Implementing Constitutional Gender Quotas: A Kenyan Perspective

— Mumbi Gathoni, Advocate of the High Court of Kenya

On 21^st September 2020, the Chief Justice of Kenya (now retired) advised the President of the Republic of Kenya to dissolve Parliament for its failure to adhere to the Constitutional requirement that not more than two-thirds of members of legislative bodies shall be of the same gender (‘the two-thirds gender rule’).[1] However, that advice has not been acted upon by the President. This is not the first time the constitutional provisions in question have been the subject of court proceedings. In 2012, The Supreme Court issued an advisory opinion on the matter. By a majority of four with the then Chief Justice dissenting, the Court held that the Constitution envisioned a progressive realization of the two-thirds gender rule and directed Parliament to enact the requisite legislation by 27th August 2015.[2] Parliament failed to enact the legislation, even after it had extended the compliance period by one year. A petition was subsequently filed in the High Court.[3] The High Court issued an order of mandamus requiring the Attorney General and the Commission on Implementation of Constitution to prepare the requisite Bills for tabling in Parliament within 40 days from 26^th June 2015.[4] However, although the Bills were presented to it, Parliament still did not enact the requisite legislation prompting the filing of another petition in the High Court.[5] The High Court issued another order of mandamus requiring Parliament to enact the requisite legislation within 60 days from the date of the order.[6] However, despite its appeal on the matter being dismissed, Parliament still didn’t enact the legislation prompting the 2019 and 2020 petitions before the Chief Justice that led him to advise the President to dissolve Parliament.[7]

While the above course of events does not inspire confidence as far as the implementation of the two-thirds gender rule is concerned, it is important not to throw out the baby with the bath water. Gathii, though analyzing the role of international courts in Africa, makes a point that is applicable to the push for equal gender representation in Kenya. He opines that litigation before international courts in Africa is part of a broader strategy by litigants and interest groups.[8] In addition to increasing their audience, they mobilize law and capitalize on the litigation process to advance and promote commitment to their ideals and immediate goals.[9] While the orders and advice arising from the various petitions[10] may not have been followed through, the cases have generated some much needed public debate and awareness around women’s rights and equal gender representation. Many women who have been victims of gender inequality might not to be cognizant of court processes. However, when court processes generate public debate through mass media, they become aware of issues affecting them.

Reflecting on the post-colonial experience in India, Kapur and Cossman suggest that strategic engagements with law should not be measured in terms of winning or losing a case; instead, the law offers a ‘democratic space for women’s participation in political, social, economic and cultural life’.[11] In this context, engaging with law is in itself ‘part of an effort to challenge dominant meanings, and the construction of women therein’.[12] Seen in this light, the fact that the petitions were filed and orders and advice given should be a reason for celebration. This is because the law in Kenya has historically reinforced gender inequality through legal rules that validated social injustices against women.[13] Further, the legal system was often an obstacle to changes required to remove inequality in legal rules, procedures and institutions.[14] Consequently, the petitions, orders and advice are indicative of a positive shift in the legal system in favour of women.

Mutunga, the first Chief Justice appointed under the 2010 Constitution of Kenya, has hailed the said Constitution as a transformative constitution.[15] Quoting Klare, he defines transformative constitutionalism as an enterprise of inducing large-scale social change through non-violent political processes grounded in law.[16] He sees the role of the judiciary in this transformation as, among other things, developing a robust, indigenous, and patriotic jurisprudence that responds to the needs of people and that is committed to the Constitution and achievement of its values.[17] This jurisprudence is not mechanical; it shuns unthinking deference to precedent.[18] Kameri-Mbote in discussing the previous jurisprudence surrounding women, notes that statute law legitimized the subordination of women to men.[19] Further, the administration of the laws exacerbated the subordination.[20] Kamau writes about how discriminatory customary law buttressed by the doctrine of precedent denied women their rights. Consequently, the need for a jurisprudence that is responsive to women’s rights was critical. The orders and advice flowing from the petitions, though not implemented, inspire hope that Kenya is beginning to chart a new trajectory as far as women’s rights are concerned. The change in thinking about women’s rights from the top courts could be seen as heralding an era of large scale social change (grounded in law) albeit at a slow pace.

While seeing the petitions, orders and advice through the unique Kenyan context has shed some light on some positives, one cannot escape the negative aspects of non-implementation and the potential damage to women’s equal representation and rights in general. Kenyan scholar Okoth-Ogendo in his writings about constitutions without constitutionalism states his thesis in form of a paradox: the commitment of African governments to the idea of the constitution and an equally emphatic rejection of the classic notion of constitutionalism.[21] Both Mutunga and Kameri-Mbote give credence to this view and allude to the fact that there is more to enforcing transformative constitutional laws than just having Constitutional provisions. Kameri-Mbote opines that the effectiveness of laws in according women equal opportunities with men depends largely on the society’s willingness and ability to enforce such laws (even when they are enshrined in the Constitution).[22] Mutunga poses the question, ‘Given that African elites invariably lack the political will to support transformation how is judicial transformation to be aligned to challenges that such lack of political will pose?[23]

The push for equal representation of women and by extension women’s rights by the Constitutional route exists in a plural context. On the political front this push is subject to opportunistic implementation of constitutions – choosing those bits that serve the political elite and ignoring those that don’t suit it.[24] This was evident in Parliament – when members were debating their salary increments, there was quorum; when it was time to debate the Bills on equal representation there was no quorum.

