Is the two-thirds gender rule discourse engendering double invisibility in public life for other vulnerable groups in Kenya?

Lucianna Thuo 19th August 2016

It is asserted that an enduring democracy is one that secures the meaningful participation of youth, women, persons with disabilities, the elderly, minorities and other marginalised groups in public life and decision-making processes. These groups are identified under Article 21(3) of Kenya’s 2010 Constitution as vulnerable and state organs and public officials required to take steps to address their needs. Mumbi J in Centre for Rights, Education and Awareness (CREAW) v Attorney General & Another (para. 1) emphasised the centrality of inclusion of all citizens in governance to the validity of a democracy. Public participation serves not only as a tool for addressing the social and economic inequalities associated with marginalisation, but is also a factor of public recognition; acknowledging that marginalised groups rank equally with other citizens.

The Kenyan Constitution has several provisions on inclusion.  However, Article 27(8), also known as the “two-thirds gender rule”, is the most cited one. It directs that the state should take legislative and other measures to ensure no more than two-thirds of all elective or appointive positions are held by the same gender. Article 27(8) must be read together with Article 100, requiring the enactment of legislation on representation in Parliament of marginalised groups including women, youth, persons with disabilities, ethnic minorities and other marginalised communities.

On one hand, the two-thirds gender rule has stirred active public debate and litigation right from inception, including the Gender Representation Supreme Court Advisory Opinion (on whether Article 27(8) was immediately realisable), FIDA Kenya & Others v Attorney General and another (challenging the gender composition of the Supreme Court), National Gender and Equality Commission (NGEC) v IEBC (challenging the exclusion of women, youths and persons with disabilities from party lists under Article 90 of the Constitution) and CREAW v Attorney General & Another (seeking publication of a bill to give effect to Article 100). On the other hand, there has been little litigation and public debate on the inclusion of other marginalised groups: NGEC v IEBC (as above) and Northern Nomadic Disabled Person’s Organization (NONDO) v Governor County Government of Garissa & another (concerning exclusion of persons with disabilities from county government).

As demonstrated above, women’s underrepresentation and their quest for inclusion is more visible and elaborately dealt with in current debates and litigation. However, one cannot help but notice its effect on other vulnerable groups. Even though Article 100 legislation is aimed at addressing the participation rights of women and other marginalised groups, the proposed implementation bill became known in public debates as the ‘two-thirds gender rule bill’, thereby elevating women above other marginalised groups. The struggle for inclusion of one group above others has been referred to as ‘Oppression Olympics’ a term first coined by Martinez in 1993. Hancock terms this as a threat to democracy and cautions that going it alone, rather than forming coalitions necessary in a democracy, causes each marginalised group to be divided and conquered.

Arguably, the pre-dominance of the gender inclusion discourse has a disproportionate effect on other marginalised groups and makes these groups doubly invisible. Their marginalisation is further fuelled by the vagueness of most of the constitutional provisions mandating their inclusion (e.g. the state’s obligation to ‘take measures’ in Articles 55 and 57, without setting out specific implementation approaches).

Nonetheless, while the strategies employed by the gender movement have served to clarify the scope of the state’s obligations in implementing women’s participation rights, lack of political will has precluded tangible results, as evidenced by the failed attempts to lobby Parliament for Article 100 legislation. Given the patriarchal nature of Kenyan politics, it came as no surprise that two attempts to lobby for the ‘two-thirds rule bill’ failed. The debate on the bill not only evidenced a lack of appreciation by (predominantly male) Parliamentarians of constitutional values of inclusion, but also demonstrated what Hancock calls ‘defiant ignorance’ – negating responsibility for and advantage gained from inegalitarian traditions. Based on these challenges, the gender movement could benefit greatly from coalescing with other marginalised groups and forming strategic alliances with opinion influencers such as political and religious leaders and the media in championing their political inclusion. Quoting Bird, lasting change can only be brought about by seeking policy changes that pay full and simultaneous attention to all the intersections of exclusion.

As Kenya approaches the 2017 general elections, it is hoped that there will be greater synergy among these vulnerable groups to tackle lack of political will, lack of implementation mechanisms and the disdain for constitutional values of inclusion and non-discrimination.

