September 25 2017 0Comment

Background and current status of the not more than 2/3rds principle

The Constitution of Kenya has ushered in a new beginning for the women of Kenya as it guarantees key fundamental rights and freedoms which include but are not limited to the right of the participation of women in democratic governance.

Provisions such us  Article 26 (6), Article 27 (8) and  Article 81 (b)  which secure affirmative action aim to reduce  gender imbalances in leadership positions by providing that no more than two-thirds of the members in any elective or appointive positions such shall be of the same gender.

The not more than two-thirds gender principle recognizes that certain sectors of the society, historically women, have been marginalized by the political system thereby requiring that the state put in place measures, to guarantee their right to equality. This right to equality is interpreted as requiring the elimination of historically rooted patterns of prejudice, discrimination and disadvantage that contribute to the subordination and exclusion of women.

The failure of Parliament to put in place legislative measures to ensure that the not more than 2/3rds principle is met within Parliament threatens to perpetuate the status quo where  women continue to be marginalized from decision making spaces particularly at the national level . In addition there is a real threat of a constitutional crisis  in the event that a mechanism is not in place ahead of the 2017 general elections. Aside from the fact that the not more than two thirds same gender principle goes to the heart of the inclusivity and non-discrimination principles that are among the foundation and pillars upon which the Constitution of Kenya 2010 is grounded, it must be noted that all other celebrated gains enshrined in the Constitution such as socio-economic rights, land rights, equality rights including in marriage and dissolution of the marriage are equally threatened if we lose out on the not more than two thirds same gender principle. This is because the exclusion of women in the social, cultural and economic sphere is grounded in the unequal power structures particularly in leadership and decision making which contribute immensely towards reinforcing their exclusion in all other spheres.

However, while the Constitution provides a mechanism for the actualization of this principle in the County Assemblies in Article 177 (b), there is no mechanism provided to realize this principle in the National Assembly and the Senate.  This constitutional quagmire was the subject matter of the Supreme Court advisory opinion of 11th December, 2012 in which the court gave a specific timeline of August 27th 2015 for a mechanism to be in place to actualize the not more than two thirds gender principle.

Following this directive, the Attorney general constituted a multi sectoral technical working group to develop an affirmative action bill and in addition various members of parliament also developed diverse affirmative action and Constitutional amendment Bills seeking to either progressively realize affirmative action or altogether do away with it. However by May 2015 these parallel processes had not resulted into legislation forcing further Court action which resulted in a ruling from Justice Mumbi Ngugi directing Parliament the Attorney General and the CIC to have in place legislation before the August 2015 deadline.

In order to avoid failing to meet the August 2015 deadline Parliament exercised its power  under Article 261 of the Constitution ,to extend the deadline by a period of 1 year  which   lapsed in August 2016.

On the 5th September 2016, two Noon Governmental Organizations Centre for Rights Education and Awareness (CREAW) and CRAWN trust moved the High Court in Nairobi High Court Petition No. 371 of 2016 to declare that the failure by Parliament to enact the required legislation within the time frame specified in the Supreme Court Advisory Opinion and the Constitution was a violation of the Constitution.

On the 29th March 2017, the High Court rendered judgment in the Nairobi High Court Petition No. 371 of 2016 to declare that the failure by Parliament to enact the required legislation within the time frame specified in the Supreme Court Advisory Opinion and the Constitution was a violation of the Constitution.

The High Court further issued orders directing Parliament to enact the required legislation within a period of sixty days. The period lapsed without Parliament enacting the required legislation to implement the two-thirds gender principle. Parliament went on recess on 28th May 2017 without enacting the necessary legislation to bring Parliament into compliance with the constitutional requirement on the two-thirds gender principle.

On the 8th August 2017, Kenya held its second general election under the 2010 Constitution. Ultimately, there was reasonable apprehension that the elections would not return sufficient numbers of elected Members of the National Assembly and the Senate necessary to meet the one-third-to-two-thirds gender-principle crystallized.

In the just concluded elections, twenty three (23) women were elected. However, to meet the two thirds gender principle, the National Assembly requires one hundred and seventeen (117) Members being of the opposite gender. So with the current count of twenty three (23) elected women Members of the National Assembly, forty seven (47) County Women Representatives, and six (6) women members to be nominated to fill half the twelve (12) slots reserved for members nominated from parliamentary political parties, the total House count is seventy six (76). This creates a shortfall of 41 women in the National Assembly.

In the Senate, the threshold for the not more than two-thirds gender-principle is twenty three (23) members of either gender. Three (3) women members were elected at the ballot, sixteen (16) women members to be nominated by parliamentary political parties, one (1) woman member to be nominated to represent the youth, one (1) woman member to be nominated to represent persons with disabilities. Thus the count for the Senate will be twenty one (21), creating a shortfall of two (2).

It is in this regard that CREAW and CRAWN Trust have filed a suit in the High Court of Kenya seeking the following orders

  1. A DECLARATION that the composition of the National Assembly and the Senate has failed to meet the constitutional threshold of the not-more-than two thirds gender principle.
  2. A DECLARATION that the failure by Parliament to meet the not-more-than two thirds gender principle contemplated under Articles 27(8) and 81(b) amounts to a violation of the rights of women to equality and freedom from discrimination and a violation of the Constitution.
  3. An order in the nature of Mandamus directing Parliament that the first and only order of business is to pass the necessary legislation to implement the not-more-than two thirds gender principle.
  4. Any other or further orders that this court may deem fit to grant to meet the ends of justice.
  5. Costs of the Petition.

To date Kenya National Human Rights Commission, Law Society of Kenya, National Gender and Equality Commission have joined the suit as interested parties and as amicus curae. The case proceeds to full hearing on the 20th of September 2017

Advocacy strategies

The consortium is implementing the following strategies

  1. Supporting women candidates who lost to better negotiate for space on the nomination lists that will be presented to top up the additional numbers of women required to achieve the not more than two thirds principle in Parliament
  2. Meeting with members of Parliament to sensitize them on the importance of passing the legislation on not more than two thirds and ensuring they vote for the bill once it is introduced for debate
  • Re-imagining and strengthening the women’s movement by re-energizing and mobilizing women led groups in the 47 counties around key issues of concern for women. This will ensure there is a critical mass amplifying the needs and priorities of women and driving engagement on these issues at both County and national level.
  1. With regard to the case coming for hearing on 20th October 2017. The parties in the case will mobilize women for a march to both Parliament to present a petition on two thirds to the speakers of the National Assembly and Senate and also attend the court case at the High Court
  2. Step up pressure to Parliament through the diplomatic community in Kenya and regional bodies such as the African Union, East African Legislative Assembly etc.

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