Why are men 90 per cent of the Members of the Kenyan Parliament?

There are currently 222 members of the Kenyan parliament. Of this number, 200, or 90 per cent of the total, are men; women occupy just 22 seats. Nor is this disparity an anomaly. On the contrary, it confirms an invariable and radical over-representation of men in parliament over the past half-century of Kenyan political Independence. [See related: Scrapping two-third gender rule is wrong and foolish]

Women and men are each about 50 per cent of Kenya’s adult population. Women and men are each 50 per cent of the citizens entitled to participate in authoritative national decision-making processes in Kenya. Women and men are each 50 per cent of the Kenyan “youth bulge” now preoccupying policy makers. Women and men are each 50 per cent of the Kenyan tax-paying base, as human-rights activist Atsango Chesoni has observed. Women and men are each 50 per cent of the Kenyans who have the constitutional right to occupy official positions at all levels and in all bodies of the Kenyan government. So why are 90 per cent of the members of the Kenyan National Assembly men?

We ask the question in this way to engage the current public debate over the Kenyan Constitution’s provision of a gender diversity “rule of thirds” as envisioned in Article 27(8): “In addition to the measures contemplated in clause (6), the State shall 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.” This unmistakable principle is further iterated in Article 81(b): “The electoral system shall comply with the following principles [...] not more than two-thirds of the members of elective public bodies shall be of the same gender.” Article 177(b) in turn insists that a county assembly consists of “no more than two-thirds […] of the same gender.”

In this respect, the Kenyan Constitution conforms to an already widely established international norm of a minimum critical threshold of the minority gender’s representational presence in national institutions, usually in the range of 20 per cent to 40 per cent. Perhaps it is necessary to emphasise here that the Kenyan Constitution in no way specifies which genders are to be present in these proportions but only that the presence of the dominant one should not exceed the stipulated ceiling of the two-thirds quota of the total. A “quota” can be understood variously as a share, a ration, a portion, a slice, percentage, fraction, bit, or amount — all of these make reference to the relation between a part of something and its whole.

Around the world, 40 countries have constitutional or legal gender diversity quotas for parliamentary elections and institutional composition; in more than 50 countries, national political parties have voluntary or compulsory gender quotas for their candidate lists. UN Women is a recently created United Nations entity dedicated to global gender equality.

Uganda’s President Yoweri Museveni exhibits a crisp understanding of the situation when he notes that, “We cannot talk about democracy without involving women; they form slightly more than 50 per cent of our population. [Related: Is Janet finally stepping out of Museveni’s shadow? ]

If democracy is about equality and social justice, then women, who contribute around 60 per cent of our agriculture (the mainstay of our economy) and produce 80 per cent of our food, have to be taken more seriously.” The East African Community Legislature has already surpassed the 30 per cent threshold. Uganda, Tanzania, Burundi, Mozambique, Angola and South Africa have also all separately established and handily achieved this gender parity benchmark, while Rwanda currently leads the world in the exactitude of its interpretation of the gender parity ideal. [Read: Delivering a better future for women and girls]

Public and private spheres

These measures recognise what women political theorists have been arguing for several decades now: The modern political system rests fundamentally on the perceived distinctions between the “public” and the “private” spheres, where the public sphere is the realm of politics, economy, authoritative collective action and public rationality, while the private sphere is associated with domesticity, family affiliations, and affective life. The public sphere has historically been associated with men and with male prerogatives to public office while the largely invisible and unpaid domain of the “private” has been considered women’s proper place.

As Jenny Chapman says, this has rendered women both “Other” and “Stranger” to political life. The real-life effect is that there are significantly and sometimes insurmountably higher barriers to entering political life for women; these result in women’s generalised exclusion from and marginalisation in the world of politics. Zimbabwean author Tsitsi Dangarembga refers to this pervasive devaluation of women: “This victimisation, I saw, was universal. It didn’t depend on poverty, or lack of education or on tradition. It didn’t depend on any of the things I had thought it would depend on. Men took it everywhere with them… femaleness as opposed to and inferior to maleness.”

African women’s meaningful inclusion in political decision-making is an urgent matter, for as Ghanaian novelist and former education minister Ama Ata Aidoo has put it, “If, like men around the world, African men harbour any phobias about women moving into leadership positions, then they had better get rid of them quickly. After all, men have monopolised leadership positions in Africa over the past five hundred years, and still overwhelmingly do. If they alone could save us, they would have done so by now. But instead, every decade brings us grimmer realities. It is high time African women moved onto the centrestage, with or without anyone’s encouragement. Because in our hands lies, perhaps, the last possible hope for ourselves and for everyone else on the continent.”

Twenty-seven years ago, in March 1984, the Kenyan government ratified the United Nations General Assembly’s Convention on the Elimination of Discrimination against Women (CEDAW). CEDAW defines discrimination against women as “…any distinction, exclusion or restriction on the basis of sex which has the effect or purpose or impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” Similarly, the Constitutive Act of the African Union specifies in Article 4(1) as one of its principles “the promotion of gender equality.”

Most importantly, the Kenyan Constitution promulgated on August 27, 2010 is forthright on the matter. Article 27(1-3) states that “(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms. (3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.” These “spheres” clearly include the Kenyan parliament. Indeed, the Kenyan parliament is perhaps the most important “sphere,” of all, as it is the body that represents the deliberative, resource-allocating, law- and war-making authority of all the Kenyan people.

