Demystifying the not more than 2/3rds same

gender principle.By Daisy Amdany

The conundrum posed by the provisions relating to gender representation in elective and appointive bodies in the Constitution has been the subject of avid discussion since the promulgation of the Constitution of Kenya 2010.

As the debate picks up momentum once again, it is important to trace how it is that we got to this point.

Background

The Constitution emphasizes the importance of equality in Kenya. To attain the equality provisions, the Constitution also provides that the state design programs of affirmative action for disadvantaged groups Article 27 (6).

The comprehensive Bill of Rights, secures the participation of all persons including women in all spheres including in the political sphere Article 27 (3) and further reinforces this right in (8) with specific direction on elective and appointive bodies stating that there should be no more than 2/3rds of the same gender in elective and appointive decision positions.

Equality

Equality and freedom from discrimination◦ Art 27 (6) To give full effect to the realization of

the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programs and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination

◦ Definition of affirmative action: An action or policy favoring those who suffer

from discrimination, esp. in relation to employment or education; positive discrimination. 

The principle as entrenched in the constitution

• Art 27(8) in addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender

◦ Definition of legislative: Of or relating to the enactment of laws.

Resulting from or decided by legislation.

Art 81 The electoral system shall comply with the following principles:◦ (b) not more than two-thirds of the members of

elective public bodies shall be of the same gender

Definition of Elective body:One in which the members are appointed or filled by election

Representation of the people

Art 100 Parliament shall enact legislation to

promote the representation in parliament of:◦ (a) women;◦ (b) persons with disability◦ (c) youth;◦ (d) ethnic and other minorities; and◦ (e) marginalized communities

Promotion of representation of marginalized groups

Reasons:◦ It is the right thing to do◦ Equality of representation (mirrors the community/fairness)◦ It is constitutional◦ Moral argument/ political judgement◦ Challenge the cultural barriers just by enforcing the principle

To be considered:◦ Change threatens traditional power structures working

networks, patterns and life.◦ Equality/equity may be one of those areas where people only

hear what they want to hear ◦ Among the major barriers to securing equality and equity is the

cultural attitudes.

Why promote gender equality?

Cultural change is inevitably a slow process, particularly in areas that are traditionally perceived to be male domains.

Efforts to improve equality and equity have concentrated on enacting frameworks that are more inclusive and expanding the existing spaces to allow for more inclusion while also addressing the socialization factors.

The risk is that these efforts will be undermined if we allow ourselves to be daunted by the challenges and refuse to do more to enforce and to tackle attitudes to equity and equality.

Cultural Change

We need to challenge the masculinity culture. It is the culture which says

◦ “Leadership (especially at the political and decision making level) calls for strength, endurance, a degree of “machoness” read toughness, and group solidarity. … asserting superiority over women…”

It creates the type of personality who is perceived to help others and at the same time as something ‘special’ “mheshimiwa”

This celebrated identity is then seen as typically male; an observable fact that ‘all’ men gain from, reinforced by some men through violence.

Masculinity culture

Commitment by Private Sector to force the political hand- Send a consistent message – Show that you mean it.

Private Sector – “Are you serious”◦ Private Sector Leaders on board/committed to the cause◦ What does being on board mean?◦ You must recognise the problem◦ Strong line –At no point can you blink

Encourage what we permit – What we don’t challenge we endorse.

Would you allow your daughter to be treated like women are treated in leadership and decision making? 

Work with Women’s Movement NWSC, support the cause Lend your voice to the cause and use your sphere on influence

to advocate for implementation of the mechanism

The Plan

National Assembly

290 + 47 + 12 + 1= 350 Total number of MP’s 2/3rds of 350= 233 meaning that no single gender

should exceed this number. 350 – 233= 117 is the minimum number of the

corresponding gender that will ensure that the constitutional requirements are met.

Women being the disadvantaged gender, a minimum of 117 women in parliament is what is needed to secure the constitutional requirement.

What we have now is 16 from constituencies + 47 from the counties and 4 nominated=67 which is short by 50

Crunching the numbers

The Senate: 47+16+2+2+1=68 Total number of Senators 2/3rds of 68=45, meaning no single gender should

exceed this number 68-45=23 is the minimum number of the corresponding

gender that will ensure the constitutional requirements are met

Women being the disadvantaged gender, this means that we should have a minimum of 23 women to adhere to the not more than 2/3rds same gender principle

What we have at the moment is 16 women nominated+1 youth female+1 disabled female=18 meaning we would need 4 more to achieve the threshold of 23.

But aside from that we have an additional challenge in that the provisions in the Constitution pre-suppose that no woman will be elected to the Senate and that too must be addressed.

NWSC and other stakeholders consulted widely on the possible mechanisms to secure the principle and came up with a proposed formulas

Legislative measures that were proposed

That all 290 constituencies be subjected to rotation by putting together 4 adjacent constituencies and select one of them by lot to be reserved for a woman and any political party fielding a candidate in the constituency or an independent candidate MUST be a woman. 290/4=72.5 round off to 72

The reservation would be valid for one term only and in the next election, the reservation would move to one of the other constituencies in the group of four.

The proposed mechanisms

Succeeds in achieving the principle that not more than 2/3rds of elective or appointive bodies (in this case parliament) are of the same gender

Limitations introduced on the right of men to stand in a constituency are temporary because the limitation is for only a one five year term every fourth election

The system does not affect the political composition of parliament because each party has the right to field a woman candidate in the constituency

The system is predictable and simple enough for voters to understand

The pros of the mechanism

The system makes it easier for women to be more involved and included in political parties

Increases women’s visibility in the political arena and socializes communities to the idea of women’s leadership

Will not come across as politically instigated to penalize a particular community because the system affects the whole country uniformly

The country takes responsibility for ensuring constitutional compliance and at the end of 4 elections every constituency in the country will have been used for affirmative action countrywide.

