The flames of gender inequality have burned steadily in Kenya’s political sphere. Women have predominantly been marginalised in the Kenyan electoral processes, with their political participation being both dismal and minimal because of various cultural and structural barriers fuelled by our hetero-patriarchal configuration. Such barriers include irregularities in political parties’ primaries, inadequate financial resources, violence against women aspirants, masculinisation of political party structures that lock out women, and failure by policy makers to effectively implement electoral laws.
According to the Independent Electoral and Boundaries Commission although 20.7 per cent of the current Parliament’s membership is female, an increase from 9.8 pc of the tenth Parliament and the highest number in Kenya’s history, it is still dismal, particularly, when Kenya’s women’s representation is compared to Rwanda’s 56pc, South Africa’s 42, Tanzania’s 36 and Uganda’s 35.
The Constitution of Kenya seeks to address Kenya’s historical gender inequality within the political sphere. Article 81(b) specifically obligates Kenya’s electoral system to comply with the principle that not more than two-thirds of members of elective public bodies shall be of the same gender. The Constitution also provides for 47 women’s seats in the National Assembly and 16 women’s seats in the Senate within Article 97(1) (b) and Article 98(b), respectively. Further Article 177(1) (b) of the Constitution provides for special seats to ensure that no more than two thirds of a County Assembly is of one gender.
Articles 27(3) and 38 of the Constitution safeguard the rights of women and men to equal political opportunities, and their political rights to vote and seek votes in elections. Further Article 27 (6) and (8) obligates the State to ensure gender parity through legislative and other measures, including affirmative action. It is of significance that these provisions are embodied within the Bill of Rights because they bind all State organs and State officials to uphold the Bill of Rights. It is in the context of these Constitutional provisions that, in 2012, the Attorney-General sought an advisory opinion from the Supreme Court of Kenya, “In the Matter of the Principle of Gender Representation in the National Assembly and the Senate-Advisory Opinion of the Supreme Court  eKLR”, to avert constitutional crisis that might have occurred in the event the constitutional two-third gender principle for elective position was not met as an outcome of the March 2013 general elections.
The Supreme Court determined that the two-third gender principle on elective positions is to be realised progressively and Parliament is to enact the pertinent legislation by August 27, 2015. This advisory gave refuge to Parliament that did not meet the constitutional threshold to sit. The advisory has been subject of heavy criticism, including as having allowed Parliament to operate illegally.
The efforts to put in place a pertinent legislation to realise the constitutional two-thirds gender principle in Parliament has been protracted, and is reminiscent of, “there are many ways to get to Rome and anyway all roads lead to Rome”. In the recent past, Members of Parliament have given several proposals in a bid to create legislative formulae that will fulfil this constitutional principle. Senators Cecily Mbarire and Judith Sijeny proposed an amendment to Article 90 of the Constitution so that the IEBC oversees primaries, retention of 47 women’s seats in the National Assembly and 16 women’s seats in the Senate, and provision for top-up if elective and nominations seats do not satisfy the two-third gender threshold. As well, MP Augustino Neto proposed amendments to Article 90 of the Constitution so that the IEBC supervises primaries, scrapping off the 16 women’s Senate seats and the 47 women’s National Assembly seats and instead creating new specific constituencies to provide for 147 women’s elective seats at the National Assembly and 17 women elective seats at the Senate. MP Soipan Tuya proposed the doubling of the number women’s National Assembly seats so that every county elects 2 women representatives, raising them from the current 47 to 94 seats. MP Samuel Chepkonga proposed inter-alia progressive realisation of the constitutional two-third principle for elective position.
All these proposals have raised apprehension that tax payers’ burden will be hugely increased to accommodate additional seats, with no guarantee of sterling performance from holders of the proposed additional seats. Although the two-third gender proposers and supporters use an analysis by the Institute of Economic Affairs (www.ieakenya.or.ke) to prove that the two-third principle is tenable with insignificant budgetary implications, they fall short. The proposers and supporters have not effectively challenged and dispelled scepticism and prevailing attitudes that hinder effective political participation by women. The prevailing attitudes include a suggestion that because women constitute 52 pc of the Kenyan population then their votes should hold sway and usher in significant number of women in Parliament and County Assemblies.
In the midst of these suggestions is a common but unpopular view that organisations working with the MPs on the aforementioned proposals are unnecessarily competitive and confused. These organisations, particularly women and human rights organisations have been implored to settle on one proposal. But so far, none of these proposals has been persuasive enough to warrant collective adoption by the MPs and the organisations; they have also collectively heavily criticised the Chepkonga proposal, currently tabled as a Bill in the National Assembly. Particularly, the Kenya Women Parliamentarians Association (Kewopa) has in vain persuaded Chepkonga to withdraw his Bill.
