Realisation of the Two Thirds Gender Rule

One of the most celebrated instruments of Kenya's new Constitution was the recognition of gender equality and the achievement of gender parity. To this regard, the Constitution introduced the principle that no more than two thirds of the members of an elective or appointive body shall be of the same gender.

In a bid to enforce this gender rule, the Constitution created 47 elective seats for women in the National Assembly, where each County constituted a single member constituency. These members are referred to as 'women representatives'. This however was not enough to fully ensure gender parity and so the Constitution went further under Article 27 providing that:

(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 to designed to redress any disadvantage suffered by individuals or groups because of post discrimination.

(7) Any measure taken under clause (6) shall adequately provide for any benefits to be on the basis of genuine need.

(8) In addition to the measures contemplated in clause (6), the State shall take Legislative and other measures to implement the principle that no more than two thirds of the members of elective or appointive bodies shall be of the same gender.

Barely two and a half years after the promulgation of the new Constitution, Kenya held General Elections to give full effect to the provisions of the new Constitution. According to the Independent, Electoral and Boundaries Commission (IEBC), out of a total of 1908 aspirants for National Assembly seats, only 197 were women. And out of the 197 women, only 16 made it to Parliament to join the 47 County Women Representatives. At the County Representative Level, 623 women vied but only 85 were elected. In contrast, 1365 of their male counterparts were elected out of a total of 9287 male contestants. No woman made it to be elected as a Senator or Governor. Only one woman contested for the Presidency out of seven men and she garnered less than 3% of the vote. As it stands, both the National and the County Assemblies are still below the one-third gender representation threshold with less than 20% women representation.

The fifth schedule in the Constitution provided a timeframe of five years within which the legislation on the representation of marginalized groups was to be passed. That five years expired on the 27th of August 2015.

That provision was the basis upon which the Majority Leader of the National Assembly Hon. Aden Duale presented a Bill to amend the Constitution in July 2015. The Bill sought to have additional women in leadership if the election does not meet the required threshold of gender representation. If the threshold wasn't met, then the gap would be bridged by picking additional women as per party lists. Political parties would submit a list of members to be nominated. The Bill also targets to review the Elections Act, the Independent Electoral and Boundaries Commissions Act, the Political Parties Act, the County Governments Act and the National Gender and Equality Commissions Act.

The proposed law would lapse 20 years after the date of the second General Election held under the Constitution. The hope is that by that time, both genders will have been given a level playing field and will be able to compete on an equal plane.

The Constitution provides for an amendment by Parliamentary initiative under Article 256 as follows:

(1) A Bill to amend this Constitution –

  1. May be introduced in either house of Parliament
  2. May not address any other matter apart from consequential amendments to legislation arising from the Bill.
  3. Shall not be called for second reading in either House within ninety days after the first reading of the Bill in that House; and
  4. Shall have been passed by Parliament when each House of Parliament has passed the Bill, in both its second and third readings, by not less than two thirds of all the members of that House.

The struggle for women empowerment seemed to be a realistic goal when Hon. Duale's Bill came for a second reading on the 26th of April 2016. The Members of Parliament had already been called upon by the President and the Opposition Leader to show up and vote for the landmark Bill. But when it came to voting, it could only garner 195 supporters, 38 less than the threshold set by Article 256 in the Constitution.
The Speaker of the National Assembly went to great lengths to ensure that as many MPs as possible would show up by stretching the lobby minutes. The Bill however was rejected by 28 MPs, while at least 24 Members who were present did not vote yes or no, nor did they abstain. Two Members abstained.

This turn of events would have meant that the Speaker declares the Bill "lost". As such, the Bill would have needed to wait for six months before being reintroduced, and then a further 90 days would have to pass before the first and second reading. He however invoked a rarely used standing order which states:

"When a Bill that requires a two third majority is not opposed by a third of the MPs, it can be subjected to a sitting vote within five sitting days."

The Bill will therefore be subjected to a second vote on the 5th of May 2016 with the assumption that the proponents of the Bill will have used the intervening week to lobby for their colleagues votes. The Speaker has excluded the day's morning sitting to give the whips time to convince MPs to vote for the Bill. Kenyans will expect to have their views well represented by the Members of Parliament and the passing of this Bill will probably be key in judging the success of the 11th Parliament.

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