Erasing The Error Of Inequality: Expanding Spaces For Women In Decision Making And Governance In Kenya

By Beverline Anyango Ongaro

‘Everything is interwoven, and the web is holy; none of its parts are unconnected. They are composed harmoniously, and together they compose the world. One world, made up of all things.’ Marcus Aurelius in Meditations

Indeed The Constitution of Kenya 2010 recognises the interconnectedness, potential, and inherent value of women and men. Therefore, it guarantees gender equality within decision-making processes and systems of governance in Kenyan institutions at national and county levels.

In fact, equality is among the 19 national values and principles of governance stipulated in Article 10(2). The Constitution defines gender equality by setting a threshold for representation by both genders. Article 27 (8) obligates the State to “take legislative and other measures to implement the principle that not more than two–thirds of the members of elective or appointive bodies shall be of the same gender.”

It also recognises the diversity of gender, age, and ability. Hence, it has specific provisions on the political representation of special interest groups as the youth and persons with a disability under Articles 55 and 54. 

In response to the above provisions, the State has since 2010 enacted a myriad of laws. The notable being the Political Parties Act No. 11 of 2011, the Elections Act No. 24 of 2011, and the National Cohesion and Integration Act No. 12 of 2008. Accordingly, the Independent Electoral Boundaries Commission, Registrar of Political Parties, and political parties are mandated to adhere to and enforce the two-thirds gender principle.   

However, do the current decision-making processes, and systems of governance in the Kenya milieu reflect these special legal provisions and Constitutional guarantees for gender equality? 

It is indisputable that women’s representation in decision-making processes and system of governance has improved, albeit it being slow and below the constitutional threshold. This increase is attributed to the Constitutional provisions for the nomination of 16 women by political parties into the Senate under Article 98(1) (1) (b); 12 members to represent a special interest in the National Assembly under Article 97(1) (c); and the special seat members in the County Assembly under Article 177(1) (b). 

The 2019 Kenya Population and Housing Census showed that women comprise 50.5% of the total population in the country. However, despite being slightly more than men, men have historically dominated the governance space. Data shows that there have been deliberate steps to increase women representation in key decision-making organs within public service institutions at national and county levels, albeit at varying degrees. 

According to the Kenya National Bureau of Statistics, Women Empowerment in Kenya: Developing A Measure, as of 2019, the women representation within the Executive as Chief Administrative Secretaries and Assistant County Commissioners was at 33.3% and 32.6%, an improvement from the 2018 representation of zero Chief Administrative Secretaries and Assistant County Commissioners at 32.1%. 

However, this minimum incremental milestone is not replicated in other positions within the Executive. Cabinet Secretaries are 29.2%, Principal Secretaries, 22.7%, Regional County Commissioners, 12.5%, County Commissioners, 12.8%, and Deputy Commissioners, 11.5%. 

In Parliament, which comprises the National Assembly and the Senate, Women Senators are 31.3%, and National Assembly, 21.8%. However, Parliament’s non-compliance is not surprising considering that it has not adhered to four separate court directives to establish a legal mechanism for ensuring adherence to the two-thirds gender principle.

According to 2019 KNBS data, the varied women representation in Parliament is mirrored at the county level, where women Members of County Assemblies are 33.6%, and Members of County Executive Committee Members, 31.3%. As for the gubernatorial, there are only two women governors representing 4.3% and eight women deputy governors, 17.4%.

However, the Judiciary has demonstrated decisive positive steps towards compliance with gender parity. Latest data from the Chief Registrars Office, as at 2021, indicate that most of the courts have achieved the 50% women representation; Supreme Court, which is headed by the first Kenya’s female Chief Justice, is 42.8%, the Court of Appeal, 50%, High Court, 55.1%, and Magistrates Courts, 53.2%.

Kadhi’s court does not have women representation. However, there are indications that this is likely to change soon, following an advisory, Muslim Women and Judicial Authority: Kenya in Comparative Context by the Muslims for Human Rights to the Judiciary Service Commission to appoint women Kadhis. 

Nevertheless, despite these efforts, Kenya’s ranking on the Gender Inequality Index by the World Economic Forum’s Global Gender Gap Report 2021 showed that it deteriorated from 73rd of 153 countries in 2006 to 95 out of 156 countries in 2021. 

Why should we seek women’s participation in the decision-making process on equal footing as men? 

Firstly, as established by the KDHS, they are the majority of the population at 50.5%. According to the Independent Electoral Boundaries Commission records, they also actively participate in voting processes; in 2017, 47% of registered voters were women. Therefore, it stands to reason that the power of women as voters in the decision-making process and system of governance should enable them to have access as leaders into these positions. 

