Actualization and implementation of the 'Two-Thirds Gender Principle' in Kenya
Representation of women in Kenya’s Parliament has been and remains minimal. Only 9.8% of the tenth Parliament was comprised of women, and only 20.7% of the eleventh (sitting) Parliament is women — the lowest in East Africa. Underrepresentation of women in positions of power is untenable; a country simply cannot progress economically, politically or socially without half its citizens participating meaningfully in political spheres and critical decision-making processes.
Notably, the Constitution of Kenya readily recognizes women by way of creation of special seats for women that resulted in the election of forty-seven (47) women into the National Assembly, nomination of sixteen women by political parties and one woman representing the youth and persons with disabilities into the Senate and County Governments and appointment of women into other decision-making bodies.
Despite these affirmative action measures, women participation in the 2013 general elections remained very low. There were 19 women candidates for senatorial gubernatorial positions (out of 237 candidates). As a result, no women were elected as senator or governor. Out of the 290 elected National Assembly members, only 16 women were elected, only 5 were nominated out of the 12 positions and 47 County women representatives bringing the total to 68 women out of the 349 seats (19.48%) falling short of 49 of the 117 required for full compliance with the two thirds gender rule. In the Senate there are 18 women filling the 18 reserved seats under the Constitution (26.8%) which is 6.4% short of the constitutional requirement out of the total 67 seats.
In the County assemblies there were not enough women who were elected as County representatives so a gender top up of 600 women were elected across the 1450 County Wards and now are fully compliant with two - thirds gender rule.
Kenya being a nation signatory to various international, regional and sub-regional instruments namely: the Universal Declaration of Human Rights, The Beijing Declaration and Platform for Action, The African Union Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa (Maputo Protocol) and the Solemn Declaration on Gender Equality in Africa, has to uphold these principles and pull up their socks to attain equitable gender representation in Parliament. Recognizing this, the Constitution of Kenya 2010, domesticates these commitments to safeguard human rights and fundamental freedoms and entrenches the concept in article 81 (b): “Not more than two thirds of the members of elective or appointive bodies shall be of the same gender” however, the bone of contention since promulgation of the Constitution is the matrix, logistics and formula in ensuring that each House of Parliament is constituted properly as per the 27th August 2015deadline.
Furthermore, the Constitution in article 27(8) requires that the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective public bodies shall be of the same gender. To date this provision has not been implemented. The Attorney General on behalf of the Government of Kenya sought direction from the Supreme Court of Kenya through an Advisory Reference dated 8th October 2012. The issue presented before the Supreme Court for direction was whether the enforcement of the two thirds gender principle was realizable immediately or progressively based on articles 27 and 81(b) of the Constitution.
DISAPPOINTING SUPREME COURT JUDGEMENT
The Supreme Court issued an Advisory Opinion No. 2 of 2012 to the Executive and the Parliament that the realization/attainment of the two-thirds gender rule would be progressive and dependent on the State's further action. Further, the court was of the opinion that public elective bodies are not confined to the National Assembly, Senate or County Government but to all public bodies in Kenya that hold some form of elections. Therefore, in its conclusion, article 81 (b) cannot be attained immediately.
The Supreme Court also stated that the rights under article 27 (6) and (8) could only be fully realized using legislative as well as other measures and over a spaced period of time by means of policy and other measures. The Supreme Court further advised that a framework giving effect to the two-thirds gender principle should be in place by 27th August 2015.
In February 2014, the Hon. Attorney General set up a working group on the implementation of the Supreme Court Ruling on the attainment of the two-thirds gender principle to develop a framework for the realization of the two-thirds principle before the deadline set by the Supreme Court. The working group received several proposals and recommendations from different stakeholders, institutions and individuals and came up with one proposal which it considered most viable to help attain the two-thirds gender principle as lifting the provisions of article 177 (b) and (c) to articles 97 and 98 of the Constitution of Kenya 2010.
