Unpacking the gender top-up rule: Fact, fiction and constitutional change
Kenya Women Parliamentary Association members at Parliament Buildings on August 29, 2018.They protested against delayed passage of two-thirds gender rule.
What you need to know:
- Confusion persists in political and gender circles over whether the Constitution carries a gender top-up sunset clause; experts confirm it does not exist in the current supreme law, but only in the proposed 2025 amendment bill.
- Previous attempts by former Majority Leader Aden Duale sought to introduce expiry limits for affirmative action seats in Parliament and county assemblies, but the bills collapsed without the required two-thirds support.
Debate continues to swirl among members of county assemblies and professionals in the gender and media space over one contentious issue: the so-called gender top-up sunset clause. Some maintain it exists in the Constitution, while others insist it does not. So, what is the truth?
“It does not exist in the current Kenyan Constitution, but it does in the Constitution of Kenya (Amendment) Bill,” Dr Jacob Otachi, a constitutional lawyer, clarified.
The Bill he is referring to is the Constitution of Kenya (Amendment) Bill, 2025, drafted following the recommendations of the Multi-Sectoral Working Group on the Realisation of the Not More Than Two-Thirds Gender Principle, which proposed amendments to articles on the membership of the National Assembly and the Senate.
It recommended amending Article 97(1) to provide that “the number of special seat members necessary to ensure that no more than two-thirds of the membership of the National Assembly are of the same gender.” For the Senate, it recommended a similar change to Article 98(1).
This mirrors what is already provided for in the membership of county assemblies in the Constitution. At present, for the National Assembly and the Senate, the number of gender top-ups is fixed: 12 members – not limited to women – nominated by parliamentary political parties, according to their proportion of members of the National Assembly, to represent special interests, including youth, persons living with disabilities, and workers.
In the Senate, 16 women are nominated according to their party strength, together with two members – one man and one woman – representing the youth, and another two – one man and one woman – representing persons with disabilities.
In contrast, Article 177(1b) on the membership of county assemblies is open. It allows for nominations to fill the number of special seats necessary to ensure that no more than two-thirds of the assembly members are of the same gender.
The constitutional amendment now seeks to align the provisions for the National Assembly and the Senate with this approach so that the number of seats is determined after the declaration of general election results.
However, there is a catch, one that was not part of the Multi-Sectoral Working Group’s recommendations. The amendment introduces a sunset clause: that this affirmative action shall elapse 20 years from the date of the first general election following commencement of the Act.
Parliament may, however, enact legislation to extend the period for one further fixed term, not exceeding 10 years. This extension would require support from not less than two-thirds of all members of the National Assembly, and not less than two-thirds of all county delegations in the Senate.
So, how did it come to be believed that such a clause already existed? Well, there were indeed attempts – two of them – that never saw the light of day. These were associated with Aden Duale. He was the sponsor of two constitutional amendment bills while serving as Majority leader of the National Assembly during the 11th Parliament (2013–17) and the 12th Parliament (2017–20).
He introduced the Constitution of Kenya (Amendment) (No. 4) Bill, 2015, popularly known as Duale I, following the 2012 Supreme Court Advisory Opinion, which required Parliament to enact legislation to implement the gender principle by August 27, 2015.
The Duale Bill proposed that beneficiaries of special nominative seats be entitled to a maximum of two terms. It further provided that the affirmative action provisions creating special seats in the National Assembly, Senate and county assemblies elapse 20 years after the first elections held following the enactment of the Bill. However, it failed to pass. Parliament was unable to muster the two-thirds majority required for a constitutional amendment.
Mr Duale later introduced the Constitution of Kenya (Amendment) (No. 6) Bill, 2015, known as Duale II or the “Compromise Bill”, which contained minor variations. Unlike Duale I, which provided for an automatic expiry of the affirmative action clauses, the Compromise Bill proposed that Parliament extend the provisions by a further fixed period not exceeding 10 years, with the support of two-thirds of all National Assembly members.
Despite being published, the Bill was never debated. It expired at the end of the 11th Parliament. And so, the reality remains: there is no sunset clause for the affirmative action provisions in the Constitution.
