Article 27 of the Constitution clearly and unambiguously declares and guarantees that all persons in Kenya are equal before the law and this equality includes full and equal enjoyment of all the rights and fundamental freedoms set out in Articles 25 and 26.
Thus, women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. Read together with Article 2(6), the equality principles under Articles 25, 26 and 27 domesticate into and apply in Kenya, the international treaties and conventions on the rights of women.
One of the constitutional roles and responsibilities of Parliament is to ensure that both legislative and policy measures are taken to put into effect and comply with the Constitution.
Among the legislative and policy measures to ensure equality between women and men in elective and appointive positions, Article 27(8) of the Constitution requires that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender. The Constitution directs the State to take legislative and other measures to give effect to and fully realise these directives.
Effecting these principles will guarantee the enjoyment of the rights by people of Kenya. Regrettably, however, both the State and Parliament have failed to honour the responsibility entrusted to and placed in their hands by the people of Kenya.
Reasons behind failure to achieve equality?
Inclusivity and non-discrimination are recurring principles and values in our Constitution. Indeed, Article 27 of the Constitution seeks to ensure inclusivity and non-discrimination.
Accordingly, there is clear and unambiguous constitutional basis for gender equality in Kenya. Unfortunately, Article 27 of the Constitution has an internal weakness in that it is not “self-effecting”. It requires some other action or mechanism from outside of the Constitution to bring it to life.
Exploiting this weakness, the State and its organs have exhibited great reluctance and failed to put into effect the Constitutional directives on gender equality in elective and appointive positions. Every time a bill has been brought to the National Assembly to give effect to Article 27(8) it has failed to sail through.
The Members of the National Assembly have, either by design or otherwise, denied the assembly the required quorum to pass the bills. In the alternative, the State and its organs and institutions, and especially Parliament, have failed to protect the Constitution as required by Article 94(4).
Through the exercise of oversight, Parliament has failed or is unwilling to put the State to account and ensure due compliance with the Constitution.
Among other responsibilities, Parliament is supposed to ensure that the national executive reflects regional and ethnic diversity of the people of Kenya as envisaged by Article 130 of the Constitution. It should also receive a report from the President on national principles and values in accordance with Article 132(1(c).
Regrettably, Parliament has not or sufficiently exercised its oversight role over State organs, including itself, to ensure that the State has in place measures and policies that ensure gender equality. The proposals that have previously been made to effect equality directives are unlikely to succeed. An impression has been created and given that gender equality is impracticable if not impossible.
Lame excuses of bloated wage-bills, cultural and other prejudices have been advanced and given to justify reluctance and failure by Parliament and parliamentarians to put in place measures and policies that ensure gender equality.
Mercifully, it has never been argued that women are incompetent as evidence of their exemplary performance in the positions they hold is overwhelming. In the light of the clear constitutional directives on gender equality, which are matters of concern in Kenya, they be put into effect.
Even though the Constitution mandates the National Assembly to deliberate on and resolve issues of national concern, it is unlikely to get gender equality effected without an amendment to the Constitution of Kenya, 2010.
Effective amendments to achieve gender equality will also require a political paradigm shift. I propose an amendment to the Constitution that will affect the representation of the people and also amendments to the Political Parties Act.
I propose the abolition of single member constituencies in Kenya and creation of a single national constituency in the National Assembly that will be concerned with national policies, laws and programs.
The National Assembly shall have an equal number of members elected on the basis of proportional representation of parties. Every party that intends to run for power in the National Executive and Parliament in Kenya shall have to be a national party.
The party shall have a national manifesto and programme to govern the country at the national level. The leadership of a political party should likewise reflect the face of Kenya. In my view, this will help eliminate tribe and identity-based politics in preference for issue-based national politics.
To address the issue of gender equity and inclusiveness, I propose that every party contesting in an election in Kenya should present a list of its nominees for membership in the National Assembly.
The list will have to reflect Kenya’s ethnic diversity and geographic spread. To ensure gender equality in elective positions, the list shall have the names of male and female nominees in the alternate and ensure intervals names of nominees with disabilities and from marginalised groups
If this proposal is adopted it will make Kenyan politics national and issue based. It will take care of our tribal inclinations in politics and ensure gender balance on the basis of equality.
There will be no question of reduction of seats for women or men. Mr Akhaabi is legal adviser, Governor of Busia
Do not miss out on the latest news. Join the Standard Digital Telegram channel HERE.