Photo Credit: CREAW

The Constitution of Kenya recognizes ethnic minorities, persons with disabilities (PWDs), women and youth as special interest groups who deserve constitutional protection. The Constitution further recognizes the rights of women as being equal to those of men, which means both gender are entitled to equal political, social and economic opportunities.

However, the journey to attaining gender equity has been marred with challenges. Just before the August, 2017 elections, the issue of ensuring gender equity as required by the constitution of Kenya, 2010 took center stage after parliament failed to pass the two-third gender bill.

Achievements

One of the main achievements that we have made as a country is getting a constitution that recognizes gender equity. In Articles 81(b) and 97(b), the constitution spells out specific measures that put our country on the path to gender equality with the aim of promoting political, economical and social inclusion.

Articles 81(b) states that “not more than two-thirds of the members of elective public bodies shall be of the same gender”. Further, in Article 97(b), the constitution creates additional slots for women by providing for the election of 47 women representatives to the national assembly.

These affirmative actions have resulted in an increase in the number of women nominated or elected into decision making positions. For instance, the election of 47 women representatives to the national assembly has improved women representation from 9.8% in the 10th parliament to 19% in the 11th parliament.

The Challenge

Even with this progress, implementation of the two third gender constitutional requirement has remained elusive. Parliament is yet to pass a law that will help achieve gender equity in representation by ensuring that at least 30% of its membership are women as required by the constitution. The passage of the two third gender bill is overdue by more than a year today. Here are some challenges the country has faced on its journey to achieve gender equity:

1. Legal Interpretation

The rain started beating parliament it sort legal applicability of the two-thirds gender rule law. It was not clear whether the two-third gender rule was a minimum requirement or an ideal measure that qualified elective bodies as constituted constitutionally. In December 2012, the Supreme Court of Kenya recommended progressive realization of the two-third gender rule with regard to the Senate and the National Assembly. In its judgement, the court advised that legal and legislative measures be taken to allow for realization of the gender rule by 27th August 2015. This lead to the formation of a Technical Working Group (TWG) to craft a formula for meeting the two-thirds gender rule.

2. The Timeframe Debate

Even with the Supreme Court directive, the National Assembly engaged in discussions over the exact timeframe within which the two third gender rule should actually be realized. In April, 2015, a technical working group proposed by the committee on Justice and Legal Affairs (JLAC) proposed a bill that challenges the two third constitutional provision. The bill, famously known as the Chepkong’a bill stated that progressive realization and implementation of the two third gender rule cannot be achieved without providing a clear timeframe within which the rule should take effect. JLAC proposed a change of literature in the constitution to make it the timeframe more precise and to avoid further postponement.

3. Challenge of crafting a formula

Besides the debate around the actual timeframe within which the two-third rule should take effect, finding an ideal formula to ensure proper constitution of elective offices has been a challenge. Various options have been put on the table including requiring parties to nominate more women, parties to allow women to vie for parliamentary seats in their strongholds and having rotational seats in order to meet the gender threshold. The technical working group convened by National Gender and Equality Commission (NGEC) seems to encourage the nomination of women to meet the 30% gender threshold. The commission recommended the two-third provision in Article 177 that applies to county assemblies be imported to Articles 97 and 98 to make it applicable to the National Assembly and the Senate. This is particularly so because county assemblies that fail to meet the two third rule are required to nominate women.

4. Debate around Cost of Implementation

According to the Institute of Economic Affairs (IEA), implementation of the two third gender through nominations will be a costly affair. In its publication, “Implementing the Constitutional Two-Thirds Gender Rule Principle: The Cost of Implementation,” IEA suggests that for every additional seat created in the National Assembly and Senate, taxpayers will have to part with Kshs. 21.1 million shillings and Kshs. 31.3 million shillings respectively each year. This will add up to Kshs. 2.5 billion shillings per year, including allowances.

5. Laxity among Parliamentarians

There seems to be clear reluctance among male parliamentarians in implementing the two third gender equity. The reason for this low commitment is rather obvious, male leaders are keen to maintain their privileges. In this sense, strong patriarchy that has led to systemic discrimination of women comes to play. In 2016, both senate and national assembly failed to raise the necessary quorum to pass the gender bill.

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