How women in leadership undermine the two-thirds gender rule

The 2013 election was historic in beginning to shift the balance of power away from men as the super-majority decision makers.

By restricting the representation of either gender to not more than two-thirds (67 per cent) in appointive and elective bodies, the Constitution was marking the end of legitimate super majority male leadership.

Since the promulgation of the Constitution in 2010 we have witnessed an unprecedented number of women in leadership at both the national and county levels.

As a result, most of the decisions made from 2013 to date have been with the active involvement of more women than ever before; women who owe their positions, in large measure, to the expanded leadership opportunities guaranteed by the gender principle in Article 27(8) of the Constitution.

Despite this we have witnessed the widespread violation of the gender principle, since 2010 but with strategic deliberation and increasing frequency since 2013.

This systematic regression on women’s rights as guaranteed in Article 27 would not have been possible without the participation of women in positions of authority.

All arms of government, while purporting to exercise authority by virtue of the Constitution, are in active violation of Article 27 provisions on women’s right to leadership.

The Executive’s apex body is Cabinet which in composition is over 78 per cent male. Parliament has failed, despite a constitutional mandate and an order of the Supreme Court, to enact legislation to implement Article 27(8) and 81(b) in the national legislature.

Women have been involved, on an unprecedented level, in all of these decisions.

In 2015, when the President reshuffled his Cabinet and presented a list of nominees that would have resulted in a Cabinet that violates Article 27(8), none of the members of the Justice and Legal Affairs Committee raised the matter of the illegality of the composition in committee, despite the Deputy Chair of that committee being a woman and a lawyer.

Further, upon receipt of a memorandum from the public, the committee failed to raise this legal deficiency, and in the confirmation debate, only one female Member of Parliament spoke up to raise the violation of Article 27(8). There are 68 women in the National Assembly, so from 67 women we heard not a word.

Outside of the parliamentary confirmation process we heard nothing from 18 women Senators, the four female Cabinet Secretaries or the numerous female commissioners who enjoy their positions in large part due to the gender principle.

MURMUR OF DISSENT

Earlier this year, the Judicial Service Commission (JSC) overlooked qualified, accomplished, and more senior female candidates in favour of a man, whose selection they knew would violate a constitutional principle.

This resulted in a Supreme Court that is now 71 per cent male in contravention of the 67 per cent maximum representation of either gender. The JSC that made this decision had at least 5 women, an unprecedented number, almost all of them courtesy of the same gender principle they violated in their recruitment of judges for the Supreme Court.

Not a murmur of dissent was heard from these women. Not a word of protest from the four JSC commissioners, the Chief Registrar of the Judiciary who is a woman, or the sole female Supreme Court Judge at the time or from the female Cabinet Secretary responsible for Gender. Nothing.

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Last month, the IEBC Select Panel shortlisted 36 people for the position of Member of the Independent Electoral and Boundaries Commission (IEBC). Only 8 of the 36 people initially shortlisted are women.

As an appointive constitutional commission IEBC must comply with Article 27(8), meaning that the only legal composition would be a 4-3 or 3-4 male to female ratio on a 7-person commission. A set-up to another improperly constituted commission?

Only time will tell, but based on past precedent, highly likely. Incidentally 174 women applied for the position of Member of IEBC.

SUB-STANDARD LEADERSHIP

It isn’t that we didn’t have women in positions of authority who could act to uphold the law or speak up against its violation; it is that they did not.

Whether by omission or commission, by silence or simply by allowing themselves to be persuaded or bullied out of upholding the law, women were key players in the systematic violation of the gender principle in Article 27(8).

The loud silence by women in positions of authority is a significant obstacle to women’s realisation of their equality and leadership rights in the Constitution.

We don’t have more women than ever in leadership because this is the generation of the smartest women in history. Rather, we are the generation that has benefited from the struggle of generations of women who came before us, women who failed to ascend to leadership,  public and private, simply because they were women and those opportunities were unavailable to them as women.

Women in leadership must be held to the same legal and ethical standards as their male counterparts. Women who break the law to deny other women positions they are entitled to by the Constitution must be held as culpable as the men on these same appointing bodies.

It is bad leadership when men do it and bad leadership when women do it too. Women leaders don’t get a pass when they demonstrate sub-standard leadership.

Women can no longer complain we don’t have power, we do. We must however, hold women in positions of leadership accountable, to exercise power in a way that retains and expands it for other women beyond themselves. Men demand no less of their representatives.

Ms Kamuru is a lawyer. Email: [email protected]