Women are not mere conveyor belts for ushering others into power through their votes. Perhaps the true mark of the birth right of Kenyan women citizenship is captured by Malcolm Shabazz, also known as Malcolm X remarks,

‘I am not going to sit at your table and watch you eat, with nothing on my table and call myself a diner. Sitting at the table doesn’t make you a diner unless you eat some of what’s on that plate.’ 

Kenyan women’s citizenship is truly reflected by the extent to which the political playground is level to facilitate their participation as leaders in the decision-making processes and system of governance in parity with fellow men citizens.

Secondly, women’s socialisation, life experiences and perspectives, and biological differences that often impart their gender roles predispose them to a distinct amalgamation of views. It flows then those structures where women participate as decision-makers -in parity or as equitable as men- are richer. 

Indisputably, the outcome of such a diversity of representation is that persistent challenges facing the populace have a greater chance of being effectively tackled. Based on their personal experiences, leaders can address with clarity and conviction the unique challenges faced by their gender.

A cursory glance at the October 2020 12th Parliament legislation tracker confirms that women legislators sponsored legislation that collectively benefits their diverse constituents and people of Kenya generally. Notable Bills included the Public Finance Management (Amendment) Bill 2020(Hon. Gladys Wanga), Basic Education (Amendment) Bill 2019 (Hon. Sabina Chege), Children Amendment Bill 2018(Hon. Gathoni Wamuchomba), Whistle Blowers Protection Bill 2020 (Hon. Irene Kasalu), Food Security Bill, 2020 (Hon. Jennifer Shamalla), Forest Management and Conservation (Amendment) Bill 2018(Hon. Charity Chepkwony), and Child Justice Bill, 2018 (Hon. Millie Odhiambo). 

A scorecard Mzalendo’ 2019 People Shujaaz Award by a Kenyan civil society organisation saw six out of nine awards conferred on women legislators of the 12th Parliament for addressing socio-economic issues as health, food insecurity, education for their constituents- an attestation of women legislators’ competence. 

Thirdly, in addition to addressing the challenges their diverse constituents face, women legislators also addressed the unique challenges faced by the female population. Examples include Hon. Esther Passaris’s sponsored Employment (Amendment) Bill 2020 to provide maternity leave to female employees who miscarry after 20 weeks or birth a stillborn child. Hon. Martha Wangari also sponsored the Employment (Amendment) Bill 2018 to provide maternity leave to adoptive parents and Hon. Beatrice Kwamboka, the Care and Protection of Child Parents Bill, 2019 to increase school return rate for pregnant children. 

Fourthly, the 12th Parliament Hansard confirmed that women legislators actively exercised their oversight role alongside their male counterparts and participated in vetting candidates for public offices. They also tabled petitions presented to them by public members in line with Article 118 of the Constitution. In addition to advocating for adequate budgetary allocation towards access to justice, education, health, and livelihoods, they infused gender perspectives in policy formulation, law-making procedures, and budgetary processes, resulting in gender-friendly working conditions for legislators. 

For example, during the 11th Parliament, Senator Martha Wangari successfully advocated for the establishment of crèche (nursery for nursing mothers and fathers minding children of tender age) in Parliament, which is important for legislators-both men and women- of reproductive age as it facilitates them in discharging their role as they balance it with family responsibilities of childcare. 

The above concrete examples mirror the critical and unique aspects that increased women representation has brought to the table of policymaking and governance in Kenya. Moreover, it is indisputable and laudable that women’s representation in decision-making processes and systems of governance has improved progressively. There has never been a greater need to encourage more women participation! 

However, the fact remains that women representation remains glaring below the Constitutional threshold, particularly in the elective positions in Parliament and County Assemblies due to significant barriers that discourage women participation. These should be addressed decisively to secure and expand women’s participation and representation towards meeting the two-thirds gender principle, especially towards the general elections in August 2022. Below are ten barriers and policy considerations.

Barriers for women’s participation and policy considerations to secure and expand women’s representation

• Combat impunity to the courts’ judgements to realise the not more than two–thirds gender principle through compliance. 

The 11th and 12th Parliaments have not complied with the decisions rendered by courts for them to establish a legal mechanism and framework on the two-thirds gender principle.

Parliament’s protracted delay in complying with the court’s decision is a brazen lack of political goodwill since there have been massive resources including ‘civic education on why women leadership matters’ and advocacy targeting Parliament –but all these have been in vain. This lack of goodwill has been highlighted at regional and international levels, where Kenya has been urged to avert the delay in implementing the two-thirds gender principle.  

• Operationalise and robustly implement the Campaign Financing Act, No. 42 of 2013. 

