Katiba@14: The shame of a country at odds with its women
Then President the late Mwai Kibaki displays the 2010 Constitution document during its historic promulgation at the Uhuru Park, Nairobi on August 27, 2010.
What you need to know:
- Despite Kenya's 2010 Constitution mandating the two-thirds gender rule, Parliament has failed to implement it for 14 years, remaining illegally constituted since 2016.
- A girl born when the constitution was promulgated just entered her turbulent teens, facing the same bleak future with the same slim chances of success in a society that's barely changed.
- Barriers to achieving gender parity in Kenyan politics abound yet there is room to solve this ongoing constitutional crisis.
What if we dropped dependency on third parties, flooded the candidates list, took over the Gen Z spirit, and rallied behind our fellow women?
What if we set out to give women aspirants a fair chance through strategic support, selling their credentials as better decision-makers?
What if we set out to take the conversation on why we need more women in leadership to the villages, and build bottom-up towards achieving the principle?
And what if we ganged up to overrun the illegally constituted Parliament on this account alone, and let the occupants know that we are the ultimate sovereigns?
These, among others, were the ruminations of a frustrated lot of Kenyans who gathered for a fireside chat in Gigiri on August 23, 2024 in a freedom café hosted by the Friedrich Naumann Foundation, in conjunction with Association of Media Women in Kenya (Amwik).
A constellation of intergenerational freedom fighters, the gathering consisted of the young and old, the rights struggle, the novices and veterans of all walks of life.
From the inimitable Njeri Kabeberi, the veteran of Centre for Multi-Party Democracy (CMD-Kenya) now flying Chapter Four flag to the incisive Anne Ireri of Federation of Kenya Women Lawyers (Fida-Kenya).
And from the extraordinarily perceptive scribe Judie Kaberia, to the emerging firebrands like Queenter Mbori, the Amwik Executive Director, and to the Gen Z's of Sylvia Mwathi's ilk.
Kenya’s constitution was promulgated on August 27, 2010. For 14 years and one month, and despite 11 lackadaisical attempts, Kenya has failed to achieve the two-thirds gender principle enshrined in the people’s charter, the 2010 Constitution.
A woman poses with a message as activists march in Nairobi, Kenya, on January 22, 2018, protesting the repeated failure to enforce laws requiring women to hold at least a third of government positions. To date, the law has not been passed.
A girl child who was born on August 27, 2010 when Kenya promulgated the current constitution crossed into the turbulent teenage period of their life this week. Her future in Kenya is bleak, with predetermined slim prospects of success in society.
If she survives the village boy’s menace, she is likely to be lured into a lonesome death in a dingy Airbnb by city thugs, and will most likely be buried in Kware dumpsite in a gunny bag, right in the eye of a police station.
If she survives the vagaries of the early 20s, she is most likely to be confronted with horrors of unfair workplaces, imbalanced family life, and a closed political space, which places women at the bottom of political power.
“What we are seeing with our Parliament persistently refusing to fulfil what the law requires of them is a pointer to a greater societal problem which we must work on,” Anne, who also chairs Electoral Observation Group (Elog) said, throwing the ball back to the greater society.
Fida-Kenya Executive Director Anne Ireri at an interview at her office in Nairobi on January 24, 2024.
And she had a point, for the greater Kenyan society has “moved on” with the fact that Parliament has been illegally constituted since 2016 when the grace period for passing the gender-parity law lapsed.
Article 27 of the Constitution decrees that “the state shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive seats shall be of the same gender.”
Article 261 of the 2010 Constitution required Parliament to enact legislations required to implement the Constitution in five years, that is, up to August 27, 2015.
In an advisory on the matter, the Supreme Court affirmed the August 27, 2015 deadline to enact the requisite legislation. Parliament failed to do so, and again failed to do so in the constitutionally sanctioned one year grace period of up to 2016.
After much ping-pong in Parliament, and multiple court cases and petitions, Chief Justice David Maraga, the country’s top judicial mind had enough of it, and advised President Uhuru Kenyatta to dissolve Parliament over its failure to honour the Constitution.
