Gender rule a legal promise trapped in politics

The High Court’s decision to reject an advisory by former CJ David Maraga recommending dissolution of Parliament over failure to implement the two-thirds gender rule raises a persistent question: why does a clear constitutional promise remain so difficult to fulfil?

In its ruling, the court reaffirmed that Parliament bears a continuing constitutional obligation to enact legislation giving effect to the principle, but set aside the 2020 advisory because it could not operate as a binding mechanism for dissolving the House.

At the heart of the matter is Article 81(b) of the Constitution, which requires that not more than two-thirds of elective and appointive bodies be of the same gender. This provision, reinforced by Articles 27 and 100, was designed to address historical exclusion and guarantee equitable representation in governance.

Yet more than a decade after promulgation of the 2010 Constitution, full compliance remains elusive. The recent ruling forms part of a long and complex jurisprudential history. The court noted that Parliament has attempted to implement the constitutional requirement, including through constitutional amendment proposals that ultimately failed due to lack of quorum or failure to meet voting thresholds.

This tension between constitutional obligation and political implementation has defined Kenya’s experience with the two-thirds gender rule. Since 2010, successive legislative attempts—including the Mutula Bill (2011), the Duale Bill (2015), and later proposals under the Chepkong’a framework — have failed to secure passage.

In 2017, the High Court directed Parliament to enact legislation within 60 days after finding that it had failed in its constitutional duty. That directive was not complied with. In 2020, Maraga escalated the matter by advising the President to dissolve Parliament under Article 261(7), arguing that continued non-compliance triggered constitutional consequences. Petitioners supported this view, contending that Parliament had ignored judicial timelines and constitutional obligations.

What emerges from this legal trajectory is a deeper structural reality: Kenya’s challenge is not the absence of constitutional clarity, but the absence of mechanisms to convert constitutional intent into political compliance. This becomes clearer when the issue is viewed through the lens of supply-side and demand-side barriers to women’s political participation.

Supply-side barriers refer to structural constraints that limit women’s entry into electoral competition. These include political party gatekeeping, campaign costs, limited access to nomination structures, and socio-cultural norms that discourage women from vying for office. Demand-side barriers, on the other hand, relate to voter behavior and electoral dynamics at the ballot stage. 

Political parties continue to field insufficient numbers of women candidates, meaning that underrepresentation is often already determined at the nomination stage, long before voters cast their ballots.

IEBC has repeatedly urged parties to comply with gender requirements in their party lists, but compliance remains inconsistent. This helps explain why the idea that “more women vying leads to more women being elected” carries significant weight.

Kenyan voters have, in many instances, demonstrated willingness to elect women leaders when presented with viable and competitive tickets. The persistent gap, therefore, is less about voter rejection and more about limited entry into the political marketplace.

The pattern has continued in post-2022 by-elections, where women’s participation and electoral success have remained limited, reinforcing the reality that the pipeline into elective office remains constrained.

In response to this long-standing impasse, President Ruto established the Multi-Sectoral Working Group (MSWG) on the Two-Thirds Gender Principle. The MSWG has proposed far-reaching reforms, including a constitutional “gender top-up” mechanism for Parliament, amendments to the Elections Act to enforce compliant party lists, and the creation of a Women’s Inclusion and Political Participation Fund to strengthen women’s competitiveness in elections.

Ultimately, the debate must move beyond post-election corrective mechanisms. Kenya cannot continue to rely on “top-up” solutions after poll outcomes are already determined.