Article 81 (b) of the Constitution provides that “no more than two thirds of the members of elective or appointive bodies shall be of the same gender”.
That means each gender must have at least one third membership of both the National Assembly and Senate.
However, the current Parliament has 22 percent female representation. The world average, as of June 2018, is 23.8 percent of women in parliament.
Kenya’s constitution seems to contradict itself in Articles 97 and 98 on the composition of the National Assembly and Senate fails to enforce the gender equity rule.
Article 27 (3) again guarantees the right to equal treatment of women and men including the right to equal opportunities in political, cultural and social spheres.
Critically, Article 27 (6) and (8) directs the state to take legislative and other measures to implement the gender mainstreaming principle within elective and appointive bodies.
Up to date, no law have been passed to remove the above constitutional contradiction so as to guarantee that post 2010 elections are held in strict observance of the gender equity rule.
Interestingly, in relation to county assemblies, the Constitution clearly stipulates that the gender fairness rule must be adhered to.
After the MCA election, nominations on the basis of the seats garnered by political parties occur to plug the electoral gender gap.
Kenya has achieved gender parity in all other public offices to the extent that in the commissions for example, a chairperson and vice- chairperson cannot be of similar gender.
Even in the private and voluntary sectors, adherence to gender equity is an important ethical goal.
Also among grassroots community committees and in their public platforms, recognition of joint female and male participation is beginning to become a cultural norm.
You will hear people say “gender” (meaning “women”) must be acknowledged. Not so in Parliament.
Why is the principle of gender equity in the political and generally public spheres important?
First, globally, the female gender is underrepresented in political office, yet worldwide, women are the majority.
As of June 2018, the leading countries in women parliamentary representation in Africa were Rwanda with more than 61 percent in the country’s House and 38.5 percent in Senate; and Namibia (46.2 in the House; 24.4 in the Senate).
As observed earlier, Kenya’s combined parliamentary strength was 22 percent behind Tanzania (36) and Uganda (34).
In a democracy, a majority population segment, as women are, should not be marginalised or underrepresented.
Women understand their issues more than men do. They deserve political space and opportunity to articulate and canvas for these.
When women try to enter the political field, political parties don’t usually give them tickets.
Women candidates find it hard to effectively fundraise for their elections.
Often they are afraid of the violence which is part of the electoral menu in Africa. They abhor abusive language hurled in rallies.
Many spouses and relatives discourage potential female politicians from running for office.
Those who oppose gender equity in parliaments urge that such principle dilutes democracy.
Post-election nominations geared towards achieving gender equity can balloon parliaments and accompanying cost.
Some male politicians believe undeserving women are nominated by political parties.
Other men prefer to keep women out of the public sphere because they secretly dread or are intimidated by “women power”.
The constitutional provisions of the two thirds gender rule have been the subject of court interpretation.
In 2012 the Supreme Court handed down an advisory opinion which acknowledged that the State was duty bound to prepare proposed legislation to effect the gender equity rule or else face dissolution under Article 261 (5) — (7).
It was recommended that Parliament passes the legislation before August 27,2015.
In another petition of 2016, the court found that the attorney general and parliament had failed to take steps to pass the legislation necessary to observe, respect, protect, promote and fulfil the right of men and women to equality.
A further petition in 2017 sought orders for IEBC to enforce the two third gender rule by rejecting nomination party lists which didn’t comply with it.
The court gave political parties six months from April 20, 2017 to prepare rules for actualising the gender principle for nominations.
However, the decision was not to apply to the 2017 elections.
The courts have therefore advocated for a gradual or progressive realisation of the rule.
Whatever decision the Judiciary takes in these cases, the legislative wing has not acted on it.
The antipathy against equitable women representation in Parliament has made male legislators since 2010 risk the dissolution of Parliament.
In 2015 (thrice) and 2018, Parliament endeavoured to pass the requisite law to enforce equitable gender representation.
These constitutional amendment proposals largely sought to come up with a formula on how to achieve the minimum one third for either gender in Kenya’s bicameral legislature
The recent Aden Duale proposed amendment of 2018 seeks to create special seats to be filled by political parties that participate in a general election.
These proposed laws mimic, by and large, the current position as regards the county assemblies.
However, voting on the bill was deferred when it became apparent it would be rejected.
A previous Constitution of Kenya (Amendment) Bill, No. 6 of 2015 was torpedoed after an engineered quorum hitch of 150 MPs who avoided the vote.
Although Kenya aspires to be a modern country in the field of safeguarding gender political equity, the country is trailing even by African standards.
Male chauvinism defines the country’s politics. If the Constitution is not appropriately amended to entrench gender equity in parliamentary elections, then according to current judicial decisions reached in accordance with Article 261 (5-7), the Chief Justice “shall advise the President to dissolve Parliament and the President shall dissolve Parliament”.
Consequently, non-passage of the Duale-proposed amendment or a similar amendment during the proposed referendum exposes the Kenyan parliament to great risk.
In 2022 both the National Assembly and Senate could upon further citizen or organisational petitioning be declared unconstitutional.
Then there would be no parliament to pass the remedial or other law and to act as the third arm of government.
The country would be confronted by a serious constitutional crisis. Majority Leader Aden Duale may have been motivated by this realisation.
Prof Kibwana is Governor of Makueni County