INTERNATIONAL WOMEN’S DAY
MARCH 8, 2014
sought to bring clarity and certainty to the term of the Tenth Parliament while also removing any doubts as to the date of the next general elections under the Constitution of Kenya 2010.” However, complications arose about how to proceed with the bill after it had undergone the First Reading, due to the fact that it had also contained an amendment to assist in clarifying the issue of the election date. Following the decision of the Constitutional Court with respect to the election date, the question arose as to whether bill should proceed as is, or be withdrawn and retabled after the section dealing with the election date had been excised.
Women members of the National Assembly and Senate join women from civil society organisations in a two day consultative forum to look at the agenda of advancing women’s rights. Despite gender conscious legislations, Kenya lags behind her neighbours in terms of gender equality at decision making levels.
The Commission for the Implementation of the Constitution advised the then minister in charge of Constitutional Affairs to withdraw the Bill and publish a new Bill, but this was not done.
Crisis In order to find a solution to the looming constitutional crisis, the Attorney General filed an Advisory Reference in the Supreme Court to seek a Constitutional interpretation of how the country should attain the gender equity principle. The Supreme Court however ruled that the twothirds gender principle is ‘aspirational’ in that it lacks a normative framework for its attainment, similar to Article 177 which refers to the composition of county assemblies.
Are quotas Kenya’s panacea to inequalities in the political scene? By Faith Muiruri
he two thirds gender rule still remains the remedy in addressing gender disparities that have defined Kenya’s political landscape since independence.
The “winners-take it all” coupled by the First Past the Post (FPTP) electoral system and the unyielding patriarchal political culture continue to undermine women’s participation in competitive politics. While the Constitution gives express provisions for effective representation through affirmative action, it fails to provide a mechanism to facilitate the implementation of the principle in Articles 97 and 98 namely the National Assembly and the Senate. Article 27 (8) of the Constitution directs the state to take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.
The bill aimed at giving full effect to Articles 27(8) and 81(b) which provides that not more than two-thirds of the members of elective public bodies shall be of the same gender. The Bill also
But why has the provision of minimum gender representation failed to open space for women to
While the ruling at best was considered as a subversion of the new constitution and a denial of justice to the majority of the women who looked to the forthcoming elections with much optimism, it could provide a clear roadmap towards the implementation of the two thirds gender rule.
But the technical committee has to overcome a number of hurdles including defining timelines within which the two thirds gender principle is to be attained, as the Supreme Court ruling did not delve into timelines as suggested by Commission on Administrative Justice.
Prior to the promulgation of the Constitution of Kenya in 2010, a number of options were tabled and discussed for the realisation of the two-thirds gender principle by stakeholders.
However, none of these proposals were accepted by the Cabinet or Parliamentarians in the Tenth Parliament.
The National Gender and Equality Commission (NGEC) has established a technical team to come up with the mechanism contemplated in the Supreme Court ruling.
The Constitutional requirement for one third representation in Parliament by either gender has had its share of misfortunes.
The principle is further replicated in Article 81(b): “The electoral system shall comply with the following principles [...] not more than two-thirds of the members of elective public bodies shall be of the same gender.” Article 177(b) in turn insists that a county assembly consists of “no more than
On the issue of a deadline for the attainment of the principle, the Supreme Court restricted itself to providing a deadline by which legislation providing for a mechanism to realize this principle should be introduced- as opposed to the deadline for actual attainment (as requested by the CAJ). The Supreme Court appeared to suggest that that the doctrine of separation of powers may be impacted negatively if they were to go further.
With 2015 beckoning, the realization of two thirds gender rule is still fraught with uncertainties.
Another option included rotating of constituencies which relied on the fact that Article 97(1) (b) creates 47 special seats that would add to the number of women in the National Assembly. It also relied on the fact that Article 97(1) (c) provides for the nomination of 12 members to the National Assembly (by political parties, according to the proportion of their membership), 6 of whom must be women. This guaranteed a total of 53 women in the National Assembly.
two-thirds […] of the same gender”.
Further, the Constitution of Kenya (Amendment) Bill, 2011, was introduced in Parliament by the then Minister for Justice, National Cohesion and Constitutional Affairs on 19th October, 2011, following extensive discussions and negotiations between and among civil society organisations, Parliament, and the Cabinet.
participate in representational politics?