A painful decision taken on September 21, 2020, as the country was battling a coronavirus pandemic, Justice Maraga’s powerful exhortation that “let us endure the pain if we must, if only to remind ourselves, as a country, that choices have consequences” equally rang hollow in Kenya.
He was roundly ignored by the political class, and Kenyans at large. The then President Uhuru Kenyatta led the nation in affirming that “we must balance the rights of the citizens to elect their representatives and the need for us to have gender parity”, essentially burying the matter.
It did not help that Justice Maraga’s advisory was suspended by a judicial official immediately thereafter, and the matter is stuck in our courts four years later.
Former Chief Justice David Maraga. The 2010 law gave Parliament five years to enact legislations required, that is, up to August 27, 2015. Parliament, however, failed to do so, and he advised the then President Uhuru Kenyatta to dissolve Parliament over the same.
“The fact of the matter is that we have not taken women's issues seriously. Blatant misogyny is confronting us, at every turn. Even where we have elected women… look at the case of Governor Kawira Mwangaza. Is she perfect? Is there any governor who is an angel? So why her?” Anne posed.
Kawira, the first woman elected in Meru absent affirmative action since multi-party introduction, and the second in area history, was finally impeached by the Senate last month, after two other previous attempts faltered.
Anarita Karimi Njeru held the record before Mwangaza, but equally didn’t survive the blatant misogyny Anne talked about. Elected in 1975, a contrived court process not only jailed her three years later, but also ended her promising political career.
Missing political goodwill
According to Njeri, it is not for lack of a good formula to achieve the two-thirds gender principle that is in issue. As a matter of fact, many formulas have been proposed, and explored.
The first attempt by the then Justice and Constitutional Affairs Minister, the late Mutula Kilonzo in 2011, provided for post-election top up of the gender, which misses the threshold. The Bill died a natural death, undiscussed, the mover unheard.
Between 2012 and this year, countless other proposals including the latest one from National Dialogue Committee (Nadco) to either double the number of women representatives without increasing constituencies, or to top up the deficiency with the women losers who score the highest votes were explored.
From left: Kenya National Association of Social Workers' George Kombe, former Gender CS Aisha Jumwa, and multi-sectoral working group co-chair Daisy Amdany during the handover of the two-thirds gender rule report on February 23, 2024, in Nairobi.
Among these were the options of voluntary quotas for party primaries, gender incentives for political parties, which meet the rule in their nominations, twinning candidates across all 290 constituencies and 47 counties, and requiring the candidates to be of opposite gender.
Others include enacting an option for rotational seats through a cluster system where each cluster must produce a woman elected MP in predetermined number of electoral cycles, reconfiguration of constituencies into counties with each county elected a man and a woman to the national assembly
“The formulas are readily available. All that is missing is political goodwill. How did Rwanda achieve what we have now been unable to achieve for the last 13 years?” Njeri posed, as the fire floundered, and before it was stoked by yours truly.
In Rwanda, women occupy 63 per cent of their Parliament, courtesy of gender parity quotas introduced early on, and citizen education rules, which require political parties to sensitise electorates to accord equal opportunities to candidates.
Njeri said given the twists and turns of the Kenyan story, the trick is to discard the “tokenism mentality” and to push more women to contest for electoral positions. She said Kenya’s electoral history shows that Kenyans actually do elect women into office.
Kenyans should then concern themselves with getting the correct formula for increasing women capacity or interest to vie. And one of them is to reduce the insults and violence around elections, and to regulate campaign financing.
“The money issue, and the insults… those two play a huge role in keeping our numbers low. I, as Njeri Kabeberi, cannot stand insults,” she added.
For years now, every effort to regulate campaign financing in Kenya has failed, yet available numbers show women are disproportionately disadvantaged on this account.
For instance, the 2022 Demographic and Health Survey shows that women earned Sh12,166 across different age groups and occupations, compared to average of Sh18,595 for men.
