The Constitution of Kenya 2010 (CoK) recognizes women, youth, persons with disabilities and ethnic minorities as special groups deserving of constitutional protection.
The CoK espouses the rights of women as being equal in law to men, and entitled to enjoy equal opportunities in the political, social and economic spheres. Article 81 (b) which refers to the general principles of Kenya’s electoral system states ‘the electoral system shall comply with the following principle - (b) not more than two-thirds of the members of elective public bodies shall be of the same gender. Article 27 goes further to obligate the government to develop and pass policies and laws, including affirmative action programs and policies to address the past discrimination that women have faced. The government is required to develop policies and laws to ensure that, not more than two-thirds of elective or appointive bodies shall be of the same sex. Despite Article 177 ensuring that Articles 81(b) and 27 (8) of the CoK are complied with at the County level through the nomination of special seat members, the same is not guaranteed at the National Assembly and the Senate.
Challenges for women in the fight for political participation
Despite these affirmative action measures, women participation in the 2013 general elections remained very low. There were 19 women candidates for senatorial gubernatorial positions (out of 237 candidates). As a result, no women were elected as senator or governor. Out of the elected 290 elected National Assembly members, just 5.5 percent are women. For the 1,450 ward representatives positions only 88 (6 percent) of the elected candidates were women. Political representation of Kenyan women now stands at 15 percent versus Rwanda’s 56 percent, South Africa’s 42 percent, Tanzania’s 36 percent and Uganda’s 35 percent. Kenya’s 15 percent is an improvement from the previous 9.8 percent representation in the 10th Parliament and the increased numbers can be greatly attributed to the reserved seats for the 47 Women Representatives. Although the current representation is the highest level so far of women political leadership in Kenya, it is still very poor showing in this day and age where women’s political participation has generally improved around the world.
The poor performance of women in Kenya’s political arena can be attributed to two major factors: the Kenya’s patriarchal culture and electoral system. Kenyan politics requires an enormous outlay of social capital, yet the processes of economic, cultural and political capital accumulation still favor men more than women, irrespective of men ethnic, religious and class divides.
Following the Attorney General’s request for an advisory opinion on the minimum one-third gender requirement in the National Assembly and the Senate, the Supreme Court of Kenya on 11th December, 2012 held that gender equity as an affirmative action right for women is progressive in nature and not an immediate realization. The Court gave Parliament up to August 27, 2015 to come up with legislation on how the one-third gender rule will be met in the 2017 General Election.
While this decision helped avoid a constitutional crisis, it removed the pressure from political parties to search for and nominate female candidates. The decision of the Supreme Court effectively postponed the implementation of the gender quota, as well as the failure of the outgoing Parliament to pass appropriate legislation before elections.
The Parliament and political parties need to put more effort in the implementation of the letter and spirit of the CoK. With regards to the County Assembly level, provisions in the CoK and Elections Act to nominate candidates of the less represented gender were not fulfilled properly. Lack of appropriate implementing regulations and clarity on the way to implement constitutional provisions resulted in delays in the nomination process which deprived women, as well as other marginalized groups, of the possibility to pursue a number of decision-making positions in the assemblies, such as committee chairpersons.
Strategies for implementing the gender provisions
Constitutional gender quotas have proved to be a critical and effective way of enhancing women’s participation and representation in political life. Countries such as Rwanda, South Africa, Tanzania and Uganda have made commendable progress in enhancing women’s representation by use of constitutional gender quotas.
Various key strategies were highlighted during the UNDP Regional Dialogue on Women’s Political Leadership workshop to help address the above challenges and to enhance the implementation of the gender provisions. These included:
- The development of clear mechanisms of implementation to realize gender constitutional provisions;
- A strong women’s movement and political will;
- Women to engage in cross party platforms as these are powerful avenues for uniting women beyond party lines and rallying them around a common agenda;
- Women to register as members of political parties, seek leadership positions within parties, remain vigilant and participate in determining how party lists are drawn;
- Women to use their strength in numbers to compel political parties to adhere to the quota provisions; integrating the struggle for gender equity with the struggle for democracy;
- Women to identify male allies to help them lobby for the implementation of the quotas;
- Gender responsive civic and voter education to share information with women and the community at large on the need to have women take up leadership positions;
- Capacity building of women to enhance their engagement in the political life.
In conclusion, it is important to note that the constitutional gender provisions are only a starting point and more effort and political will is needed to ensure that the spirit and intent of the gender provisions are realized in the day-to-day lives of the Kenyan people. Key actors such as political parties, the Registrar of Political Parties, Civil Society Organizations and the media are very crucial in working together and contributing towards the realization of the two-thirds gender provisions.
Author: Kennedy Kimani
*Kennedy Kimani is the Political Parties Engagement Officer at the Institute for Education in Democracy (IED).