Groups keep issue of two-thirds gender rule on the front burner

Debate on finding a suitable framework for implementing the two-thirds gender principle could begin by early 2015.

With only a year to the time by which a system to effect the principle should be in place, no conclusive method has been arrived at to ensure that at least a third of members in the National Assembly and Senate are women.

In a majority ruling delivered in December 2012, the Supreme Court directed that legislative measures for effecting the rule, as espoused by Article 81 of the Constitution, be taken by August 2015.

This section of the law dictates that no more than two-thirds of the members of elective public bodies shall be of the same gender. While this threshold was met by the County Assemblies, as stipulated in Article 177, which provided for its immediate realisation at the county level, there is still no indication of how a similar result will be achieved nationally.

But indications, according to the workings of a team formed to look into the matter, show the earliest discussions, at least in Parliament, on what mechanism should be adopted to ensure a third of political offices are held by women, could kick off next year.

National Gender and Equality Commission chairman Winfred Lichuma says a working group formed earlier this year by the Attorney General's office (bringing together representatives from the commission, the Ministry of Devolution, the Independent Electoral and Boundaries Commission (IEBC) and Parliament's Legal Committee) has made progress on the issue.

Other members are from the Commission on Administrative Justice, the Commission on the Implementation of the Constitution, the Registrar of Political Parties, the Kenya Women Parliamentary Association and the Federation of Women lawyers (Fida-Kenya).

"We have been engaging with the Attorney General's office since 2013. We have so far reviewed the Supreme Court's advisory opinion and drafts submitted before the AG went to court, and ascertained that most of them have been overtaken by events. What we now need is new thinking on the process," says Lichuma.

Through a reference dated October 8, 2012, the Attorney General, on behalf of the Government, had sought an advisory opinion from the Supreme Court on the matter of gender representation in the National Assembly and Senate.

The working group is hoping to have come up with some framework before the end of this year, to be presented to the AG, who will present it to Parliament at the beginning of 2015.

The National Gender and Equality Commission has in the past weeks also made a call to the public for submission of proposals on attainment of the two-thirds gender principle. The deadline for submissions lapsed on October 6.

The group, says Lichuma, has been exploring ways of working with MPs to ensure a suitable framework for achieving the gender rule passes in the House.

There has also been talk of more active engagements with political parties to ensure that they take it upon themselves to achieve the one-third women representation within their ranks.

Lichuma maintains that how political parties manage their nominations remains a key factor in getting more women into political office.

Other proposals have centred around arguments that it would be easier to amend enabling statutes such as the Elections Act and IEBC Act to achieve the gender rule, once a suitable formula is agreed upon, instead of amending the Constitution.

Some quarters have also suggested that there is need to have gender and equality legislation to implement Article 27 of the Constitution which outlaws all forms of discrimination.

But there are those who feel the pace at which implementation of the gender principle is being handled has been anything but impressive.

"The matter is not being treated with the urgency it deserves," says senior advocate and former Fida-Kenya executive director Joyce Majiwa.

While ruing several chances the country has had to implement the principle, Majiwa also faults the Supreme Court for failing to ensure its directive was followed through by, for example, ordering that progress reports be submitted to the court on the matter.

"The one-third representation of women in political office could have been achieved in the 2013 elections if there was goodwill from the Executive, Judiciary and Legislature. We also had a chance to effect the principle with the creation of an additional 80 constituencies, but this, too, was lost," she says.

There are currently 16 seats reserved for women in the Senate. Parliament has 47 county women representatives, 16 MPs elected at constituency level, and less than ten nominated by political parties.

That even such gains are in danger of being eroded is not in doubt. Earlier this year, debate on how to trim the country's wage bill resulted in controversial proposals, including a reduction in the number of political representatives. The proposals ranged from scrapping nominated seats, to whittling down the number of constituencies (currently 290) and counties (currently 47), to tame the wage bill which stood at Sh500 billion against a revenue collection of Sh800 billion.

Majiwa says Parliament should also be reminded that it stands in danger of being sent home for failing to discharge its mandate in coming up with legislation to effect the Constitution within given time lines,.

It is, perhaps, with such realities of dissolution in mind that the House gave itself an extension to March 2015 to pass six Bills that had a constitutional deadline of August 27, 2014.

The Executive Director of the Kenya Women Political Caucus, Deborah Okumu, admits there have been challenges in marshalling support from women leaders on the issue, given that often, their first allegiance is to their political parties.

"We wrongly assumed that the many women that got to Parliament and the Senate would push this agenda, but the truth is that there have been challenges. I wouldn't blame the women politicians though, because they owe their loyalties to the parties that took them to the House, but I feel that party politics is slowly eroding the once strong and unified voice that women leaders had," she says.

"We have been meeting with women political leaders to get them to speak with one voice on this issue, as well as reaching out to governors and county assemblies, even though they don't have much of a problem since this was already implemented at county level."

Okumu also points to the need for looking at affirmative action because equality issues also affect other groups, such as the youth, persons with disabilities and those from minorities and marginalised groups.