Katiba @10: No celebration as gender rule remains elusive 

As the country celebrates 10 years since the promulgation of the Constitution on August 27, 2010, women have little to celebrate.

The Constitution entrenched the principle of equality and requires the State to adopt affirmative action programmes and policies to “redress any disadvantages suffered by individuals or groups because of past discrimination”.

More specifically, it required that elective and appointive bodies be composed of “not more than two-thirds of either gender”.

Section 27 of the Constitution requires both levels of government to ensure that neither gender has more than two thirds of public officers, whether elected or appointed.

Requisite laws

To make that possible, the National Assembly was supposed to come up with a gender bill and pass it in Parliament.

However, a decade later, the Gender Bill remains a mirage despite three attempts to have Parliament pass it. As a result, the National Assembly has been accused of dragging its feet in enacting the requisite laws that would have enabled the realisation of the two-thirds gender principle.

Currently, out of the 349 seats in Parliament, only 76 members are female representing a fifth of the total. According to the Constitution, Parliament should at least have 117 female MPs, thus falls short by 41 members. 

Lags behind

The Senate too, misses the mark with only 21 women owning seats instead of the 23 demanded by law. Kenya lags behind in East African at only 23.5 per cent of women occupying positions across government bodies. 

It is for this reason that the Law Society of Kenya (LSK) last month kicked-off a fresh process seeking to compel President Uhuru Kenyatta to dissolve Parliament for failing to initiate implementation of constitutional provisions that would ensure gender balance in both levels of government.

In a petition, the LSK asked Chief Justice (CJ) David Maraga to write to the President to advise him on dissolving Parliament, on grounds that no laws have been crafted to enable implementation of Section 27 of the Constitution.

Court decisions

The petition says it is evident Parliament has consistently failed to fulfil its constitutional obligation of enacting the two-thirds gender rule according to Article 27(6) despite several court decisions compelling it to do so.

This is the third time a petition has been submitted to the CJ over the same issue with the two previous ones being unsuccessful.

Speaking recently during a webinar dubbed National Women’s Forum on Consolidating the Women Agenda in Kenya organised by Community Advocacy and Awareness (Crawn Trusts, NARC-Kenya party leader Martha Karua said failure by Parliament to implement the gender rule had made it unconstitutional.

Equal partners

“As women, we are greatly prejudiced by the failure to allow the rule of law and constitutionalism. We should never tire of trying in securing the gains we have so far achieved,” said Ms Karua.

The former Justice and Constitutional Affairs Minister said women in the country got their constitutional gains not by begging, but by sitting as equal partners on the table of negotiation.

Nominated Senator Isaac Mwaura said it is good for the women leaders to push for the implementation of the gender rule but added that will be a tall order.

Mr Mwaura said even if the handshake has brought MPs from both political divides together, male lawmakers will find it difficult to support the gender rule Bill.

Women MPs

He said even women MPs have themselves, in the past, not shown serious commitment in supporting the Bill when it was brought to Parliament.

“Women MPs have not demonstrated why they should be defended on the gender rule Bill. For-example, the last time the Bill was brought to Parliament, many women legislators were not present. It was a golden opportunity for the 47 women representatives, the 16 nominated female MPs and the elected ones to be present to show the support for the Bill and at the same time show their male counterparts why they need to be supported,” said Mwaura.

The senator said if women legislators are keen to be supported by their male counterparts, they must first of all unite and speak in one voice as far as the gender rule is concerned.

Supreme Court

In December 2012, the Supreme Court directed the Government to implement a progressive approach in filling the gender gap by August 27, 2015. However, nothing happened.

At the expiry of the 2015 deadline, the Centre for Rights Education and Awareness and the Crawn Trust sued Parliament and the Senate at the High Court for violating the law.

The rights groups said the leaders failed to enact necessary regulations that would see the two-third gender rule implemented.

In March 2017, Justice John Mativo ruled the bicameral House violated women's rights to equality and freedom from discrimination, and directed both Houses to enforce the gender rule within 60 days. The order was not implemented.

Dissolve Parliament

There has been divergent opinion among MPs following the petition by LSK to have Parliament dissolved.

MPs Alice Wahome cast doubts that the gender rule will be achieved through Parliament unless it will be dissolved judging from the previous happenings where the Gender Bill have flopped for three times.

Uasin Gishu Woman Rep Gladys Shollei said the only choice remaining to have the gender rule dealt with once and for all is for the CJ to advise the President to dissolve Parliament.

“The President has not been given any other choice by the Constitution if the Chief Justice advises so,” said Shollei.

Building bridges

Homa Bay Town MP Peter Kaluma, however, urged women to channel their push for the implementation of the gender rule to the Building Bridges Initiative (BBI) saying that’s the avenue women need to utilise to achieve gender parity.

“Parliament has made very good attempts and lack of the passing of gender rule is not a failure of parliament. The only way is to amend the Constitution to realise the gender rule,” he said.

Mr Kaluma said the only way to achieve gender parity in the political process will be to emulate Rwanda and South Africa through proportional representation or party list.

Lugari MP Ayub Savula has supported the petition saying it will be proper if the House is dissolved for failing to comply with the Constitution.

Fresh elections

“Let us be subjected to fresh elections so that individuals opposed to the two-thirds gender rule can be exposed and rejected by Kenyans at the ballot,” said Mr Savula.

Crawn-Trust executive director Daisy Amdany said: “We have been fighting for the implementation of the gender rule since the promulgation of the 2010 Constitution. The Judiciary through the Chief Justice should, therefore, take his judicial authority and act on the unconstitutionality of Parliament.”

Common Women Agenda (COWA), a group under the leadership of Public Service and Gender Cabinet Secretary Prof Margaret Kobia, has been pushing for the full implementation of the two-thirds gender rule through the Building Bridges Initiative (BBI).

Opposite gender

Other recommendations that COWA made to the BBI taskforce include implementation through budgetary allocation and prioritisation of Article 43, touching on rights of Economic and Social Rights of food, water, health education, housing and social security.

COWA is also rooting for the Propositional Representation Electoral System and ensuring it has protective ratios and formulas for women, youth and Persons with Disability (PWDs).

They also want application of the opposite gender rule in the devolved government and county assembly, as well as entrenching protection for women and girls against sexual and gender-based violence, and denial of bail in child sexual abuse cases.

Will the gender rule finally be achieved through the BBI process? Only time will tell.