• The promulgation of the 2010 Constitution, however, brought with it tidings of hope for the women
• Article 27(8) obligates the state to take legislative and other measures to implement the principle that not more than two-thirds of elected or appointed members of an institution are of the same gender.
Kenya has had a long history of gender inequality, and this has been associated with the patriarchy underlying Kenyan society.
This can be traced back to the pre-colonial period, with its effects being felt even in present-day politics. Certainly, we see very few women occupying leadership positions, and whenever they do, they are rarely on the frontline.
The promulgation of the 2010 Constitution, however, brought with it tidings of hope for the women, in that the burden of discrimination on the basis of gender was not to be borne by women any more. And the two-thirds principle was introduced.
Article 27(8) obligates the state to take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies are of the same gender.
ROLE OF PARTIES
This provision is not a lone ranger, but should work with the state apparatus and even the political parties — as the gatekeepers to political office — to ensure the two-thirds gender rule is complied with in selection and nomination of prospective candidates.
The constitutional provisions on gender equality received one of its best endorsements in 2017 by Justice Chacha Mwita, in Katiba Institute v Independent Electoral & Boundaries Commission.
The petition sought the Court’s interpretation of Article 27, and a ruling on whether the IEBC had an obligation to compel parties to be two-thirds gender rule compliant in their nominations.
The case was brought after the IEBC failed to reply to a Katiba Institute letter in December, 2016. There, Katiba Institute sought to know about the intentions of the IEBC in terms of ensuring parties were compliant with the gender principle in relation to their lists of candidates for the 2017 elections.
The commission failed to reply the letter within the 21-days timeline, prompting KI to proceed to the High Court.
In his judgment in April 2017, Justice Mwita held that, indeed, the IEBC had a duty to ensure parties adhere to the two-thirds gender rule in their nominations, failure to do which the commission had a duty to reject their nomination lists.
He affirmatively said parties are bound by the Constitution to the extent that any action they take, including nomination processes for the 290 constituencies for the National Assembly and the Senate positions, must comply with the gender principle.
The learned judge further held that the rule cannot be left to legislative process alone. He made reference to the words “other measures” in Article 27 (8) to connote that the principle may be attained through other means, even in the absence of legislation.
Parties must, therefore, take pro-active steps to realise this constitutional objective. Justice Mwita stressed that the question of the rule is about “logistics and formula”, which political parties are capable of designing and implementing within their internal organisation. They, therefore, have an obligation to promote the objects of the Constitution and promote gender parity, even during nominations.
THE ELEPHANT IN THE ROOM
This having been held by the High Court, the ball now rests in the courts of the parties and other stakeholders, including the organs of the state related thereto. The question is then is how the parties are going to effect this. The situation is now ironically similar to that facing the country since 2010: Meeting the two -thirds principle is required, but it is not clear how it is to be done.
The Constitution is bold and has catered for the inclusion of women in Parliament and other leadership positions through affirmative action. It might seem that the solution is for each party to have its quota system. In other words, each party should ensure, among the candidates it puts forward, no more than two -thirds are of one gender. Possibly this is what Justice Mwita meant by saying the nomination for parliamentary slot candidates must comply with the requirements of the Constitution, including Article 27 and 81 of the two thirds rule.
Maybe that is all that can be expected. But it is important to realise that it cannot guarantee that the outcome will be no more than two thirds of Parliament being men. Women will only be elected if they stand in winnable seats. A party might put up women mostly for seats that it has little chance of winning.
In theory, party candidates are elected through primary elections. Even if a party decided the candidates for certain constituencies must be women, could it enforce this? In 2017 one party said it would use direct nomination to achieve the gender principle.
ARTICLE 38 ARGUMENT
This was raised but not addressed in the case. Article 38 says everyone has the right to stand and to vote, and for elections to be based on the free expression of the will of the electors.
The argument goes: this is violated if only women can stand for a particular seat. True, such provisions have been a bar in some countries. But the Kenya Constitution itself prescribes the two-thirds rule. Any reasonable limit on the rights that is necessary to achieve this constitutional principle cannot itself be unconstitutional.
Preparation of women for leadership is one of the best ways of ensuring they take an active role in leadership positions. This can be done by state agencies such as the IEBC in collaboration with the parties, as well as Kewopa – the women parliamentarians’ organisation.
In the US, this has been successfully done by the Early Money Is Like Yeast (Emily’s list), an organisation that has taken up the role of recruiting women and taking them through various training sessions to equip them for leadership positions.
Kenyans can as well take such a route, and this will level the playing-field, placing women on an equal footing with their male counterparts. If the women are qualified enough, then the parties will find it easy implementing the two-thirds gender provision.
Funding of political parties is a key factor. Money is a great motivator, and sometimes an essential factor, and parties are no exception.
Sections 23 and 24 of the Political Parties Act established the “Political Parties Fund,” which should receive at least 0.3 per cent of the national revenue.
One factor in distributing the fund is the number of members of “special interest” groups, including women, elected for the party. So, the more women a party successfully sponsors, the more money it should receive. One of the main purposes of the fund is to promote the representation of women, persons with disabilities, youth, ethnic and other minorities and marginalised communities in Parliament and the county assemblies.
Parties ought to take up these funds and use them to implement programmes for uplifting women and to ensure they attain the two-thirds principle. This will motivate parties to adhere to the gender requirement.
However, one flaw in the system is that the threshold for getting any money from the fund is set so high that very few parties get anything from it — only ODM and Jubilee during this Parliament benefited. And only 15 per cent of the allocation depends on how many of special interest groups they got elected — not how many women only.
Women cannot form a women’s party (the Constitution prohibits sectoral parties). Most parties remain male-dominated, though they cannot be registered if more than two-thirds of the members of their governing councils are of the same gender.
Ultimately, male politicians must realise that women are as electable and as valuable as men in the sphere of politics. Patriarchy is not dead.
The author is an advocate trainee at Katiba Institute