3.1 Domestication of ACDEG 14 and Maputo Protocol

2.2 The Situation in Kenya

The ultimate aim of the WPP program is to protect the space of women in governance and safeguard constitutional gains on gender parity in Kenya and Tanzania. In Kenya, Article 27 of the constitution guarantees equality to all Kenyans irrespective of sex, age, race, etcetera. In Tanzania, the constitution provides “special seats,” with 30 % reserved for women appointed by political parties based on proportional representation. The Constitution of Kenya (2010) has placed the onus of realization of Article 27(8) of the Constitution on the national and county governments to ensure that not more than two-thirds of the members of elective and appointive bodies shall be of the same gender. The two levels of governance thus are key to the realization of gender parity in so far as WPP is concerned.

The 2019 Census report detailed that out of a total population of 47.6 Million Kenyans, 26.4 are women. This is approximately 55% of the population. However, the reality of women’s participation in the political process in the country hardly mirrors this demographic circumstance. The country is largely a patriarchal society, and this explains the limited participation of women in the political space. Historically women have been relegated to the back burner in both private and public spaces through policies and laws that are blind to the years of marginalization of women. As a result, over the years since independence, women in Kenya have faced odds and challenges that not only make it impossible for them to participate in political processes in the country but also exclude them from the same. Although Kenya is considered a democratic country that holds periodic elections, the country’s performance on women’s representation has been dismal compared with her East African neighbours. This is attributed to sociocultural limitations to women’s participation in politics and political party formations which are largely maledominated. Both factors have greatly contributed to the suppression of women in the Kenyan political spheres, noting women’s minimal participation in politics during the first two regimes of former presidents Jomo Kenyatta (1963 -1978) and Daniel Arap Moi (1978 - 2002). “For instance, in the 10th Parliament (2008-2013), women comprised only 9.8% of the parliament 6, compared with Rwanda’s 56%, Tanzania’s 36%, Uganda’s 35%, and Burundi’s 30%. Overall, Kenya is 10% below the East African Community’s (EAC) regional average of 20% representation of women in parliament. The minimal numbers from 2007 were considered one of Kenya’s best performances since independence and before the 2013 elections. Courtesy of the Constitution of Kenya 2010, Kenya’s legal regime ushered in a fairly strong foundation for the principles of gender equity and equality that provides that no elective body shall have more than two-thirds of its members from the same gender 7 .

The progressive full realization of this constitutional provision to attain gender parity has been wrought with hurdles and challenges, and parliament has yet to pass legislation that would bring its own two houses – the National Assembly and the Senate – in line with the “two-thirds rule.” Be that as it may, on the 25th, April 2013, Kenya’s fourth President, Uhuru Kenyatta, made history when he nominated six women to the cabinet—the highest number the country has had since independence and a number that represented onethird of the total cabinet seats. The appointments were considered far-reaching and record-breaking because the women were appointed to dockets that were always considered a preserve of men, i.e. Amb Amina Mohamed (Foreign Affairs), Ann Waiguru (Devolution and Planning), Amb Raychelle Omamo (Defence), Phyllis Chepkosgey (East African affairs, Commerce and Tourism), Prof Judy Wakhungu (Environment Water and Natural Resources) and Charity Ngilu (Lands, Housing and Urban Development) 8 .

Although the 2017 elections were the second to be held since the 2010 Constitution’s promulgation, women still comprise less than 33% of parliament. This low level of representation is attributable to the cultural, financial, and political barriers that prevent women from vying for nonaffirmative action seats.

6. ibid

7. https://www.klrc.go.ke/index.php/constitution-of-kenya/112-chapter-four-the-bill-of-rights/part-2-rights-and-fundamental-freedoms/19327-equality-and-freedom-from-discrimination 8. https://www.youtube.com/watch?v=fMl4A8JU5Cw

According to a report 9 published by NDI and the FIDA Kenya, the current parliament registered the highest number of women elected to serve as governors and senators, and 29% more women ran for office than in the previous election (2013), leading to the largest number of women ever seated at all levels of the Kenyan government in the history of the country since independence. Currently, women hold 172 of the 1,883 seats in Kenya, up from 145 after the 2013 elections. This represents commendable political gains made by women during the 2017 general elections. The actual representation of women still accounts for only 23% (up from 9.8% during the 2008-2013 parliament) of the National Assembly. This is still lower than 30%, considering that the 23% includes seats reserved exclusively for women representatives. This, therefore, still falls below the 2/3 threshold as required by the constitution.

The August 2017 general elections saw a hotly contested presidential election nullified by the Supreme Court of Kenya, citing numerous irregularities and electoral malpractices 10. The Supreme Court ordered fresh presidential elections to be held in October the same year, but the then opposition coalition National Super Alliance (NASA) leader, the Right Hon Raila Odinga, withdrew from the contest, citing a lack of a level playing field for a fair election. The incumbent President was then pronounced the winner in a presidential contest where he virtually run alone. The opposition rejected the results and went ahead to swear their presidential candidate as the people’s president in January 2018. A post-election stalemate ensued with the opposition threatening secession from Kenya. It took an unlikely rapprochement billed ‘the handshake’ between the President and the opposition leader in March 2018 to calm down the tension in the country. The handshake culminated into a Building Bridges Initiative (BBI) that listed a nine-point agenda 11 that has guided the country to a constitutional moment to review the constitution of Kenya in 2010 with a possible plebiscite in 2021 before the 2022 general elections. The subsequent BBI reports have since culminated in Kenya’s Constitution (Amendment) Bill 2020 12. The bill, if it passes, heralds historic gains to women’s participation in politics.

Handshake 2018

8. https://www.youtube.com/watch?v=fMl4A8JU5Cw 9. https://www.ndi.org/publications/gender-analysis-2017-kenya-general-elections 10. http://kenyalaw.org/caselaw/cases/view/140478/ 11. https://www.the-star.co.ke/news/2019-11-26-nine-key-issues-bbi-report-addresses/ 12. https://e4abc214-6079-4128-bc62-d6e0d196f772.filesusr.com/ugd/2ac70e_d879f92067a64003832df8db5a9d23d9.pdf Key among them is the Senate proposed to have a balanced 50:50 representation of elected men and women and offer equal power, especially to determine county allocations. The Bill proposes that the Senate be composed of 94 lawmakers, one man and one woman elected in each of the 47 counties. Further, political parties will provide the IEBC with a twothirds gender compliant and inclusive list, thus ensuring that not more than two-thirds of a party’s candidates are of the same gender. Nomination for special seats will also be required to adhere to equal gender representation. To deliver on the Bill of Rights and Chapter 6 of the Constitution of Kenya 2010, the BBI Bill further proposes the prioritization of health, housing, food, water, education, and social security and increased accountability in public finance management. The Bill has additional provisions to advance the protection of women/girls against sexual harassment (which often lead to teenage pregnancies and early marriages 13) and gender-based violence, including during elections.