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Gender equity: Kenya at crossroads
by Akoko Akech. Despite the promise of a new constitution, arguably, East Africa’s most progressive or liberal constitution, Kenya still has the lowest level of women representation in key places of decision making and could face a serious constitutional crisis, if it does not find a suitable mechanism for effecting several constitutions provisions on gender equity and representation, especially on parliamentary representation.
Although Kenya is considered a democracy with a vibrant civil society, which holds periodic and predictable, at times, controversial elections, Kenya’s performance on women’s representation has been dismal, compared with her East African neighbors. Women make only 10 percent of Kenya’s parliament, compared with Rwanda’s 56 %, Tanzania’s 36%, Uganda’s 35%, and Burundi’s 30%. Indeed, Kenya’s record falls 10 percentile points below the EAC’s regional average of 20% women representation in parliament.
Women have not fared well in elective politics the successive post-colonial General Elections since 1963. Kenya’s first parliament did not have even a nominated women representative. Although Ms Grace Onyango would be elected in the second General Election, in 1969, to represent Kisumu town constituency, women have not fare well in the successive General Elections, despite the increasing number of women candidates for both civic and parliamentary seats.
Whereas women candidates have been performing better in the lower levels of representations in local authorities, women’s performance in competition for higher offices, which command greater resources and esteem such representation in National Assembly, has been markedly dismal.
Perhaps two main reasons accounts for women’s exclusion from higher elective offices: Kenya’s patriarchal culture and electoral system: Kenya’s political contests requires an enormous outlay of social capital, yet the processes of economic, cultural and political capital accumulation still favor men more than women, irrespective of men ethnic, religious and class divides. Moreover, the First- Past –the- Post (Single Member District) electoral system have not only engendered an overly adversarial political contest, but also a violence prone electioneering, which favor men who can hire and retain violent gangs and run nocturnal campaigns.
Whereas women continue to play an important role in party politics, women’s participation in the often alpha-male led political parties, with strong ethno-regional appeals, has been confined to ‘entertaining’ power and voting, not representation. Indeed, it is this dilemma on women’s representation that made the women’s caucus, arguably the most organized and representative of the caucuses in Kenya’s protracted constitutional making process, advocate for several provisions that would remedy the historical legacies of women’s exclusion and marginalization in decision making processes.
Several articles of the Constitution of Kenya, 2010, including but by no means limited to Articles 27(3), 27(6), 81(b), 177(b) and 197, stands out as key markers of the Women’s Caucasus victory in Kenya’s quest for gender equality and equity in representation at the two distinct but independent levels of government in Kenya: National and County.
Whereas Article 27 (3) states unequivocally that ‘women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres’, it is the other articles namely, Article 27(6) and 81 (b), arguably, a clumsy compromise between the largely male dominated and patriarchal Parliamentary Select Committee and the Committee of Experts, the two main midwives of Kenya’s constitution making process, which could derail the Kenyan women’s quest for gender equity in representation.
Article 27 (3) states that ‘the state shall take legislative and other measures including affirmative action programmes and policies to redress any disadvantage suffered by individuals or groups because of past discrimination’, while Article 81 (b) states that ‘not more than 2/3 of members of elective public bodies shall be of the same gender’ and Article 177 (b) and 197 states ‘that gender principles must apply in County Assemblies and the County Executive Committee’, the two midwives of Kenya’s constitution merely postponed the dilemma of women’s representation, instead of spelling out how to effect these provisions.
Moreover, by implicitly endorsing the single member district constituencies, the drafters of the Constitution significantly constrained Kenya’s options on mechanism or formula’s for effecting the provisions on gender equity. It is generally agreed that a proportional representation system of election could be less adversarial, makes more votes count and is amenable to various affirmative action formulas; however, Kenya’s options are be limited by the Constitution’s provisions in Article 89 and 97(1)(a).
Article 89 fixes the maximum number of seats in Parliament at 290. The Articles’ key provisions implicitly ties constituencies to geo-spatial grids and populations, instead of communities of interests, regardless of their geographical locations. Indeed, Article 90 only provides for a limited application of proportional representation, for nominations to Parliament, that is, only 12 seats in a 290 seat Parliament. Even if all the 12 seats were allocated to women only, and not other groups that have experienced historical discrimination, Kenya would still have a deficit of about 85 women representatives in order to fulfill the current Constitutional requirements on gender equity and representation.
