- “The Constitution of Kenya 2010 significantly addresses the problem of marginalizing of women in the political arena……”Anon
Critically analyze the above statement while referring to the relevant provisions of the Kenya Constitution 2010 and the Two-Thirds Gender Rule Bill
- What are the major critiques of the inclusion of women in politics in Kenya today?
TABLE OF STATUES
- The Constitution of Kenya
- The 2/3 Gender Bill
Table of Contents
Historically, women have undergone marginalization when it comes to leadership. This marginalization is mostly attributed to cultural factors which depict women as belonging to the home (private sphere) and therefore vying for leadership positions is unheard of. Religion has also contributed to this stereotype as women supposed to subjugate to men and men are seen as the leaders. Denial of women from leadership is a collaborative effort between the society and institutions.
Women for a long time have been seen as second class citizens not worthy of political and leadership position. Culture, socialization, patriarchal structures and gender stereotypes such as women are too emotional therefore cannot handle leaderships positions persist even until now therefore undermine women’s chance to get elected to leadership positions. The erasure of women in politics in Kenya happens at the intersection of patriarchy and ethnicity, where the social and political subjugation of women is one of the unspoken principles of ethno nationalist politics.
Countries such as Kenya have taken the route of gender quotas and reservation of seats to reduce gender parity in both levels of government. Quotas are seen as the most effective way of achieving gender parity. The Constitution stipulates that not more than 2/3 of the members of elective bodies shall be of the same gender. This is a form of affirmative action to ensure that women’s voice is heard because in Kenya women make up 50.1% of the total population. The 2/3 gender rule finds it footing in constitutional values such as inclusivity, sharing of power, human dignity, equity social justice, equality, human rights, nondiscrimination and protection of the marginalized.
The importance of having women in political position is that they will promote family friendly legislation, represent and advance the rights of the marginalized in the community. The needs of women are not sidelined and therefore policy and legislation benefit all the women in the society. In this paper, we will discuss the legislative framework that deals with participation of women in politics and the bill that seeks to increase the number of women in political seats. The challenges women face while vying for political seats and the critique levied against women who run for political seats.
These theories urge for inclusion of women in all spheres of the society mostly importantly politically so as to ensure that their voices are heard.
Feminist argue that meaningful governance should be inclusive, accountable, gender-responsive, and representative of the diversity of interests of the governed. Feminist argue that women have agency and autonomy and therefore should be able to participate in key decision making processes to reduce law that are male centered and overlook the consequences of such decisions to women. The following are strands of feminism that advocate for inclusion of women in politics:
Liberalism, as John Stuart Mill and Immanuel Kant posit is based on the principles of equality and individualism. Human beings are equal and have same rights and enjoy same opportunities in life, including liberty. As such, liberal feminism maintains that women, as human beings are like men and should thus be given equal opportunities to pursue their own goals. They argue that men should have similar rights and equal treatment and protection from the law.
Liberal feminists contend that because of the society’s patriarchal nature in addition to the gender roles and socialization, women have been unable to exercise either personal or political autonomy. To them, certain legal measures should be implemented in the society to remedy this situation. These measures are referred to as ‘enabling conditions. They argue subordination is rooted in legal constraints which prevent women from full participation in public sphere. They argue that limited participation of women in law making institutions has led to laws made through ‘male lenses thus leading to law that oppress women or affect women indirectly. They argued formal equality would liberate women and the state should ensure that their rights are protected.
What feminism have in common as argued by Patricia Smith is an opposition to the patriarchal ideas that dominate society in general and the legal system in particular. Radical feminists argue that there has been but one official voice, that of the dominant male. Women’s experience has been that of suppression and silencing. The law, the state and the social institutions are all structured in the interests of one class, men, and against the interests of another class, women. They argue that patriarchy must be abolished to achieve a semblance of equality by rejecting traditional gender roles and the ways in which women are presented / constructed in the language, the media, as well as in their personal lives. This ensures the death of stereotypes women face while seeking an elective position.
This is a political philosophy doctrine that is based on equality of people in respect of social political and economic rights and privileges. It states that people should be treated equally or as equals and treat each other as equals. Egalitarian doctrines tend to focus on the idea that all humans are equal in fundamental worth or moral status. The main proponent of the theory is John Rawls whose ideals reflect on the principle of fair equality of opportunity (FEO). Rawls states that justice is the first virtue of social institutions and affirms that equal liberty guarantees equal basic and constitutional liberties for all citizens and ensures equal distribution of certain social and economic resources. Further, this principle has been criticized however it holds valid and important arguments on the issues of non-discrimination especially in the context of sex and class discrimination. Rawlsian fair equality principle on matters discrimination is informed by the concept of social equality and justice theory which extrapolates on the importance of equal treatment of men and women. The equality in egalitarian theory extends to the dignity and worth of an individual. The theory in conjunction with feminist theory expounds on the importance of equal enjoyment of rights and the recognition of the implications of gender laws on either sex.
