Don’t stifle affirmative action for political correctness

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By Newton Arori 

Gender inequality worldwide leads to discrimination, social injustice, sub-optimal economic progress due to a serious neglect of a large part of society’s human resources, and to deficient democracies…The fewer women in a society participate in formal decision-making, the less likely it is that the decisions made are working in favour of more gender equality. The representation of women in formal decision-making positions is, therefore, an important factor to improve gender equality” – Dzodzi Tsikata, ‘Affirmative Action and the Prospects for Gender Equality in Ghanaian Politics’ Friedrich Ebert Stiftung (2009)

The country is at the moment engaged in heated and largely misinformed debate on gender representation in elective bodies namely, the Senate, the National Assembly and County Assemblies. The debate in question was triggered when the chair of the Parliamentary Justice and Legal Affairs Committee tabled in parliament a bill seeking to suspend the constitutional clause that demands that not more than two thirds of the members of elective public bodies shall be of the same gender [Article 81(b)].  This provision in now popularly known as “the one third gender rule”.

One will appreciate that in Kenya women have, and continue to be, underrepresented in elective bodies. One will also appreciate that the only way to realise “the one third gender rule’ is through affirmative action. As such, a number of suggestions have been floated on how best to ensure that women, who happen to be the underrepresented gender occupy at least a third of the positions in elective bodies. For example, it has been suggested that elective posts in some constituencies be reserved for women. Such suggestions have been met with spirited of opposition from critics who have taken to newspapers and social media to air their contention. This piece sets out to examine some of the arguments made against affirmative action, and to show why such arguments are based on sheer ignorance and insincerity.

Opponents of affirmative action cling dear to this argument. They assert that since no gender is barred in law from contesting for an elective post, women should simply vie and get elected, and that women’s underrepresentation in elective bodies is a show of their unwillingness to occupy those positions. Allegedly, women lack the ambition and will to run for political office.   

A glimpse at various factors shows that this argument is totally flawed. First, this school of thought is blind to the prejudices that women have faced since independence. As a matter of fact, some Kenyan communities still practise child marriage, which leads to girls dropping out of school at an early age. Thus, girls continue to be educated at an inferior rate to boys. Women are at a disadvantage economically, too. Traditionally, many communities barred women from inheriting or exercising control over property. Violence during elections constitutes an additional threat to women’s participation. This is especially true as regards the last general election where violence was rife. Often, violence against women aspirants is used as a tool by male politicians.

True, significant progress has been made towards empowering Kenyan women, but the political playing ground is still far from level. Against this background, one cannot expect women to compete favourably against men, hence the need for affirmative action.

Discrimination against men

Another popular argument against affirmative action is that it discriminates against men by giving women “free seats”. Further, fears are expressed that since the grant of nominative positions doesn’t stop women from vying for the rest of elective positions, men will inevitably end up underrepresented in elective bodies.

Again, this is an argument that stems from a lack of understanding of the law. To begin with, the term discrimination is defined as “differential treatment, especially a failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured” (Black’s Law Dictionary, 8th edition). From this definition, the grant of nominative positions to women would only qualify as discrimination if such grant had no basis. This insight leads us to see that affirmative action exists to address a prevailing problem, and is not calculated to favour one group of persons over the other.

Second, it is a fallacy that affirmative action may lead to men being underrepresented in elective bodies. This can be seen from looking at the provisions of the laws that champion affirmative action. 

“Adoption by state parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved”, states Article 4 paragraph 1 of the Convention on Elimination of All forms of Discrimination Against Women.

The above provision is explicit that affirmative action will not last forever and will be discontinued once women and men are at par as regards equality of opportunity and treatment. In other words, affirmative action is, by its very nature, temporary.

Some are under the impression that there is no need to have adequate representation of both genders in parliament since any legislator, be it a man or a woman, represents all members of his/her constituency, women and men alike.

While this reasoning may have a bearing, it misses the point – the rationale behind the requirement of adequate gender representation, in the Kenyan scenario, the one third gender rule. As observed at the beginning, the more women participate in formal decision making, the more likely it is that the country will move toward gender equality. This means that the one third gender rule is a means to an end.

As Dudley Ochiel in “Gender Rights and Wrongs: Critique of the Supreme Court Decision on the One Third Gender rule” Kenya Law (2013) observes: 

“Prior to the promulgation of the constitution of Kenya 2010, and from independence, Kenyans never owned the process of writing the constitution. Ultimately, the expedition for a home grown constitution involved, in part, a search for greater gender equity.”

Kenya also has an international obligation to work toward gender equity. Article 7 of CEDAW, which Kenya has ratified, requires that: 

“State parties  take all appropriate measures to eliminate discrimination against women in the political and public life of their countries in particular, to ensure to women, on equal terms with men, the right to vote, to be elected, and to participate in the formulation and implementation of government policy, to hold public office and perform all public functions at all levels of government and to participate in nongovernmental organisations and associations concerned with the public and political life of their countries.”

Worth of note is General Recommendation 23 paragraph 15 where the CEDAW committee says:

“While removal of de jure barriers is necessary, it is not sufficient. Failure to achieve full and equal participation of women can be unintentional and the result of outmoded practices and procedures which inadvertently promote men. Under Article 4, the Convention encourages the use of temporary special measures in order to give full effect to Articles 7 and 8. Where countries have developed effective temporary strategies in an attempt to achieve equality of participation, a wide range of measures has been implemented, including recruiting, financially assisting and training women candidates, amending electoral procedures, developing campaigns directed at equal participation, setting numerical goals and quotas and targeting women for appointment to public positions such as the judiciary or other professional groups that play an essential part in the everyday life of all societies. The formal removal of barriers and the introduction of temporary special measures to encourage the equal participation of both men and women in the public life of their societies are essential prerequisites to true equality in political life. In order, however, to overcome centuries of male domination of the public sphere, women also require the encouragement and support of all sectors of society to achieve full and effective participation, encouragement which must be led by States parties to the Convention, as well as by political parties and public officials. States parties have an obligation to ensure temporary special measures are designed to support the principle of equality and therefore comply with constitutional principles which guarantee equality to all.” 

In conclusion, the Kenya legislature and the government at large must move with speed to formulate policies that will ensure the implementation of the one third gender rule.

 

The writer is a 4th year LLB student at Kabarak University

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