Ruto letter gives impetus to gender rule quest
President William Ruto. He has proposed that Parliament implement the two thirds gender rule.
What you need to know:
- Previous attempts to enact a gender law hit a brick wall; however, the move by President William Ruto has given hope that the principle could soon become a reality.
- Dr Ruto last week wrote a memorandum to the speakers of the National Assembly and the Senate that, among other proposals, included the need to enact the two thirds gender rule.
The push to implement the two thirds gender rule has gained momentum following the move by the Executive to have the constitutional requirement implemented.
Previous attempts to enact a gender law had hit a brick wall. However, the move by President William Ruto has given hope that the principle could soon become a reality.
Dr Ruto last week wrote a memorandum to the speakers of the National Assembly and the Senate that, among other proposals, included the need to enact the two thirds gender rule. He urged MPs to implement the constitutional threshold of gender representation.
The President is proposing a top-up of 40 more women in the National Assembly and the Senate. The maximum number required to meet the two-thirds threshold is 26 in the National Assembly and 14 in the Senate.
“It is regrettable that implementation has become a conundrum. There is a profound sense that we have failed Kenya’s women and I believe it is time to make a decisive breakthrough,” the letter reads.
He registered his commitment to avoiding the Executive being plunged into a stalemate with the Judiciary as witnessed under former President Uhuru Kenyatta’s term.
“It is important to recall that in 2020, the Chief Justice (Rtd) wrote to the President calling for the dissolution of Parliament due to its non-conformity with the two-thirds gender inclusion principle,” he stated.
The Head of State justified the cost implication that will come with the implementation of the rule.
“Investment in women's empowerment would be worthwhile and would pay off eventually. I believe that trading off the increase in the parliamentary wage bill with the achievement of compliant inclusion of women in Parliament is eminently worthwhile. I, therefore, encourage you to seriously consider it.”
If implemented, this will be the first time the country will have fulfilled the wishes of the 2010 Constitution, which seeks to enhance women’s representation and participation in political leadership.
The gender rule mandates the state to take steps to ensure not more than two-thirds of members of all elective and appointive positions are of the same gender. However, 10 years after the enactment of the supreme law came into force, no relevant law is in place to guide enforcement of the provision.
The gender rule dilemma stalked the 10th, 11th and 12th parliaments, with their four attempts to enforce the rule failing to find a solution. Representation of women in Parliament has been, and remains, minimal, with currently only 22 per cent membership being female.
Only 9.8 and 20.7 per cent of the 10th and 11th parliaments respectively composed of women, making it the lowest in East Africa.
Last election
According to the August 9 election, at least 29 women MPs were elected to Parliament from single mixed-gender constituencies. This is a 30 percent increase from 2017 when only 29 were elected. One of the MPs, Alice Wahome (Kandara), has since resigned after her appointment as Water Cabinet Secretary. The National Assembly also has 47 women representatives and six nominated women.
In the Senate, only three women were elected. The Senate comprises 67 members, including 15 nominated women.
And even if this year's elections marked the highest number for women to ever be elected, the two thirds gender principle remained a pipe dream.
In September 2020, then Chief Justice David Maraga caused a storm when he advised former President Kenyatta to dissolve the 12th parliament over failure to implement the gender rule. He advised Mr Kenyatta to dissolve Parliament in accordance with Article 261(7).
“In the circumstances, let us endure pain, if we must, if only to remind ourselves, as a country, that choices, and particularly choices on constitutional obligations, have consequences. Let us endure pain if only to remind the electorate to hold their parliamentary representative accountable. We must say no to impunity and hold everyone accountable for their actions and omissions,” the advisory read.
The retired CJ noted that besides the Supreme Court Advisory Opinion issued on December 11, 2012, and the High Court order issued on June 26, 2016, in constitutional Petition No 182 of 2015 on March 29, 2017, Justice Mativo directed Parliament and the Attorney-General to take steps to ensure the required legislation is enacted with 60 days from that date and a report made to his office.
“As such, for over nine years now, Parliament has not enacted the legislation required to implement the two thirds gender rule, which the Court of Appeal observed in its judgment, is clear testimony of Parliament’s lackadaisical attitude and conduct in this matter. Consequently, it is my constitutional duty to advise you to dissolve Parliament under Article 261(7) of the Constitution,” he said.
Petitions
In July 2020, the Law Society of Kenya sought to compel the President to dissolve Parliament for failing to initiate implementation of constitutional provisions that would ensure gender balance in both levels of government.
This was the third time a petition had been submitted to the CJ over the same issue. On April 10, 2019, Margaret Toili petitioned Justice Maraga, requesting dissolution of Parliament, but he dismissed it citing a Bill that was in the House. Toili’s case was followed by a similar petition by Stephen Owoko and John Wangai, whose bid also failed to succeed.
In December 2012, the Supreme Court directed the government to implement a progressive approach in filling the gender gap by August 27, 2015. However, despite the directive, nothing happened.
After the expiry of the 2015 deadline, the Centre for Rights Education and Awareness (Creaw) and the Community Advocacy and Awareness (Crawn) Trust sued Parliament at the High Court for violating the law. The lobbies said lawmakers failed to enact necessary regulations that would see the two-third gender rule implemented.
In March 2017, Justice Mativo ruled the bicameral legislature violated women's rights to equality and freedom from discrimination. He directed both the bicameral parliament to enforce the gender rule within 60 days. The order was not implemented.
Immediately after Maraga gave his advisory, Crawn-Trust), a rights organisation which has been at the forefront of fighting for the implementation of the two-thirds gender rule praised Mr Maraga for standing with women.
“On two-thirds gender principle, Maraga has been a friend to the women's movement in Kenya. He will be remembered for his stand on the independence of the Judiciary and the fight to uphold the rule of law,” it tweeted.
The organisation urged other leaders to emulate Mr Maraga’s boldness, passion and respect for the rule of law and for justice to be the nation’s shield and defender.
