At the core of the Constitution of Kenya (COK, 2010) is the belief that there can only be real progress in society if all citizens participate fully in their governance, and that all, male and female, persons with disabilities (PWDs) and all previously marginalized and excluded groups are included in the affairs of the republic.
“I had a vision to be a member of the County Assembly of Meru not because of the money but because I had mission to take the women agenda forward.”
These are the words of Lucy Mukaria the chairperson of the Meru Women Legislative Association (MEWOLA) who believes that leadership is about goals and the ideals of the community. She says that despite the societal barriers, women must rise up and take up leadership positions; be it elective or appointive.
As a young widow, she deserted her in laws and matrimonial properties taken away and left without any support. She was left without a penny to fend for her three children. What was so agonising to her was the cultural stigmatisation that widows went through in the village; they are taken as outcasts.
“When I started living as a single woman and with no much support, the thought of the other widows crossed my mind. What about the single mothers that were not working? What about women in the community whose lands are taken away by the elders or clan and never made to be part of the decision regarding the community or their families? I asked myself why women aren’t getting opportunities like men? ” She explains while noting that the disparities are as a result of the imbalanced power relations.
In Meru County where Mukaria ails from, women are disadvantaged when it comes to land ownership. This is despite the progressive and robust legal frameworks on land ownership in Kenya; a clear indication on the of the non-balanced power dynamics and cultural inequality when it comes to land allocations between men and women. This inequalities are also transited to the political governance even at the village level up to the highest governance levels.
“These experiences however put me at a better place in understanding the challenges women go through. All these are not ‘women issues’ but societal issues,” she says.
For Mukaria, the Constitution of Kenya 2010 was a game changer towards the right direction. Its provisions on the two-thirds gender principle was a step forward in pushing the equality agenda which for a long time has been underpinned by patriarchal systems where political engagement has for a long time been dominated by men.
Her leadership journey has been on the glimmer for decades; she started off her career in the civil society but the climax she says is when she got involved in the The Katiba Sasa! Campaign during the clamour for the CoK 2010. The campaign advocated for the speedy enactment of the constitution to ensure a free governance space. This placed her at a position to engage with the governance system and penetrate through the party structure.
As a figure that was now well known and recognised in the civil society as well as the grassroots political arenas, she got elected to be the Councillor of the then Meru Municipal Council in the old constitutional order.
“I made a name out of the campaigns. I was known for social justice but I wanted more than just the connotation of ‘flower girls’ for women leaders. Coming into the County Assembly of Meru in 2017, she galvanised the support of other 23 women to form a caucus that would ensure that the operations and policies enacted by the County Assembly are engendered,” says Mukaria.
She adds: “As women we must know how to manoeuvre through political spaces, for me one of the best strategy I ever made in during the 2017 general elections was to align myself with a political party. I got to understand what how the political party systems work. I made male politicians my alias and even though I lost in the elections, I was specially elected to sit at the Assembly based on my track record.”
With the technical support from CREAW through the Wajibu Wetu project, Mukaria and other female MCAs under the banner of the MEWOLA developed a Strategic Plan with an aim to champion and advocate for gender sensitive policies at the county level.
Through the MEWOLA, the MCAs will continuously advocate for stronger women movements to champion for equality in development processes
With the growing momentum to have women voices amplified at the decision making spaces more so in conversations on policies in the wake of the devolved governance systems, the call to build stronger women movements that speaks with a unity of purpose cannot be over stated.
In Meru County, the women Members of the County Assembly (MCAs) came together to form a caucus dubbed the Meru Women Legislative Association (MEWOLA) aimed at creating a space for the women leaders to champion for the rights of women and engender the legislative processes at the county level.
Through the MEWOLA the women MCAs have strategically positioned themselves to collectively influence the Assembly and work together with the County Government to deliver services to communities. The MEWOLA believes that effective women’s participation can influence change despite the historical inequalities.
