4. Recommendations

5. LEGAL CHALLENGES TOWARDS IMPLEMENTING THE GENDER EQUALITY PRINCIPLE IN KENYA

i. Article 100 of the CoK requires Parliament to enact legislation to promote the representation of women, PWDs, youth, and marginalized and ethnic minorities. This law has not been enacted. The two-thirds gender framework remains unimplemented.

ii. IEBC has a role in undertaking voter and civic education. The legal and policy framework ensures a conducive environment for all voters (men and women) to participate. However, many respondents noted that most Kenyans are not reached with relevant information on elections and how to vote. Notably, lack of knowledge, skills and attitudes is one of the barriers to the enhancement of WPP.

iii. The 2016 Election Act amendment moved prosecutorial powers from IEBC and vested the same to the Office of the Director of Public Prosecution (ODPP). In its evaluation of the 2017 election, IEBC noted that this caused delays in the prosecution of election offences, making it detrimental to quick action in sexual offences complaints that were noted to have increased compared to the 2013 elections.

iv. There have been legal challenges with the Election Campaign Finance Regulations. The Election Campaign Financing was enacted in 2013, seeking to implement Article 88 (4) (1) of the CoK. However, Parliament did not approve the Election Campaign Regulations of 2016 that caused the suspension of the implementation of the Election Campaign Financing Act. Operations of the Act were suspended until after the 2017 elections. This must be regulated since it works against women candidates with limited resources. The implication is that the candidates with resources used the same to lure voters without regulation.

v. Submission and allocation of the Party lists for Special Seats, as per Article 90(1) (2) and (3) has remained challenging for IEBC, which has indicated that the formula for allocation of special seats is not exhaustive where there is a likelihood of similar numbers of qualifying parties. There is still no enabling legislation as per Article 100 of the Constitution that is to promote the representation of marginalized groups. The courts have found that it is the responsibility of IEBC to ensure political parties comply with the two-thirds gender rule in compiling their political party lists for their candidates.

vi. Provisions of the CoK enabling legislation on PWDs have not been fully implemented to the disadvantage of PWDs, particularly women with disabilities bearing the greatest brunt.

6. THE BUILDING BRIDGES INITIATIVE (BBI)

The BBI process emanated from the handshake between His Excellency President Uhuru Kenyatta and the Right Hon. Raila Odinga in March 2018. The handshake was preceded by heightened tension from the divisive 2017 national elections. Many recommendations touching on women representation are made in the proposed Constitutional Amendment 2020, including:

i. Altering the composition of the Senate to allow every county to elect one man and one woman, therefore making it a house of equal vote. The proposal scraps the 47 women representative seats in the National Assembly introduces additional 70 seats but does not provide for legislated quotas. Instead, it introduces a top-up by way of nominations to ensure compliance with not more than two-thirds gender principle using the PR system as per Article 90 of the Constitution;

ii. Inclusion of a sunset clause for affirmative action, i.e. 15 years for National Assembly and 10 years for the County Assembly; and

iii. Introduction of the ‘Best Loser Principle’ in consideration of women into the special seats, aimed at encouraging women who make it to the list to attempt to vie, be the best losers and get to be considered for the PR list.

The success of the planned referendum will alter the electoral process and implementation of the not more than two-thirds gender rule. If it fails, the status quo will be maintained.

7. KEY POLICY RECOMMENDATIONS

i. The two-thirds gender rule is a key principle of the electoral system that has not been implemented. FAWE should consider working with CSOs that have been at the forefront, including FIDA (K), CRAWN TRUST, CREAW and KATIBA Institute, to continue to hold the Kenyan Executive and Legislature accountable to implement the two-thirds gender principle.

ii. There have been greater reforms to ensure political parties comply with the gender equality principle. In compliance with the court decision in the case of Katiba v. IEBC of 2017, CSOs must monitor both political parties and the IEBC to ensure the 2022 elections comply with the judgement that the political parties’ nomination lists must comply with the gender principle in Article 81(b).

iii. In administering the PPF, political parties must demonstrate the activities eligible for funding of 15 per cent of the total funds received towards promoting gender equality. There is a need to strengthen political parties financing regulation on this front. FAWE may consider working with the women leagues of political parties to develop bankable projects that will enhance WPP.

iv. FAWE may create a partnership with other like-minded CSOs and develop a voter education program focusing on understanding the legal provisions towards a free and fair election with approval of the IEBC, mainly targeting women who wish to vie for political seats in preparation for the 2022 elections.

