The Implementation of the Two-Thirds Gender Rule: A Seesaw Progress

While many lauded the move by the then Kenya Kwanza Coalition flagbearer, Hon. William Ruto to sign a Women’s Charter as a step in the right direction towards achieving inclusion and gender balance, others dismissed it as a political sideshow. Months down the line, in November 2022 after that equally famous and infamous event, the latter group seemed more justified as the newly elected President, William Samoei Ruto named his cabinet. A promise of 50% representation was truncated to 32% as only 7 women were named in a Cabinet of 22. The situation only worsened when the list of PSs was released as only 11 were women out of 51 which was a meagre 21%. This was seen as the first stab towards achieving any form of intentional inclusion in the government, an already bleeding agenda.

The promulgation of the Constitution of Kenya, 2010 cast a new dawn towards the fight towards the actualization of the two-thirds gender rule. The provisions of Article 97 and 98 of the CoK, 2010 form an integral part of the legal framework of the two-thirds gender rule as they advocate for that proportional representation in Parliament. Article 90 of the CoK,2010 further echoes these stipulations and elucidates the role that political parties and the Independent Electoral and Boundaries Commission (IEBC) have in bringing this agenda to fruition.

Furthermore, Section 25 of the Political Parties Amendment Act also provides for the distribution of political parties’ fund on the adherence of the two-thirds gender rule hoping to compel political parties to be more intentional towards achieving this. However, more than a decade later we are nowhere near netting this objective. The representation at the National Assembly stands at 28 elected women which is a slight increase from 23 in 2017 while the representation at the Senate remains the same – three.

The journey from the crest seems far but the lack of willingness of key the players drags it even further behind. This is so as Parliament is yet to enact legislation to fully operationalise the rule which mirrors an obvious lack of political goodwill. In July, 2020, the Law Society of Kenya tried to compel former President Uhuru Kenyatta to dissolve the 12^th Parliament for failure to give life to the two-thirds gender rule. However, that was only shelved as a hollow suggestion. A more solid step was seen in September 2020, as the former Chief Justice, David Maraga issued an advisory to the President Uhuru to dissolve the Parliament pursuant to Article 261(7) of the CoK for failure to realize the envisioned proportional representation in Parliament. Maraga further stated that the same was a great omission and everyone involved must be held accountable. This notably instigated a conversation on the same, but which quickly shifted to whether an advisory by the Chief Justice is legally binding. This also shows the lack of political will in fully effectuating the provisions of the Constitution, both in word and spirit.

It is also important to note that these were not the first attempts to try and compel Parliament to achieve a two-thirds gender representation as on March 29, 2017, Justice Mativo though noting that the realization of the rule is progressive, directed Parliament and the Attorney General to ensure a framework is in place to help achieve the same. This was not implemented.

The memo by President Ruto on 9^th December 2022 calling for concerted efforts by both the Executive and the Legislature to deliver on the Constitutional mandate has been seen as the long awaited light in what seemed like an unendingly dark tunnel. Taking cognizance of the ghost of the Maraga advisory, the President insists that he fully commits to ensure that we do not fall into the same Constitutional abyss. This debt to the Kenyan women, which is of course long overdue, is one that he willingly wishes to help settle.

Different stakeholders, notably organisations that have been at the forefront in fighting for inclusion at the apex of the Country’s leadership, have welcomed the efforts and opined that it charts a good path for engagement. CRAWN trust and Mzalendo Trust, however, noted that there is a need to analyse the numbers provided by the law, of members allowed in both houses. They further insist that the calculations should be of numbers in the two houses in their entirety.

Whether the memo was just another cameo in what has over the years seemed as showboating and selling the brand as inclusive, time will be the only judge. However, most, if not all and sundry, hope that this is a landmark step towards contriving the much-needed change in the political landscape, and ultimately achieving gender parity in Kenya’s leadership.

Posted by Loise Mwakamba on Jan. 27, 2023

Categories:  elections   inclusion   women agenda   constitution   two-thirds gender principle