Law on one-third gender seats still hangs in balance

Some progress has been made towards gender equality in Kenya, but it is not yet time to pop the champagne.

Although this year’s elections recorded a significant number of women candidates, data from the Independent Electoral and Boundaries Commission (IEBC) shows that out of the 10,918 aspirants, only 1,749 (16 per cent) were female.

As has been depicted during every election year, it is still a major struggle for women to access leadership positions; in large part because of socio-cultural settings that shape gender roles. Women continue to be under-represented.

The Constitution sought to give greater representation to women through the two-thirds gender principle, but this seems to have become a contentious issue.

The Constitution says that not more than two-thirds of the members of elective public bodies shall be of the same gender.

Article 27 goes further to obligate the government to develop and pass policies and laws, including affirmative action programmes, to address discrimination that women have faced in the past.

ELECTIVE POSITIONS

The government is required to develop policies and laws to ensure that not more than two-thirds of elective or appointive bodies shall be of the same sex.

But despite Article 177 ensuring that Articles 81(b) and 27 (8) of the Constitution are complied with at the county level through nomination of special seat members, the same is not guaranteed at the National Assembly and the Senate.

Interpretation and implementation have proved elusive.

CONSTITUTION

Part of the reason is that the Constitution doesn’t prescribe how the two-thirds gender requirement for Parliament and Senate should be met.

And it is with these two — Parliament and Senate — that the conundrum still stands.

As things stand now, the legislature is not constitutionally constituted, undoing the gains for women enshrined in the Constitution.

Election of the new MPs did not achieve this principle.

Women currently constitute 19 per cent of MPs, falling below the 30 per cent constitutional requirement.

Though there was not a single female MP in the first legislature in 1963, today female representation has improved only slightly.

There was 4.1 per cent female representation in Parliament in 1997, 8.1 per cent in 2002 and 9.8 per cent in 2007.

The 68 (19 per cent) women in the National Assembly, 18 (27 per cent) in the Senate and 82 (6 per cent) elected to county assemblies are still far below the 33 per cent minimum constitutional requirement.

NO MECHANISM

A mechanism to implement the two-thirds gender rule has yet to be agreed upon. And the clamour for a solution has often resulted in emotive debates, with wide ranging but inconclusive proposals. 

Lobby groups led by Federation of Women Lawyers in Kenya (Fida, Kenya), Centre for Rights Education and Awareness (CREAW); and Community Advocacy and Awareness Trust (CRAWN) went to court seeking that IEBC be stopped from presenting a list of elected members of both the National Assembly and Senate until the principle is fulfilled.

Following the case by Fida, the judge directed the Attorney-General, Speakers of Senate and the National Assembly to respond within three weeks. The three respondents are yet to do so. The two Houses have already been established and started business. 

In December 2012, the Supreme Court ruled that the two-thirds gender principle had not been transformed into a full right capable of direct enforcement, in response to a request for an Advisory Opinion by the Attorney- General (AG).

PROGRESSIVE IMPLEMENTATION

The court then said the principle requires “progressive implementation” and prescribed a timeline, calling on Parliament to enact appropriate legislation by August 27, 2015.

The clamour for a solution has seen three legislative proposals, one of which is still before Parliament, that could be the basis on which the two-thirds rule will be implemented. Debate on the matter has come up several times in the National Assembly and in courts of law, but a solution is yet to be found.

Even the Technical Working Group (TWG) established by the AG to look into the issue, through The Two Third Gender Laws (Amendment Bill) 2015, proposed to ‘lift’ the method for gender quotas from the county assembly level to the national level.

This entailed allowing open elections first and, if two-thirds of either gender exceeded the balance, a correction to be done through a ‘top up’ process of reserved seats.

But this proposal did not go through.

AMENDMENT BILL

Then, in 2016 an amendment Bill by Majority Leader Aden Duale proposing a ‘top up’ of women numbers in the National Assembly should the election fail to meet the constitutional threshold, also failed to take off.

But Parliament has failed to enact legislation to enforce the principle that requires not more than two thirds of its members be of the same gender.

The approach from inside parliament has been wrought with serious challenges.

The other proposal was by Green Amendment Campaign, a civil society group that sought 1 million signatures to introduce a formula through an amendment to Article 177 to provide for twinning of adjacent constituencies to provide 725 seats for women to be elected at both the national and county level.

At the Senate, it proposed the election of one man and one woman per county.

According to Agnes Kola the National Women’s rights coordinator Action Aid Kenya-the organisation that has been at the forefront of steering the collection of signatures, they have so far collected 970,000 signatures and will continue to do so as it seems like the only viable option currently.

POPULAR INITIATIVE

“What this is, is the popular initiative by the people of Kenya as provided by the Constitution. And right now it seems like the only plausible option on the table since we have seen the Bills fail to sail through on the two-thirds gender principle previously,” she said.

The signatures will be verified by the IEBC before going to the County Assembly where a half of the county assemblies and later a simple majority in parliament is needed to pass the popular initiative.  

On March 30th this year, Kenya’s High Court found that the country’s Parliament had violated women’s right to equality, and freedom from discrimination.

The court directed Parliament to ensure that the legislation was enacted within 60 days. Half the year has gone by and there has been no word from the House.

In fact the then Deputy Minority Leader Jakoyo Midiwo, referred to women MPs who rarely contribute to debate and those nominated to county assemblies as ‘idlers’ and ‘busybodies’ who are only good at squandering public funds.