Egalitarianism further extends to the equality of democratic citizenship and civil liberties. This perhaps has been viewed to be less controversial than formal equality of opportunity (FEO). Democratic equality embraces the norm that political leadership and public officials should be elected in democratic elections. A controversial extension of democratic citizenship resembles Rawlsian equality of fair opportunity applied to the political arena; “equal participation.” Equal participation requires that any individuals in society with the same ambition to influence the political process and the same talents of political persuasion and organization should have equal prospects of influence on the democratic political process.
Drawing this theory back home, women’s positions have revolved around sex norms which are the differentiation of sex in norms and behavior. This connotes that women were and subtly still are enclosed in some structural confinements as to the roles they play in society such as in domestic, educational and economic and others. The reference to women being the second class citizens has been a study focused on investigating the working life, politics and education and how they affect the balance of life of the sexes. 
Egalitarian theory however does not go without criticisms. One outstanding critique is concerning the sex norms. Egalitarian advocates for equality by virtue of equal chance for all and equal participation on the ground of equal qualification. However, it is important to note that the issue of education the logic of egalitarianism holds less water in that women are disadvantaged. Advanced education entails the assimilation of democratic and humanist values and a critical examination of traditional beliefs. There is a direct link between level of education and occupational status and thus the relationship to attitudes towards the equality of the sexes. This can be said to be one of the main constrains of egalitarianism the argument is that once society reaches an equal standing in education then the plain field would be levelled to accommodate all the sexes at an equal competitive ground for opportunities and in this case political opportunity.
The second is the fair equal opportunity principle which as much as it is plausible, it may have radical implications on the social policy and legislation in modern democracies. This means that in an institution where two people with the same qualifications, ambition and opportunity should have the same prospects in success.  This is an ideal concept in that it may favor the ‘most favored’ of the society and leave out those not in a position to acquire these opportunities. The gap will remain to be as wide as it has been by closing off others.  This will therefore beat the logic of having concepts such as affirmative action programs that help narrow the gap. The rationale is that in society, individuals are socialized to believe that it is inappropriate, unladylike for women to aspire to many types of positions of advantage which have been de facto reserved for men and thus in reverse this concept of FEO works against women by indirectly discriminating against them. In this case the difference principle is more effective. This principle connotes that primary and secondary resources are to be distributed by selective standards based on the uniqueness of the set/group of people. 
The provisions of the Constitution of Kenya cater for women’s inclusion in the political arena in both the National Assembly as well as the Senate. The aim of all these is to ensure women’s representation in the male dominated area of politics in Kenya is fully covered. Women make up more than 60% of the country’s population (more than half) and yet in the past have been side lined in participating in the electoral process. The goal of these provisions is to promote diffusion of power and sharing of power between the different classes which is men and women. The constitution sets a minimum amount of women that should be in politics. The provisions are meant to prevent there being a super majority and dominance of a certain class of individual who more often than not are elite men from a particular social class. Women more often than not are seen as the subordinate class and these provisions makes it mandatory for women to be represented in the political leadership.
The constitution in article 27(8) states that the state shall take legislative and other measures to implement the principle that no more than two thirds of members of elective bodies shall be of the same gender. Article 81 (b) “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;” which was the first progressive step to ensure that even if women were the minority gender in the political arena, they had to make a third of the total composition of the National Assembly. This rule vaguely means that even if women eventually became the majority gender in the National Assembly, men would also be protected. The most remarkable step in the direction of promoting women representation in the political arena however was the inclusion of Article 97 (1) (b) “The National Assembly consists of— (a) two hundred and ninety members, each elected by the registered voters of single member constituencies; (b) forty-seven women, each elected by the registered voters of the counties, each county constituting a single member constituency;” The creation of a Women Country representative meant that at least every county had the opportunity to represent its women and that it was mandatory for every county to have representation for the women. This caters for all the women in Kenya and in particular those from areas that had previously had cultural and social barriers blocking their access to an equal representation in the past.
A major move also recorded in the constitution is the Law for promotion of representation of women in Article 100 (a) “Parliament shall enact legislation to promote the representation in Parliament of— (a) women;” Within 5 years there must be a new law to promote the representation of women. Parliament has therefore absconded its duty since it has failed to pass a legislative instrument to promote representation of women.
Yash and Jill Ghai have something to say about the inclusion of women at the county assembly level, in their book. “The situation in the county assemblies will perhaps be easier for women. Right from the beginning there are to be one-third women. And in the smaller assemblies the women members may find it easier to play an equal or more effective role than men.”
