The Kenyan society is a patriarchal one, and this is particularly evident in elective politics. Women have found it challenging to compete for and win elected positions, despite the pledge of the 2010 Constitution to bring about more equitable gender representation. This article lays out the legal position on women representation in Kenya, discusses the various proposals for ensuring women representation, and attempts to recommend what ought to be done to ensure full implementation of the Constitution. It highlights women representation as a process and cultural issue as opposed to a one off event during general elections. While the jury is out on gender representation, it must be settled for the Constitution to be fully implemented. The unresolved issues are how and when to implement the gender quotas as set out in the Constitution.

To that end, a novel provision of the constitution that requires that not more than two-thirds of the members of elective and appointive bodies shall be of the same gender. In practice, this essentially means a 1/3 female quota in the Senate and the National Assembly as well as the County Assemblies and County Executive Bodies. Women face difficulties for many reasons, including the lack of campaign funds, culture, religion, and outright hostility toward women candidates. However, it has also been argued that women have nothing to show for their presence in Parliament. Some Kenyans even question the current situation, where women get special elective positions  reserved for them at the county and national levels as indicated in later sections of this article. This is, however, an unfair assessment of women representatives. Women occupy seats created by the 2010 Constitution and Parliament as a whole has not elicited much confidence from the Kenyan population.  A recent survey shows that only 11 per cent of Kenyans had overall confidence in Parliament, with Members of the National Assembly at 22 per cent and Senators at 19 per cent.

Over the last few months, one of the overarching political debates in Kenya has been how to mainstream women in elective politics to ensure full implementation of the Constitution slated for 27th August 2015. As discussed below, the Supreme Court set an August 2015 deadline for enacting legislation to ensure gender quotas. This debate has many facets and underlying influence. For example, a considerable number of Kenyans believe that women should not be afforded any special status in elective positions. Further, many think an increase in women representation would be a burden to the public wage bill as it will create more parliamentary seasts- MPs in Kenya earn an average of $75,000 per annum compared to the average minimum annual income in Kenya which is $1,200.

Constitutional provisions

Article 27(8) of the Constitution of Kenya 2010 provides that the State should take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender. Article 81 indicates that the electoral system shall be such that not more than two-thirds of members of elective public bodies shall be of the same gender. For elections at the County Assemblies, Article 177 provides that the County Assembly shall have a number of special members necessary to ensure that no more than two-thirds of membership of the assembly are of the same gender. Hence, in the 2013 General Elections, women were nominated to county assemblies to fulfill constitutional gender quotas.

To place the gender quotas in context, from 1963 when Kenya gained independence and before the 2013 elections which were the first under the Constitution of Kenya 2010, Kenyan voters elected a total of 50 women compared with 1806 men to parliament. In the 2013 general elections, 16 women and 274 men were directly elected to the national assembly. Additionally in the same 2013 elections, 47 women were elected as women representatives for each county. Women were also nominated to 5 out of the 12 nominated seats for special interest groups by political parties in relation to their numerical strength in the House. Apart from the women representative seats, women equally compete with men for the other seats in the National Assembly. Women currently form 19 percent of membership of the National Assembly.

As for the senate, no woman won any of the 47 elective seats. 16 women were nominated from party lists in proportion to the number of seats won by each party. Two were also nominated to represent the youth and people with disabilities. In total, there are 18 women in the senate forming 27 percent of membership. No woman was elected to be Governor in any of the 47 counties during the 2013 General Elections.

In the 47 county assemblies during the 2013 general elections, women won only 82 out of 1450 elected seats. This represented five percent of elected ward representatives. An additional 680 women were thus nominated by political parties that had won seats in the assemblies in order to meet the two-thirds rule as per Article 177 of the Constitution. As a result of the nomination process there are 762 women in county assemblies, forming 34 percent of membership. Hence, county assemblies do meet the gender quotas set out by Article 27 and 81. The above data may indicates that framers of the Constitution ought to have expressly provided for mechanisms to fulfill gender quotas in the National Assembly and Senate as it did for county assemblies. The current impasse in coming up with legislation to ensure gender quotas in the next election is s structural omission in Kenya’s constitutional text.

Gender quotas were not met at the Senate and the National Assembly. Before the 2013 general elections, which were the first under the 2010 Constitution of Kenya, the Attorney General sought an advisory opinion of the Supreme Court on how to implement the gender quotas at the National Assembly and Senate. In a majority decision, the Supreme Court ruled that the legislative measures for giving effect to the one-third-to-two-thirds gender principle, under Article 81(b) of the Constitution and in relation to the National Assembly and Senate, should be enacted by 27 August, 2015. The President of the Court dissented and stated that the two-thirds gender principle be implemented during the General Election held on March 04, 2013. The Supreme Court’s decision to postpone implementation likely contributed to the current impasse. In whatever form, the Supreme Court ought to have demanded that Parliament enact legislation to deal with the gender quotas before the 2013 general elections. By postponing implementation, the supreme somewhat indicated that gender quotas were not a priority in 2013. The same thinking exists today within political circles.

