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Parliament had an obligation to pass laws to implement the 2/3 gender rule

Introduction

The two-thirds gender rule is a constitutional requirement in Kenya aimed at ensuring that no more than two-thirds of the members of elective or appointive bodies are of the same gender. This rule is enshrined in the Constitution of Kenya, 2010, and Parliament has an obligation to pass laws to implement this rule. This response will delve into the constitutional provisions, legislative attempts, judicial interpretations, and the current status of the two-thirds gender rule in Kenya.

Table of Contents

  1. Constitutional Provisions

    • Article 27: Equality and Freedom from Discrimination

    • Article 81: General Principles for the Electoral System

    • Article 100: Promotion of Representation of Marginalized Groups

  2. Legislative Attempts

    • The Constitution of Kenya (Amendment) Bill, 2015

    • The Two-Thirds Gender Rule Laws (Amendment) Bill, 2015

    • The Constitution of Kenya (Amendment) Bill, 2018

  3. Judicial Interpretations

    • Advisory Opinion No. 2 of 2012

    • High Court Rulings

  4. Current Status and Challenges

    • Legislative Gaps

    • Societal and Cultural Barriers

    • Political Will

  5. Conclusion

1. Constitutional Provisions

Article 27: Equality and Freedom from Discrimination

  • Article 27(3) of the Constitution of Kenya, 2010, states that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural, and social spheres.

  • Article 27(8) mandates that the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.

Article 81: General Principles for the Electoral System

  • Article 81(b) specifies that the electoral system shall comply with the principle that not more than two-thirds of the members of elective public bodies shall be of the same gender.

Article 100: Promotion of Representation of Marginalized Groups

  • Article 100 obligates Parliament to enact legislation to promote the representation of marginalized groups, including women, in Parliament.

2. Legislative Attempts

The Constitution of Kenya (Amendment) Bill, 2015

  • This bill sought to amend the Constitution to provide for the implementation of the two-thirds gender rule. However, it faced significant opposition and was not passed.

The Two-Thirds Gender Rule Laws (Amendment) Bill, 2015

  • This bill aimed to provide a framework for the realization of the two-thirds gender principle in elective and appointive positions. It also failed to garner the necessary support in Parliament.

The Constitution of Kenya (Amendment) Bill, 2018

  • This bill was another attempt to amend the Constitution to ensure compliance with the two-thirds gender rule. Despite being tabled in Parliament, it did not pass due to lack of quorum and political support.

3. Judicial Interpretations

Advisory Opinion No. 2 of 2012

  • The Supreme Court of Kenya, in Advisory Opinion No. 2 of 2012, held that the two-thirds gender rule was to be progressively realized. The Court advised that Parliament should enact the necessary legislation by August 27, 2015, to ensure compliance with the constitutional requirement.

High Court Rulings

  • In 2017, the High Court ruled that Parliament had failed in its constitutional obligation to enact legislation to implement the two-thirds gender rule. The Court directed the Attorney General and the Commission for the Implementation of the Constitution to prepare the relevant bills and present them to Parliament within 60 days.

  • In 2019, the High Court declared that the failure by Parliament to enact the two-thirds gender rule legislation was unconstitutional. The Court gave Parliament 60 days to pass the necessary laws, failing which it would be dissolved.

4. Current Status and Challenges

Legislative Gaps

  • Despite multiple attempts, Parliament has not passed the necessary legislation to implement the two-thirds gender rule. This legislative gap continues to hinder the realization of gender equality in elective and appointive bodies.

Societal and Cultural Barriers

  • Societal and cultural norms in Kenya often perpetuate gender stereotypes and discrimination, making it challenging to achieve the two-thirds gender rule. Women face significant barriers in accessing political and leadership positions.

Political Will

  • The lack of political will among legislators has been a significant obstacle to the implementation of the two-thirds gender rule. Many lawmakers have been reluctant to support the necessary constitutional amendments and legislation.

Conclusion

The two-thirds gender rule is a critical constitutional requirement aimed at promoting gender equality in Kenya. Despite the clear constitutional mandate and judicial directives, Parliament has yet to pass the necessary legislation to implement this rule. The failure to enact these laws highlights the challenges posed by legislative gaps, societal and cultural barriers, and the lack of political will. It is imperative for Parliament to fulfill its constitutional obligation and pass the required laws to ensure that no more than two-thirds of the members of elective or appointive bodies are of the same gender, thereby promoting gender equality and inclusivity in Kenya.

Sources

  • Constitution of Kenya, 2010

  • Advisory Opinion No. 2 of 2012

  • High Court Rulings (2017, 2019)

  • The Constitution of Kenya (Amendment) Bill, 2015

  • The Two-Thirds Gender Rule Laws (Amendment) Bill, 2015

  • The Constitution of Kenya (Amendment) Bill, 2018

Answered by mwakili.com