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Two Third Archives - CREAW KENYA

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BlogCaught on NewsEventsSuccess StoriesWomen Leadership and Governance

Women protests, demanding more slots in Cabinet

January 25, 2018by CREAW0

By Christine Ogutu

With the new Constitutional dispensation in 2010, the women of Kenya were hopeful of a new beginning that would enable them participate in the democratic governance of the country.

The Constitution of Kenya 2010 created avenues necessitating an affirmative action aimed at reducing gender imbalances in leadership positions. Article 26 (6), 27 (8) and 81(b) postulates that not more than two-thirds of the members of any elective or appointive positions shall be of the same gender.

Seven years down the line, the provisions of the Constitution are yet to be met. Women representation in public bodies and Parliament remains minimal owing to the lack of political good will in providing legislative mechanisms for the realization of the two-thirds gender principle.
“ For too long, the women of Kenya have been intentionally excluded from decision making processes, deliberately denied the right to be fully represented in Parliament and constantly overlooked with regards to positions of appointment to public office,” said the women in a statement delivered to the Office of the President during a march on January 22 along the streets of Nairobi.
The women who were joined by CREAW, FEMNET, Groots Kenya, Katiba Institute, Kenya Human Rights Commission and the Women Empowerment Link among other concerned rights groups and Kenyans of goodwill took to the streets in protest of the continued discrimination and exclusion of women from the governance processes.
The women stated that “whereas it is clear in Law and Courts decisions that there can not be more than two-thirds of any gender in elective and appointive positions, the principle has not been adhered to in Parliament nor has it been given any consideration in the ongoing appointments of the Cabinet.”
Currently there are 76 women in the National Assembly, which is 41 short of the required number. In the Senate, there are 21 female senators, which is also two short of the required number resulting into an improperly constituted parliament as per the Constitution.
“We find it unconscionable, disrespectful and an affront to the women, that more than 7 years since the promulgation of the Constitution, women are still forced to agitate for their right to political participation and equitable representation in Parliament and in the Executive,” read the statement in part.
Recently in his first batch of nominees to Cabinet, the President dropped all women in his earlier Cabinet, naming only men. This, women said is a dishonor to the gains made by the women movement since independence.
“The President, Parliament and Political class must stop sacrificing women for political expediency and wake up to the realization that women remain vigilant and will continue to seek accountability for the implementation of the Constitution,” said Beatrice Kamau who read the statement on behalf of the women.
She added: “The remaining appointments to the Cabinet must therefore be made with uttermost regard to the principle of the not more than two-thirds as enshrined in the Constitution and fulfill the directives of the Court which also found the previous Cabinet to be unconstitutional.”
In the march, the women sought to remind Parliament of its duty as a legislative body to enact the necessary legislations for the actualization of the two-thirds principle. This they say will bridge the gaps that have for a long time denied women their spaces at the decision-making tables.
In march, the women also petitioned the Inspector General of the Police, Joseph Boinet to speed up investigations on the alleged sexual violence against nursing mothers at the Kenyatta National Hospital(KNH) and bring perpetrators to book.

“KNH is an institution in a position of authority and trust and therefore owes a duty of care to its patients. It therefore follows that the administration should have systems and structures that protects vulnerable patients and responds to any acts or omissions that breach the duty of care,” read the petition.

The concerned women of Kenya said that it was insensitive and unethical for the hospital administration to casually deny the claims of sexual assault as no survivor had come forward to report any of such cases.

“It is not enough for the Cabinet Secretary of Health Cleopa Mailu to order for investigations without himself visiting the hospital to ascertain the veracity of the allegations and satisfy himself that all the measures are being taken by the hospital to secure the safety of patients and  ensure full cooperation of hospital staff in bringing forward evidence concerning the allegations,” said the women.

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Two Thirds Gender Rule

Background and current status of the not more than 2/3rds principle

September 25, 2017by CREAW0

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

  1. A DECLARATION that the composition of the National Assembly and the Senate has failed to meet the constitutional threshold of the not-more-than two thirds gender principle.
  2. A DECLARATION that the failure by Parliament to meet the not-more-than two thirds gender principle contemplated under Articles 27(8) and 81(b) amounts to a violation of the rights of women to equality and freedom from discrimination and a violation of the Constitution.
  3. An order in the nature of Mandamus directing Parliament that the first and only order of business is to pass the necessary legislation to implement the not-more-than two thirds gender principle.
  4. Any other or further orders that this court may deem fit to grant to meet the ends of justice.
  5. Costs of the Petition.

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

  1. Supporting women candidates who lost to better negotiate for space on the nomination lists that will be presented to top up the additional numbers of women required to achieve the not more than two thirds principle in Parliament
  2. Meeting with members of Parliament to sensitize them on the importance of passing the legislation on not more than two thirds and ensuring they vote for the bill once it is introduced for debate
  • Re-imagining and strengthening the women’s movement by re-energizing and mobilizing women led groups in the 47 counties around key issues of concern for women. This will ensure there is a critical mass amplifying the needs and priorities of women and driving engagement on these issues at both County and national level.
  1. With regard to the case coming for hearing on 20th October 2017. The parties in the case will mobilize women for a march to both Parliament to present a petition on two thirds to the speakers of the National Assembly and Senate and also attend the court case at the High Court
  2. Step up pressure to Parliament through the diplomatic community in Kenya and regional bodies such as the African Union, East African Legislative Assembly etc.
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