One of the most frustrating aspects of implementing the Constitution was trying to meet the gender equity ideal. Nothing indicates the achievements of the women’s lobby more than the progressiveness of our Constitution on gender equity. I know for a fact that much of it had to do with the presence of two known gender activists Supreme Court Judge Njoki Ndung’u and Atsango Chesoni. Which affirms the position that advancing women’s interests requires competent and capable women in the place where decisions are made. But while the Constitution was visionary in ensuring a gender equal Kenya, steps taken thereafter have exhibited our instinctive suspicion of women empowerment.
The first act of the Kibaki government under the Constitution was to appoint a retinue of men in all senior positions that were due to be filled during the transitional period. Fortunately, the matter was stopped by the courts, leading to more gender inclusive appointments. In all subsequent appointments by PNU, the Grand Coalition and their Jubilee successor, what has been evidenced is a minimalist implementation of the gender principle. The Constitution had desired gender equality in appointments, only insisting that where equality could not be achieved, appointments of any of the genders would not cross the 2/3 ceiling. This has however been converted to the 1/3 principle, the assumption being that we are aiming for 1/3 appointments of women in the affected sectors.
Sadly, in none of the three branches of government have we been faithful to the gender principle. For the Judiciary, the violation commences in the esteemed Supreme Court. Of the seven judges of the Court, only two are women. The next highest court, the Court of Appeal has seven women of 19 judges, just managing to escape the minimum threshold.
An analysis of the other levels of the Judiciary show minimalist implementation of the gender principle. In the Executive, of the 22 Cabinet Secretaries, only 6 are women, failing to meet even the minimal aspects of the gender principle. This story is replicated in all other areas where government makes appointments into senior positions. An analysis of Parastatal Chairpersons and Board Members by the National Gender and Equality Commission showed a shocking violation of the gender principle.
As for the other arm of government, the Legislature, both Houses are in violation of the gender principle, with the National Assembly being the severest culprit. In the Counties, Governors apply a minimalist approach to the gender principle, appointing only 1/3 of women in their Cabinets and Executive offices. Even county legislatures apply the minimalist approach by nominating only the number of women that will ensure not more than 2/3 of the representatives are men. That is the sad scenario we find ourselves in.
What I find amazing is that the various lobbies pushing for gender equity are generally focused on making the legislatures gender compliant. All manner of scenarios have been proposed including some that would increase the number of our representatives astronomically. Truth be told, none of these will fly anywhere; there is little commitment by law makers and Kenyans generally to increase women representation in the various legislatures.
Indeed, the greater possibility is that a referendum on gender equity in representation would remove the gains made so far. You only need to hear the things people say about Women Reps and nominated MCAs.
My view is that while the push for gender equity in the legislatures must continue, the greatest resources, strategy and time should be focused on appointive positions where the low hanging fruits lie. Why are we not hearing the President and Ministers being held accountable for equality of appointments in the Cabinet, Senior public service and parastatals? Why is the JSC getting away with violating the spirit of the Constitution?
Why are Governors not being pushed to go beyond the minimalist appointments in their governments? Without doubt, this is the place critical decisions that affect women and society are made and implemented. Those of us who believe in gender equality must shift our focus here.
- The writer is an Advocate of the High Court of Kenya
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