The law seeks to establish a level playing ground for all candidates by imposing obligations on political parties and candidates to be accountable for elections finance. The law should be robustly enforced. Kenya’s elections are costly, particularly for women candidates. 

Research by the Netherlands Institute for Multiparty Democracy, the Cost of Politics in Kenya: Implications for Political Participation and Development established that during the 2017 general elections, women outspent men in all elective positions except Senate. On average, women spent Kshs. 23.6 million (USD 236,000) in comparison to men’s Kshs. 17 million (USD 170,000) for contesting National Assembly seats. Women spent an average of Kshs. 6.4 million (USD 64,000 USD) compared to men’s expenditure of Kshs. 2.9 million (29,000 USD) for contesting the Members of County Assembly seats. 

• Impose punitive sanctions for violence against women during the electoral period. 

Violence against women in elections violates women’s right to exercise their political rights as voters or candidates. The Kenya National Commission on Human Rights’ report Silhouettes of Brutality: An Account of Sexual Violence During and After the 2017 General Elections documented 201 sexual violence incidents perpetrated by the police and civilians during the electoral period; of these cases, 96.26% of the survivors of the violence were women. 

Equally, the Human Rights Watch’s report “They Were Men in Uniform’’: Sexual Violence against Women and Girls in Kenya’s 2017 Elections documented sexual violence perpetrated during 2017 electoral by the police and civilians, of which 95.8% of the survivors were women. 

The common forlorn trends in these documented cases are that the women were raped for being deemed to have voted for ‘unwanted’ leaders in a given geographical location. To date, no one has been held accountable or punished for these gross human rights violations, eroding women’s confidence to vote for visionary leadership, let alone to contest as candidates. 

Women survivors of electoral related sexual violence stated emphatically to the researchers of the Breaking the Cycles of Violence: Gaps in Preventing and Response to Electoral Related Sexual Violence that elections should be expunged as it is the reason they were raped, yet they had exercised their political rights as voters and patriotic citizens. According to IEBC data, women voters dropped from 49% in 2013 to 47% in 2017. This drop is a concerning trend amid fledging hate speech and tension, which might further discourage women.

However, of most significant concern is that women politicians have revealed frightening violence directed at them for daring to contest in primaries and general elections; these acts of violence range from online violence, assault to their person and properties, their loved ones, including those within their campaign team. The ultimate aim is to intimidate these women out of the political race. 

The poignant fact is that visible impunity of violence against women candidates strongly deters women who desire to participate in elective positions. It underscores the patriarchal hegemony that a woman’s place in society is private and not public domain. Notably, violence against women blatantly violates Kenya’s inveterate principle of its system of governance as free and fair elections that are free from violence as enshrined in Articles 81 and 38 of the Constitution, Elections Act No. 24 of 2011, and Elections Offences Act No. 37 of 2016. 

Given Kenya’s history of related electoral violence, particularly violence against women, any future elections occasioned by such violence should be nullified as an effective measure to deter the violence and subsequent recurrence.

• Create conducive working conditions for women legislators by robustly enforcing Standing Orders in Parliament and County Assemblies. 

After breaking the glass ceilings to get into Parliament and County Assemblies, women legislators still contend with gender discrimination, biases, sexism, sexual harassment, and violence. Nominated women legislators face these challenges disproportionately in comparison to their elected counterparts. 

The Kenya International Commission of Jurists’ research, Consolidating Gains and Confronting Challenges: Nominated Women’s Experiences in Parliament and County Assemblies, documented nominated women legislators’ discriminative and intimidating experiences in the hands of male legislators. These experiences include being derided as ‘bonga’ points‘ (bonus) and publicly humiliated as unsuitable to speak in public because of not being circumcised, their office’s keys taken away, compelling them to work from their homes and personal cars, and physical assault. 

The Parliamentary and County Assembly Standing Orders prohibit unsavoury language, threat and use of violence. However, these have not been enforced to deter gender-based violence directed at women legislators. Hon. Millie Odhiambo’s experience of being stripped by male legislators in the National Assembly, among other undignified treatments having a chilling effect as they drive women away from seeking to be elected. 

The humdrum argument that women ought to employ intra-masculine political violence to be elected must be eschewed because it is an endorsement of culture and the cycle of violence. Instead, perpetrators of such violence should be punished, and we have cogent laws to exactly do that.    

• IEBC enforces the legal provisions for political parties to submit lists of candidates that comply with two-thirds of the gender principle. 

The judgement of Katiba Institute v. IEBC Constitutional Petition No. 19 of 2017 provides a straightforward roadmap for the IEBC to ensure political parties’ adherence to the two–thirds gender principle during primaries and accordingly submit a list of nominated candidates to contest in general elections that complies to the principle. 