On December 7, 2018 MEWOLA launched its inaugural five year Strategic Plan with an aim of harnessing greater partnerships between men and women legislators to promote gender equality through legislations and to increase the number, influence and impact of women political leadership and governance in Meru County.
During the launch, speaker after speaker emphasised on the need for formation of women caucuses in all the counties. Meru County is the second after Nyeri to have the women caucus launch their development roadmap.
While speaking at the launch the Meru County First Lady Priscilla Murungi appreciated the efforts of the women MCAs and extended her invitation to them to work with her office and the executive in their strategic focus.
“I congratulate the women who had the courage to stand up and be elected. Women have the power but in most cases they shy off because of the way they have been socialized,” said Priscilla.
The first lady who was the Chief Guest at the launch said that the society must begin mentoring women at a younger age to sharpen their skills and build their confidence to participate in issues of societal good.
“We do not have to circumcise our girls to make them powerful women. We need to sharpen their brains to make them proud of their womanhood. We must also make our boys proud of who they are and supporters of their sisters. In this we build and equal society,” she emphasised.
The Governor Kiraitu Murungi who was also in attendance during the launch expressed confidence in the capability of women to transform communities stating that his government has a good will to empower women through the Meru Twaweza program both socially, economically and politically.
The Chairperson of MEWOLA Lucy Mukaria expressed that the caucus shall prioritise on result areas and seek resources necessary to implement the strategic activities to create significant impact in the governance of Meru County, seek better service delivery to people and create confidence as a trusted entity to effectively engage with communities.
“I extend my invitation to the likeminded partners: individuals, government, development partners to partner with MEWOLA. We can only hasten the achievement of our objectives if we work jointly with mutual understanding and cooperation,” said Mukaria.
Asenath Kaimuri says when women combine their efforts, the impacts and contribution towards policy and legislative development is more extensive than individual efforts.
This is in reference to the newly formed Meru County women caucus aimed at championing for the inclusion of women in political governance and development processes.
“We operate in an environment that does not accord women a space to participate in the governance and political processes despite the right to equal representation from both genders having been enshrined in the Constitution. I knew the only way to make our voices louder in the County Assembly is to have all women legislators working together with a common goal to push the women agenda,” says Kaimuri.
Kaimuri is the chairperson for the Meru Women Legislative Association (MEWOLA); a caucus of women legislators at the County Assembly of Meru formed to chat the path for the women agenda owing to the cultural challenges that underpins political representation in the County.
The Caucus is headed by a secrteriate that includes, the Chairperson, Vice Chair, Secretary, Assistant Secretary, Treasurer.
During the 2017 general elections, only two women were directly elected to the County Assembly of Meru. 21 members were nominated by the various political parties to fill in the gender threshold as per the Constitutional provisions of the two-thirds gender principle.
“Most elected MCAs are men and they feel they have more rights than the women when it comes to appointment in the House committees. At first none of the women were elected to chair the committees but after push and pull from the women legislators, only one was given a slot to chair the County Cohesion and Devolved Unit Committee,” she says.
“The Committee positions were politicized as well. The criteria used was regionalized based on the Wards which only factored the male membership in the Assembly leaving out of the key policy decision making processes,” adds Kaimuri noting that the environment for women leadership has since changed.
That did not however deter them from pushing forward to have their voices heard. Their persistence garnered then positions as the vice chair of the house committees…name them.
Today the MEWOLA is in the process of drafting a strategic plan that would guide their operations in the coming five years. Key among the strategic focus is the enactment of the Meru County Sexual and Gender Based Violence policy for an effective prevention and response of GBV and create budgets that are gender sensitive.
“We aspire to create strategic partnerships wit state and non-state actors to ensure gender issues are mainstreamed in the county.” She explains.
In the last County Integrated Development Plan, gender issues were not well articulated posing a challenge to the implementation of projects that adhere to the issues of inclusivity including people living with disability.
