What is the most responsible way to enact affirmative action in Kenya?

Despite the introduction of the Gender Rule, at the 2013 elections women aspirants continued to face many challenges in accessing leadership positions.

This has not only hindered an effective way of promoting as many women as possible to engage in politics while protecting democratic Principles.

“Did the transition into a democratic state create opportunities for all sections of society? Not really,” writes Katindi  Sivi-Njonjo, Founder & Lead Consultant at LongView Consult in her paper ‘The Path Towards Inclusive Democracy: Are we There Yet?

Katindi argues that, to build inclusive democracies, both women and men need to be meaningfully involved in political processes regardless of their age, gender, ethnicity, religion, social status or level of education.

“It is therefore, not enough to promote a seat at the table for women. Because women are not a homogenous group, deliberate effort must be taken to ensure that other sub-groups of women such as the poor, the young, the minority etc. also have an equal opportunity at the table,” she says.

After the August 8 polls, the 12th parliament ended up having  70 female representation.

Data from the Independent Electoral and Boundaries Commission (IEBC)  showed that out of the 1,450 wards, voters in 96 wards elected female MCAs. An increase from 84 women MCAs elected in the 2013 General Election.

Unfortunately, all this did not meet the two third constitutional threshold.

“The public perception in Kenya of women in politics today is still apprehensive. Women’s political participation has been steadily increasing over the last few years, but it remains to be seen whether more numbers in office means more influence and impact in governance,” says Tamara Leigh, UN Office for the Coordination of Humanitarian Affairs in Nairobi.

Consequently, the Centre for Rights Education and Awareness moved to court to stop the 12th Parliament from holding its first session.

CREW and CRAWN Trust wanted a declaration that the failure by Parliament to meet the two-thirds gender principle contemplated under articles 27(8) and 81(b) amounts to a violation of the rights of women to equality and freedom from discrimination and are a violation of the Constitution.

However, this was not achieved as the 12th parliament was sworn in and have held several sessions before it closed for recess.

Further, a petition ‘Article 3 Petition: To Respect, Uphold & Defend the Constitution of Kenya’ to be taken to the Chief Justice to dissolve the Parliament pursuant to Article 261 (7) of the Constitution of Kenya 2010 on consequential legislation.

The Petitioners -WeAre52pc – argue that the 11th Parliament failed to enact a law that would ensure the implementation of Article 81(b) which provides ‘not more than two-thirds of the members of elective bodies shall be of the same gender’.

The Constitution of Kenya 2010 opened wide vistas for the women of Kenya to fully participate in the Governance and Management of State Affairs of this country as had never before been contemplated as being possible at this historical juncture.

Article 97 of the Constitution provides that the National Assembly shall consist  of:

• 290 members each elected by the registered voters of single member constituencies
• 47 women each elected by the registered voters of the counties each county constituting a single member constituency
• 12 members nominated by parliamentary political parties according to their proportion of members of the National Assembly to represent Special Interests including the youth, persons with disabilities and workers
• The speaker who is an “ex officio” member

Article 98 of the Constitution provides that the Senate shall consist of:

• 47 members each elected by the registered voters of the Counties, each County constituting a single member Constituency.
• 16 women members who shall be nominated by political parties according to their proportion of members of the Senate.
• 2 members being one man and one woman representing youth
• 2 members being one man and one woman representing persons with disabilities
• The speaker who shall be an ex officio member

The  4 seats of the youth and people with disabilities will be determined by the political parties depending the numerical strength of those parties elected representatives in the Senate

Article 177 of the Constitution stipulates that a County Assembly will consist of:

• Members elected by registered votes of the wards and a ward being equivalent to a Constituency in that County and elected on the same day as Members of Parliament
• The number of special seat members necessary to ensure that no more than 2/3 of the membership of the County Assembly are not of the same sex.
• The number of members of marginalized groups including persons of with disabilities and the youth as described by an Act of Parliament (No Act of Parliament has so far been passed in this regard)
• The Speaker who is an ex officio member

Article 180 of the Constitution provides that the County Governor shall be directly elected by the voters registered in the County on the same day as the election of Members of Parliament.  

That for one to be eligible for election as a County Governor a person must be eligible for election as a member of the County Assembly.  

The Article further stipulates that each candidate for election as County Governor shall nominate a person who is qualified for nomination for election as County Governor as candidate for Deputy Governor.

Article 81 of the Constitution sets out the General Principles for the Electoral System and stipulates that  it shall comply with the principles enunciated at the Article and one of which is that no more than two thirds of the members of elective public bodies shall be of the same sex.

Read: Women and politics in Kenya, quest for elective seats

The upshot of Article 81 is that Kenyan women are expected to have at least 1/3 representation in the National Assembly, the Senate and each County.  

One third of the 349 Members of Parliament being 290 as those elected, the 47 special women seats and 12 nominated seats will translate to at least 116 women MPs in Parliament.  

And one third of the 67 senators being 47 elected, 16 women members nominated and the 4 members to represent each sex of the youth and persons of disabilities will translate to at least 22 women Senators.  

Until then, Professor Patricia Kameri-Mbote says “Women’s struggle for inclusion in politics in Kenya symbiotic with Kenyans’ struggle for democratic space.”

She argues  that rights will not come to women automatically. “Those that have previously enjoyed rights will be hostile to the new claimants of rights.  Rights provided for in constitutions only come alive when implementation occurs.”