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Public appointments betray Jubilee pledge to uphold gender rule

By Lilian Aluanga-Delvaux | June 12th 2016
Attorney General Githu Muigai made submissions in a case challenging the constitutionality of the Cabinet. Recent events are raising questions about the Jubilee administration’s commitment to enforce the two-thirds gender principle. (PHOTO: FILE/ STANDARD)

Recent events are raising questions about the Jubilee administration’s commitment to enforce the two thirds gender principle.

Despite pledges made by Jubilee to increase the number of women holding elective office, and ensure at least 33 per cent of all public appointments are held by them, there is a perception that the government has handed women the short end of the stick.

Defeat of the Gender Bill in Parliament, amendments to the law that removed provisions that previously required a woman to be among the top three police officers, as well as Cabinet and parastatals appointments raising questions on the place of women in government.

Recent submissions by the Attorney General’s office in a matter before the courts appear to further dash hopes of implementing the gender rule.  The AG’s views are contained in submissions made in a case challenging the constitutionality of the Cabinet.

He was responding to a matter where three petitioners—the National Women Steering committee, Centre for Rights Education and Awareness, and Marylin Kamuru—are seeking to have the court find that the nomination andappointment by President Uhuru Kenyatta, and subsequent approval by the National Assembly of the Cabinet contravened the law.

In his response, the AG argues that the Constitution, in Article 130(2), provides that the composition of the National Executive shall reflect regional and ethnic diversity of the people of Kenya.

“This therefore is our view that is the only provision of the Constitution that peremptorily prescribes the criteria for Cabinet appointments by subjecting it to regional balance only. The legislative and other measures envisaged in Article 27 (8) are manifestly distinguishable from the criteria outlined in Article 130(2). The provisions of Article 27(8) envisage legislative and other measures to be put in place pending their operationalisation, which in our view, is to be operationalised progressively”.

The AG further argues that having the two provisions in mind implies that the only consistent and wholistic construction of the language of the Constitution in Article 27 (8), as read together with Article 81(b), is indicative that Cabinetappointments are not subject to the two thirds gender rule.

“The Constitution has prescribed certain gender minima to be met in both elective and appointive public bodies. These quotas are to be seen as a genre of affirmative action programmes aimed at redressing the social aberrations and injustices of the past. Thus whereas membership of certain constitutional commissions is subject to certain gender prescriptions, this does not specifically provide that the same shall apply to Cabinet appointments.”

The import of such views, according to some quarters, is telling of the Government’s demeanour on the matter of women’s representation.  “The Government has translated the two thirds gender provision rule to be a burden rather than an obligation. Its unfortunate that in most instances where it has been required to meet this obligation, it has either tried to circumvent or forestall its implementation,” says Kenya Human Rights Commission’s programmes officer Andrew Songa.

A Cabinet reshuffle in November last year saw the appointment of seven new Cabinet Secretaries, with only one woman, Sicily Kariuki, picked to head the Public Service Youth and Gender Affairs docket. The Cabinet currently has five women and 18 men.

The National Gender and Equality Commission (NGEC) took issue with the Cabinet’s composition, saying it fell short of the gender rule, as did the National Women Steering Committee, Katiba Institute and Kenya Human Rights Commission.   The civil society presented a memorandum to Parliament’s committee on Justice and Legal Affairs on the matter but the House approved the nominees nonetheless.

This week’s confirmation of former GSU Commandant Joel Kitili as deputy Inspector General of Police has aggravated matters. Hopes of having a woman replace former deputy IG Grace Kaindi were dashed when Parliament dropped the provision through amendments to the National Police Service Act.

The Federation of Women Lawyers (Fida-Kenya) has termed Kitili’s appointment unconstitutional and vowed to challenge the matter in court. Fida-Kenya deputy executive director Teresa Omondi-Adeitan also takes issues with the ‘secret’ shortlisting and interviewing of candidates to replace Ms Kaindi.

“The appointment disregards ongoing court processes that challenged Kaindi’s removal. The decision to fill the three top positions in the police force with men lacks gender consideration as well as respect for competency and educational qualifications of female candidates,” she says.

Last month’s defeat of the Gender Bill in the National Assembly also cast Jubilee in bad light.

President Kenyatta had appealed, in writing, to members to turn up and vote for the Bill, a move, Omondi-Adeitan dismisses as a ‘political statement.’ 

“When amendments to the security laws needed to be passed the House had no problem marshalling the numbers, as when Parliament made changes to the Judicial Service Act, giving the President power to influence the appointment of Chief Justice. Why was it difficult to get the numbers for the gender Bill which is a Constitutional requirement?” asks Songa, who also questions what tangible measures the Opposition has taken over the matter.

In an advisory to the President, NGEC seeks to have the President return the Gender Bill to the National Assembly to forestall a possible dissolution of the House.

It wants MPs to enact a legislative framework that will guarantee implementation of the gender principle on or before August 27.

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