In the senate where women’s representation is very vital in the access to a fair governance system as well. In Article 98 (b) (c) and (d) the inclusion of women in the senate provides for at least 22 women out of a total of 67. With this inclusion, it brings the women closer to the county level since they can cater for their gender at the county level…
At the county level, women have been given the opportunity to actually implement the one-third rule where there are to be special seats in county assemblies to ensure that at least one-third of the members are women (and at least one third men) in Article 177 (1) (b) A county assembly consists of (b) the number of special seat members necessary to ensure that no more than two-thirds of the membership of the assembly are of the same gender. Counties have measures to ensure women participate and represented in decision making.
The Constitution of Kenya (Amendment) Bill, (National Assembly Bill No. 4 of 2018) is meant to increase the number of nominated seats to marginalized person. The bill seeks to meet the 2/3 gender rule by creation of special seats The Bill proposes that the number of special seats will be determined after the General Election and shall be shared out depending on the strength of political parties in Parliament. The Bill has failed severally and the refusal by the National Assembly to enact the bill reflects an escalation in a constitutional conflict and has implications on the stability of the constitutional and democratic framework in Kenya.
The bill has faced criticism such as it will increase the wage burden of the tax payers. According to the report done by the Institute of Economic Affairs states that the cost to implement the 2/3 gender principle will be 21.1 million Annual cost of one additional seat in the National Assembly and 31.3 million Annual cost of one additional seat in the Senate. The report concludes by saying that cost of implementation is affordable to the taxpayer.
In the advisory opinion no 2 of 2012 which was sought by the attorney general, the attorney foresaw a constitutional crisis if the 2/3 gender rule was not implemented. The attorney general sought the opinion of the court on whether the 2/3 gender rule was progressively realized or should be achieved during the 2013 elections. The Supreme Court held that the gender rule was progressively realized and the then parliament was exempt. The Supreme Court held that parliament should by 27th August 2015, have found and created a bill to which the two-thirds gender shall be addressed. Parliament extend the deadline by one year
In the case of Centre for Rights and Awareness versus the Speaker of the National assembly and others, CREAW wanted the court to declare that Parliament had failed to enact the required legislation within the required time frame and this was a violation of the Constitution. The Court ordered parliament and the Attorney general to enact the legislation within 60 days after delivery of the judgement and report progress to the Chief Justice. The then parliament failed to enact its constitutional obligation.
“Women’s participation in decision making is essential for ensuring their equality and rights. Where women have participated actively in public policy, they have been able to raise the visibility of women’s issues and work towards ending gender discrimination.” Women constitute more than half of the world’s population, yet their participation in politics or electoral positions is very minimal. It goes without saying that when the electoral environment is patriarchal of prejudiced, women are more often than not prejudiced. Political representation of women has been at the heart of feminist movements and the quest for gender equality for a very long time. However, this goal has faced several criticisms which we will categorize them into socio-cultural, economic and Biblical criticisms.
Being a woman in politics is a very difficult job. Especially living in a patriarchal society such as Kenya where she is constantly being undermined and put down just because she is a woman. The performance of a woman in politics is scrutinized by most people if not all. Her success is not as magnified as her failure. And in such a case, her failure is equated to her being a woman. “They”, well, people, keep saying that such political posts require a male figure as one needs masculine traits in order to deal with such matters. The irony in this comes in when a male politician makes a mistake, rather, makes the same mistake as the female politician; no critics are heard and no one will stand and say, “He failed because he is a man!” There is this notion that women are not as tough as men; they cannot handle the pressure that comes with being a politician. Women are sometimes regarded as too timid to demand what is rightly theirs.
In Hamamsey’s words, “Women’s limited contribution to political leadership may be attributed to their lack of maturity and experience in politics. Their preoccupation in domestic and family duties does not allow them the time or the sustained effort to achieve a position in leadership…” Politics is considered a rough game in which women should not involve themselves in due to their emotional and ‘soft’ nature. Women are culturally perceived as home managers; their primary role being wives and mothers. The impact of traditional upbringing on the women makes them timid in assuming political roles and thereby making men and other women reluctant to vote women into leadership positions in the country.
The gender role ideology creates a fallacy in which women are seen as less superior than men in society. Women are also viewed as dependent beings; this thereby makes them look less capable of taking up and sustaining leadership roles. . The challenge of managing and harmonizing diverse spheres of life is another critique of the inclusion of women in politics. Women have to manage their families, religious beliefs, ethnic community, profession and other alliances. The critique is that pressure from these spheres will prevent women from focusing on what is important for the greater good of the country than that of her alliances
Women develop their vision of leadership from their experiences as young girls growing in a society characterized by gender inequalities. When elected or nominated their priorities are guided by this vision which is limiting. They end up majorly focusing on social issues rather that national issues. This goes to show further why women in Kenya don’t hold high political positions or high public offices e.g. the Presidency, or even the DPP. Wangari Mathaai said, “The higher you go, the fewer women there are.
