county/ward members. Your vote is a vote for the lists as well as the individual.

Study the party lists — the law says they must be published well before the election. These people will help govern the country. They will make laws. In the county they may be quite a large proportion of the assembly (in Lamu, half!).

Ask yourself: Who have been chosen? Has a party, for example, included rejects from the primaries? What does this tell you about the party and its priorities? How has it defined “special interest” for its National Assembly list? In 2013, ODM put forward the former Prime Minister’s brother, and TNA Johnson Sakaja (party chairman) as representatives of special interests. How did these nominations reflect the true intention of the Constitution? Does the party take diversity (fairness) seriously? Does it ever put a woman at the top of a list? If you are from a special interest community, are community candidates on the list people you would want to represent you?

Finally, only people near the top of the list matter. The IEBC requires every list to have many more names than would usually ever get seats. Most strikingly, the gender lists for county assemblies have to alternate men and women but realistically no man will get a gender list seat. Only in a county such as Mombasa, where all ward seats were won by one party, might all that party’s listed women get seats.

By JILL COTTRELL GHAI