The Woman Rep myth: How a non-existent sunset clause became political fact

Recently, a veteran political journalist suggested that women should be warned that the affirmative action seat of the county Woman Member of the National Assembly will cease to exist after the 2027 elections.  

Although the Independent Electoral and Boundaries Commission officially recognises them as county Woman Members of the National Assembly, they are popularly known as Woman Representatives. 

He argued that the position was created with a 20-year sunset clause. In a separate interview, a female elected MP made the same claim.

Misinformation gaining traction 

A scroll through social media suggests the misinformation is already gaining traction. 

On December 3, Immaculate Shamala, who unsuccessfully contested the Trans Nzoia Woman Representative seat, addressed the issue in a Facebook post. 

“The position of County Woman Representative has no constitutional sunset clause,” she wrote. 

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“The widely circulated claim of a 20-year limitation is not supported by the Constitution of Kenya or any enabling statute. Since no sunset clause was inserted at the time of enactment, the office remains valid, operational and continuous unless altered through the formal constitutional amendment process.” 

She acknowledged that she, too, had previously believed the seat had a time limit. 

“This was also an awakening for me, as I had previously assumed that a time limit existed,” she said. 

The facts 

The Constitution of Kenya (2010) is the principal document governing membership of both Houses of Parliament. 

Article 97(1)(b), which outlines the composition of the National Assembly, provides for 47 women, each elected by registered voters in a county.  

Each county constitutes a single-member constituency for this purpose, just as the 290 constituencies elect individual MPs. 

The distinction is that County Woman Members of the National Assembly represent entire counties, including all constituencies within them, whereas MPs represent only their respective constituencies. 

This article, however, contains no indication whatsoever of any sunset clause attached to this affirmative action seat.

A history to the claim

But there is a history to this claim. It goes back to the constitutional-making process and the various bills that sought to enact laws aimed at securing fair representation of women in Parliament.

The 2002 Ghai Draft, formally known as the Constitution of Kenya Review Commission Draft, proposed a mixed-member proportional system.  

It required that 50 per cent of top-up members be women, allowed independent candidates to reduce women's dependence on party nominations, and sought to ensure fair representation of women in the second legislative chamber (Senate) as well as district and local councils (county assemblies). 

The 2005 Wako Draft (The Proposed New Constitution of Kenya) proposed the election of women from special constituencies that were to be established by law. 

Then came the final report of the Committee of Experts on Constitutional Review in 2010. It noted that the Parliamentary Select Committee on the Review of the Constitution had introduced several changes to the composition of Parliament. 

It retained the mandatory 290 constituency seats in the National Assembly while also preserving 47 seats for which only women could contest. 

“This was an effort to ensure that the one-third requirement for gender representation agreed in the earlier drafts as well as the affirmative action requirements of the Review Act were met,” the report states. 

“Although the 47 seats set aside for women in the Revised Harmonised Draft Constitution did not itself meet the requirement, these seats were important in establishing a minimum threshold towards the constitutional target.” 

None of these constitutional drafts or review documents contains a sunset clause. 

The idea first appears in Constitution Amendment Bill No. 4 of 2015, popularly known as the Duale I Bill after its sponsor, Aden Duale, who was then the Leader of the Majority Party in the National Assembly. 

The Bill never became law. 

Not fully rooted in the public imagination 

The fact that the affirmative action seat exists to address the longstanding under-representation, and in some cases near absence, of women in Kenya's law-making institutions does not appear to have fully taken root in the public imagination. 

In 2015, then Gatundu South MP Moses Kuria, launched the Punguza Mzigo initiative, which sought to abolish affirmative action positions, including those of County Woman Members of the National Assembly.  

He described the seats as a burden on taxpayers, whom he referred to as “tired donkeys”. 

A year later, a man in Bungoma drew national attention after declaring his intention to contest the Bungoma Woman Representative seat.

 Last July, comedian and activist Eric Omondi revived calls to scrap the County Woman Members of the National Assembly positions as part of a broader proposal to restructure Kenya's devolved government.  

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He argued that the country has too many elected and appointed leaders. 

Desire Njamwea, Assistant Director for Legal and Investigation at the National Gender and Equality Commission, said the persistence of claims that the seats would automatically expire reflected a disconnect between public perception and the constitutional process.

 “During the negotiations, there were suggestions from different quarters that the position should be for a limited period. But what was finally adopted did not include a sunset clause,” he said.
 
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