The same pattern is reflected in overall wealth positions between the two genders, with the conclusion being that women’s lower earnings lead to reduction in bargaining power, and inevitably less independence.
“We have to reduce the dependency on third parties, if we have to make good steps to gender parity. We have to toss ourselves into the fray for a start. Look at the men, they are there in good numbers irrespective of whether they are quality candidates or not,” Njeri said.
Cynicism, the enemy within
A number of other issues came out during the freedom café among them the cynicism within the gender divide, especially women.
“Are we ready to take up the positions?” is an innocent question, which flared up, courtesy of the young ladies in the audience.
“Are we looking out for leaders or women leaders?” came out, this time from a man.
“Why have we confined these conversations in Nairobi, and not in our villages,” was the other concern.
According to Prof Nancy Booker, a media scholar at Aga Khan Graduate School of Media and Communications, the question as to whether women are ready to take up the positions in the table is one designed to slow them down.
Prof Nancy Booker, a media scholar at Aga Khan Graduate School of Media and Communications speaks at the institution on October 18, 2023.
It’s a question framed to create contestation within a woman’s mind, and in the process to lose focus, momentum and opportunity as the man leaps.
“In life, and in anything that you will do under the sun, you will realise that you have to start from somewhere. Those who never make the initial step never make it anywhere. The moment you are born, you are ready,” she said.
Nancy, a woman leader in her own right, was recently appointed to sit in the board of Nation Media Group, one of the country’s largest media organisations. She says the “modesty” around women, including the fact that she’s always a bit shy to introduce herself in the full glory of her titles, works against her gender.
“We have to showcase ourselves out there. Our men are doing it, sometimes unscrupulously, and getting rewarded for it. This is something we have to learn as women, so that out there people know what we have to offer,” she noted.
The Centre for Rights Education and Awareness (Creaw) has walked the talk in actualising the two-thirds gender principle. Besides filing numerous cases on the matter, it has been at the forefront of political education around the issue.
Creaw’s Mercy Jelimo apprised the fireside audience at the café, on where we are as a country with the efforts to implement the principle, including the sad reality that of all Nadco bills, only the gender principle one is yet to be tabled in Parliament.
The case challenging the advisory opinion issued by Chief Justice Maraga will be mentioned before a full bench of Justices Jairus Ngaah, Lawrence Mugambi, Patricia Nyaundi, Moses Otieno and Tabitha Wanyama on September 24, 2024.
“The legal sector in Kenya is now in the hands of able women, and all because of calculated, and strategic steps. The Chief Justice, the Deputy Chief Justice, the Attorney General… and it’s not just about them, it’s the milestones they are scoring. You only need to look at their track records to know that women make the best leaders,” Anne added.
What next?
Friedrich Naumann Foundation’s (FNF) country director Stefan Schott, who was present, emphasised the foundation’s commitment to promoting democratic values and gender equality, which aligns with its mission to support the empowerment of marginalised groups and to foster inclusive governance.
Queenter Mbori, the Executive Director-Amwik stressed that achieving gender equality requires a multi-faceted approach and the involvement of various stakeholders, including media, civil society, and policymakers.
Mustapha Dumbuya, Deputy Director, African Program - Journalists for Human Rights Canada and Voice for Women and Girls’ Rights – Kenya highlighted the severe underrepresentation of women in Kenyan media, with women making up only 23 per cent of media coverage, often portrayed negatively.
The burden of leaving the gender principle discussion to women was in full display at the café. Besides Schott, Dumbuya, and Edward Kakumu of Mzalendo Trust, the latter a self-declared “majority leader” of the fireplace chat, no other man made substantial contribution.
The café ended with a call for greater support of women aspirants, focus on political parties as drivers of change, mental health as a factor, political education in all spheres of Kenyan society, and media to spread celebration and focus across the gender divide.
The writer is a Senior Project Manager at the Friedrich Naumann Foundation, Editor and Lawyer, was a moderator at the Freedom café.