Against this background, the most viable proposal is that originated by the Technical Working Group (TWG). Kenya’s Attorney-General, Prof Githu Muigai, constituted a TWG to formulate legislative formulae that would ensure there is not more than two-third of one gender in the Senate and the National Assembly, on the February 3, 2014. The TWG comprises IEBC, Office of Attorney-General, Ministry of Devolution and Planning (Gender Directorate), National Gender and Equality Commission, Kenya Women Parliamentary Association, Commission of the Implementation of the Constitution (CIC), Registrar of Political Parties, Parliamentary Committee on the Implementation of the Constitution, Parliamentary Committee on Legal Affairs, Commission of the Administrative Justice and Federation of Women Lawyers-Kenya – as civil society organisations’ representative.
TWG’s efforts have been rather slow. Exacerbating this is that by May 2015, the AG and the CIC had not originated a Bill with a legislative formula for tabling before Parliament, causing apprehension among KEWOPA and women and human rights organisations that the government will not meet the August 27, 2015 deadline, stipulated in the Supreme Court’s two-third advisory opinion. Impelled by the threat of this deadline’s violation, Kenyan organisations, in “Centre for Rights and Education Awareness vs. Attorney General & Another  eKLR”, sought orders of mandamus from Kenyan High Court to compel the AG and the CIC to present before Parliament a Bill with such formulae for enactment as soon as practicably possible. The court directed the AG and CIC to prepare relevant legislation for tabling before Parliament with 40 days from the issue of the court’s orders (June 26, 2015). Pundits lauded this directive but failed to note that the High Court gave Parliament a lifeline to seek extension afforded to it in Article 261(2) in the event such legislation is not enacted by the August deadline. Given that the AG invoked Article 261(2) to silence tantrums from women and human rights organisations demanding for legislative formulae before the deadline, this High Court’s provision for extension is a trump card for the AG.
So far, TWG’s prevailing and persuasive proposal is for Articles 97 and 98 of the Constitution to be amended so that it is in line with Article 177(1) (b) of the Constitution. Since the AG and CIC have not yet presented to Parliament a Bill with legislative formulae, it is inevitable that the legislative formulae will be enacted within the extension envisaged in Article 261(2) of the Constitution.
Fortunately, this gives more time to TWG, KEWOPA, proponents and supporters for two-third gender principle for elective positions, and for political gender parity to refine their advocacy strategies, and to secure major buy-in for the principle from policy makers and the populace. It would be critical for them to underscore the human rights philosophy underpinning political participation and demonstrate the benefits of gender parity in political sphere.
The import of political rights being embodied in the Bill of Rights is reinforced in the context of Article 19(2) of the Constitution that affirms the purpose of the Bill of Rights as being to promote social justice and realisation of the potential of all human beings. This suggests that political gender inequality is contrary to social justice and undermines the potential of the gender that is experiencing the inequality. According to various researches, including by “Forbes’ Political Savvy: The Missing Link to Women’s Advancement”, there is a direct correlation between the number of women with leadership responsibility in a given sphere and the overall performance of that sphere.
Locally, the groundbreaking research by Heinrich Boll Stiftung in “East and Horn of Africa, Women and Political Leadership in Kenya” (2010) confirms there is a strong correlation between having women MPs and improved livelihoods of those women’s constituents, a validation of the women MPs’ constituents since the MPs spend significant time at their constituencies, and improved provision of personal assistance to constituents’ personal needs. Ironically, the populace expect women Parliamentarians to implement community development projects, provide personal assistance/aid to constituents, and counsel them but still overwhelmingly gauge their performance based on national visibility through debates in Parliament.
This standard is not extended to male legislators. It is critical for TWG, Kewopa and two-third gender proponents and supporters to underscore the fact that two-third is only the bare minimum and that focus should in fact be on a 50:50 gender representation; showcase the benefits that have accrued to various constituents from having women political representatives; and call for effective implementation of electoral laws to eliminate structural barriers and secure optimum women’s political participations. They also need to dispel the public notion that the two-thirds gender representation means two-third women representation. The AG rightly submitted in “Centre for Rights and Education Awareness vs. Attorney General & Another  eKLR” that the two-third gender principle is an affirmative action for any gender of which currently women who are disadvantaged will benefit from, but that men may need it in future.
The onus is on the AG to put in place cogent and viable legislative formulae for Parliament’s consideration without delay. Until then, Malcolm Shabazza, also known as Malcolm X’s assertions, “I am not going to sit at your table and watch you eat, with nothing on my table and call myself a diner. Sitting at the table doesn’t make you a diner, unless you eat some of what’s on that plate”, will continue to be a resounding and persistent demand from the Kenyan women.^
Writer is an advocate of the High Court of Kenya