• I believe there has been various locations of struggle for the realization of 2/3rd gender rule.
• I have no hope that women in political positions now will raise up and take up this struggle.
The promises that have been given to women on the implementation of the 2/3rd gender rule by political parties, and successive governments smack of patriarchy, sexism, untruths, and blatant lies. The same treatment has been given to people with disabilities, and the youth in general. We dare not give up this struggle for gender equity and equality.
It makes sense to quote the relevant Sub-Article of Constitution of Kenya 27 (8): (8) In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.
The history of this provision addresses historical pre-colonial, colonial, and postcolonial inequities, injustices, inequalities, marginalization, and patriarchal status quo that the 2010 sought to fundamentally change. The Preamble, Articles 1, 10, and 27 collectively decree this purpose, vision, and value. Women are the majority in our nation. How can the sovereign power belong to the people of Kenya if the majority are marginalized and excluded?
This history, particularly for women in cabinet, was also informed by facts. It took years before the postcolonial governments thought it wise to appoint women into government. Hon. Julia Ojiambo was the first woman to be appointed assistant minister. During that time assistant ministers were not members of the cabinet. Hon. Nyiva Mwendwa was the first Kenyan woman to be a member of a cabinet that had hitherto been exclusively male. I look forward to her forthcoming memoir because it will reinforce the national mischief the 2/3rd provision in the Constitution set out to cure.
The majority in the Supreme Court in an advisory opinion in 2013 decided that this article was to be progressively realised. I dissented. Given what has happened since then in terms of the lack of political will to implement this provision, I believe courts will revisit the substance of “progressive realization.” The history of the struggles to implement this provision through court litigation, BBI amendments, and CJ Maraga’s correct advisory to the President to dissolve Parliament for its failure to legislate on the issue, means that progressive realization has come to mean the government will not do anything.
I believe the same conclusion can be reached in the implementation of Article 43 of the Constitution. The Article decrees economic and social rights, namely the rights to health, education, food, water, housing, sanitation, and social security. It takes resources to implement these rights. How will this happen in the midst of rampant corruption and wastage of national resources? How will Kenyans be free from hunger, and have adequate food of acceptable quality if we are accepting GMOs?
Kenya Kwanza promised that the gender parity will be 50/50%. This promise has been broken without neither accountability nor explanation. Just look at the appointments to the Cabinet, the State House appointees (only one woman in the company of 9 men), for clear examples. Advocate Waikwa Wanyoike has argued rightly that the Cabinet is unconstitutional. There may be public interest litigation on this issue.
While I have argued in this column that we should glorify what is positive and vilify what is negative about what the government does in equal measure. In that vein I am on record as glorifying the swearing of the 6 judges of superior courts, the obedience of court of orders given in favour of Miguna Miguna. I should add the return of the port to the County of Mombasa.
We have observed in this column that our foreign policy is a clean and clear as mud, and that it anchored on foreign interests. Yet national interests matter all the time. Why are we privatizing public assets? Because neoliberalism says so? Why is our economy anchored on the capitalist objective on profits before the people? Is the government able to control food prices, for example? The court order declaring the appointment of Cabinet Administrative Secretaries unconstitutional, which order the Jubilee government disobeyed has been disobeyed by the Kenya Kwanza government. I have quickly realized that this government is adept as giving with one hand and taking back with the other. Soon the government will be condemned for what it has taken back. I still wait with bated breath for the publication of the SGR contracts, and the deportation of Chinese citizens who are illegally in Kenya.
We dare not give up
I believe there has been various locations of struggle for the realization of 2/3rd gender rule. I have no hope that women in political positions now will raise up and take up this struggle. None of them has said anything on the issue since the election. I do not expect mass action from them at all. The seduction of political power has made them not treat this issue with the seriousness it deserves.
The activism around this issue will not cease. I hope the women’s rights social movements, the feminist movements, the feminist masculinity movements, the public interest litigators, and the general human rights movements will all never relent until this struggle is won. I expect the media to join this struggle, particularly the women journalists who have been at the forefront of this matter. I also count on political parties that have been part of this struggle. Such parties as the United Green Movement, Ukweli Party and the Communist Party of Kenya (not the faction that joined Kenya Kwanza in what someone dubbed chama cha Wavujajasho kimenunuliwa na chama cha wavunajasho/the party of the working people has been bought by the exploiters) will continue to support this struggle for 2/3rd gender rule. I believe the resisting intellectuals will join this movement.
Collectively, all these movements that mobilize and organize Kenyan women to defend their sovereign power as decreed by the Constitution. Shall we see another advisory by the Chief Justice going forward? The movement must think through this site of struggle as well.
Willy Mutunga, Chief Justice & President of the Supreme Court, 2011-2016.