The president of the Republic of Kenya, Uhuru Kenyatta, has been called upon to dissolve his parliament for failing to implement its constitutional mandate for gender parity. This advisory from the Chief Justice urged the Kenyan people to “endure pain if only to remind the electorate to hold their parliament representatives accountable”.
CALLS FOR DISSOLUTION
On 22 September 2020, the figurehead of the highest court in Kenya, Chief Justice (CJ) David Maraga, presented a ten-page letter to the office of the president directing him to dissolve the 12th Parliament. The rationale behind this advisory was the parliament's failure to implement the 2/3 gender parity law, which is a requirement of article 27(8) of the Constitution. The gender parity law requires that no more than 2/3 of the members of elective or appointive bodies are of the same gender.
This dissolution advisory comes after the CJ received six petitions of the same nature, following the lapse of the five-year grace period as dictated in Schedule 5 of the Constitution of Kenya for implementation of the law. Justice Maraga termed the 10 Years’ stalemate on progress, in accordance with articles 27, 81, and 100, as a form of impunity that can only be resolved by sending the legislators packing to pave way for re-elections of Members of Parliament (MPs). This move by the CJ has thrown MPs, lawyers, and even the Speaker of the National Assembly, Hon. Justine Muturi, into a frenzy. The Speaker termed Justice Maraga’s recommendation as a means of plunging the country into a potential constitutional crisis of monumental proportions. He further advised legislators to seek redress through the High Court.
Nonetheless, several women-fronted groups in the country took to the streets to show their support for the calls for parliamentary dissolution, considering it long overdue. The Law Society of Kenya has also come out in unrelenting spirit to back the move by Justice Maraga, arguing that the CJ was acting in accordance with article 261 of the Constitution rather than simply settling political scores with members of the executive or legislature. High Court judge, Weldon Korir, granted a conservatory order stalemate following the petition by the Parliamentary Service Commission to stop the president from making any decision upon this recommendation. This will only go on for so long before the president’s vow to uphold and protect the Constitution will be put on the scale.
AFRICAN GENDER PARITY
Kenya is one of the only countries in East Africa that is yet to adhere to its constitutional obligation to achieve gender parity in its governance. Whilst the country is certainly lagging behind its neighbours, this is not to say that Africa has almost overcome the gender inequality issue. A poignant illustration of this is the number of women in parliamentary roles in Sub-Saharan African countries in 2018 was only approximately 23.7%. Although, there are exceptions to this underrepresentation: Rwanda at 61.3%, Namibia at 46.2%, and South Africa at 42.7%.
With most African states practicing the majoritarian electoral system—a system that gives appointment to a candidate(s) who only receives the majority of votes, denying representation to all minorities—equal opportunity for men and women to run for seats becomes unattainable. Majoritarian/plurality electoral systems more often than not deny women access to legislative positions or electoral functions, as they tend to lose out under the majority preference. In order to counter this, countries have resorted to more pragmatic ways of reserving seats for women through the adoption of a legislated quota in a proportional representation system. Unlike the majoritarian system where the winner of a seat takes it all, the proportional representation electoral system takes into consideration that all voters, and thus all political groups in society, must have a fair representation.
Kenya is among the countries in the world that has made significant, hard-earned steps towards a democratic system governed by the rule of law. The country’s constitution recognizes women by way of creating special seats for them. Thesee seats guarantee that even the minority political groups in society have representatives in parliament. Clearly, adoption of legislation is not enough. The heavy lifting lies in commencing a progressive implementation of these regulations—a state in which Kenya now finds itself grappling. Critics argue that even if the president heeds the CJ’s recommendation, and fresh elections are carried out, the country might end up in the same circumstances due to unclear implementation procedures.
Only few countries in Africa have implemented such regulations. Rwanda is the best example with 61.3% in women’s representation. Its constitution commits the government of Rwanda to set aside 30% of seats to women in the senate. Rwanda thus has the highest number of women parliamentarians in the continent.
WOMEN'S INCLUSION IN DECISION-MAKING GLOBALLY
The late US Supreme Court Justice Ruth Bader Ginsburg will surely be remembered among other things for being a liberal legend as well as being a pioneering force for gender equality in the court. Some of the key facets that she believed in included women’s having the right to financial independence, protection from discrimination, social security rights, and most of all their significance “in all places where decisions are being made,” such as in politics and the judiciary.
There is empirical evidence of progression towards gender equality over recent decades; women’s political representation globally has doubled. Nevertheless, this only amounts to an estimated one in four parliamentary seatstaken up by women globally. Women continue to face discrimination in all its forms from their male counterparts as well as within social institutions and governments. The ability for women to participate on an equal level in all dimensions of our society is a fundamental human right and it is especially crucial for any country striving to achieve a sustainable future for all. Women’s voices now more than ever play an indispensable role in policy making processes. Women have the capacity to influence legislation that affects their current and future economic well-being, which is crucial for women and girls as well as their families and communities—especially on matters of health and quality education.
Women-led participation in the highest institutions of governance results in more inclusion from the top down to the lowest levels of society.
Ultimately, to be able to tackle the entrenched gender inequalities in our society, we must include women in policy formulation and implementation discussions and especially in any decision-making on pressing issues that affect women directly. Only then will women, and society at large, be truly empowered.
Diana is a final year student pursuing a degree in Journalism and Mass Communication (Public Relations) at Kibabii University. Digital Activist at Youth Alliance for Leadership and Development in Africa. A passionate advocate of SDGs 4 & 5. A volunteer Mentor for the Equity Group Foundation based in Kenya.