Key among them included the twining or multimember electoral system which called for the twining of proposed 80 new constituencies with pre-existing constituencies, and the twinned constituencies would then elect a man and a woman. This raised challenges in terms of its operationalization, given the autonomy of political parties to field candidates of their choice, and the sanctity of the right to vote.
INTERNATIONAL WOMEN’S DAY
Another hurdle lies in the fact that the Supreme Court saw challenges in the attainment of Article 27, based on the perception of an existing contradiction between Article 27(6) and (7) - and Articles 97 and 98.
The Supreme Court ruling granted Parliament a temporary reprieve which expires in 2015. After that anybody can move to court and seek dissolution of Parliament if the required legislation is not put in place Prof Wanjiru Kabira
NGEC chairperson Winnie Lichuma says that the Attorney General also introduced the issue of an ‘undue tax burden’ which may be played up within Parliament. The two thirds gender rule is meant to increase women participation in politics and based on this principle at least 117 MPs should be female now that men are still dominant. Currently, there are only 68 women in the National Assembly which is way below the two thirds gender threshold envisioned in the Constitution.
Prospects According to Jill Ghai, a legal expert on Constitutional matters, Article 81 (b) still holds
MARCH 8, 2014 bigger prospects for increasing the level of women representation. The ruling on the two thirds gender principle relied on provisions of Article 100 and thus Parliament must enact the necessary legislation to give effect to the two thirds gender principle by August 27, 2015. The legislation must also be enacted within the timeframe outlined in the fifth schedule of the Constitution. “The Constitution also provides a recourse if the legislation is not enacted within the specified timeframe. Article 261 of the Constitution can be invoked to pave way for the dissolution of Parliament at the expiry of the grace period,” explains Ghai. Article 100 is really meant to promote measures that may include education and providing incentives such as using the Political Parties Fund to reward parties that get women elected. “While it is highly possible that they may have misunderstood the intentions of Article 100, the good news is that all laws under Article 100 must be passed by 2015 as stipulated in the fifth schedule of the Constitution,” Ghai explains. Focus now shifts to Parliament to give meaning to the two thirds gender rule which is derived under Article 81(b) of the Constitution.
Options Parliament has an array of options including putting in place legislative measures it considers appropriate for the purpose of enforcing or securing the enforcement of the two thirds gender rule. Parliament can enact the legislation contemplated in Article 27(8) or amend the Constitution as proposed earlier to have top up seats. Prof Wanjiru Kabira says that Parliament must take advantage of the grace period to effect the gender rule within the stipulated timeframe. “The Supreme Court ruling granted Parliament a temporary reprieve which expires in 2015. After that anybody can move to court and seek dissolution of Parliament if the required legislation is not put in place,” Kabira explains. According to Kabira, once the legislation is enacted, political parties can decide to nominate more women to parliament to bridge the gender gap. “Once the necessary legislation is in place, political parties can still nominate more women to parliament to meet the two thirds gender rule. But even if this is not done, women will be assured of a solidified gender quota during the 2017 General Elections. The Kenya Human Right Commission (KHRC), nevertheless, feels that Parliament needs to explore legislative mechanisms that include amending the Elections Act and the Political Parties Act to enforce the gender rule. “Asking Parliament to amend the Constitution could result in reversal of gains. It will set a bad precedent of resorting too quickly to constitutional amendment whenever there is a challenge,” the Commission avers. The Kenya Government has in the past signalled its belief in using ordinary legislation to achieve gender balance. Its periodic reports to Convention on the Elimination of Discrimination against Women (CEDAW) (even before Constitution of Kenya 2010) indicate that it is possible to achieve that objective through the instrument of the Political Parties Act.
We are there yes, but we need support on empowerment
to enable them develop skills, knowledge and confidence to formulate winning gender agendas, articulate them clearly and defend them all through without fear. This way we can promote and realize gender equality faster in Kenya.
By Jane Godia
eing in parliament is one thing, but managing to navigate the terrain that goes with being a political representative is another.
Women from single constituencies are also accused of drawing a line between themselves and those who are representing counties.
As Kenyans went to the electioneering mood that culminated with the General elections in March 4, 2013, women were rocking the hitherto quiet waters in areas that were male dominated.
This should not be the case as they need to have seamless boundaries despite their political parties or constituency representation.
Women went on to win in elections that saw them competing against men, and the result of this was 16 women out of 290 single constituency seats.
Juma notes: “There are so many issues that are looked at as women’s issues. Fear of women representatives competing with those from single constituencies is derailing the unity that is needed.” She adds: “Women must be challenged to speak with the same voice as an inspiration to their presence in the august House.”