Author profile

Lucianna Thuo is an advocate of the High Court of Kenya and holds an LLM in Human Rights and Democratisation in Africa from the University of Pretoria. She also holds a Post-Graduate Diploma in Realising Human Rights through Criminal Law from Åbo Akademi University in Finland. She has a keen interest in democracy and issues relating to political participation.

Citations

Lucianna Thuo, “Is the two-thirds gender rule discourse engendering double invisibility in public life for other vulnerable groups in Kenya?” (OxHRH Blog, 19 August 2016) <http://ohrh.law.ox.ac.uk/is-the-two-thirds-gender-rule-discourse-engendering-double-invisibility-in-public-life-for-other-vulnerable-groups-in-kenya/> [Date of access]

Comments

  1. Andrew says:

    Sorry, but any such rule as applied to directly elected bodies is the negation of democracy.

    I well remember Jack Straw defending the party list system for elections to the European Parliament (those were the days) by saying that allowing voters to pick and choose candidates led to race discrimination – I don’t think he mentioned gender.

    The fallacy of the argument was and is to suggest that the individual voter in the booth owes some sort of equality duty; it is not so. That voter is free to choose which candidates to support on any basis whatsoever; that is democracy. That some will only vote for black, white, male, female, gay, straight candidates, and cross party lines to do so, may be regrettable but that is their right.

    Anyone disagree and why?

    1. Lucianna says:

      Andrew,
      Many thanks for taking the time to read the post and comment on it and my apologies for the delayed response to it. I am not sure to what extent the Parliamentary system in the UK is similar to Kenya’s but I will explain the context in which the article was written.
      When it comes to representation in Parliament, our electoral system provides for a mix of both the first past the post (FPTP) system as well as proportional representation (PR). Under the former, the majority of the representatives to Parliament (both Senate and the National Assembly) are directly elected for the various electoral units on election day. Under the PR system, seats are allocated to political parties in Parliament, based on the number of elected seats they won on election day, to represent the interests of women, youth, persons with disabilities, minorities and other marginalised communities. These are the groups identified as having been marginalised historically and as a result of social constructs and who therefore have difficulty accessing Parliament through election. The special seats are not filled by election but rather by nomination at the political party level in accordance with each party’s internal nomination rules. This process is supervised by the Electoral and Boundaries Commission to ensure that the rules are protected and that the process does not privilege some vulnerable groups over others. Since the special seats are in addition to the directly elected representatives, they have no impact on the freedom to choose the candidate of one’s choice at the ballot. They are simply intended to ensure that each group has a seat at the table and that everyone has an opportunity to participate in decisions that affect them. It is for this process of allocation of seats that Article 100 legislation is required to be enacted.

      Hope that addresses your concern about the special seats limiting freedom of choice and by extension undermining democracy.

      1. Andrew says:

        Thank you – it does!

    2. Sam says:

      I agree with you. So many problems with the rule, for starters it basically entrenches sexism and makes it legal by specifying that a persons gender is the most important thing when considering them as a candidate to vie in an election or as an appointee to public office. The modern world is trying to eradicate discrimination not legalize it.

      I also have a problem with the simplistic and myopic way they approach and understand gender representation in any sphere of public life, they completely overlook a myriad of factors that cumulatively influence the outcome of such things in a free society where everyone has an equal right to decide to participate. For starters different people like and are motivated and influenced by different things and in a sexually dimorphic species such as ours a distinction in interests motivations and goals differ significantly when large samples of males and females are studied. Our biology is certainly not an excuse to discriminate and deny access to some but it’s simply foolish to pretend it doesn’t influence peoples decisions on what paths to take in life, consider the more than 1800 men who initially vied compared to the less than 200 women who did the same especially in a society that increasingly encourages young girls and women to succeed and aim high.

      The rule also does a disservice to it’s intended goal by only considering the 1% of top public positions and ignoring the 99% of us who don’t fall into that category, there is no move I have heard of that is talking about having more men in nursing, teaching, hosting, active combat etc for the sake of gender equality.

      Sameness is a myth and as such no matter what demographics you consider in your studies you will always find disparities that are not linked to widespread, intentional, systematic exclusion and discrimination of said groups. Consider this, most of the best and toughest world class marathon runners our species has ever produces seem to hail from a small plateau in the western part of our country. Is this due to systematic tribalism perpetrated by our Nandi brothers and sisters? I hardly thing so.

Leave a Reply

Your email address will not be published. Required fields are marked *