The proposed changes, spearheaded by Deputy Speaker Gladys
Boss alongside Dagoretti North MP Beatrice Elachi and Laikipia Woman
Representative Jane Kagiri, seek to modify Articles 90, 97, and 98 of the
Constitution.
The Constitution of Kenya (Amendment) Bill, 2025, aims to
introduce gender top-up seats after general election to ensure compliance with
the constitutional requirement that no more than two-thirds of parliamentary
members be of the same gender.
“The principal object of the Bill is to ensure the
membership of the National Assembly and Senate conforms to the two-thirds
gender principle provided for in Article 81 (b) of the Constitution,” the Bill’s
memo reads.
If passed, special seats will be created to bridge the gap
and “to ensure that the gender principle is realised in Parliament.”
“The number of special seats shall be determined after the
declaration of results of a general election,” the proposed law reads, adding
that the top-up would be “necessary to ensure no more than two-thirds of the
290 elected MPs are of the same gender”.
It further proposes that the seats be allocated
proportionately to the number of seats won by a political party in the general
election.
The proposed amendment includes a sunset clause, limiting
the top-up mechanism to 20 years, with a possible 10-year extension.
The drafters argue that this timeframe will allow sufficient
progress toward gender parity in elected offices.
“It is expected that by that time, enormous gains will have
been made concerning gender parity in elected members of Parliament,” the Bill’s
memo reads.
However, extending the provision beyond the initial period
would require approval from at least 233 National Assembly members and 31
senators.
The initiative mirrors one recommendation from a task force
that was formed to tackle the gender question under the National Dialogue
Committee (Nadco) process.
The task force had recommended the top-up to be implemented
in the current Parliament, but a House team (Justice and Legal Affairs
Committee) said ‘the overly ambitious proposal’ would be hard to implement immediately.
When an election doesn’t achieve the required third, parties
would be required to fill the additional special seats, that is, if the Bill
sails through.
In the current proposal, the missing gender is to be topped
up using zebra party lists after every election.
Currently, women hold only 81 seats in the National Assembly
and 20 in the Senate, following Gloria Orwoba’s removal recently.
Men, on the other hand, hold 264 seats in the National
Assembly, being 76 per cent, against women who constitute 23.2 per cent,
instead of the ideal 33 per cent.
The current Senate has 46 men against 20 women, hence at
least three are required for the balance to be achieved.
Where no woman is elected in the National Assembly, 104
would be nominated; seven in the case no woman is elected in the Senate.
Even as the proponents push the amendments, and despite
their intentions, the Bill faces significant hurdles.
Parliament has failed at least five times to realise the
required vote of 233 MPs to enact legislation enabling the two-thirds gender
principle.
This culminated in former Chief Justice David Maraga
advising then President Uhuru Kenyatta to dissolve the 12th Parliament for
breach of the gender rule.
The debacle is long-drawn, dealing a blow to persons with
disability, marginalised groups and minorities.
Legal challenges may also arise, particularly concerning the
amendment process.
The Bill is proposing that the amendments would be effected
through a parliamentary initiative.
“The Bill shall require passage by both Houses of Parliament
under Article 256 of the Constitution,” the memo adds.
Constitutional expert and Rarieda MP Otiende Amollo argued
that the proposal cannot be implemented as proposed.
“The changes require a referendum as it relates to the
sovereignty of the people,” the lawmaker said.
He argues that the changes “indirectly affect the functions
of Parliament by enlarging the membership through top-up seats”.
Financial implications of the additional seats, which the
drafters have acknowledged, further complicate the proposal, in the face of the
country’s already stretched wage bill.
Presently, the costs of salaries for 349 MPs—excluding
allowances—is Sh832 million. Adding more members could push the expenditure
close to Sh1 billion going by the current numbers.
Besides the basic pay, MPs also get allowances and several
other benefits, which remain a cause of concern for those keen on a lean public
service.
INSTANT ANALYSIS
As the debate unfolds, the Bill’s fate hinges on political consensus,
legal interpretation and public sentiment on gender equality versus the fiscal
space. Whether this latest attempt will succeed where others have failed
remains uncertain, but it reignites a long-standing conversation about
representation and the constitutionality of the country’s legislature.