The system restricts men from running in their preferred constituency which may be their traditional “stronghold” where they are well known. But they will still be allowed to run in other constituencies though.

The voters possible choices are restricted to one gender every fourth election

The Cons

Though the proposed mechanism limited the possibility for a man standing in the constituency of their choice and violates somewhat the right to make political choices under Art 38; Art 24 (1) allows a law to limit a right in certain circumstances.

These include being “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”; and (e) “ the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose”. The purpose of this mechanism is to enhance democracy and avert a constitutional crisis.

Proposal for the Political Parties Act There were further proposals made to be

incorporated into the political parties bill. The proposal was to create incentives for political parties to include women by giving additional funds to political parties that would ensure that women were elected on their party ticket (5%).

Additional monies were to be given to those parties that would ensure that not more than 2/3rds of their NEC were women.

Additional monies were to be given to those parties that nominated women to Parliament and the Senate

Although the mechanism for rotating constituencies found favor with the then IIEC and found its way into the draft Elections Bill 2011, it was rejected by the Cabinet and MP’s citing the unconstitutionality of the proposal.

The proposals for the political parties were rejected in total by parliament although the requirement for not more than 2/3rds of the same gender was made a requirement within the political parties.

As a result, the Cabinet set up a Cabinet sub-committee to find a workable, constitutional and acceptable solution to the problem.

Formulas rejected

As a last resort and in order to avert a possible constitutional crisis in the event that more than 2/3rds of the same gender are represented in any assembly; and the lack of a mechanism to secure the principle, the Cabinet sub-committee met with the representatives of the NWSC and agreed on a mechanism being secured through an amendment to the constitution.

Amend the constitution

The Bill aimed at giving full effect to Articles 27(8) and 81(b) which provides that not more than two-thirds of the members of elective public bodies shall be of the same gender.

The Bill sought to provide a lasting solution to the issue of gender parity and equity in elective positions and more specifically in the National Assembly and the Senate as a mechanism is provided for the County Assembly in Art 177 (b).

The proposal

Naturally, the logical way to cure the problem is for the Constitution to be amended accordingly to reflect the desired position.

Political parties have to be a part of the solution because they are expected to play a key role in ensuring that the prescribed number of women and men are represented in the political arena.

They must therefore give direction on this very important issue.

A way forawrd

Women constitute over 60 per cent of the EAC population and therefore must fully participate in regional integration and be informed on all steps being undertaken by the Community through policies, programs and projects aimed at enhancing the well being of the people of East African Community.

Women’s role in boosting social and economic development of the Community needs to be enhanced through entrepreneurship and trade across the region.

Women and the EAC

As women in Kenya, we should be very concerned that we have not achieved the minimum threshold for the representation of women in elective and appointive positions.

It is a right and constitutional principle not a gift If Kenya cannot abide by its own constitution, what

are the chances that it will abide by regional requirements/commitments?

Despite being the Chair of the EAC, Kenya remains the only country in the region that has not met the minimum threshold for women’s representation in elective and appointive positions

Linking the Gender rule to EAC intergration

Under the Provisions of Articles 121 of the Treaty for the Establishment of the East African Community, the Partner States undertake to enhance the Role of Women in Socio Economic Development.

The Partner States recognize that Women make a significant contribution towards the process of economic transformation and sustainable growth and that it is impossible to implement effective programs for the economic and social development of the Partner States without the full participation of Women.

What does the EAC treaty say

Partner States have committed themselves to, through appropriate legislative and other measures to, among other things:

(a) Promote the empowerment and effective integration and participation of women at all levels of socio–economic development especially in decision-making

(b) Abolish legislation and discourage customs that are discriminatory against women

(c) Promote effective education awareness programs aimed at changing negative attitudes towards women

(d) Create or adopt technologies which will ensure the stability of employment and professional progress for women workers; and

(e) Take such other measures that shall eliminate prejudices against women and promote the equality of the female gender with that of the male gender in every respect.

Commitments

Article 122 further provides for enhancement of the Role of Women in Business where Partner States recognize the importance of women as a vital economic link between agriculture, industry and trade. Partner States undertake to :

◦ (a) Increase the participation of women in business at the policy formulation and implementation levels;

◦ (b) Promote special programs for women in small, medium and large scale enterprises;

◦ (c) Eliminate all laws, regulations and practices that hinder women’s access to financial assistance including credit;

◦ (d) Initiate changes in educational and training strategies to enable women to improve their technical and industrial employment levels through the acquisition of transferable skills offered by various forms of vocational and on-the-job training schemes; and

◦ (e) Recognize and support the national and regional associations of women in business established to promote the effective participation of women in the trade and development activities of the Community.

Commitments to Women and Business in the EAC

Articles 127, 128 and 129 of the Treaty reflect the willingness of Partner States to provide an enabling environment for the Private Sector and the Civil Society to take full advantage of the Community.

Also conscious that as an important constituent of the Civil Society, the role of Women has also to be viewed in the broader political context as captured in several articles of the EAC Treaty

The challenge is much more than simply ensuring the presence of more women in leadership and decision making. It is about bringing about an equitable society by eliminating the systemic culture of the continued subordination of women and the deep-rooted perception that leadership particularly in the public and political domain is reserved for men and that the relationship is between men and government and not citizens and government, despite their rights being guaranteed in the constitution. It is about women and men working together in partnership to foster socio-economic development. It is about seeing the bigger picture and learning to separate issues to work together for our betterment as women.

The opportunities are many and we simply need to step up to the challenge. It is not easy but it is achievable. We need to remember

“WE Makes ME Stronger”

Conclusion

THANK YOU