For decades CREAW has been working to equip women with the knowledge to be able to challenge societal norms that underpins their ascension to appointive and elective positions. With the knowledge, the women gain the confidence to engage with key decision makers on accountability issues on the rights of women and girls. Through that; they are also able to vie and get elected into the county and national assembly and able to influence key policies that enables for the actualization of the inclusion of women in the development processes as well us address the scourge of gender based violence in the communities.
Nairobi, Kenya, February 21, 2018: Katiba Institute representing Marilyn Kamuru, Daisy Amdany and Center for Rights Education and Awareness (CREAW) filed a case to safeguard the rule of law, constitutionalism and safeguard against the slide into state sanctioned anarchy.
The case highlights the violation of established law that requires that all State officers and organs have limited authority and may legally act only in accordance with the Constitution. Relying on a prior decision of the High Court in Petition 566 of 2015 which determined that the Cabinet was unconstitutional, null and void effective August 2017, the case argues that The President failed to observe the law by following the process for appointing Cabinet.
That the actions of the President in nominating and appointing Cabinet was beyond his constitutional authority as provided in Articles 1, 2, 3, 129(1), 132(2) and 152(2), and as such per Article 2(4) these acts are invalid. That the actions of the National Assembly in approving a partial list of nominees in the knowledge that their approval would result in an unconstitutional Cabinet (one in violation of 27(8), were beyond their constitutional authority as limited in Articles 1, 2, 3, and 93 which requires the National Assembly must act “in accordance with this Constitution”.
The case seeks orders that the ultra vires actions of the President and National Assembly are declared unlawful with no legal effect, and further orders to restrain all members who hold State office through these illegal actions from exercising state authority. The case also seeks orders requiring the President to legally constitute a new Cabinet in compliance with the Constitution and all applicable law.
This case is important to every Kenyan because it seek to affirm the Constitution which provides that neither State Officers nor State Organs have unlimited authority in Kenya or over Kenyans. That the exercise of any State officer or Organ outside of the constitutionally allowed authority is illegal. That the exercise of State authority is not available to persons who have acquired State office illegally, or through a violation with the applicable law and processes for eligibility, approval and appointment.
Date: 1st February 2018
On 26th of January 2017, the President of the Republic of Kenya, Uhuru Muigai Kenyatta, in a statement to newsrooms announced his new cabinet comprising of, Cabinet Secretaries, Chief Administrative Secretaries and Principal Secretaries. Part of the list of new cabinet appointees has been forwarded to parliament for vetting.
Of all the nominees, there is no youth. Further, out of the whole proposed cabinet composition, only one person with disability has been nominated as a Principal Secretary. The percentage of women in all the cabinet position remains grossly below the constitutionally stipulated percentage. Worse still, it has retrogressed rather than progress contrary to Article 27 (8) of the Constitution. Whereas in 2013, the percentage of women nominated for the Cabinet Secretary and Principal Secretary positions was 30% and 36% respectively, the percentages in the current list of nominees have dwindled to a merger 28.5% and 27.8% respectively. Exacerbating the situation, regional imbalance is out-rightly glaring with 2 out of the 43 Kenyan tribes scooping 59% of the cabinet positions.
The list of nominees reeks of pungent discrimination on the basis of age, disability, ethnicity and gender. The list flies in the face of paragraph 3 of the preamble, articles 3, 10 (b), 27, 54(2), 55 (b) and 131(2) of the Constitution and Section 10 of the Public Service (Values and Principles) Act. It cannot and should not be allowed pass in a democratic state like ours which is based values including inclusivity, equality and non-discrimination.
We, the youth, persons with disabilities, women and Kenyan from diverse ethnic backgrounds, condemn the President’s nominations, which fall far outside the coordinates of the Constitution. We note that it is embarrassing and saddening in equal measure that twice, the President has taken oath to respect, uphold and defend the Constitution, but has gone ahead to patently and openly contravene its most basic tenets.
