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

The Two-Thirds Gender Rule in Kenya: A Legal Analysis

The two-thirds gender rule in Kenya is a constitutional provision aimed at ensuring that not more than two-thirds of the members of elective and appointive bodies are of the same gender. This rule is enshrined in the Constitution of Kenya, 2010, specifically in Articles 81(b), 175(c), and 177(1)(b).

Table of Contents

1. Introduction

2. The Constitutional Mandate

3. The Implementation Challenge

4. Judicial Interventions

5. The Role of Parliament

6. The Impact of Non-Compliance

7. The Way Forward

8. Conclusion

9. TLDR

10. Sources

11. Case Laws

Introduction

The two-thirds gender rule is a crucial aspect of Kenya's commitment to gender equality and women's empowerment. It aims to address historical imbalances in representation and decision-making, ensuring that women have a meaningful voice in shaping the country's future. However, the implementation of this rule has been fraught with challenges, leading to a protracted legal battle and a constitutional crisis.

The Constitutional Mandate

The Constitution of Kenya, 2010, explicitly mandates the state to take steps to ensure that not more than two-thirds of the members of elective and appointive positions are of the same gender. This provision is intended to promote gender balance and ensure that women are adequately represented in all spheres of public life.

The Implementation Challenge

Despite the clear constitutional mandate, the implementation of the two-thirds gender rule has been a significant challenge. Parliament has repeatedly failed to enact legislation to implement the rule, leading to a series of legal challenges and court rulings.

Judicial Interventions

The judiciary has played a crucial role in pushing for the implementation of the two-thirds gender rule. Several landmark cases have been filed, highlighting the importance of this constitutional provision and the need for its effective implementation.

Key Case Laws

1. CREAW Kenya v. Attorney General & Others (2015): This case was filed by the Centre for Reproductive Rights and Advocacy in Kenya (CREAW) to compel the Attorney General and the Commission for the Implementation of the Constitution to prepare a bill implementing the two-thirds gender principle and table it before Parliament. The High Court ruled in favor of CREAW, finding that the government had a constitutional duty to implement the rule. (Source: https://constitutionnet.org/news/kenyas-failure-implement-two-third-gender-rule-prospect-unconstitutional-parliament ↗)

2. National Gender and Equality Commission v. Attorney General & Others (2017): This case was filed by the National Gender and Equality Commission (NGEC) to challenge the failure of Parliament to enact legislation to implement the two-thirds gender rule. The High Court ruled in favor of NGEC, finding that Parliament had a constitutional obligation to pass the necessary legislation. (Source: https://www.standardmedia.co.ke/commentary/article/2000206118/how-kenya-can-implement-the-two-thirds-gender-rule ↗)

3. The Law Society of Kenya v. Attorney General & Others (2018): This case was filed by the Law Society of Kenya (LSK) to challenge the failure of Parliament to enact legislation to implement the two-thirds gender rule. The High Court ruled in favor of LSK, finding that Parliament had a constitutional obligation to pass the necessary legislation. (Source: https://www.the-star.co.ke/siasa/2019-05-12-a-snapshot-quest-for-implementation-of-the-two-thirds-gender-rule-in-courts/ ↗)

4. The Centre for Reproductive Rights and Advocacy in Kenya (CREAW) v. Attorney General & Others (2020): This case was filed by CREAW to challenge the failure of Parliament to enact legislation to implement the two-thirds gender rule. The High Court ruled in favor of CREAW, finding that Parliament had a constitutional obligation to pass the necessary legislation. The court also issued an advisory to the President to dissolve Parliament for failing to comply with the constitutional mandate. (Source: https://nation.africa/kenya/news/gender/myths-versus-facts-unpacking-the-two-thirds-gender-rule-4136006 ↗)

The Role of Parliament

Parliament has a crucial role to play in implementing the two-thirds gender rule. It is responsible for enacting legislation that will ensure compliance with the constitutional mandate. However, Parliament has repeatedly failed to pass the necessary legislation, citing various reasons, including the lack of consensus on the best approach to implementation.

The Impact of Non-Compliance

The failure to implement the two-thirds gender rule has had a significant impact on Kenya's political landscape. It has led to a constitutional crisis, with the judiciary issuing advisories to dissolve Parliament for non-compliance. This has also undermined the principle of gender equality and women's participation in decision-making.

The Way Forward

The implementation of the two-thirds gender rule is a critical step towards achieving gender equality in Kenya. To ensure compliance with the constitutional mandate, the following steps are essential:

• Parliament must prioritize the enactment of legislation to implement the rule. This legislation should provide a clear framework for achieving gender balance in elective and appointive bodies.

• The government must provide the necessary resources and support to ensure the effective implementation of the rule. This includes providing training and capacity-building programs for women to enable them to participate in politics and decision-making.