• Political parties to continue implementing affirmative action for charging graduated nomination fees for women and youth candidates. 

The Registrar of Political Parties records revealed that during the 2017 general elections, some political parties’ constitutions and nomination rules provided for graduated nomination fees for special interest groups that include women, youth, and persons with disabilities. Parties that had graduated fees include the Jubilee Party, Forum for Restoration of Democracy Kenya, National Rainbow Coalition-Kenya, Amani National Congress, and the Labour Party of Kenya. 

Political parties’ also have provisions in their constitutions and nomination rules for waiver of nomination fees by the political parties’ elections boards upon application by special interest groups. The graduated nomination fees encouraged the participation of women during the 2017 elections compared to the past general elections. Political parties should maintain these affirmative provisions to promote women’s participation in the upcoming elections.

• Enhance access to justice through expeditious, affordable and easily accessible dispute resolution for electoral disputes on political parties’ primaries. 

The Registrar of Political Parties’ records reveal that in 2017, political parties did not have simple procedures for appellants to file disputes within political parties’ internal dispute resolution mechanisms. Additionally, political parties imposed a non-refundable, non –graduated filing fee that is often exorbitant in comparison to the nomination fees to be paid by the candidates. 

For example, Orange Democratic Movement candidates for the position of Member of County Assembly pay Kshs. 25,000 as nomination fees but have to pay Kshs. 30,000 to the ODM County Appeals Tribunal if they contested the primaries. Similarly, Maendeleo Chap Chap candidates for the position of Member of County Assembly pay Kshs. 20,000 as nomination fees and have to pay Kshs. 50,000 to its Tribunal if they contested the primaries. 

• Conduct robust awareness among the media, traditional and religious leaders and the public that full, equal, free and democratic participation of women on an equal basis with men in political and public life is a requirement for the Constitution. 

Incontrovertible evidence confirms that full awareness among and actual allyship from men and boys promotes safe spaces for women’s participation in decision-making, and systems of governance is significant. 

Cost of Politics in Kenya: Implications for Political Participation and Development research findings established that although women outspent men candidates, this did not translate into women being voted for overwhelmingly because of the prevailing patriarchal views that ‘women’s place is still in the kitchen.’  

Concomitantly to this challenge is the need to combat gender biases and stereotypes in homes, where notions of masculinity and femininity and gender roles are shaped. Egalitarian homes where men do their fair share of house chores is an undeniable practical revolutionary approach of expanding women’s participation as leaders in decision-making processes and systems of governance. This is because women will not have to choose between maintaining home and serving as leaders in the public domain or constantly walk on a tight rope to balance the public and private roles, as it can be unduly stressful. 

Recent research as Women and Leadership by Julia Gillard and Ngozi Okonjo-Iweala on the experiences of world women political leaders collaborates this long-established truth documented in various studies on women leadership.

• Training and mentoring of women and public advocacy campaigns are vital to increasing women’s participation as leaders in decision-making processes and systems of governance. 

Commendable examples that should be fortified include interventions by the National Democratic Institute and Center for Multiparty Democracy that trains first-time women aspirants. Also, and Kenya Women Parliamentarian Association trains first-time women legislators on how to discharge their roles effectively and navigate the Parliamentary system. 

Public campaigns by civil society organisations such as the Federation of Women Lawyers Kenya are undertaking training; public advocacy and campaigns for women to be elected in 2022 general elections dubbed Vote a Dada (vote for a woman). Publication of the Women in Political Leadership: National Training Curriculum by the Ministry of Public Service, Youth and Gender aims to equip women to understand the system of governance and conduct campaigns and engage the media.

• Enhance visibility of women leaders and their achievements, and encourage fair and positive media coverage on women leaders by the media

This is a vital arsenal for increasing women’s participation as leaders. It is because media, given its broad coverage, media is a powerful platform for social re-engineering of gender roles and combating gender discrimination, stereotypes and biases, which hinder women’s entry into and thriving in leadership.

In conclusion, as we approach the 2022 general elections, we have a collective responsibility to increase spaces for women’s participation in decision-making processes and systems of governance. The Constitution obligates us. It is the promise we gave ourselves that women, like men, are equal before the law and ought to build the nation jointly with men in the public platforms of power. 

This is a journey that we should all be willing to embark on and draw inspiration from the words of Noble Laurent and former President of South Africa Nelson Mandela, “We have not taken the final step of a journey but the first step is longer and even difficult road. For to be free is not merely to cast off one’s chains, but to live in a way that respects and enhances the freedoms of others.”

Beverline Anyango Ongaro is an advocate of the High Court of Kenya and is a human rights, governance and gender expert. Email: bevongaro@gmail.com; Twitter @ongarobeverline