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Cover Story

The Constitutional Erosion of the 2/3rds Gender Principle and the Rule of Law

Volume 15, Issue 1  | 
Published 03/07/2018
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I remember well the pomp and celebration that accompanied the promulgation of the Constitution of Kenya 2010. The 27th of August 2010 marked a day that signified the turning of a new page, a new page to begin to rewrite the Kenyan story; it was indeed a great moment for a country that had just some two and a half years or so ago been on the precipice of destruction. It was a historic event and many felt proud to be part of this unfolding which symbolised a collective willingness to break with the past to forge ahead to build a new inclusive Kenya which works for all its citizens. For women, it was that much more exciting and momentous because at last, the supreme law of the land recognized women as bona fide citizens with equal rights and equal opportunities in the political, social and economic spheres. The successive efforts by women over the years had finally paid off. Women knew they had it made! The battle for inclusivity had been won. It was believed that a new dawn had come. But nothing had prepared the women for the battles that lay ahead.

Shortly after the promulgation of the Constitution in early 2011, as the necessary subsidiary legislation was being put in place to actualize the aspirations as enshrined in the Constitution, under the guidance of Prof. Wanjiku Kabira and Katiba Institute’s Waikwa Wanyoike and Jill Cottrell Ghai, a few of us convened to make recommendations to the legislation that was to operationalize Article 27 (8) and 81 (b) on gender inclusivity; it was an exciting time. We arrived at what we knew to be a working formula within the existing constitutional framework that would see the full implementation of the gender principle in the political sphere. A formula we believed would ensure that political parties and voters were part and parcel of making the change happen. We mobilized women across the country and shared with them the formula. Women’s organizations came together and through this collaborative effort was born The National Women’s Steering Committee on the Implementation of the Constitution (later shortened to the National Women’s Steering Committee-NWSC). We held a national validation conference where women and women leaders drawn from the 47 counties came together to endorse the formula. We even invited the then Ministers for Gender and Justice and Constitutional Affairs to the conference. The formula was simple, rotate four adjacent constituencies every elections to ensure that one of the four of the 290 constituencies was set aside for a woman. This would give us a guarantee of at least 72 seats of the 290 at every election plus the 47 women representatives from the counties and six of the twelve nominated seats would yield the necessary numbers to ensure that at any given time not more than 2/3rds of the National Assembly were of the same gender. It would also ensure that at the end of four electoral cycles, every constituency in Kenya would have been represented by a woman and women would have had the opportunity to develop some kind of political capital as the system came up for review. The then Interim Independent Electoral and Boundaries Commission-IIEC found the formula workable and incorporated it into the then proposed Elections Act 2011 for Cabinet approval. At the Cabinet, the formula was rejected as members of Cabinet (who at the time were also Members of Parliament) saw their constituencies as being up for grabs. FORGET IT! WOMEN THINK AGAIN! Was the retort to the women.  That is where the battle began. All proposed formulas were rejected for one reason or another. The intense advocacy and negotiations yielded little as the male political class dug in refusing to budge accusing the women of being unreasonable and wanting too much never mind that it was a requirement of the Constitution. A Cabinet sub-committee which was led by Hon. Dalmas Otieno was set up to ‘reason with the women’. We submitted formula after formula finally settling on a proposed amendment of the Constitution which was adopted by the government giving rise to the first proposed constitution amendment bill. This was soon clouded by political shenanigans which saw the proposed amendment bill incorporate the coming into effect of the eighty new constituencies and a proposal for the change of the elections date from August to December. Suddenly the gender issue became a footnote in the political arguments. The Attorney General quickly sought an advisory opinion from the Supreme Court in 2012 which then allowed for the country to go for the 2013 general elections, the first under the new Constitution without the necessary legislation to implement Articles 27(8) and 81(b) at the national level but gave a specific timeline of August 27th 2015 by when the necessary legislation was to be in place. That is when the rain started beating us. Since then, there have been at least five judicial actions where the courts have affirmed and reaffirmed the constitutional principle of not more than two thirds in any elective or appointive public body. These have gone largely ignored by the Executive and the National Legislature the last one being a court order in March of 2017 directing parliament to pass the necessary legislation within a sixty day period failure to which they would face dissolution. That order expired in July of 2017 with parliament’s failure to comply.

