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For Kenya's Women, Achieving Some Constitutional Gains Will Take Time

Earlier this month the International Republican Institute (IRI) in conjunction with the National Democratic Institute (NDI) and the Kenya Women Parliamentary Association (KEWOPA) celebrated women's leadership from across Kenya at an event supported by the United States Agency for International Development (USAID) and attended by the U.S. Ambassador to Kenya, Robert F. Godec.  

The one day event which occurred just days before this year’s International Women's Day (#IWD2015) highlighted the good work of women leaders and demonstrated the deep talent pool of aspiring women candidates for Kenya's next general election in 2017.  Participants urged Kenya's political party and coalition leaders in attendance to reform their internal processes to ensure that women have greater opportunity to hold political party leadership posts and have equal access to compete alongside men in candidate nomination contests.  This last point is critical as Kenya debates how it will implement a constitutional mandate on gender representation in time for 2017.

Former Prime Minister Raila Odinga, opposition CORD Coalition leader, and Hon. Florence Mutua, women’s representative to the National Assembly and WDN Kenya Chapter vice chairwoman, interact during a IRI/NDI/KEWOPA sponsored celebration of women’s leadership event in Nairobi County on March 5, 2015

When Kenya ratified its constitution in August 2010, the country ushered in what many revered as one of the most progressive constitutions in the world.  Among its many progressive elements were the historic gains made for women and chief among these gains was the two-thirds gender principle that stipulated not more than two-thirds of any appointed or elected body can be of the same gender.  Other important gains for women in the new constitution, among others, included a new reserved seat for women in the National Assembly from each of Kenya's 47 counties as well as language prohibiting all forms of discrimination and equalizing both women's land inheritance and marriage rights with men.  While some women's gains were immediate, others were to be realized progressively over time.

As in any democracy, transitioning a country's constitution from words on paper into action can be fraught with a web of complex legal, political, and administrative challenges.  Different interpretations of the constitution by policymakers, the political class, and the wider public can further complicate and resultantly slow down an already daunting process of implementation.  Kenya's Supreme Court, the final arbiter on all constitutional matters, has played a critical role in the transition process to date.  Prior to the first general elections under the 2010 Constitution in March 2013, Kenya's Attorney General sought the Supreme Court’s opinion on whether or not Parliament was subject to the gender principle for those first elections.  The Court delivered a majority opinion in December 2012 that the implementation of the gender principle in Parliament should be progressive and gave the legislative body until August 27, 2015 to develop the necessary legal framework for implementation.
There has been little movement to implement the two-thirds gender principle in Parliament since the Supreme Court’s ruling and a technical working group constituted by the Attorney General in February 2014 to develop options on how Parliament should deal with the matter only recently released its recommendations.  With the court-mandated August deadline to implement the gender principle and the 2017 election date fast approaching, Parliament will need to act fast or face a possible constitutional crisis after the next elections.  Last week the Chairperson of the National Gender and Equality Commission (@NGECKenya), Winfred Lichuma, urged Parliament to act expeditiously on the technical working group's key recommendations.  “We expect Parliament will rise to the occasion and do the right thing to avert a constitutional crisis after the 2017 election,” said Lichuma.

NGEC Chairperson Winfred Lichuma discussing the importance of the two-thirds gender principle during the International Women’s Day celebration in Busia County on March 7, 2015

While Kenya’s constitution has already delivered immense change to the social, political and governance constructs that make up the Kenyan state, a lot more still needs to be done to mainstream women into decision-making positions and processes.  Kenya’s 11th Parliament is 49 women short of one-third of the seats.  A good start would be to ensure that the two-thirds principle is not just a novel idea of Kenya’s constitutional drafters, but a reality that will give Kenya women a larger platform to affect both the national and local development of their country.  It is through this principle that women for the first time in their country’s history will not just be able to participate in the nation’s decision-making processes, but also have the numbers in Parliament to affect change.


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John G. Tomaszewski