Another 47 came from the single county constituencies as well as an additional five that was nominated. However, the challenge that the women are now facing is how to balance their presence in the august House and political survival.
However, Ghati says there is need for women to strategize more, find their course and move with it. This is why the women leaders are coming together to work with the women’s movement.
According to Patricia Nyaundi, Commission Secretary, Kenya National Commission on Human Rights, the challenge the women politicians are facing is one of being relevant.
“It would be a shame if women fail to deliver,” Ghati says. Ghati explains: “Women’s representatives are struggling and strategizing. Some have resorted to using their networks for fundraising to support their projects.”
Agenda “Sadly it seems the understanding of relevant issues is defined by the party affiliations and larger party agenda. The women need to problematize gender,” Nyaundi advices. According to Nyaundi the fight for gender equality is being affected by other factors such as ethnic alignment, noting that failure to commit to gender equality does not cost political votes. However, Dennitah Ghati, Migori County Member of Parliament, observes that most women in the legislative assembly came from a background without a public life. They are, however, now in the full glare of the whole nation. In their small numbers, women have been forced to learn how to lobby to have issues that are sensitive to their course supported by men. This is supported by Mishi Juma, Mombasa County Member of Parliament, who says women are trying to be at the forefront but they still need capacity building on several skills to enable them wade through the parliamentary terrain.
Capacity Despite training by the Kenya Women Parliamentary Association (KEWOPA), women still do not know how to come up with motions. Juma notes that women must be empowered and supported to push crucial bills. “It is important that forums are held every time there is a crucial bill in the house to analyse it so that women understand how they are going to vote,” observes Juma. She explains: “At times women end up voting wrongly not because they wanted but because of confusion over where to vote.” Juma says that due to political alignments, women in the august House are still challenged over having the same voice in the House. Ghati says women are quietly learning the tricks of the House. “We will be more engaging this year as we are looking at a few benchmarks such as the Millennium Development Goals and trying to see how Kenya fared.” Under Kewopa, the women leaders have decided to take a bipartisan approach to issues so that women’s voices are heard.
Women are still far, they need more numbers. They need continuous capacity building on many areas including team building and resource mobilization. Joyce Emanikor, Women Member of Parliament for Turkana County However, balancing political survival with pushing for gender equality remains a challenge for the women. Women, who are on the government side, or Jubilee Coalition, are accused of not wanting to be seen to be going against the grain.
Survival According to Millicent Wamaitha, Acting Programme Coordinator Foundation for Women’s Rights women leaders are too engaged in protecting their political careers. “At times they get compromised and cease to actively defend laws that protect gender equality despite the fact that they should be at the forefront. Sometimes many, particularly the new women leaders do not have the guts and sharp skills to stand up to aggressive or experienced male leaders,” explains Wamaitha. She adds: “The fear takes precedence forcing them to watch silently or from a distance as good legislations are mutilated and rendered ineffective to address gender balance issues in the country.” Wamaitha notes that there is hence need to build the capacities of first time women leaders
However, the women leaders who came from the corporate sector are particularly challenged in terms of raising money for their constituencies when they cannot get government funding. Ghati says there is need for the women leaders to continue having a working relationship with the women’s movement. This is reiterated by Joyce Emanikor, Women Member of Parliament for Turkana County who says they need money to build the capacity of women even at the grassroots level. “We want money to go into capacity building for women to empower them from the grassroots whether it is politically, socially or economically.”
Participation According to the Beijing Platform for Action, women’s equal participation in decision making is not only a demand for simple justice or democracy but can also be seen as a necessary condition for women’s interests to be taken into account. Achieving the goal of equal participation of women and men in decision making provides a balance that more accurately reflects the composition of society and is needed in order to strengthen democracy and promote its proper function”.Women leaders in parliament are already an inspiration to those out of the august House. To serve the unity of purpose, weaknesses and challenges that women are facing need to be identified and tackled to show that the space they so hard fought for rightly belongs to them. As Emanikor says: “Women are still far, they need more numbers. They need continuous capacity building on many areas including team building and resource mobilization.” Women must be able to bring into the house meaningful participation. Meaningful political participation requires certain institutional arrangements in society to link people’s activities to the policy making processes. Real engagement can only come through genuine opportunities for participation and communication.
Special issue of the Kenyan Woman newspaper for International Women's Day 2014