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.