In conclusion, I will quote Ghai when he states as follows: The constitution is not a self-operating or self-executing instrument. The real task of establishing constitutionalism lies in other spheres: politics, the judiciary, the rise of professionalism, civic associations and enlightened leadership.[25] The realization of women’s equal representation and rights depends not just on constitutional provisions. For its full realization, stakeholders in the other spheres have to ‘take their place’; and some already have, as seen in the petitions brought by the Centre For Rights Education and Awareness. And while the Chief Justice’s advice to the president to dissolve parliament for its non-adherence to the two-thirds gender rule was not followed through, it has left its mark on the long term project of constitutional enactment, interpretation, and enforcement. This could contribute to transforming the country’s political and social institutions and power relationships in a democratic, participatory and egalitarian direction.’[26]

Suggested citation: Mumbi Gathoni, Implementing Constitutional Gender Quotas: A Kenyan Perspective, Int’l J. Const. L. Blog, Mar. 25, 2021, at: http://www.iconnectblog.com/2021/03/implementing-constitutional-gender-quotas-a-kenyan-perspective/

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[1] Chief Justice’s Advice to the President on Dissolution of Parliament for Failure to Enact the Gender Rule, available at http://kenyalaw.org/kenyalawblog/chief-justices-advice-to-the-president-on-dissolution-of-parliament/ (accessed on 15^th February 2021.); Articles 27 (8) and 81 (b) of The Constitution of Kenya, 2010.

[2] In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR available at http://kenyalaw.org/caselaw/cases/view/85286 (accessed on 15^th February 2021).

[3] Constitutional Petition No. 182 of 2015, Centre for Rights Education & Awareness (CREAW) v Attorney General & another [2015] eKLR available at http://kenyalaw.org/caselaw/cases/view/111102/ (accessed on 15^th February 2021.)

[4] Ibid.

[5] Constitutional Petition No. 371 of 2016, Centre for Rights Education and Awareness & 2 others v Speaker the National Assembly & 6 thers [2017] eKLR available at http://kenyalaw.org/caselaw/cases/view/133439/ (accessed on 15^th February 2021.)

[6] Ibid.

[7] See n1.

[8] Gathii, James Thuo, Introduction to the Book (June 1, 2020). The Performance of Africa’s International Courts: Using International Litigation for Political, Legal, and Social Change (ISBN 9780198868477), James Gathii (ed) Oxford University Press, 2020, Available at SSRN: https://ssrn.com/abstract=3630722 (accessed on 15^th February 2021).

[9] Ibid.

[10] See n1, n3 and n5.

[11] Kapur, R. & Cossman, B. (1996). Subversive Sites. New Delhi: Sage Publications at 285 as quoted in Stephanie Rohrs, Annie Hsieh, Monica DeSouza and Dee Smythe (eds), In Search of Equality: Women, Law and Society in Africa, UCT Press, at 9.

[12] Ibid.

[13] Kameri-Mbote P, Constitutions As Pathways to Gender Equality in Plural Legal Contexts, Oslo Law Review 01 / 2018 (Volume 5), available at https://www.idunn.no/oslo_law_review/2018/01/constitutions_as_pathways_to_gender_equality_in_plural_lega?languageId=2 (accessed on 15^th January 2021.)

[14] Ibid.

[15] Mutunga, W “The 2010 Constitution of Kenya and its interpretation: Reflections from the Supreme court’s decisions” (Vol 1) [2015] SPECJU 6 available at http://www.saflii.org/za/journals/SPECJU/2015/6.html (accessed on 3^rd March 2021).

[16] Ibid.

[17] Ibid.

[18] Ibid

[19] Kameri-Mbote, op. cit.

[20] Ibid.

[21] H.W.O Okoth-Ogendo, ‘Constitutions Without Constitutionalism: An African Political Paradox’ in Douglas Greenberg, S.N Kartz, B. Oliviero, and S.C Wheatley (Eds), Constitutionalism and Democracy: Transitions in the Contemporary World (New York: OUP, 1993) Chap. 4 p. 67.

[22] Kameri-Mbote, op. cit.

[23] Mutunga, op. cit.

[24] Yash Ghai, ‘Constitutionalism: African Perspectives’ in Patricia Kameri-Mbote and Collins Odote (Eds), The Gallant Academic: Essays in Honour of HWO Okoth Ogendo (School of Law – University of Nairobi) Chap. 11 p. 155. 

[25] Id. at 170.

[26] Karl Klare as quoted in Ghai, op. cit at 169.