VIOLATION OF WOMEN’S RIGHTS TO EQUITABLE REPRESENTATION AND PARTICIPATION IN GOVERNANCE IN KENYA
Introduction
Kenya has a patriarchy problem which is compounded by a constitutionalism problem. The system of governance is a phallocracy in which state power has been historically framed as a male affair, with the foregrounding of the phallus as a symbol for power and leadership (Musila, 2009). The representation of women in Kenya’s parliament is the lowest in East Africa at a measly 23.6%, trailing Rwanda (63.8%), Ethiopia (38.8%), Tanzania (36.6%), Burundi (36.4%), Uganda (33.5%), South Sudan (26.5%), and Somalia at 24.4% (Nyabola, 2018).
Constitutional Framework
The drafters of the 2010 Constitution vested positive obligations on the state to use the necessary instruments to create equitable institutions to redress impediments to the representation and participation of women. Article 27 has several provisions on equitable political rights borrowing heavily from provisions of the Convention on the Elimination of Discrimination Against Women (CEDAW) and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women (Maputo Protocol). Article 27 (8) specifically provides that, “…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.” It is fortified by Article 81 (1) (b) to the effect that the electoral system shall comply with the principle that not more than two-thirds of the members of elective public bodies shall be of the same gender.
Parliament
There was no legal or institutional framework to ensure compliance with the two-thirds gender rule for parliament in the first general election under the new constitution. The Attorney General sought an advisory opinion from the Supreme Court as to whether implementation was immediate or progressive. The Supreme Court in Advisory Opinion №2 of 2012 held that implementation was progressive. It declared that relevant legislative measures should be taken by 27th August 2015. It is paradoxical that the Supreme Court subjected civil and political rights encoded under Article 3 of International Covenant on Civil and Political Rights (ICCPR) and Article 3 of CEDAW to progressive realization yet crystallization of such rights is dependent on political good will rather than resource availability.
Parliament failed to enact the requisite legislation by 27th August 2015 as directed by the Supreme Court. It defied several High Court orders to do so. An attempt to pass the relevant legislation in April 2016 failed. Male legislators simply left the legislative chamber and opted to go to the parliamentary bar instead (Nyabola, 2018). There was no legislation in place by the final constitutional deadline of 27th August 2016. In Petition 317 of 2016, the High Court directed Parliament to enact the required legislation within a period of 60 days, failure to which any person would be at liberty to petition the Chief Justice to advise the President to dissolve parliament per Article 261 (7) of the Constitution. Parliament defied the court order. In September 27 2017, #WeAre52pc, an intersectional feminist collective, presented a petition to the Chief Justice requiring him to advise the President to dissolve parliament in accordance with the Constitution (Kamaru, 2018). The Chief Justice is yet to action the petition to date. The unconstitutional parliament continues to ride roughshod over the Constitution as it has no legitimacy to legislate.
The Cabinet
The cabinet is equally unconstitutional by virtue of failure to comply with the two-thirds gender rule. In December, 2015, the President reconstituted the cabinet and appointed a total of 23 cabinet members 18 men and 5 women. The court in Petition 566 of 2015 declared the cabinet unconstitutional as the male appointees at 78% exceeded the maximum constitutional threshold of 67% (two-thirds) (Kamaru, 2018). In 2017, the President defied the court and appointed a cabinet comprising of 75% men which is currently in office unconstitutionally.
The Supreme Court
The inaugural Supreme Court under the 2010 Constitution was constituted in 2011, comprising five men and two women. Activists faulted the composition for flouting the two-thirds gender rule, as no gender should exceed 66.7% and no gender should fall below 33.3% yet the male gender comprised 71.43% while the female gender comprised 28.57%. In a judgement in Petition №102 of 2011, the High Court dismissed the petition using sexist language to the petitioners that, “…we advise that you keep your feminine missiles to their launch pads until the state acts on policies and programs as envisaged…” Subsequent petitions challenging the composition of the Supreme Court on basis of the 50–50 African Union gender parity principles have also been dismissed. Feminist scholars have faulted the court rulings and reiterated that the Supreme Court is mathematically unconstitutional as its composition doesn’t adhere to constitutional percentages (Kamaru, 2018)
Conclusion
Kenya’s parliament, cabinet, and Supreme Court are unconstitutional (Kamaru, 2018). The unconstitutionality is a debasement and desecration of democracy rooted in the disdain of women as being disposable. The Kenyan state has failed its obligation to observe, respect, protect, promote, and fulfil women’s representation and governance rights. What will be the way forward if the constitution and the courts have failed? A revolutionary social movement? As Zeleza (2006) points out, it is well to remember apartheid was not ended either by a book or a court case neither were colonialism nor slavery…”.
References
Kamaru, M. (2018). The Missing Piece: The Legislature, Gender Parity and Constitutional Legitimacy in Kenya. In: N. Nyabola and M. Pommerolle, ed., Where Women Are: Gender & the 2017 Kenyan Elections. Nairobi: Twaweza Communications, pp.190–207.
Musila, G.A., 2009. Phallocracies and gynocratic transgressions Gender, State power and Kenyan public life. Africa insight, 39(1), pp.39–57.
Nyabola, N. (2018). A Seat at the Table; The Fight for Gender Parity in Kenya. In: N. Nyabola, ed., Where Women Are: gender & the 2017 Kenyan Elections. Nairobi: Twaweza Communications, pp.50–57.
Nyabola, N. and Pommerolle, M. (2018). Where Women Are: Gender & the 2017 Kenya Elections. Nairobi: Twaweza Communications Ltd, pp.12–207.
Zeleza, P. (2006). The Struggle for Human Rights in Africa. In: C. Heyns and K. Stefiszyn, ed., Human Rights, Peace and Justice in Africa; A Reader. Pretoria: Pretoria University Law Press (PULP), pp.42–48.
