Realization and the Implementation of the Two Third Gender Rule as Enshirined in the Constitution: The Kenyan Case

Abstract

The Kenyan constitution of 2010 has addressed the problem of gender inequalities in Kenya, 4 the role of gender in the national development discourse and particularly sustainable development in Kenya is pertinent. The current Constitution of Kenya 2010 places great emphasis on the equality of both gender and their participation in the country’s development agenda. The constitution sets a frame work stating that not more than two-thirds of the members of elective public bodies should be of the same gender. In the Constitution of Kenya (2010), Article 27 talks about equality and freedom from discrimination. This Article of the Constitution provides that, every person is equal before the law and has the right to equal protection and equal benefit of the. This equality includes the full and equal enjoyment of all rights and fundamental freedoms. The constitution also provides that, women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and also social spheres. This provision aims at granting both men and women an equal and levelised playing field either politically, economically and also at the social level. Furthermore, the Constitution of Kenya provides that, the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language or birth. This provision of the constitution ensures that women are given the same opportunity to contest for National seats just as their fellow men counterparts. Article 27(8) provides for affirmative action where the State is required to take Legislative and other measures to ensure that no more than two-thirds of the members of elective or appointive bodies are of the same gender. Article 81(b), another very key provision in as far as this research work is concerned, is to the effect that, not more than two-thirds of the members of elective public bodies shall be of the same gender. In Kenyan public institutions, and in particular the National Assembly, however, gender balance has been twisted against women and for that reason it has not been fully honored. There are other several Articles addressing gender equality in public offices, Article 177(b) on membership of the county assembly, provides that, the number of special seat members necessary to ensure that no more than two-thirds of the membership of the county assemblies are of the same gender. Article 97 on membership of the 7 Supra n. 4 Article 27(1) Article 27(3). National Assembly shall consist of forty-seven women, each elected by the registered voters of the Counties, each county constituting a single member constituency. On the other flipside of the coin, Article 98(1)(b) provides that the senate consists of, sixteen women members who shall be nominated by the political parties according to their proportion of members of the senate elected. These two provisions of the constitution aim at ensuring that there is a place preserved for women in National leadership. Article 100(a) provides that the parliament shall enact legislation to promote the representation in parliament of women. *LL.B (Moi University), LL.M (Cand), University of Dar Es Salaam), DipLaw (Ksl)