The debate about gender equity is not new in Kenya and efforts at passing the two thirds law have been on for a while.
In the spirit of Article 81, 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.
Article 81(b) of the Constitution of Kenya 2010 requires that “not more than two-thirds” of the members of elective and appointive public bodies shall be of the same gender. Much of the debate has centered on the modalities of implementing this provision.
It must be clear that people are not opposed to affirmative action, nor embracing gender; but are opposed to the insincerity from the political class and Executive especially on the appointive posts so far.
As we wait for the next round of bringing the Bill to Parliament, we must ask why the political parties failed to observe the two thirds requirement during party nominations, and the Executive has not respected this during appointments as a show of commitment.
Rwanda and Ethiopia have so far done this without too much focus on the legal regime. We should prioritize existing positions in public agencies and independent constitutional offices as we put to task political parties on why they have failed to observe this requirement.
In fact, Kenya has a bad track record in respecting laws where there is no political good will – see the Anti-Genital Mutilation Act, the Political Opinion Polls Act and other Acts – without goodwill, even passing the two thirds gender law will not happen.
Remember the affirmative action extended to the youth, people with disabilities, professional groups and marginalized groups, and without the political will, it will never be fully implemented.
However in my view, the constitutional gender provisions are only a starting point in developing policies and laws, including affirmative action programs to address the past discrimination against some groups.
What is more needed is the political will to ensure that the spirit and intent of the gender provisions are realized in the day-to-day lives of the Kenyan people.
While law is good, thinking and investing too much in passing the law alone is not going to cure the problem.
Just look at the many laws that we have enacted that are never followed. What has been our record in respecting Article 18 in appointive positions so far, and why have political parties failed in respecting this provision? And what have been the sanctions of violating the Constitution?
Previous attempts at the issue include the Samuel Chepkonga Bill, the Hon Cecily Mbarire Bill, Hon Soipan Bill, and the Hon Neto Bill. Hon Chepkonga Bills and now the Hon Duale Bill have both flopped because the approach and persuasion has not been convincing.
The arguments and presentation of the issue must change and other tactics employed including convincing the Executive to show commitment by respecting the requirement in appointive positions as we work towards achieving the same through elective positions.
We must change approach to the presentation of the issue, and include other marginalized groups in the discussion, and more importantly, observe gender considerations in other executive appointments and job selection in public offices especially in decision making positions.
The two thirds gender law should not be seen as a women’s issue as currently presented, as this gives an impression that in addition to the woman representatives’ post, we still need more positions for women.
(Victor Bwire works at the Media Council of Kenya)