In his various addresses to the state, the President has reiterated that he is a president of all Kenyans and not selected Kenyans; a symbol of national unity mandated under article 131(2) (c) & (d) of the Constitution to promote and enhance unity of the people, promote respect for diversity of the people and Communities of Kenya and to ensure the protection of human rights and fundamental freedoms and the rule of law. It is utterly shocking that the same is not reflected in his actions. It begs the question whether he indeed is a symbol of national unity or that of a selected polity for which we youth, persons with disability, women and Kenyans from certain regions do not belong.
The President, purportedly acting on recommendations of the Public Service Commission, has gone ahead to create the positions of Chief Administrative Secretaries in the Cabinet. Judging from the general and specific job descriptions of the Chief Administrative Secretaries, they rank higher than Principal Secretaries, a development that was not envisioned in the Constitution. Had people of Kenya wanted representatives higher in hierarchy than the principal Secretaries, it could have been easier to include the same in the constitution.
We strongly condemn the move by the president to manipulate the Constitution by reincarnating the order associated with the old constitutional dispensation (i.e. Minister- Assistant Minister- Permanent secretary). Such unconstitutional move must be arrested immediately. We know that the Chief Administrative Secretaries positions were created purposely as consolation prices for the President’s allies who lost in the August 8 2017 General Elections and not for nation building . It is for this reason that the positions were never publicly advertised to give room for competitive selection contrary to article 232 of the Constitution. Kenyans denounces the redundant positions under the current constitutional dispensation and we still refuse to be burdened by the huge wage bill attendant to superfluity. We further note that the nominations of the chief administrative secretaries is marred with discrimination as elucidated above.
We the youth, persons with disability, women and Kenyans from diverse ethnic backgrounds recognize all that the all the groups are capable of ably taking up leadership roles in our country. We aspire for a government based on human rights, equality, inclusivity, social justice and the rule of law.
Therefore, we demand:
The Constitution of Kenya has ushered in a new beginning for the women of Kenya as it guarantees key fundamental rights and freedoms which include but are not limited to the right of the participation of women in democratic governance.
Provisions such us Article 26 (6), Article 27 (8) and Article 81 (b) which secure affirmative action aim to reduce gender imbalances in leadership positions by providing that no more than two-thirds of the members in any elective or appointive positions such shall be of the same gender.
The not more than two-thirds gender principle recognizes that certain sectors of the society, historically women, have been marginalized by the political system thereby requiring that the state put in place measures, to guarantee their right to equality. This right to equality is interpreted as requiring the elimination of historically rooted patterns of prejudice, discrimination and disadvantage that contribute to the subordination and exclusion of women.
The failure of Parliament to put in place legislative measures to ensure that the not more than 2/3rds principle is met within Parliament threatens to perpetuate the status quo where women continue to be marginalized from decision making spaces particularly at the national level . In addition there is a real threat of a constitutional crisis in the event that a mechanism is not in place ahead of the 2017 general elections. Aside from the fact that the not more than two thirds same gender principle goes to the heart of the inclusivity and non-discrimination principles that are among the foundation and pillars upon which the Constitution of Kenya 2010 is grounded, it must be noted that all other celebrated gains enshrined in the Constitution such as socio-economic rights, land rights, equality rights including in marriage and dissolution of the marriage are equally threatened if we lose out on the not more than two thirds same gender principle. This is because the exclusion of women in the social, cultural and economic sphere is grounded in the unequal power structures particularly in leadership and decision making which contribute immensely towards reinforcing their exclusion in all other spheres.
However, while the Constitution provides a mechanism for the actualization of this principle in the County Assemblies in Article 177 (b), there is no mechanism provided to realize this principle in the National Assembly and the Senate. This constitutional quagmire was the subject matter of the Supreme Court advisory opinion of 11th December, 2012 in which the court gave a specific timeline of August 27th 2015 for a mechanism to be in place to actualize the not more than two thirds gender principle.