v. FAWE may consider partnering with other like-minded organizations like NDI that work to promote the rights of PWDs in politics, with a focus on women with disabilities, by providing them with an enabling environment to thrive by addressing the issues of limited capacity, resources, stigma and negative social attitudes and inaccessible physical infrastructure. This will amplify the demand for accountability towards diversity and inclusion from political parties, the IEBC and the government.

vi. FAWE, working at the regional level, should advocate for Kenya to ratify the African Charter on Democracy, Elections and Governance.5

5 Countries that have ratified the charter are Benin, Burkina Faso, Cameroon, Chad, Ethiopia, Ghana, Guinea, Guinea-Bissau, Lesotho, Malawi, Mali, Mauritania, Niger, Nigeria, Rwanda, Sierra Leone, South Africa, Sudan, Togo and Zambia.

REFERENCES

[1]. The Constitution of Kenya http://kenyalaw.org:8181/exist/kenyalex/actview. xql?actid=Const2010 [2]. Sustainable Development Goals; Gender Equality Tracker https://sdg-tracker.org/gender-equality [3]. IPU Parline Global data on National Parliament -Monthly ranking of women in National Parliaments as per January 2021 https://data.ipu.org/womenranking?month=1&year=2021 [4]. Report of the Secretary-General on SDG Progress 2019-Special Edition https://sustainabledevelopment.un.org/content/documents/24978Report_of_ the_SG_on_SDG_Progress_2019.pdf [5]. United Nations; Integrating a gender perspective into human rights investigating; guidance and practice available at https://ohchr.org/sources/ issues/women/public/publications/Gender Integration on HR Investigation [6]. Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa https://www.un.org/en/africa/osaa/pdf/au/protocol_rights_ women_africa_2003.pdf [7]. Solemn Declaration on Gender Equality in Africa (2004) https://www.un.org/ en/africa/osaa/pdf/au/protocol_rights_women_africa_2003.pdf [8]. African Charter on Democracy, Elections and Governance https://au.int/ sites/default/files/treaties/36384-treaty-african-charter-on-democracy-andgovernance.pdf [9]. East Africa Community https://au.int/en/recs/eac

POLICY BRIEF 4: 4

WOMEN’S PARTICIPATION IN POLITICS: REGIONAL BEST PRACTICE

1. INTRODUCTION

In the African context, domestication of strategies created to increase WPP can arguably be considered inconsistent and uninspiring based on the progress made over the years. Nonetheless, existing sub-regional, regional, and global organizations and institutions that fight for overall inclusivity are still committed to the success of equity and inclusion principles. The end goal of increased women’s involvement in political and decision-making processes is considered attainable. So too are the knowledge of their rights, the possibilities and power for women to represent and be represented.

However, there are major challenges to reversing attitudes and the underlying principles affecting WPP, which are due to the social, cultural, economic, and religious contexts that prevail in society. However, some African countries have made significant strides towards attaining the goal of equity in women’s participation in the political space. Countries such as Rwanda, Namibia, South Africa and Senegal have shown success in their efforts towards increasing and having the meaningful engagement of WPP. These countries have justified their top positions in the IPU ranking on women in national parliaments by January 2021. This policy brief examines these countries as best practices to document lessons that could be adopted by Kenya and Tanzania, among other countries that are still lagging in Africa and elsewhere globally. Students from Daystar University, Kenya, pose for a photo at the launch of the Intergenerational Mentorship Programme

Photo Credits: FAWE RS

2. BEST PRACTICES AND KEY INDICATORS

This section identifies the characteristics of the four countries selected for review, the key indicators and highlights evidence of the following key drivers of success in enhancing WPP (as also illustrated in Figure 1):

i. Collaboration by women in leadership on equal gender participation and representation in politics; ii. Proactive action by government leadership and bodies towards promoting gender parity in political structures; iii. Legislation that provides for special gender quotas; iv. Efforts to adhere to, implement and domesticate any signed and/or ratified protocols by the government; and v. Increased awareness among women of the existing laws, rights to participate, rights to represent and to be represented.

INCREASE SUPPLY

• Awareness raising • Symbolic action • Legislative work conditions • Recruitments • Capacity development • Gender quotas • Soft targets • Internal quotas • Women’s sections • Party funding regulations • Campaign support • Funding opportunities • Funding networks • Party Funding regulations • Women’s caucuses • Gender research and training

ELIGIBLE

ASPIRANT

ENHANCE DEMAND

ASPIRANT

CANDIDATE

ENHANCE DEMAND

CANDIDATE

ELECTED

In the analysis of the best practices, this brief has focused on three key indicators that are most critical in attaining effective inclusion of women in politics: (i) Electoral quota system, (ii) Political parties, and (iii) Enabling legislation.