Gender rule: Justice delayed is justice denied


Kenya’s new constitution drastically opened a long overdue space for women to participate in leadership and decision-making through the provision of minimum gender representation for all elected and appointed bodies. The Supreme Court ruling on Tuesday, December 11 was at best a subversion of the new constitution and a denial of justice to the majority of the women who looked to the forthcoming elections with much optimism.

The majority ruling by the Supreme Court was that the one-third gender rule should be implemented progressively as it could not be enforced immediately. Only Chief Justice Willy Mutunga dissented. Other judges on the bench were Jackton Ojwang, Philip Tunoi, Smokin Wanjala, and Njoki Ndung’u. The court gave the ruling after Parliament failed to put in place mechanisms to ensure that the constitutional provision on gender representation was realised in the coming elections.

According to Article 81(b) of the new constitution, not more than two-thirds of the members of elective public bodies shall be of the same gender. The rule was meant to increase women’s participation in politics and based on this rule, at least 117 Members of Parliament would have been female now that males are still likely to dominate the next Parliament.

As the four judges ruled for progressive implementation of the gender rule, Mutunga differed with the majority, arguing that “Parliament by its silence cannot deprive the women of this country the right to equal representation. In the event that Parliament fails to implement that principle any of the elected houses will be unconstitutional.”
The new Kenyan constitution maintains a one third requirement for either gender in elective bodies giving women of Kenya at least a third minimum in elective public bodies.

The new constitution ensures that gender equality is maintained in political parties by providing a basic requirement for political parties to respect and promote gender equality. Political parties should devise mechanism to ensure that women are accorded a fair deal to participate in the electoral processes regardless of the Supreme Court ruling on this matter.

Article 91 (f) of the Constitution provides that Parliament shall formulate laws to promote the representation of women, persons of disabilities, ethnic and other minorities and marginalised communities in Parliament. Parliament has delayed in actualising this and as its term is lapsing, women rights groups and organisations went to court seeking redress on this matter, hence the Supreme Court ruling that has now dimmed women’s hopes.

This case was first take to the High Court by civil society groups but was later filed at the Supreme Court by Attorney-General Githu Muigai in October, as he sought advice on the application of the constitutional threshold for gender representation. The AG, who is the chief legal adviser of the government, moved to court after Parliament failed to agree on the one-third gender rule.
In his application, the AG had argued that there was ambiguity in the constitution as a result of Article 81(b) which provides that “not more than two-thirds of the members of elective public bodies shall be of the same gender”.

Article 100 of the Constitution ensures that women and men will have the right to equal treatment and opportunities in political, economic, cultural and social spheres without discrimination. Allowing elections to take place, before proper mechanism are put in place to ensure equality for men and women and hoping that the new government and Parliament will actualise this is an exercise in futility.

It is important to remember that in the 2010 census results, women are reported to be slightly more than men in Kenya. However, this large population of women is invisible in key decision-making processes, particularly in governance – at both local and national level.

The need for more women in political leadership is predominant with the new constitution in place. Currently of the 222 Members of Parliament, only 22 are women – with only 16 having been elected and 6 nominated.
The need for an engendered process cannot be over-emphasized due to the fact that men and women leaders have been known to have varying political interests, and consequently different practical strategic needs.

It is a shame that despite Kenya being the economic giant of the East African region, it remains a dwarf in women’s political representation. Recent gender equity reports indicate that Kenya stands at 9.8pc against Rwanda’s 56.3pc, South Africa 42.3pc, Tanzania 36pc and Uganda 35pc. The need to uphold the constitutional promise of the one-third principle for the benefit of the entire Kenyan society cannot be abandoned now when elections are three months away.

Article 27 (8) of the new constitution provides that the State shall take legislative and other measures to implement the principle that no more than two-thirds of the members of elective or appointive bodies shall be comprised of one gender. The 10th Parliament must deliver this as its last gift to Kenya.

(The writer is Peace and Media Coordinator for Peace Initiative Kenya project, International Rescue Committee- Kenya)

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