On March 30th this year, Kenya’s High Court found that the country’s Parliament had violated women’s right to equality, and freedom from discrimination.
It had done this by refusing to enact legislation to enforce the principle that requires not more than two thirds of its members be of the same gender.
The court had directed Parliament to ensure that the legislation was enacted within 60 days. The 60 days have lapsed and there has been no word from the House. The consequence is that Parliament now stands on the verge of dissolution for failing to meet the constitutional gender threshold.
There’s clear reluctance, if not resistance, to implementing the gender-equity rule. The most obvious reason for this laxity is the fact that male leaders don’t want to give up their privilege. Women continue to face systemic discrimination in Kenyan society. Such deep seated patriarchy can only be effectively overcome by laws that enforce gender quotas.
Women currently constitute 19% of the members of Parliament falling below the 30% constitutional requirement. But now that the courts have faithfully interpreted the constitution it’s up to Parliament to follow suit. The question is this: How would it give effect to this law?
A number of mechanisms have been proposed including one that would require political parties to nominate enough female members to meet the gender threshold, reserve women seats in party strongholds, and have rotational seats for affirmative action.
There’s clearly no easy solution to the issue. Nonetheless, this should not get in the way of Parliament doing the right thing. To ensure good and equitable governance it’s imperative that leaders reflect the diverse nature of any society. Gender equity is a fundamental component of this concern.
A number of other nations in sub-Saharan Africa have done much better at ensuring equitable gender representation. Rwanda boasts the highest proportion of women representatives in parliament at 63.8%. Cameroon and Zimbabwe have both reformed their electoral laws to boost female representation to meet the two-thirds threshold.
These countries have ensured that women are represented in leadership by reserving a certain number of elective positions for women and ensuring that party lists conform to the equitable gender-representation rule.
Where has Kenya gone wrong?
In 2010, Kenya adopted a new constitution that radically changed the organisation of its political institutions. Key among its provisions were clauses for greater gender representation.
The constitution states that not more than two-thirds of the members of elective bodies can be of the same gender. Thus there’s a clear constitutional framework that supports equitable gender representation. But implementation has proved elusive. Part of the reason is that the constitution doesn’t prescribe how the two-thirds gender requirement for parliament should be met.
Kenya’s Attorney General was rightly apprehensive that the electorate would fail to elect enough women to meet the two-thirds requirement in the 2013 elections.
He was also very aware of the likelihood that political parties would not fill their nomination quota with enough women to ensure that at least one-third of the members in Parliament would be female.
In either scenario, Parliament would be in breach of the constitution for failing to meet the two-thirds gender rule. To avert a constitutional crisis, the Attorney General sought an advisory opinion from the Supreme Court.
In 2012 the Supreme Court determined that the gender equity rule should be realised progressively, setting August 27, 2015 as the deadline for the enactment of suitable legislation.
But even the Supreme Court’s intervention, as well as subsequent efforts that included a petition filed against Parliament to implement the gender equity principle, have come to nought.
Women’s right to equality
Because Kenya’s current constitution was promulgated in 2010 the rule should rightfully have been applied in the 2013 polls. Therefore, the interpretation of the gender equity principle as a progressive right was a pragmatic solution to avert a constitutional crisis during the 2013 elections.
This historical bias against women in politics is a complex issue. There are still barriers and biases operating at multiple levels that inhibit the rise of women in political leadership. The reality is that such a problem cannot possibly be resolved instantly.
Why then did the Supreme Court give parliament a deadline to pass laws that would actualise the progressive rights enshrined in the two-thirds gender rule? Probably because the court recognised that lawmakers cannot always be trusted to implement the constitution.
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 a bloated parliament which would add to the heavy taxpayer burden. They also argued that the provision would give women free seats.
Some members alleged that women hardly contributed to debates in parliament, with others referring to their nominated female colleagues as “idlers” and “busy bodies”.
But Parliament has now run out of road. It has exhausted all avenues of delay. The latest High Court order hangs over the house like the sword of Damocles. It now needs to get its act together and adopt the best mechanism possible.
However, enforcement of the gender equity rule should not be an end in itself. While ensuring women are represented in leadership is ideal, Parliament must also find a sensible way to manage its burgeoning numbers and ensure the most competent women get such positions.
With that said, the Constitution has created a paradigm shift and there’s no turning back. Parliament must ensure realisation of the gender-equity rule.