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Fast forward to 2018 and what do we see? The Kenya we see is not recognizable from the one envisioned in the Constitution of Kenya 2010. The battle for a new and inclusive Kenya seems like a pipe dream. The 12th parliament has not met the constitutional threshold of not more than two thirds but they continue parliamentary business unfazed by the reality that they are in violation of the same Constitution they have sworn to uphold. In the first week of February 2018, President Uhuru Kenyatta named nominees to cabinet in completion of a task he had begun almost a month and a half before. Despite several calls for a Cabinet that adheres to the constitutional gender imperative and in keeping with a court order issued by Justice Onguto, his proposed Cabinet fell short of the expected number of the minimum for the opposite gender. President Uhuru’s actions signify that the violation of article 27(8) has become an Executive habit that neither the president nor the legislature is willing to abide by; a matter Kenyans, particularly its womenfolk have come to know as common practice. In fact, the violations of Articles 27(8) and 81(b) have been so persistent they are the epitome for constitutional erosion in Kenya. As we continue the uphill battle for accountability, many have fallen by the wayside on the battle-road of implementation. Many have compromised, others have simply abandoned ship. Still we remain, weary but fighting on.

The Constitution is as much a legal document as it is a political document and the two thirds gender rule while being a constitutional requirement seems to so offend the political elite across the board that they have failed to muster the political will for its implementation. While they grudgingly and very marginally seek to seem like they are in compliance with the law by having token women take up some spaces, they lack the courage to demonstrate their willingness to abide by certain basic principles such as fidelity to the Constitution, integrity, equality and the rule of law. Worse still is the disappointing realization that the women who are currently in elective or appointive positions, including holders of affirmative action seats, are reluctant to champion for the full implementation of the gender principle. Instead, they have become complicit in its non-implementation.  Refusing to be progressive in their thinking or approach, they remain beholden to a political leadership that is backward looking led by men who live in fear of what the envisioned full inclusion of women means for the transformation of our country. This reality was brought to bear in a recent conversation I had with a female legislator now serving her fourth term in parliament who accused me and my fellow activists who have been in the forefront of fighting for this agenda of being most unreasonable and disrespectful of the political class. She said that our demands for the full implementation of the not more than two thirds gender principle will flop because we have failed to understand the male political elite who remain opposed to the idea. My assertion that it was a requirement of the law was met with a smirk retort that regardless of the Constitution, parliament would not and could not be compelled to implement the legislation and that we would have to accept a progressive application to the gender principle (to 1/3rd!) as nothing else would appease the male legislators who were the majority in the house. Hers was a demonstration of the reality that we face that some of those who are assumed to be our natural allies are more committed and beholden to the existing political status quo because for now, it favours them. The women in the Executive who are direct beneficiaries of the gender principle are equally content to engage themselves in fighting women rights activists and scuttling any programs that would give prominence to the issue even going as far as to discourage partnerships and support from development partners to individuals and organizations deemed hostile or critical of the current administration with regards to the gender issue. I have lost count of how many times my name has been deleted from programs and activities cancelled on instructions from female members of the executive who frown on the manner in which we demand for adherence to the Constitutional principle on the two thirds and the rule of law. For now, they remain content to accept that they can do very little for the cause and are not willing to sacrifice the few crumbs they have and stick out their necks for what is seen as an unpopular and nuisance cause. The men in turn celebrate this and ask why they should champion the cause when women ‘are their own worst enemies as they don’t support each other’. It is a situation that as women we must wake up to and realize that there really is strength in unity of purpose. But if the duty bearers refuse to abide by the law, it falls to the rights holders to demand accountability and give them no rest.

It is unfortunate that a mere seven years and some we have an Executive that has deliberately chosen to ignore the Constitution and cast its head in the sand and has continued to drag its feet on the matter of the two thirds gender principle hoping perhaps that it will be swept under the proverbial carpet. The very dire situation now demands an immediate intervention beyond the judicial. We must interrogate the sensibilities of our government, and realign our national priorities with the letter and spirit of Article 10. We cannot be a nation of people who say one thing and do another, and then refer to something wholly different when the time to speak for our actions comes. Ultimately, the citizenry must reject smoke and mirrors and hold the political leaders to task. The only outcome is a more democratic and inclusive government for a more perfect Republic.

Last modified on Friday, 13 July 2018 11:05
Daisy Amdany

The Executive Director of the Community Advocacy and Awareness (CRAWN) Trust.  A governance, development and women’s rights specialist and activist with several years’ experience working in the field. She is the coordinator of the National Women’s Steering Committee-NWSC which is hosted by CRAWN Trust and brings together over 50 organizations from the national to the county level working in women’s rights and women’s advancement to harness and bring their collective voice, value and strength in governance, empowerment and development onto one national platform.  

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