Myths versus facts: Unpacking the two-thirds gender rule
Women march on Nairobi streets on September 23, 2020, in support of Chief Justice Maraga's advisory to President Uhuru Kenyatta to dissolve Parliament for failing to enact the two-thirds gender rule.
What you need to know:
- The rule is about either gender and Kenyans should not interpret it to mean women are coming to take all the seats.
- The mix of lack of knowledge and varied views on the principle, begs the question: what exactly is the two-thirds gender principle?
Rose Wasiaya, a resident of Nairobi County, is aware of the two-thirds gender principle provided for in the Kenyan Constitution.
To her, it means “having more women than men in Parliament”.
Sammy Kimatu, another Nairobi resident, understands it as “a constitutional provision that, if implemented well, would see women in the slums elected to Parliament”.
Two more men, whom this writer approached to share their perspectives about the provision, said they have no clue what it was all about.
This mix of lack of knowledge and varied views on the principle, begs the question: what exactly is the two-thirds gender principle?
The provision is in Article 27(8) of the Constitution, read together with Article 81(b) and Article 100.
Article 27(8) clearly states: “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 bodies shall be of the same gender.”
Article 81(b) also provides that the electoral system shall comply with the principle that “not more than two-thirds of the members of elective public bodies shall be of the same gender.”
Article 100 outlines that “Parliament shall enact legislation to promote the representation in Parliament of women, persons with disabilities, youth, ethnic and other minorities and marginalised communities.”
Constitutional lawyer Dr Jacob Otachi clarifies further: “The provision provides that not more than two-thirds of the same gender should comprise elective or appointive public bodies.”
However, that is not to say that the private bodies are not bound by the constitutional provision.
“They are bound because every person in Kenya has a duty to implement this Constitution. So as much as it applies specifically to the public bodies, they are also entitled to implement that provision,” he says.
Under Article 81(b), it is a requirement that the electoral system comply with this provision.
But a gender audit by Echo Network Africa on performance of women in the 2022 election established that lack of clear mechanisms for the Independent Electoral and Boundaries Commission to ensure political parties comply with the two-thirds gender principle stood in the way of the election of more women.
Citizens have a role to play in ensuring the principle is enacted. Enactment means the provision is made a law, which then would provide clear procedures or guidelines on how the two-thirds gender threshold can be achieved.
Dr Otachi says citizens can go to seek redress or push the legislature to implement the provision.
“There was actually a five-year timeline to implement the law, which elapsed in 2015. It was extended by a year, but the law is yet to be enacted. Citizens, through civil society organisations, have gone to court to challenge the unconstitutionality of Parliament… we had an outcome in which the former Chief Justice (David Maraga) declared the 12th Parliament unconstitutional,” he states.
But what is the penalty for failing to adhere to the principle?
“The CJ (David Maraga) recommended dissolution of Parliament, but the dissolution was suspended by the High Court. That is a penalty,” he says.
The 12-year-journey to having Parliament enact the two-thirds gender law has been tough and disheartening. It has been marked by lobbying that ended up with shocking outcomes, court petitions whose outcomes were never enforced and a CJ advisory that failed to see the light of day.
The Fifth Schedule to the 2010 Constitution had a five-year deadline for enacting the provision. The duration expired before passing the legislation. Between 2011 and 2019, nine bills introduced never materialised into a law.
The Supreme Court and the High Court have given direction on the matter.
In 2012, the Supreme Court gave Parliament until August 27, 2015, to pass a law effecting the principle, lest it be dissolved. Parliament extended the period to August 27, 2016. The deadline elapsed and nothing happened.
Later, the Centre for Rights Awareness and Education and the National Women Steering Committee (NWSC) sued the National Assembly and the Senate in the High Court for failing to enact the law.
In March 2017, the court ordered the two houses to pass the gender principle law within 60 days. They defaulted.
In April, 2020, an activist, Ms Margaret Toili, petitioned then CJ Maraga to advise the Executive to dissolve Parliament for failing to enact the law. Three months later, the Law Society of Kenya wrote to the CJ praying for the same.
Advisory
The CJ heard their pleas, and, in September 2020, issued an advisory to then President Uhuru Kenyatta to dissolve Parliament for failure to pass a law on the two-thirds gender principle. But the High Court suspended implementation of the advisory.
“The two-thirds gender principle has for a long time been misconstrued to mean one third of women, yet it means that in case the same gender surpasses the two-thirds threshold, then (the appointments and nominations) have to be tweaked to conform to the constitutional requirement,” explained Daisy Amdany, executive director, Community Advocacy and Awareness Trust (Crawn Trust).
“It’s about either gender—men or women. It does not in any way say that one third (portion) is for women. And men should not interpret it to mean that women are coming to take all their seats. This is about equity,” added the head of civil society, which also serves as the host organisation of NWSC.
Ms Amdany spoke on January 27, 2023, at a Nairobi hotel during a media engagement on the two-thirds gender principle with the Presidential Advisor on Women Rights Agency, Harriet Chiggai, who urged the media to educate the public on the principle and demystify the myths around it.
Throughout the years, the debate on the principle has been tainted by views that it’s a “women’s bill because it favours women”.
Many male legislators have vehemently opposed the bill, claiming having more women Members of Parliament (MP) would overburden Kenyans with a bloated wage bill.
In fact, in 2015, then Gatundu South MP Moses Kuria (now Trade Cabinet Secretary) launched a Punguza Mzigo initiative, wanting to scrap the affirmative positions of county women members of Parliament, popularly known as women representatives. He considered the seat as “a burden” to Kenyan taxpayers, whom he described as “tired donkeys”.
In reality, if adequate women were elected to the National Assembly and the Senate to satisfy the two-thirds requirement, zero seats would have to be added, hence zero additional costs.
The Institute of Economic Affairs-Kenya (IEA Kenya) has calculated the cost of implementing the two-thirds gender principle and concluded that annual per capita cost to Kenyans is affordable.
That every Kenyan will incur Sh57.83 annually for the additional cost of implementing the two-thirds rule.
By comparison, although Kenya is the wealthiest nation in East Africa, it is the only country in the region yet to implement an affirmative action programme to achieve equitable gender representation in Parliament.
Ms Chiggai attributed lack of political goodwill to failure to pass the gender bills previously introduced in Parliament.
She, however, said by establishing her office, President William Ruto had exhibited his support for women’s empowerment. Of his priorities, she said, is seeing the 13th Parliament enact the gender law.
