The deadline for passing the gender Bill lapsed on August 27 but women’s participation in political processes and their representation in decision-making remains muted.
Not a single governor is a woman, only one-fifth of the National Assembly and a quarter each of the Senate and President Uhuru Kenyatta's cabinet consists of women.
Appointments to the diplomatic corps, the Supreme Court and the Court of Appeal also do not meet the two-thirds gender principle, finds a Nation Newsplex review of statistics on public employment and elective as well as appointive positions.
Six years after the promulgation of the Constitution, which states that no more than two-thirds of elective or appointive public bodies shall be of the same gender, the mechanisms for implementing the principle are yet to be established.
Twice this year − on April 28 and May 5 − the National Assembly rejected the Constitution Amendment Bill (No. 4) of 2015, which sought to ensure a more equitable gender representation in Parliament.
Many MPs boycotted the vote despite months of lobbying and the Bill failed to get the 233 votes it needed to pass the second reading. Of the 199 members present during the May 5 vote, 178 voted yes, 16 voted no and five abstained
Following the Attorney-General’s request for an advisory opinion on the gender requirement in Parliament, the Supreme Court on December 11, 2012 delivered a majority decision that the realisation of the principle is progressive.
The Court gave Parliament up to August 27, 2015 to come up with legislation on how the rule would be met in the next Parliament, but MPs exercised their right to extend the deadline for passing the Bill to implement the Supreme law by one year.
In the National Assembly, 69 of the 349 seats (20 per cent) are held by women, despite affirmative action measures that guaranteed women 47 seats in the 2013 General Election. Kenya’s supreme law, in Articles 27(8) and 81(b), requires that no more than two-thirds of people elected or appointed to public bodies consist of one gender.
The Senate, where 18 of the 68 members are women (27 per cent), also falls short of the two-thirds gender rule. Every female senator made it to the House through seats allocated solely to women in the Constitution and through nominations by political parties to represent special interests.
The picture is much the same in the Executive arm of the government. Of the 20 Cabinet secretaries, only five are women, making up 26 per cent, a drop of seven per cent from President Kenyatta’s initial Cabinet.
The women include Cabinet Secretary for Public Service, Youth and Gender Affairs Sicily Karuiki, Judy Wakhungu (Environment and Natural Resources), Amina Mohamed (Foreign Affairs), Phyllis Kandie (Labour, Social Security and East African Affairs) and Raychelle Omamo (Defence).
The share of women among principal secretaries is much better. Fifteen of 41 posts (37 per cent) were held by women in 2015, an increase of 10 per cent over the previous year. Sixty-two of the 204 (30 per cent) of deputy secretaries are women.
The Newsplex analysis found that 17 of 64 diplomats were women, making up 27 per cent of the appointment in 2015.
County governments also failed to meet the gender principle. For example, there is no female governor. There are, however, nine (19 per cent) nominated deputy governors.
Statistics from the 2016 Economic Survey show that other categories where the constitutional threshold of two-third was met were judges, magistrates, lawyers, county commissioners, and members of county assemblies.
The analysis, done jointly with the Institute of Economic Affairs (IEA), found that by mid-this year, of the seven Supreme Court judges, two were women (29 per cent), which is slightly below the constitutional requirement. Eight of 26 Court of Appeal judges are women (31 per cent). With 231 (39 per cent) women magistrates, the position meets the two-thirds gender rule.
By providing in Article 177 (b) that “…a county assembly consists of the number of special seats members necessary to ensure that no more than two-thirds of members of the assembly are of the same gender”, the Constitution guaranteed that the devolved units had no option but to implement the gender principle unlike what happened at the national level.
Of the total 2,249 members of county assemblies, 751 (33 per cent) are women. There are 18 women county commissioners out of 47 (or 38 per cent).
The sub-county commissioners, on the other hand, do not meet the constitutional requirement. Thirty-five of the 295 (12 per cent) are women.
To analyse appointments to parastatals and boards, Newsplex and the IEA examined Kenya Gazette issues from 2013-2014 and found that 34 per cent of overall appointments for various leadership positions went to women while 66 per cent to men.
In 2014, the overall appointments of women to various leadership positions increased marginally to 37 per cent, a growth of three per cent. In both years, appointments for leadership positions adhered to the constitutional provision.
However, this is not to say that all public institutions observed the minimum threshold. Some appointments in specific organisations did not meet the gender principle.
Kenya is not unique in its pursuit of gender equity in a political system where women are grossly underrepresented. Of the 37 countries that had more than 30 per cent women in the lower houses of parliament as of November 2013, 30 (81 per cent) use some type of gender quota.
One of these countries is Rwanda, where the share of women in the country’s Cabinet is 39 per cent. Women constitute 63 per cent of Finland’s Cabinet, the highest in the world. It is followed by Cape Verde with 53 per cent and Sweden with 52 per cent.
One of the arguments consistently made by those opposed to the gender principle is that it will expand the already large Parliament, making it too costly for the Kenyan taxpayer.
However, a 2015 study by IEA, based on estimates of Recurrent and Development Expenditure of the Parliamentary Service Commission for the year ending June 30, 2014 and Projections for 2014/2015-2016, found that even in the worst-case scenario, where no woman is elected to the National Assembly and Senate except for the 47 County Women Representatives, the additional cost would not be prohibitive to taxpayers.
In this scenario, the additional cost would be Sh2.4 billion, an increase of less than 10 per cent to the annual Parliament budget of about Sh24.5 billion (1.5 per cent of the national Budget). In this most expensive, yet least likely scenario, implementation of the rule would cost Sh58 per Kenyan annually.
The maximum cost of fully implementing the two-thirds rule in both houses is way less than the public money Executive agencies and the Judiciary failed to account for in reports by the Auditor -General and what the government is owed by defaulters. For example, according to the 2014-2015 Auditor-General Report , the State is owed Sh21.4 billion by various institutions which had defaulted by the end of the 2015 fiscal year. That amount is eight times more than the maximum amount it would cost to implement the two-thirds principle.
The 2015 study also found that every additional seat added to the Senate would cost taxpayers roughly Sh31.3 million. If no woman is elected to the Senate, which happened in 2013, and seven seats must be added for full compliance with the two-thirds rule, the cost would be an additional Sh218 million, or an increase of less than three per cent to the Senate’s budget. This amount is less than the Sh220 million the Independent Electoral and Boundaries Commission for supplies of printer that were not supplied, according to the latest Auditor General’s report.
Senators on Wednesday failed to vote for the Bill due to lack of quorum. Out of the 67 members only 22 men and six women were present.
After the August 27 deadline, representatives of women are likely to sue and compel the President to dissolve Parliament as a way of sending the message that lawmakers must respect the Constitution.
“While the courts will likely allow the legislative process to end before dissolving Parliament…, the prospect of an unconstitutional Parliament remains a possibility,” says human rights lawyer and former member of the Commission for the Implementation of the Constitution Catherine Mumma in an article published on ConstitutionNet.org a project that supports legislators, constitutional lawyers and other constitutional practitioners in sharing knowledge.
According to the Court’s opinion, Parliament is to be dissolved where it fails to enact legislation required by the constitution on a particular matter.
According to the 2015 Global Gender Gap Report, Kenya is ranked 48 among 145 countries on the gender gap in economic participation (salaries, job type and seniority), political engagement, access to education and health (life expectancy, mortality etc.).
Kenya dropped 11 places in the overall rankings last year, mostly due to a fall in wage equality for similar work and a reduction in the number of women in the Cabinet.
