Kenya’s 8-year painful journey to meet two-thirds gender rule

A general view of parliament chambers with an ongoing committee session.Photo/HEZRON NJOROGE
A general view of parliament chambers with an ongoing committee session.Photo/HEZRON NJOROGE

Kenyan women’s quest for equal representation in elective positions has been an 8-year protracted battle with their male counterparts.

However, there is a ray of hope on the horizon of the long-drawn-out struggle, with the political leadership of the country solidly behind the new bill to comply with the constitutional requirement of no more than two-thirds of either gender.

The 2010 Constitution envisaged a situation where elections could result in either gender dominating the Kenyan Parliament hence the safety valve to bridge the gender gap after polls.

"Not more than two-thirds of the members of elective public bodies shall be of the same gender," Article 81 (b) of the 2010 Constitution dictates.

But implementation has proved elusive because the Constitution failed to expressly provide for how the two-thirds gender ratio would be achieved. As it is, the composition of both the National Assembly and the Senate falls short of the constitutional threshold.


Supreme Court intervention

Apprehensive that the electorate would fail to elect enough women to meet the two-thirds requirement in the 2013 elections, and with no likelihood of political parties filling their nomination quota with enough women, the AG sought a Supreme Court advisory.

In December 2012, the apex court directed that the government implements a progressive approach in filling the gender gap within five years after the promulgation of the 2010 Constitution.

The court determined that the gender principle had not been transformed into a full right capable of direct enforcement.

Because the constitution was promulgated in 2010, the law should rightfully have been enforced in the 2013 polls.

The interpretation of the gender equity principle as a progressive right was seen as a pragmatic solution to avert a constitutional crisis during the 2013 elections.

The Supreme Court gave August 27, 2015, as the deadline for Parliament to pass a law to implement the gender rule.

But even the Supreme Court’s intervention, as well as subsequent efforts that included a


filed against Parliament to implement the gender principle, came to naught.

High Court Order

At the expiry of the August 2015 deadline, Parliament had failed to enact the law to enforce the two-thirds gender rule as ordered by the Supreme Court.

The Centre for Rights Education and Awareness and the Community Advocacy and Awareness Trust sued the two Houses of Parliament in the High Court for violating the Constitution in failing to enact the two-thirds-gender rule.

The Kenya National Human Rights Commission was also enjoyed in the case.

On March 2017, High Court judge John Mativo ruled that if the bicameral House failed to enact the gender principle by June that year, anyone could petition the Chief Justice to advise the President to dissolve Parliament.

The High Court found that the country’s Parliament had violated the women’s right to equality and freedom from discrimination and directed that the House enforce the gender principle within 60 days

Justice Mativo’s order echoed another issued in 2015 by High Court Judge Mumbi Ngugi, who ordered the Attorney-General and the Commission for the Implementation of the Constitution to prepare and table a bill for legislation.


Gender Resistance

There has been clear reluctance, if not resistance, to implementing the gender-equity rule.

Critics of the sweeping gender principle argued that women wanted equality through the backdoor by seeking free seats that would be dished to them without any toil.

Male legislators, at whose mercy the women’s fundamental right stood, felt by increasing the number of nominated women to Parliament they would surrender their ‘privileges.’

This, despite the fact that women in Parliament currently account for just 19 per cent against the required 30 per cent even as they equally continue to face

systemic discrimination

in Kenyan society.

But women politicians and rights activists argued that the deep-seated patriarchy could only be effectively overcome by laws that enforced gender quotas.

Failed legislative bids

Parliament has tried, but failed, on two occasions to

pass a bill that would give effect to the two-thirds gender principle.

The bill was rejected twice by members whose main argument was that the new provisions would result in

bloated representation.

It would add to the heavy tax burden and give women free seats.

It was argued that women hardly contributed to debates in Parliament, with others referring to their nominated female colleagues as

“idlers” and

“busy bodies”.

In February 2017, a bill in the Senate sponsored by the then nominated senator Judith Sijeny failed because the House could not get 45 members to vote for it.

In November 2016, there was a similar quorum hitch in the National Assembly that derailed a bill by then chairman of the Justice and Legal Affairs Committee Samuel Chepkonga.

It sought to have a progressive implementation formula of the gender principle but women MPs fought it.

In May 2016, another bid failed at the floor of the National Assembly after it was supported by 178 MPs and opposed by 16.

The Duale’s bill

The current amendment proposes to nominate women (or men) after every general election to ensure at least a third of the composition is of either gender.

Numbers for the nomination will be shared by political parties depending on their strength in Parliament after that election.

Currently, the National Assembly has 75 women — 22 elected from the 290 constituencies in the last election; six nominated on the 12 nomination slots; and 47 elected as women representatives.

This means that the National Assembly needs some 42 nominated women to achieve the gender principle while the Senate needs only one senator.

Other countries

Some sub-Saharan African countries have done much better at ensuring equitable gender representation.

Rwanda boasts the highest proportion of women representatives in Parliament at 61 per cent ahead of Tanzania and Burundi with 36 per cent, Uganda (34 per cent) and Kenya trailing at 22 per cent.

Cameroon and Zimbabwe have both reformed their electoral laws to boost female representation to meet the two-thirds threshold.