We cannot wish away two-thirds gender rule

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Mohamed Dakane
The implementation of the two thirds gender rule has become a thorn in the flesh for Kenya’s political elite. Only a Martian wouldn’t know that. Articles 27(8) and 81(b) of the Constitution provide, in the most plain and unequivocal language, that no gender shall constitute more than two-thirds of elective and appointive public offices. However, the realisation of gender representation as envisaged in the constitution still remains a millstone around the country’s neck even when as the constitutional deadline of August 27 looms.
Kenya often prides herself as the powerhouse of East Africa, being the region’s largest economy. However, the braggadocio behind this claim beats logic when the greater gender of the population of such a country is underrepresented in socio-political and economic affairs. A recent gender equity report puts Kenya at the tail end with women accounting for only 15 per cent women political representation. Rwanda has 56 pc, Tanzania 36, and Uganda 35.
In the 2013 general elections, there were 19 women candidates for senatorial and gubernatorial positions (out of 237 candidates), out of which none was elected in either position.  Even with the creation of Women Representative positions, out of the 290 elected National Assembly members, only 5.5 percent are women. For the 1,450 ward representatives positions only 88 (6 percent) are women.
Kenya is bound by law to actualise the gender principle. The Constitution, through Articles 10, 38, 56, 97, Articles 81(b) and 27 in particular, as well as the Political Party Act, 2011, Section 7, is very clear on gender representation.
As a signatory to various international and regional instrument such as the Solemn Declaration on Gender Equality in Africa, the Universal Declaration of Human Rights, The Convention of Elimination of all Forms of Discrimination Against Women (CEDAW), The African Union Protocol to the African Charter On Peoples and Human Rights on The Rights of Women in Africa(Maputo Protocol), it is obligated to uphold the principle of equitable gender representation into positions of leadership and decision-making. However, the reality is that even with all the legal bindings and affirmative action provisions, it s actualisation remains a pipe dream.
It will be foolhardy for anyone to argue that gender representation is limited by law. In fact, Kenya’s constitution is one of the most progressive charters in the world. However, the spirit of sincere constitutionalism is what is acutely lacking. It is unfathomable to me that such clear provisions are becoming a nightmare to all the three arms of government. The truth is that no one is ready to change the status quo. The glaring lethargic approach and the lackadaisical manner in which the whole issue has been handled is a clear manifestation that there is lack of political goodwill towards fulfilling the principle.
The Supreme Court of Kenya, in its infamous ruling of December 11, 2012, stated that the realisation of two-third gender provision would be progressive and dependent on state’s further actions, and advised that a framework should be in place by August 27, 2015.  No definite framework has been set out to this effect even as the deadline approaches. This stalemate and uncertainty leaves a lot to be desired. Article 27 of the Constitution obligates the governments to develop and pass policies on how this principle should be actualised but nothing tangible has seen to date.
As if to the sweep the matter under the carpet, the National Assembly tried to amend the constitution through the Two Third Gender Rule Laws (Amendment) Bill, which sought to include the phrase “progressive Implementation”, without providing for a specified timeframe. If passed, the Bill will render all the above articles “useless” including the principle of equality and freedom, and will dilute the gains so fiercely fought for. What does this mean to you? A deliberate attempt is being made by Government to frustrate this principle.
Recommendations
Instead of crying foul, proponents of the two third gender principle – including the Kenya Women Parliamentary Association (KEWOPA) as well as civil societies – should stop burying their heads in the sand and be alive to reality. There is no point wasting time in a pointless endeavour – supremacy battles with men and a system that is immune to change is, in my opinion, an exercise in futility.
Instead, let them propose a workable formula before the August 27 2015 deadline on how the gender principle can be actualised through the introduction of legislated quotas and amending the necessary laws. Legislation alone will never be enough – look at where affirmative action got us during the last general election. While this can be partly attributed to the patriarchal nature of our society as well social and economic factors, we have not seen the kind of radical proposals needed to make the gender rule a reality. Traditions that favour men only in consideration of gender must be countered through rigorous civic awareness.
The proposed gender funds would help a great deal. Due to the dirty realities of our society, political campaigns are capital intensive, and one can hardly succeed without financial support. The ground is never really level when gender is a consideration.
To ensure effective implementation of the two-thirds gender rule, we should borrow the measures taken by other civilisations. The issue of women illiteracy should be tackled immensely. Efforts at girl-child education must be doubled.
If it is not solved, the quagmire of the two-thirds gender principle will remain a political conundrum that cannot be wished away. In the meanwhile, unless and until these and even more coherent and decisive mechanisms are implemented, status quo will always prevail.
As Professor Makau Mutua rightly said, it is time we declared a public relations war against Parliament and all other institutions bent on frustrating the gender rule, else it disappears altogether. ^
Dakane is a student of law; mdakane99@yahoo.com; @moreher2

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