. Actualising two-thirds rule remains a mirage with too many near victories often thwarted by technicalities
The journey to narrow the gender gap in leadership positions has been long and winding.
When the Constitution was promulgated in 2010, it illuminated hope on women getting adequate representation in the male-dominated political space.
Proponents of constitutional change used the gender card to appeal to women who had historically felt left out of discussions about governance.
“Not more than two-thirds of the members of elective public bodies shall be of the same gender,” reads Article 81 (b) of the 2010 Constitution that sparked celebration from women in different social strata. The change they had yearned for was coming, or so they thought.
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A decade later, implementing it remains a mirage with too many “almost victories” that are often thwarted by technicalities. Lack of quorum when it is brought to the floor for discussion, insinuation that women are idlers and busybodies who cannot engage constructively in national debates are just some of the issues dogging the two thirds gender rule.
Supreme Court
Towards the 2013 election, the Attorney General sought guidance from the Supreme Court on how the rule would be implemented if the electorate and political parties failed to elect and nominate enough women.
The court ruled that even though the principle could not be enforced in the 2013 elections, the National Assembly and the Senate had to come up with a mechanism to implement it by August 27, 2015.
Since then, several bodies including NGOs, professionals, parliamentary committees and government departments have been on a never-ending battle to ensure more women get to public offices.
Jeremiah Kioni, the chair of Constitutional Implementation Oversight Committee, says trouble is in the interpretation of the two-thirds gender rule.
He says the two-thirds gender rule is a principle set for Kenyans to aspire to, but there is no laid down requirement that compels Parliament to pass specific legislation to enforce it.
The MP says what complicates things further is the public’s right to choose their leader, and there is no way to force them to vote for someone simply because she is a woman.
He adds that it is about time women stopped clinging on false hope, but should instead learn to fight for space without peddling the gender card.
“Article 100 that recommends for political parties to give a platform for women to express their qualities is a step in the right direction. It should include enticing them through political party funding both at the national and county level,” he says.
Push for gender parity has been a battle fought in courtrooms, Parliament, during political campaigns and search for top jobs.
The National Assembly’s Committee on Justice and Legal Affairs proposed a constitutional amendment of the electoral system to make the two-thirds gender principle progressive, to be achieved in five years through the infamous ‘Chepkonga Bill”. When it was introduced in Parliament, women felt betrayed.
“We are tired of empty promises. We want a Bill that provides for realisation of constitutional gender principle now as required by law,” the women leaders said in a joint statement.
As the deadline was approaching, pressure from NGOs and women was mounting, including a case to compel the AG and the Commission for the Implementation of the Constitution to discharge their constitutional duty to prepare the Bill implementing the two-thirds gender principle and table it before Parliament for passing by the August 27, 2015, deadline.
The AG finalised the draft developed by a multi-disciplinary Technical Working Group and presented to the National Assembly as government Bill through then Majority Leader Aden Duale. The Bill sought to introduce a clause to provide for nomination, from party lists, of the number of members needed to ensure membership of the National Assembly and the Senate met the gender requirement. The Bill was supported by both President Uhuru Kenyatta and opposition leader Raila Odinga.
But some MPs said the Bill would cause a bloated Parliament and would be a burden on taxpayers. When it was brought for voting in April 2016, it did not pass. The second vote a week later, failed due to lack of quorum.
In February 2017, nominated Senator Judith Sijeny sponsored a Bill but it flopped when only 45 members voted for it.
Priscilla Nyokabi, National Gender and Equality Commission (NGEC) commissioner, says their hope now lies in BBI that seeks to amend the Constitution. She says they hope the changes will be in clear language to remove the ambiguity often used by lawyers to derail implementation.
“There should be specific obligations to individuals and institutions so that when they fail to implement, they are held responsible,” she says.
She says the two-thirds gender rule should not be restricted to governance, but should also apply in all spheres of leadership. “Women should assert themselves. The days of women being given the role to say a prayer or take notes in meetings should be behind us. Things must change,” she says.
Kioni says although there is a petition in court, it will be a long shot trying to dissolve Parliament because they have not met the gender rule. “Dissolving Parliament means sending the president home. It will be chaotic,” he says, adding that the solution lies in giving women platforms where they can showcase their leadership skills, and everything else will fall into place.
