Kenya’s struggle to enforce the two-thirds gender rule has stretched across years of court battles, failed bills and political resistance, even after the Constitution of 2010 set the standard for elective bodies.
The article was published on 2018-11-21, and the debate it captures shows how the country’s leadership, Parliament and the courts have repeatedly collided over how to make the rule real.
Article 81(b) of the 2010 Constitution states that “Not more than two-thirds of the members of elective public bodies shall be of the same gender,” but the law did not spell out the mechanism for achieving that balance. As a result, both the National Assembly and the Senate have continued to fall short of the threshold.
Concerned that the 2013 elections could leave women underrepresented and that political parties would not meet nomination targets, the Attorney-General sought an advisory opinion from the Supreme Court. In December 2012, the court said the government should take a progressive approach to closing the gap within five years of the Constitution’s promulgation.
The court also held that the gender principle had not yet matured into a fully enforceable right. That interpretation meant the rule was not treated as immediately binding for the 2013 polls, even though the Constitution had already been in force since 2010.
The Supreme Court later fixed August 27, 2015, as the deadline for Parliament to pass legislation giving effect to the rule. That deadline passed without a law being enacted, despite further pressure and petitions aimed at forcing compliance.
After Parliament missed the deadline, the Centre for Rights Education and Awareness and the Community Advocacy and Awareness Trust moved to the High Court, accusing the two Houses of violating the Constitution by failing to enact the gender rule. The Kenya National Human Rights Commission was also joined in the matter.
In March 2017, High Court judge John Mativo ruled that if Parliament still had not enacted the law by June that year, any person could petition the Chief Justice to advise the President to dissolve Parliament. He found that Parliament had violated women’s rights to equality and freedom from discrimination and ordered enforcement of the principle within 60 days.
Justice Mativo’s decision followed an earlier order by High Court Judge Mumbi Ngugi in 2015, which directed the Attorney-General and the Commission for the Implementation of the Constitution to prepare and table a bill for legislation.
Resistance to the rule has remained strong. Critics have argued that women were seeking “free seats” without competition, while some male legislators opposed expanding the number of nominated women on the grounds that it would reduce their own privileges. Women in Parliament were said to account for only 19 per cent, below the required 30 per cent, even as they continued to face systemic discrimination in society.
Parliament has tried twice to pass legislation to implement the rule, but both efforts collapsed. Opponents said the proposals would create bloated representation, increase the tax burden and hand women seats without merit. Some also attacked nominated women MPs, calling them “idlers” and “busy bodies”.
In May 2016, the National Assembly backed one bill by 178 MPs and opposed it by 16, but the effort still failed. In November 2016, another proposal sponsored by then Justice and Legal Affairs Committee chairman Samuel Chepkonga collapsed after a quorum hitch in the National Assembly. The bill had sought a progressive formula for implementing the gender principle, but women MPs fought it.
In February 2017, a separate Senate bill sponsored by then nominated senator Judith Sijeny also failed because the House could not reach the required 45 votes.
The latest amendment proposal, associated with National Assembly Majority Leader Aden Duale, seeks to ensure that after every general election women or men are nominated so that at least one-third of the composition is from either gender. Under the plan, political parties would share nomination slots according to their strength in Parliament after the election.
At the time of the report, the National Assembly had 75 women: 22 elected from the 290 constituencies in the last election, six nominated under the 12 nomination slots, and 47 elected as women representatives. On that basis, the House would need about 42 more nominated women to meet the constitutional requirement, while the Senate would need only one senator.
The article also noted that other sub-Saharan African countries had moved faster on gender balance. Rwanda led with 61 per cent women in Parliament, followed by Tanzania and Burundi at 36 per cent, Uganda at 34 per cent and Kenya at 22 per cent. Cameroon and Zimbabwe had also reformed their electoral laws to improve female representation and meet the two-thirds threshold.
For Kenya, however, the record remains one of repeated promises, judicial pressure and legislative deadlock over a rule that has been part of the Constitution since 2010.