For effective implementation of the formula, the Working Group proposed the following legislative amendments to be undertaken so as to actualize realization of implementation of the two-thirds gender principle as follows:
- Amendment of the Political Parties Act
- Amendment of the Elections Act.
- Amendment of the Independent Electoral and Boundaries Commission Act
- Amendment of the National Gender and Equality Commission Act
- Amendment of the County Governments Act
THE 'CHEPKONGA BILL'
Contrary to the proposal made by the working group, on 30th April, 2015, the National Assembly published and read for the first time the Constitution of Kenya (Amendment) Bill 2015 and The Two-Third Gender Rule Laws (Amendment) Bill 2015 hereinafter referred to as the “Chepkonga Bill”. The said bill challenges article 81 (b) of the Constitution by stating that the “progressive implementation” of the legislation to ensure not more than two thirds gender principle is realized without providing for a clear timeframe. This is in total disregard of the principle of equality and freedom from discrimination as entrenched in the Constitution in article 27 of the Bill of Rights and Article 10 on national values and principles of governance as the bill attempts to dilute the gains women have attained under the Constitution rather than implementing it.
COST OF IMPLEMENTING THE TWO-THIRDS GENDER PRINCIPLE
Further to make a case for the misguided narrative doing rounds that the cost of implementing the Two-Thirds Gender Principle will be too expensive for the taxpayer, contributing to increase public spending, the Institute of Economic Affairs (IEA) launched the study Implementing the Constitutional Two-Thirds Gender Principle: The Cost of Representation which strongly suggests the cost of adding seats in Parliament to satisfy the two-thirds requirements will cost taxpayers an additional Kshs. 21.1 million for an additional seat in the National Assembly and Kshs. 31.3 million for an additional seat in the Senate.
Based on the research conducted by IEA, in order to reach the one-third gender rule, we need to elect 105 women in 2017 (117 women in the National Assembly and 23 in the Senate) in total. If we do not do that, then, one of the ways to meet the one third rule is nominating women to fill that gender deficit. It will cost the taxpayer Kshs. 21.1 million per year for each nominated woman member of Parliament and a staggering Kshs. 31.3 million per year for each nominated woman Senator; salaries and emolument the total amounting to Kshs. 2.5 billion..
The Rationale and Assumptions for Variable Costs used in the Costing of Representation of an individual legislator includes but it is not limited to the following: basic salary, personal allowances paid as part of salary/reimbursement, domestic foreign travel and subsistence allowances, insurance costs, car grants, committee services allowances, administration costs.
The low proportional representation of women in political and governance structures across the globe has necessitated the introduction of gender quotas in different countries to remedy underrepresentation.
Kenya has the largest economy and highest GDP per capita in East Africa, but it is the only country in the region yet establish an affirmative action programme for gender representation in Parliament. Political representation of Kenyan women now stands at 20.7%, Rwanda’s 58%, Tanzania’s 36% Uganda and Burundi both at 35%.
Compiled by Maureen Bwisa, Programme Officer, SID
Sources: Institute of Economic Affairs, Implementating the Constitutional Two-Thirds Gender Principle: The Cost of representation, May 2015, available here
Photo: World Bank photo collection/Flickr
 As per article 97 (1)(b) of the Constitution
 As per article 98 (1)(b) of the Constitution
 As per article 98(1) © and (d) of the Constitution
 As per the Fifth Schedule of the Constitution of Kenya
 In the Matter of the Principle of gender Representation in the National Assembly and the Senate  eKLR
 The working group comprises representation from twelve key institutions. namely: the Hon. Attorney General’s office, Ministry of Devolution and Planning (Gender Directorate), National Gender and Equality Commission (NGEC), Independent Electoral and Boundaries and Commission (IEBC),Kenya Women Parliamentary Association (KEWOPA), Commission of the Implementation of the Constitution (CIC), Registrar of Political Parties (RPP), Parliamentary Committee on the Implementation of the Constitution, Parliamentary Committee on Legal Affairs, Commission of the Administration of Justice(CAJ) and Federation of Women Lawyers in Kenya as a representative of Civil Society Organizations.