The August 2015 deadline for the state to enact legislation giving effect to the gender rule is fast approaching. There is no consensus on how the gender quotas will be achieved at the Senate and National Assembly in the 2017 general elections. The national government has also not proposed legislation to implement Article 100 for the promotion of representation of marginalized groups. Article 100 provides that parliament should enact legislation to promote the representation in parliament of women, persons with disabilities, youth, ethnic, and other minorities and marginalised communities. For persons with disabilities, Article 54, on the other hand, provides that the state should ensure progressive implementation of the principle that at least five percent of the members of the public in elective and appointed bodies are persons with disabilities.

Proposals on implementing gender quotas

The Chairperson of the National Assembly Legal Committee proposed to indefinitely postpone the implementation of the gender and Article 100 quotas and achieve them progressively. This conflicts with the advisory decision of the Supreme Court that mandated that the gender quota laws must be in place before the next elections. The draft law does not give a time frame for achieving gender quotas at the National Assembly and the Senate. Curiously, the draft law was hurriedly introduced to the National Assembly without any public participation as required by the constitution. The draft law was opposed . Youth organisations also argue that the draft law is unconstitutional for postponing implementation of gender quotas. After much opposition from such interest groups, the National Assembly allowed for submissions to it on proposals on how to achieve the gender quotas.

Members of Parliament representing persons with disabilities are demanding 22 slots of the 290 in the National Assembly in order to comply with the five percent constitutional provision on representation as per Article 54(2) of the 2010 Constitution. Youth groups are demanding 15% representation for elected and appointed positions as well as youth representatives for the total number of women and persons with disabilities nominated to Parliament. Women groups have proposed to increase the number of women MPs elected from the counties from 48 to 96. Another proposal suggests reducing the number of constituencies and nominating 100 women to the National Assembly. Others are calling for a top-up framework. This means that after general elections, women would be nominated to the National Assembly and Senate in such a way that they would form at least one third of the total members of both houses. Others propose to reserve constituencies for women candidates only on a rotational basis, this would do away with the need to nominate women after elections.

All these proposals focus on the tail end of the elections process. Too much focus has been placed on nominating women and other groups to Parliament after an election has taken place. Instead, Kenya should create a political and social culture that recognizes the need to have the representation of women, youth, persons with disabilities and minorities in elective positions.

Political parties have been silent in providing solutions to the current impasse. There has also been almost no public education on the need to meet the constitutional quotas at the next general elections. In Kenya, election processes commence when a political party received interim registration and eventually full registration. A study of the Political Parties Act indicates that there are no mandatory provisions for political parties through their constitutions, institutional framework, and membership to expressly provide for mainstreaming of youth, women, persons with disabilities and minorities in the political process. Political party nomination rules are also silent on this issue save as what the law provides or nomination party lists and elective positions exclusively reserved for women. Political parties also do not have express youth or women leagues that would objectively champion for their representation in election processes. Political party laws should be amended to first mainstream gender quotas within their leadership, membership and during general election nominations. This will create a culture where gender quotas become the norm and political parties actively engage more women in the political space. If more women are involved in leadership roles within political parties, they will easily find themselves filling elective seats at parliament and county assembly levels.

The representation quotas would be easily fulfilled if Kenya had a legislated political culture to ensure women, youth, persons with disabilities and minorities could equitable compete in the political arena. However, it is a challenge to implement this in a patriarchal society that has historically overwhelmingly voted for men in elective politics. A paradigm shift from male dominated politics requires a culture change that will not come easy. While there is no straight answer to this culture, political party and election laws ought to be amended to ensure equitable participation of youth, women, minorities and persons with disabilities in political party membership, leadership and elective politics. This may ensure that these special groups are represented in the various houses of parliament.

On 26th June 2015, the High Court gave the Attorney General (AG) and Commission on Implementation of the Constitution (CIC) 40 days to have the relevant gender quotas bill prepared for tabling in parliament. The Court found that:

‘the AG and CIC had, ‘dropped the ball’ and demonstrated, ‘laxity and reluctance’ in preparing legislation for tabling in Parliament that would see the Constitutional requirement that no more than two thirds of elective and appointive bodies are composed of the same gender, realized’

In conclusion, it is clear that for gender quotas to be achieved in the next general elections, political parties, parliament, the AG and CIC must work in concert to come up with a concrete formula. Looking at the various formulas indicated above, the question would be what formula to adopt in the law for this purpose. . However, it is reassuring to see the Judiciary stepping forward to ensure that the Constitution of Kenya 2010 is fully implemented before the August 2015 deadline.

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Additional insights by Sumit Bisarya and Katalin Dobias both of IDEA