Two-thirds rule hurts rather than help cause of women's liberation

Chief Justice David Maraga’s advisory opinion to President Uhuru Kenyatta to dissolve Parliament for its failure to legislate on the two-thirds gender rule reinforced my scepticism about applying gender-based formulas in society broadly but in national legislatures in particular.

Reserving seats for women in Parliament appears to be a good thing. However, since the implementation of the 2010 Constitution, the formation of reserved seats for women in the National Assembly has had several unintended consequences of holding back the advancement of women’s rights rather than advancing them.

The principle requires that no more than two-thirds of officials in an elective body are to be of the same gender. This has resulted in women candidates running for peripheral reserved seats such as Woman Representative rather than the more influential ones that are open and have more power, such as senator, governor or even MP.

The fact that there are special woman-only seats, not open to fair competition, delegitimises the mandate of women elected on these reserved seats. Other candidates — male, gender non-conforming or transgender — may have been better qualified.

Reserved seats

 In addition, that women are settling for reserved seats is not only extremely patronising to them but reinforces the very structures of patriarchy that they are trying to bring down.

Besides, when nominated women MPs make it into the Legislature, they find themselves voting against women’s interests simply based on the fact they are proxies in legitimising a patriarchal structure because it is mostly the male power barons of the parties that sponsor them to these reserved seats and/or nominate them to Parliament.

While on the surface the seats reserved for women appear to increase their role, they tend to reinforce the tokenism and paternalism that Kenyan male parliamentarians have towards women.

The implication is that, once these seats are awarded to women by a male-dominated Parliament, gender parity is reached. Nothing could be further from the truth.

No clear criterion

 In addition, there is no clear criterion to justify the creation of these special seats for women affected differently by systemic structures of male patriarchy. The plight of women in Kenya is different in various parts of the country.

 For instance, a woman in central Kenya — which has a bigger economy and larger spending power per capita relative to the northeastern region — has the same access to these reserved seats.

There is something inherently unfair about that. Reserved seats for women suggest a parity in terms of how they are divided regionally yet the ability to access them in different parts of Kenya is not the same for economic, infrastructural and educational reasons.

The advancement of the women’s rights will be achieved by expanding the political and economic opportunities for all women; in other words, democratising the political and economic space to afford women more opportunity to get elected. Women being 52 per cent of the population, electing more of them to office should not be rocket science.

The gender rule leaves Kenya on the precipice of a constitutional Armageddon. Reserving seats for women is potentially unconstitutional, given the Supreme Court’s equal voting rights and gender equality provisions.

The poor attempt at affirmative action policy to increase the number of female legislators will hurt rather than help the cause of enfranchising women.

The State need to confront the structural challenges that hinder women from being elected to office by creating more opportunities for them to challenge men for power on an equal basis. Reserved seats delegitimise women’s political power and feed the cynicism and tokenism implicit in the awarding of seats.

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