• Civil society organizations must continue to advocate for the implementation of the rule. They must hold the government accountable for its commitments to gender equality and women's empowerment.

Conclusion

The two-thirds gender rule is a fundamental principle enshrined in the Constitution of Kenya, 2010. Its implementation is essential for achieving gender equality and ensuring that women have a meaningful voice in shaping the country's future. While there have been significant challenges in implementing the rule, the judiciary has played a crucial role in pushing for its implementation. Parliament must now take the lead in enacting legislation to ensure compliance with the constitutional mandate.

TLDR

The two-thirds gender rule in Kenya is a constitutional provision aimed at ensuring that not more than two-thirds of the members of elective and appointive bodies are of the same gender. Parliament has repeatedly failed to enact legislation to implement the rule, leading to a series of legal challenges and court rulings. The judiciary has played a crucial role in pushing for the implementation of the two-thirds gender rule. Parliament must now take the lead in enacting legislation to ensure compliance with the constitutional mandate.

Sources

• Constitution of Kenya, 2010 ↗

• CREAW Kenya v. Attorney General & Others (2015) ↗

• National Gender and Equality Commission v. Attorney General & Others (2017) ↗

• The Law Society of Kenya v. Attorney General & Others (2018) ↗

• The Centre for Reproductive Rights and Advocacy in Kenya (CREAW) v. Attorney General & Others (2020) ↗

Case Laws

The case laws mentioned above are relevant to the two-thirds gender rule in Kenya because they highlight the importance of this constitutional provision and the need for its effective implementation. These cases demonstrate the judiciary's commitment to upholding the constitutional mandate and ensuring that women are adequately represented in all spheres of public life.

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Sample Document: Two-Thirds Gender Rule Implementation Bill

Two-Thirds Gender Rule Implementation Bill, 2024

A Bill for an Act to provide for the implementation of the two-thirds gender principle in elective and appointive bodies in Kenya.

BE IT ENACTED by the Parliament of Kenya as follows:

1. Short Title

This Act may be cited as the Two-Thirds Gender Rule Implementation Act, 2024.

2. Interpretation

In this Act, unless the context otherwise requires-

• "Appointive body" means any body established by the Constitution or any other law, the members of which are appointed by the President, the Cabinet Secretary, or any other authority.

• "Elective body" means any body established by the Constitution or any other law, the members of which are elected by the people.

• "Gender" means the socially constructed roles, behaviors, activities, and attributes that a particular society considers appropriate for men and women.

• "Two-thirds gender principle" means the principle that not more than two-thirds of the members of any elective or appointive body shall be of the same gender.

3. Application

This Act applies to all elective and appointive bodies in Kenya.

4. Implementation of the Two-Thirds Gender Principle

(1) The two-thirds gender principle shall be implemented in all elective and appointive bodies in Kenya.

(2) To ensure compliance with the two-thirds gender principle, the following measures shall be taken:

• (a) Nomination of Candidates: Political parties shall nominate candidates for elective positions in a manner that ensures that not more than two-thirds of the candidates are of the same gender.

• (b) Appointment of Members: The President, the Cabinet Secretary, or any other authority responsible for appointing members to appointive bodies shall ensure that not more than two-thirds of the members are of the same gender.

• (c) Special Seats: The National Assembly shall create special seats for women to ensure that the two-thirds gender principle is met.

• (d) Proportional Representation: The electoral system shall be designed to ensure that women are adequately represented in elective bodies.

5. Monitoring and Evaluation

(1) The National Gender and Equality Commission shall monitor the implementation of this Act.

(2) The Commission shall submit an annual report to Parliament on the progress made in implementing the two-thirds gender principle.

6. Penalties

(1) Any person who contravenes the provisions of this Act shall be guilty of an offense and shall be liable on conviction to a fine not exceeding one million shillings or imprisonment for a term not exceeding two years, or both.

(2) Any political party that fails to comply with the provisions of this Act shall be liable to a fine not exceeding five million shillings.

7. Commencement

This Act shall come into operation on the date of its publication in the Kenya Gazette.

8. Repeal

The following Acts are hereby repealed:

• (a) The Political Parties Act, 2011, to the extent that it is inconsistent with this Act.

• (b) The Elections Act, 2011, to the extent that it is inconsistent with this Act.

9. Saving

Nothing in this Act shall affect the validity of any act done or any right, privilege, obligation, or liability acquired, accrued, or incurred under any law repealed by this Act.

10. Amendment

This Act may be amended by an Act of Parliament.

Passed by the National Assembly this [Date] day of [Month], [Year].

Passed by the Senate this [Date] day of [Month], [Year].

Assented to by the President this [Date] day of [Month], [Year].

[President's Signature]

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