an 8-year protracted battle with their male counterparts.
However, there is a ray of hope on the horizon of the long-drawn-out
struggle, with the political leadership of the country solidly behind the new
bill to comply with the constitutional requirement of no more than two-thirds
of either gender.
The 2010 Constitution envisaged a situation where elections could result in
either gender dominating the Kenyan Parliament hence the safety valve to bridge
the gender gap after polls.
“Not more than two-thirds of the members of elective public bodies shall be
of the same gender,” Article 81 (b) of the 2010 Constitution dictates.
But implementation has proved elusive because the Constitution failed to
expressly provide for how the two-thirds gender ratio would be achieved. As it
is, the composition of both the National Assembly and the Senate falls short of
the constitutional threshold.
Supreme Court intervention
Apprehensive that the electorate would fail to elect enough women to meet
the two-thirds requirement in the 2013 elections, and with no likelihood of
political parties filling their nomination quota with enough women, the AG
sought a Supreme Court advisory.
In December 2012, the apex court directed that the government implements a
progressive approach in filling the gender gap within five years after the
promulgation of the 2010 Constitution.
The court determined that the gender principle had not been transformed into
a full right capable of direct enforcement.
Because the constitution was promulgated in 2010, the law should rightfully
have been enforced in the 2013 polls.
The interpretation of the gender equity principle as a progressive right was
seen as a pragmatic solution to avert a constitutional crisis during the 2013
The Supreme Court gave August 27, 2015,
as the deadline for Parliament to pass a law to implement the gender rule.
But even the Supreme Court’s intervention, as well as subsequent efforts
that included a petition filed against Parliament to implement the
gender principle, came to naught.
High Court Order
At the expiry of the August 2015 deadline, Parliament had failed to enact
the law to enforce the two-thirds gender rule as ordered by the Supreme Court.
The Centre for Rights Education and Awareness and the Community Advocacy and
Awareness Trust sued the two Houses of Parliament in the High Court for
violating the Constitution in failing to enact the two-thirds-gender rule.
The Kenya National Human Rights Commission was also enjoyed in the case.
On March 2017, High Court judge John Mativo ruled that if the bicameral
House failed to enact the gender principle by June that year, anyone could petition
the Chief Justice to advise the President to dissolve Parliament.
The High Court found that the country’s Parliament had violated the women’s
right to equality and freedom from discrimination and directed that the House
enforce the gender principle within 60 days
Justice Mativo’s order echoed another issued in 2015 by High Court Judge
Mumbi Ngugi, who ordered the Attorney-General and the Commission for the
Implementation of the Constitution to prepare and table a bill for legislation.
There has been clear reluctance, if not resistance, to implementing the
Critics of the sweeping gender principle argued that women wanted equality
through the backdoor by seeking free seats that would be dished to them without
Male legislators, at whose mercy the women’s fundamental right stood, felt
by increasing the number of nominated women to Parliament they would surrender
This, despite the fact that women in Parliament currently account for just
19 per cent against the required 30 per cent even as they equally continue to
face systemic discrimination in Kenyan society.
But women politicians and rights activists argued that the deep-seated
patriarchy could only be effectively overcome by laws that enforced gender
Failed legislative bids
Parliament has tried, but failed, on two occasions to pass a bill that
would give effect to the two-thirds gender principle.
The bill was rejected twice by members whose main argument was that the new
provisions would result in bloated representation.
It would add to the heavy tax burden and give women free seats.
It was argued that women hardly contributed to debates in Parliament, with
others referring to their nominated female colleagues as “idlers”
and “busy bodies”.
In February 2017, a bill in the Senate sponsored by the then nominated
senator Judith Sijeny failed because the House could not get 45 members to vote
In November 2016, there was a similar quorum hitch in the National Assembly
that derailed a bill by then chairman of the Justice and Legal Affairs Committee
It sought to have a progressive implementation formula of the gender
principle but women MPs fought it.
In May 2016, another bid failed at the floor of the National Assembly after
it was supported by 178 MPs and opposed by 16.
The Duale’s bill
The current amendment proposes to nominate women (or men) after every
general election to ensure at least a third of the composition is of either
Numbers for the nomination will be shared by political parties depending on
their strength in Parliament after that election.
Currently, the National Assembly has 75 women — 22 elected from the 290
constituencies in the last election; six nominated on the 12 nomination slots;
and 47 elected as women representatives.
This means that the National Assembly needs some 42 nominated women to
achieve the gender principle while the Senate needs only one senator.
Some sub-Saharan African countries have done much better at ensuring
equitable gender representation.
Rwanda boasts the highest proportion of women representatives in Parliament
at 61 per cent ahead of Tanzania and Burundi with 36 per cent, Uganda (34 per
cent) and Kenya trailing at 22 per cent.
Cameroon and Zimbabwe have both reformed their electoral laws to boost
female representation to meet the two-thirds threshold.