Kenya's Constitution: Gender Equality And Equity

The 2010 Constitution of Kenya was intended to transform the lives of the country's marginalised groups, including women, by addressing gender inequalities and promoting sustainable development. The Constitution emphasises equality and participation in national development for both genders, prohibiting discrimination based on sex and other factors. It includes provisions for affirmative action and gender-responsive budgeting, aiming for gender parity in elective and appointive positions. However, implementation remains a challenge, with women still facing obstacles in politics and public life. While there has been some progress, representation and responsiveness to women's issues remain low.

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The two-thirds gender rule

Kenya's 2010 Constitution was intended to transform the lives of the country's marginalised groups, including women, who remain disadvantaged. The Constitution enables gender equality, but there have been challenges with implementation.

Article 27(8) of the Constitution states that the State shall take steps to ensure that not more than two-thirds of members of all elective and appointive positions are not of the same gender. However, 10 years after the Constitution was introduced, there is still no specific legislation to enforce this provision.

The obligation to ensure the two-thirds principle is on the State, rather than Parliament. This is confirmed by the fact that the two-thirds gender rule regarding Members of Parliament is not mentioned in the Fifth Schedule of the Constitution, which outlines the legislation that Parliament is responsible for.

There have been initiatives to amend the Constitution to enforce the two-thirds gender rule for Members of Parliament, but these have not succeeded. While there is no express edict requiring Parliament to pass such legislation, there are mechanisms in place for Members of County Assemblies under articles 177 and 197 of the Constitution, which require the creation of special seats to ensure compliance with the gender principle.

Despite the focus on Parliament, other public bodies and state agencies, including the Cabinet and the Judiciary, have not complied with the two-thirds gender principle.

Equality and freedom from discrimination

The 2010 Constitution of Kenya was intended to transform the lives of the country's marginalised groups, including women. The constitution enables gender equality by setting a framework for equality and freedom from discrimination.

Article 27(8) of the Constitution of Kenya 2010 states that the State shall take steps to ensure that no more than two-thirds of members of all elective and appointive positions are of the same gender. The constitution also 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, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. The same article also states that no person shall discriminate directly or indirectly against another person on any of the grounds specified.

Article 81(b) is another key provision, stating that not more than two-thirds of the members of elective public bodies shall be of the same gender. This provision has been twisted against women in Kenyan public institutions, particularly in the National Assembly, and has not been fully honoured.

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 members are of the same gender.

Despite these provisions, women remain significantly disadvantaged in Kenya. In 2017, women faced violence, kidnappings and sexual harassment during elections, and many backed out. Women's participation in government has increased, but representation and responsiveness to women remain exceptionally low.

To address these issues, there have been initiatives to amend the Constitution of Kenya 2010 to provide for top-ups through nominations of persons of the least represented gender.

Gender-responsive budgeting

Kenya's 2010 constitution was intended to transform the lives of the country's marginalised groups, including women. However, a decade on from its implementation, women remain disadvantaged in several areas of life. For example, women's representation in government remains low, and women face barriers to entering public life, such as violence and harassment.

To address these issues, Kenya has been working towards implementing gender-responsive budgeting (GRB). This does not mean creating a separate budget specifically for women or gender equality objectives. Instead, it involves considering the different effects that government plans and budgets have on women and marginalised communities. For example, the Kenyan government has allocated funds to help women gain financial independence through entrepreneurial activities. However, these funds have primarily benefited women from more privileged backgrounds, highlighting the need for better advertising and accessibility to ensure that marginalised communities can also benefit.

The Council of Governors (CoG) has recognised the importance of GRB and has held workshops to sensitise county governments on the topic. Kenya can also learn from other countries that have successfully implemented GRB, such as Rwanda, South Africa, Australia, and Sweden. These countries have taken a holistic approach to GRB, with strong government support and the integration of GRB into the main budgeting process.

