The Star (Kenya)

How and why par­ties should take the lead to im­ple­ment gen­der rule

- @kat­i­bain­sti­tute e au­thor is an ad­vo­cate trainee at Kat­iba In­sti­tutekenya. TIOKO EKIRU EM­MANUEL Patriarchy · Sexism · Women's Rights · Society · Discrimination · Feminism · Politics · Elections · Human Rights · Social Movements · Kenya · National Assembly of South Korea · United States Senate · United States of America · Katiba Institute

Kenya has had a long his­tory of gen­der in­equal­ity, and this has been as­so­ci­ated with the pa­tri­archy un­der­ly­ing Kenyan so­ci­ety.

is can be traced back to the pre-colo­nial pe­riod, with its ef­fects be­ing felt even in present-day pol­i­tics. Cer­tainly, we see very few women oc­cu­py­ing lead­er­ship po­si­tions, and when­ever they do, they are rarely on the front­line.

The pro­mul­ga­tion of the 2010 Con­sti­tu­tion, how­ever, brought with it tid­ings of hope for the women, in that the bur­den of dis­crim­i­na­tion on the ba­sis of gen­der was not to be borne by women any more. And the two-thirds prin­ci­ple was in­tro­duced.

Ar­ti­cle 27( 8 ) ob­li­gates 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 are of the same gen­der.


is pro­vi­sion is not a lone ranger, but should work with the state ap­pa­ra­tus and even the po­lit­i­cal par­ties — as the gate­keep­ers to po­lit­i­cal of­fice — to en­sure the two-thirds gen­der rule is com­plied with in se­lec­tion and nom­i­na­tion of prospec­tive can­di­dates.

e con­sti­tu­tional pro­vi­sions on gen­der equal­ity re­ceived one of its best en­dorse­ments in 2017 by Jus­tice Chacha Mwita, in Kat­iba In­sti­tute v In­de­pen­dent Elec­toral & Bound­aries Com­mis­sion.

e pe­ti­tion sought the Court’s in­ter­pre­ta­tion of Ar­ti­cle 27, and a rul­ing on whether the IEBC had an obli­ga­tion to com­pel par­ties to be two-thirds gen­der rule com­pli­ant in their nom­i­na­tions.

e case was brought af­ter the IEBC failed to re­ply to a Kat­iba In­sti­tute let­ter in De­cem­ber, 2016. ere, Kat­iba In­sti­tute sought to know about the in­ten­tions of the IEBC in terms of en­sur­ing par­ties were com­pli­ant with the gen­der prin­ci­ple in re­la­tion to their lists of can­di­dates for the 2017 elec­tions.

e com­mis­sion failed to re­ply the let­ter within the 21-days time­line, prompt­ing KI to pro­ceed to the High Court.

In his judg­ment in April 2017, Jus­tice Mwita held that, in­deed, the IEBC had a duty to en­sure par­ties ad­here to the two-thirds gen­der rule in their nom­i­na­tions, fail­ure to do which the com­mis­sion had a duty to re­ject their nom­i­na­tion lists.

He af­fir­ma­tively said par­ties are bound by the Con­sti­tu­tion to the ex­tent that any ac­tion they take, in­clud­ing nom­i­na­tion pro­cesses for the 290 con­stituen­cies for the Na­tional As­sem­bly and the Se­nate po­si­tions, must com­ply with the gen­der prin­ci­ple.

e learned judge fur­ther held that the rule can­not be left to leg­isla­tive process alone. He made ref­er­ence to the words “other mea­sures” in Ar­ti­cle 27 ( 8 ) to con­note that the prin­ci­ple may be at­tained through other means, even in the ab­sence of leg­is­la­tion.

Par­ties must, there­fore, take pro-ac­tive steps to re­alise this con­sti­tu­tional ob­jec­tive. Jus­tice Mwita stressed that the ques­tion of the rule is about “lo­gis­tics and for­mula”, which po­lit­i­cal par­ties are ca­pa­ble of de­sign­ing and im­ple­ment­ing within their in­ter­nal or­gan­i­sa­tion.

ey, there­fore, have an obli­ga­tion to pro­mote the ob­jects of the Con­sti­tu­tion and pro­mote gen­der par­ity, even dur­ing nom­i­na­tions.


is hav­ing been held by the High Court, the ball now rests in the courts of the par­ties and other stake­hold­ers, in­clud­ing the or­gans of the state re­lated thereto. e ques­tion is then is how the par­ties are go­ing to ef­fect this. e sit­u­a­tion is now iron­i­cally sim­i­lar to that fac­ing the coun­try since 2010: Meet­ing the two -thirds prin­ci­ple is re­quired, but it is not clear how it is to be done.

e Con­sti­tu­tion is bold and has catered for the in­clu­sion of women in Par­lia­ment and other lead­er­ship po­si­tions through af­fir­ma­tive ac­tion. It might seem that the so­lu­tion is for each party to have its quota sys­tem. In other words, each party should en­sure, among the can­di­dates it puts for­ward, no more than two -thirds are of one gen­der. Pos­si­bly this is what Jus­tice Mwita meant by say­ing the nom­i­na­tion for par­lia­men­tary slot can­di­dates must com­ply with the re­quire­ments of the Con­sti­tu­tion, in­clud­ing Ar­ti­cle 27 and 81 of the two thirds rule.