Following this directive, the Attorney general constituted a multi sectoral technical working group to develop an affirmative action bill and in addition various members of parliament also developed diverse affirmative action and Constitutional amendment Bills seeking to either progressively realize affirmative action or altogether do away with it. However by May 2015 these parallel processes had not resulted into legislation forcing further Court action which resulted in a ruling from Justice Mumbi Ngugi directing Parliament the Attorney General and the CIC to have in place legislation before the August 2015 deadline.
In order to avoid failing to meet the August 2015 deadline Parliament exercised its power under Article 261 of the Constitution ,to extend the deadline by a period of 1 year which lapsed in August 2016.
On the 5th September 2016, two Noon Governmental Organizations Centre for Rights Education and Awareness (CREAW) and CRAWN trust moved the High Court in Nairobi High Court Petition No. 371 of 2016 to declare that the failure by Parliament to enact the required legislation within the time frame specified in the Supreme Court Advisory Opinion and the Constitution was a violation of the Constitution.
On the 29th March 2017, the High Court rendered judgment in the Nairobi High Court Petition No. 371 of 2016 to declare that the failure by Parliament to enact the required legislation within the time frame specified in the Supreme Court Advisory Opinion and the Constitution was a violation of the Constitution.
The High Court further issued orders directing Parliament to enact the required legislation within a period of sixty days. The period lapsed without Parliament enacting the required legislation to implement the two-thirds gender principle. Parliament went on recess on 28th May 2017 without enacting the necessary legislation to bring Parliament into compliance with the constitutional requirement on the two-thirds gender principle.
On the 8th August 2017, Kenya held its second general election under the 2010 Constitution. Ultimately, there was reasonable apprehension that the elections would not return sufficient numbers of elected Members of the National Assembly and the Senate necessary to meet the one-third-to-two-thirds gender-principle crystallized.
In the just concluded elections, twenty three (23) women were elected. However, to meet the two thirds gender principle, the National Assembly requires one hundred and seventeen (117) Members being of the opposite gender. So with the current count of twenty three (23) elected women Members of the National Assembly, forty seven (47) County Women Representatives, and six (6) women members to be nominated to fill half the twelve (12) slots reserved for members nominated from parliamentary political parties, the total House count is seventy six (76). This creates a shortfall of 41 women in the National Assembly.
In the Senate, the threshold for the not more than two-thirds gender-principle is twenty three (23) members of either gender. Three (3) women members were elected at the ballot, sixteen (16) women members to be nominated by parliamentary political parties, one (1) woman member to be nominated to represent the youth, one (1) woman member to be nominated to represent persons with disabilities. Thus the count for the Senate will be twenty one (21), creating a shortfall of two (2).
It is in this regard that CREAW and CRAWN Trust have filed a suit in the High Court of Kenya seeking the following orders
To date Kenya National Human Rights Commission, Law Society of Kenya, National Gender and Equality Commission have joined the suit as interested parties and as amicus curae. The case proceeds to full hearing on the 20th of September 2017
Advocacy strategies
The consortium is implementing the following strategies
Parliament has now been given 60 days to enact legislations effecting the 2/3 gender rule or face dissolution. High court judge John Mutivo says parliament consisting of national assembly and the senate are guilty of failing to enact the legislations that will implement the constitution. The verdict was read this morning at the Milimani courts and here is a part of that ruling.
This petition was filled following the nomination by the president and the subsequent approval by the National Assembly and appointment by the president of cabinet secretaries in December 2015. The petition was seeking, among others, a declaration that the cabinet as presently constituted violates the provisions of Article 27(8) of the constitution.
Land Mark Ruling – Two Thirds Gender Rule
CREAW filed this suit in the Constitutional court seeking declaration that the Attorney General and the Constitution Implementation Commission had failed in their duty to develop and present affirmative action legislation ahead of the August 27th 2015 deadline placed by the Supreme Court.