In Kenya, the Kenya Gender Budget Network (KGBN) plays a crucial role in advocating for and monitoring the adoption of GRB. KGBN aims to bring together various stakeholders, including research institutions, academia, international and national partners, and civil society organisations, to promote better coordination and coherence in GRB advocacy. By anchoring its advocacy in government gender policy-making machinery, KGBN aims to influence budget offices and promote political public participation in open budget forums.

Overall, the implementation of GRB in Kenya has the potential to strengthen the link between policy planning and budgeting, prioritising gender-related projects and programs. This can lead to increased women's empowerment and representation in leadership positions and decision-making processes. However, effective implementation requires collaboration between different levels of government and a commitment to transparency and accountability in public finance.

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Gender equality in public offices

The 2010 Kenyan Constitution was intended to transform the lives of marginalised groups, including women. The Constitution provides a framework for gender equality and the participation of both genders in the country's development agenda. It also ensures that women are given the same opportunity to contest for National seats as men.

Article 27(8) of the Constitution of Kenya 2010 states that the State shall take steps to ensure that not more than two-thirds of members of all elective and appointive positions are of the same gender. This is often referred to as the "two-thirds gender rule". While there have been initiatives to amend this rule, there is yet to be specific legislation enacted to operationalize this constitutional provision. This has resulted in criticism of the Kenyan Parliament for its failure to enact relevant legislation. However, it is important to note that the obligation to ensure gender parity falls on the State as a broad entity, rather than solely on Parliament.

Despite the constitutional provisions, women remain significantly disadvantaged in Kenya. In 2017, women faced violence, kidnappings, and sexual harassment during the election period, with many backing out of elections. Additionally, the representation of women in public offices remains low. For example, in the last election, only 96 out of 1,450 members of county assemblies were women.

To address these issues, Kenya can learn from neighbouring countries such as Rwanda and South Africa. Rwanda has a specific gender office that scrutinizes gender representation and responsiveness in budgeting, while South Africa was the first country in Sub-Saharan Africa to embrace gender-responsive budgeting. Additionally, Kenya's government has allocated funds to help women participate in entrepreneurial activities and gain financial independence. However, these funds have primarily benefited women from more privileged backgrounds, highlighting the need to ensure that programmes reach marginalized and minority communities.

Gender balance in the Cabinet

Kenya's 2010 constitution was intended to transform the lives of the country's marginalised groups, including women, who remain disadvantaged. The constitution provides a framework for gender equality, with Article 27(8) stating that the State shall take steps to ensure that no more than two-thirds of members of elective and appointive positions are of the same gender. However, 10 years after the constitution's promulgation, there is still no specific legislation to enforce this provision. While the Kenyan Parliament has been criticised for this failure, the responsibility lies with the State, which includes various organs beyond Parliament.

The constitution also addresses gender inequalities in land ownership and management, stating that land shall be held, used, and managed in a manner that is equitable, efficient, productive, and sustainable. It calls for the elimination of gender discrimination in law, customs, and practices related to land and property, and encourages communities to settle land disputes through recognised local initiatives.

In practice, the results of Kenya's 2010 constitution have been disappointing. While there has been increased participation, representation and responsiveness to women remain low. For example, in the last election, only 96 out of 1,450 members of county assemblies were women. To address this, there have been initiatives to amend the constitution to provide for top-ups through nominations of the least represented gender or to scrap the two-thirds gender rule for county assembly members.

One example of a challenge to the lack of gender balance in Kenya's government is the case brought against the president by the Katiba Institute. After the president increased the number of cabinet positions from 21 to 23, with only 5 of those positions held by women (21%), the Katiba Institute challenged this move in court. The judge ruled that the two-thirds gender rule applied to the cabinet's composition and that the president had failed to provide a valid reason for the lack of gender equality.

Despite this ruling, gender parity compliance has not been met in various branches of the government, including the Executive, Cabinet, and Judiciary. To achieve its gender equality goals, Kenya could learn from neighbouring countries like Rwanda, which has a specific gender office that scrutinises gender representation in budgeting, and South Africa, the first country in Sub-Saharan Africa to embrace gender-responsive budgeting.

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