Women are also believed to be more gullible than men. It is easier to convince a woman than it is to convince a man. This is the reason why women are not trusted when they take political roles and most especially when they are policy makers. Someone with hidden agendas may wrongly influence the woman in power and coax her into making a decision that is not good for the general public.
Politics is increasingly becoming commercialized. More money is needed to participate in politics. There is a strong belief that women lack access to and ownership of resources thereby limiting their scope of political work. Many people believe that the dependent nature of a woman is what makes her succeed in politics. There is a sad notion that women have to use other means like sexual promiscuity in order to get hold of the resources required to join politics.
Women are mostly associated with poverty or rather are seen as not being able to afford a particular lifestyle. Therefore the critique being that they would use their political leadership position to enrich themselves to keep up with a particular lifestyle or any other peer pressure that they may face. This would lead to misappropriation of public funds.
The cost both financial and material cost of including women is seen as an inconvenience. Claims such as women getting pregnant thus not being able to deliver accordingly and time wasted by things such as maternity leave. The inconvenience caused by crafting policy and rules that ensure women are able to participate effectively in the decision making process.
Some critics say that women are not natural leaders. They quote the Bible saying that man was created first and he was created to be the head. The woman was merely created to be man’s helper and she is commanded by the Holy book to be submissive to the man. Many religious bodies consider a woman being head or talking up a political role as a sin. So man scriptures do not support women being in the helm of affairs simply because they are not ‘designed’ or created to do so. This is the reason why the Pope is not a female and has never been a female; this is the reason why Imams are not females; this is why the Archbishop is not a female and will never be a female; this is the reason why Jesus Christ was not a female and why Buddha was not a female. I could go on and on giving examples as the why there is a huge backlash against women in politics today; especially in Kenya.
- Women are socialized to think leadership is male and therefore lack political ambition, sufficient knowledge of political roles and their constituencies. Women’s socialization prevent them from running for positions such as governor or president.
- Women have few resources such as time, financial and human capital. This is tied to obligations in the private spheres, education, employment and community networking skills. Women have little to no control/access to resources hence financial liquidity during campaigns is a challenge. Women are less educated than their fellow men because of culture hence do not have the required qualifications to vie for some elective seats.
- Women face sexual and physical violence. This types of violence is gendered and is meant to intimidate women from participating in elections.
- Sabotage within political parties. Political parties are male dominated and any woman trying to challenge the male dominance will face a lot of challenges such as being excluded from nomination.
- Suppression by male counterparts once elected therefore do not have the power and capacity to drive policy. Women’s leadership is seen as a threat to the status quo.
- Gender stereotypes fueled by culture and religion which hinder women access to political positions. Patriarchy perception of women imposes a glass ceiling on women viability in seeking elective positions.
- Women and men are held to different standards. Women are judged based on their family, clothing as well as their political agenda whereas men are not subjected to the same standards.
- Creating awareness targeted at both sexes which seeks to break existing patriarchal depictions of women as belonging to the private sphere.
- Capacity building programs for women which will impact service delivery skills such as lobbying and strategic campaigning skills.
- Independent Electoral and Boundaries Commission according to article 88 of the Constitution should regulate the amount of money that may be spent by a candidate or party thus ensuring women are not locked out because of lack of financial resources.
The principle of inclusion, equality and protection of the marginalized should permeate throughout the whole society particularly in elective positions. There is a need for women to participate in decision making because it ensure their voices and exclusion of women from politics will led to their exclusion in other areas.
The inclusion of women in politics involves radical politics that go beyond gender quotas. The power wielded in political parties should not be exclusively for men, campaigning funding should be regulated, cultural ideas about women in leadership should be debunked and pervasiveness of violence in elections should be rooted out. This route will ensure that the root causes that prevent women from participating in elections are rooted out.
According to the NDI and FIDA Report: A Gender Analysis of the 2017 General Elections, the National Assembly is 78.5% male and 21.5% female while the Senate is 68.6% male and 31.3% female: both bodies are therefore illegally constituted as they exceed 67% of the majority gender in violation of Articles 27(8) and 81(b). This implies that the Parliament and Senate is unconstitutionally constituted. Parliament has also failed to enact the principle of 2/3 gender rule after being given a directive by the high court. Thereof according to article 261(7) the chief justice should advise the president to dissolve the parliament and the president is required to do so. Article 3(2) states that any attempt to establish a government otherwise than in compliance with this Constitution is unlawful.
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Compiled by Emily Wandaka