If not, Kenya could face a Constitutional crisis, if more than 2/3 of its elected members of the National Assembly, one of the in two-houses of Parliament are men. This presents a Constitutional dilemma. There has been several suggestions on how to pre-empt this immanent constitutional crisis, if Kenya fails to elect at least 1/3 women in the next General Election: on the one hand, the defenders of male privilege have suggested an expedient way out, that is, do away with the gender equity rule altogether, through a constitutional amendment, and on the other, leading women non- governmental organizations such as the Federation of Women Lawyers (Kenya) have suggested a pragmatic way out: reserve about 90 out of 290 constituencies for women candidates only.
However, both proposals are problematic. The first proposal runs counter to the progressive spirit of the Constitution of Kenya, 2010. A realization of women’s representation is not only good for Kenya’s democracy in the short run ( signaling an end to systemic exclusion or marginalization of women in the ultimate decision and rule making institutions) but also in the long-run, bringing in women’s perspectives to bear upon Kenya’s political decision and ruling making processes.
While the second option by FIDA is plausible and pragmatic, it could curtail fundamental rights and freedoms of some citizens- the freedom to elect and be elected to a public office. It is debatable whether these rights of citizens in these designated women contestants only constituencies can limited, is debatable. Moreover, it is also debatable whether such measures, anchored only in the Independent Boundaries and Electoral Commission’s rules on elections, as suggested by Kenya Human Rights Commission, would constitute a fair administrative action.
Indeed, it’s worth considering whether limiting the fundamental rights and freedoms of a cross-section of the electorate would be ‘reasonable and justifiable in an open and democratic society’ and ‘whether there are less restrictive means to achieving’ gender equity, as the Constitution of Kenya, 2010 suggests in its general provisions relating to the Bill of Rights.
Although the Court has made a pronouncement on this conundrum 'FIDA, CREAW & others Vs the Attorney General', the Court’s ruling did not give adequate direction on how to effect Article 27 (8). The Article states that ‘the state shall take legislative and other measures to implement the principle that not more than 2/3 of the members of elective or appointive bodies shall be of the same gender’. However, the High Courts’ ruling, by an all men bench, that suggested that women’s representation (a civil political rights), like the right to housing (a socio-economic right), ‘are progressive and can only be attained over a period of time’.
The Court also suggested that Kenyan women should wait for the state to institute legislation and other measures to promote gender equity in elective and appointive offices. Through this ruling, the Court largely ignores the necessity of affirmative action in creating a critical mass of women, whose agency can catalyze cultural change- a measure which could improve women’s chances of being elected to public office and cut short the waiting period for cultural change.
While the court’s decision has been challenged, and a higher court could overturn its verdict, the National Gender and Equality Commission has yet another proposal: Amend Article 97, especially 97 (C) so that the National Assembly seats is made up of elected and special seats ‘necessary to ensure that no more than two-thirds of the membership of the Assembly are of the same gender’- similar to the provisions on the County Assemblies in Article 177 (a).
Such a provision could fundamentally alter Kenya’s electoral system. It could open up creative possibilities. Instead of providing an inflexible number of Single Member Districts (constituencies) and a First Past the Post electoral system, it would provide for a Mixed Member Proportional Representation, thereby combining a significant number of electoral constituencies, which Kenyans are familiar with, with an equal significant number of special seats, which can be allocated on the basis of party votes and clear rules of nomination after an electoral contest.
Such a constitutional amendment could guarantee women’s representation through affirmative action through party list. Moreover, if party nominations rules are clearly spelt and takes into account the Constitution of Kenya, 2010, principles and objectives, the process could greatly enhance women’s representation across class, religious and ethnic divides. It could be a prudent move in light of the limited lifespan of the current parliament. It could be costly in the short-run, but a good investment in a more inclusive future in the long run.
If the clumsy Constitutional settlement in 2010 on gender equity on representation signaled a major patriarchal concession in Kenya’s struggle for gender equality, then the recent struggle over the mechanism for effecting gender equity provisions, suggests that the Kenyan women’s hard won provisions could be reversed, if there is no counter-veiling force against a resurgent patriarchal, and mostly male-led political parties and Parliament. It is a battle that is likely to be won in a court of law, rather than in parliament, only if the Kenyan courts embrace a more progressive jurisprudence on women and representation.
* This is a follow up article of SID Journal Development Vol. 55.3 Gender and Economic Justice produced in partnership with AWID.
Akoko Akech is programme officer at SID and is based in Nairobi.