Maybe that is all that can be ex­pected. But it is im­por­tant to re­alise that it can­not guar­an­tee that the out­come will be no more than two thirds of Par­lia­ment be­ing men. Women will only be elected if they stand in winnable seats. A party might put up women mostly for seats that it has lit­tle chance of win­ning.

In the­ory, party can­di­dates are elected through pri­mary elec­tions. Even if a party de­cided the can­di­dates for cer­tain con­stituen­cies must be women, could it en­force this? In 2017 one party said it would use di­rect nom­i­na­tion to achieve the gen­der prin­ci­ple.


is was raised but not ad­dressed in the case. Ar­ti­cle 38 says ev­ery­one has the right to stand and to vote, and for elec­tions to be based on the free ex­pres­sion of the will of the elec­tors.

e ar­gu­ment goes: this is vi­o­lated if only women can stand for a par­tic­u­lar seat. True, such pro­vi­sions have been a bar in some coun­tries. But the Kenya Con­sti­tu­tion it­self pre­scribes the two-thirds rule. Any rea­son­able limit on the rights that is nec­es­sary to achieve this con­sti­tu­tional prin­ci­ple can­not it­self be un­con­sti­tu­tional.

Prepa­ra­tion of women for lead­er­ship is one of the best ways of en­sur­ing they take an ac­tive role in lead­er­ship po­si­tions. is can be done by state agen­cies such as the IEBC in col­lab­o­ra­tion with the par­ties, as well as Ke­wopa – the women par­lia­men­tar­i­ans’ or­gan­i­sa­tion.

In the US, this has been suc­cess­fully done by the Early Money Is Like Yeast (Emily’s list), an or­gan­i­sa­tion that has taken up the role of re­cruit­ing women and tak­ing them through var­i­ous train­ing ses­sions to equip them for lead­er­ship po­si­tions.

Kenyans can as well take such a route, and this will level the play­ing-field, plac­ing women on an equal foot­ing with their male coun­ter­parts. If the women are qual­i­fied enough, then the par­ties will find it easy im­ple­ment­ing the two-thirds gen­der pro­vi­sion.

Fund­ing of po­lit­i­cal par­ties is a key fac­tor. Money is a great mo­ti­va­tor, and some­times an es­sen­tial fac­tor, and par­ties are no ex­cep­tion.

Sec­tions 23 and 24 of the Po­lit­i­cal Par­ties Act estab­lished the “Po­lit­i­cal Par­ties Fund,” which should re­ceive at least 0.3 per cent of the na­tional rev­enue.

One fac­tor in dis­tribut­ing the fund is the num­ber of mem­bers of “spe­cial in­ter­est” groups, in­clud­ing women, elected for the party. So, the more women a party suc­cess­fully spon­sors, the more money it should re­ceive. One of the main pur­poses of the fund is to pro­mote the rep­re­sen­ta­tion of women, per­sons with dis­abil­i­ties, youth, eth­nic and other mi­nori­ties and marginalis­ed com­mu­ni­ties in Par­lia­ment and the county as­sem­blies.

Par­ties ought to take up th­ese funds and use them to im­ple­ment pro­grammes for up­lift­ing women and to en­sure they at­tain the twothirds prin­ci­ple. is will mo­ti­vate par­ties to ad­here to the gen­der re­quire­ment.

How­ever, one flaw in the sys­tem is that the thresh­old for get­ting any money from the fund is set so high that very few par­ties get any­thing from it — only ODM and Ju­bilee dur­ing this Par­lia­ment ben­e­fited. And only 15 per cent of the al­lo­ca­tion de­pends on how many of spe­cial in­ter­est groups they got elected — not how many women only.

Women can­not form a women’s party (the Con­sti­tu­tion pro­hibits sec­toral par­ties). Most par­ties re­main male-dominated, though they can­not be reg­is­tered if more than two-thirds of the mem­bers of their gov­ern­ing coun­cils are of the same gen­der.

Ul­ti­mately, male politi­cians must re­alise that women are as electable and as valu­able as men in the sphere of pol­i­tics. Pa­tri­archy is not dead.


 ?? /JACK OWUOR ?? Women MPS protest the shoot­ing down of the Gen­der Bill at the Par­lia­ment lobby on Fe­bru­ary 27, 2019
/JACK OWUOR Women MPS protest the shoot­ing down of the Gen­der Bill at the Par­lia­ment lobby on Fe­bru­ary 27, 2019
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