Intuitive fairness and basic logic would suggest that parliament, embodying and representing the sovereign legislative authority of the Kenyan people, in compliance with international protocols and the specified intentions of the Kenyan Constitution, would be composed of men and women representatives in the rough proportion in which women and men occur in Kenya. Yet, men are currently represented in the Kenyan Parliament at 180 per cent of their presence in the population, while women’s presence in Parliament is at an 80 per cent discount of their evident share of the population.

Given this demographic reality in the population and in the political franchise, considering the international and regional legal regimes to which Kenya is bound and which affirm and promote the principle of gender equality, and considering particularly that the Kenyan Constitution repeatedly emphasises the importance of gender equality as an integral element in the project of establishing equality, human rights and social justice in Kenya, we would expect that the appropriate public focus with respect to the currently 90 per cent male Kenyan parliament to be something on the order of:

What can account for this remarkable, historically persistent and now unconstitutional male bias in the Kenyan parliament? As a matter of urgency, what are we going to do about this indefensible distortion of the symbolic and substantive representative functions of Parliament?
Oddly, this is not the current frame of the public debate. Instead, men and women of goodwill, together with social justice activists and constitutional lawyers, find themselves called upon to defend the sovereignty of the Kenyan Constitution and to justify the Constitutional imperative to implement the gender diversity rule of thirds in the Kenyan Parliament. Against this, and in light of the clarity of the Constitutional position on the matter, we note that Kenyan Cabinet, despite its obligation to uphold and defend constitutional authority, instead proposed to “drop,” much like a handkerchief, what is unavoidably a sovereign command on the grounds that it is “technically impossible.”

Will of the people made clear

The Constitution is clear. The will of the people has been made clear, first in the referendum and again in a recent survey showing that well over two-thirds of the Kenyan population approves the gender provisions. The burden of argument should not rest on the Constitution or its gender provisions, but rather should be borne by those who would abandon both. Constitutional imperatives are not optional or subject to a veto by state functionaries on unspecified “technical” grounds. In any case, the “technical” objections have already been roundly defeated by Katiba Institute scholar Jill Cottrell and the many others who have presented an array of operational and electoral options that would ensure constitutional compliance. To consider constitutionally compliant implementation “technically impossible” in this context indicates not only a rather constrained imagination but also a misapprehension of the spirit of as well as a contravention of the crystalline letter of the Constitution.

Of more pressing concern to us, however, are the views recently expressed in public that the gender rule of thirds in the Constitution is “anti-democratic” and constitutes “reverse discrimination against men” because it would infringe the rights of male candidates to participate in the political process or on the voters’ rights to their choice of candidate, in the event that implementation of the rule of thirds takes the form of reserved single-gender candidates in specified electoral contests. Similar assertions that the gender rule of thirds violates the democratic principle of “one person, one vote” jostle for space with the contentions that women want “free seats,” are “afraid of fair competition” in fighting for constitutional compliance with the gender rule of thirds, and indeed such compliance has been characterised as handing power to women on a “silver platter.”

Kenya’s new Constitution is the achievement of decades of struggle and heroic effort by men and women of goodwill to establish a more equitable context for the unfolding Kenyan future. In Kenya — as in other transitional political contexts — part of the undoubted difficulty in the implementation process arises from the fact that those who have built and benefited from the status quo, indeed, those who are currently benefiting from the status quo, are seldom enthusiastic participants in the dismantling of their own privilege.

We take the view that it is the duty of the Kenyan government to ensure its own compliance to the sovereign will of the people as stated in Article 2 (1) of the Kenyan Constitution: “This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.” This obligation is entailed in Article 3 (1) that “Every person has an obligation to respect, uphold and defend this Constitution. (2) Any attempt to establish a government otherwise than in compliance with this Constitution is unlawful.”

Nevertheless, as political scientists, we take seriously the need to respond to arguments that the constitutional rule of thirds is in tension with principles of justice, equality or democracy. Yet other detractors of the rule of thirds have suggested that the gender question is trivial compared with the other more important goals of constitutional implementation and that the energy devoted to debating this matter would be better spent in other ways. In this view, it simply doesn’t matter whether the members of parliament are male or female as long as they are qualified for the job. In what follows we seek to address that challenge, as well.

We answer these three questions:

• Does the gender diversity “rule of thirds” violate democracy by contradicting the principle of “one person, one vote”?
• Are the reserved seats in the gender rule of thirds “unfair competition” or “reverse discrimination?” against men?
• What difference does difference make — what does it matter how many Members of Parliament are men or how many are women? 

As any contemporary discussion of gender necessarily engages also issues of human rights and social justice, in instances where contradictory interpretations of the Constitution might be possible or where the meaning of a constitutional directive might be ambiguous, we are guided in our understanding of the “spirit” of the Kenyan Constitution by Article 19(1-2) which states that, “The Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies. (2) The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings.” Protecting human rights and promoting social justice invariably confronts the effects of gender structures and gender roles on the possibilities of “the realisation of the potential of all human beings.”

Bowing to the current reality, in this discussion of the Kenyan situation, we take the minority gender entitled to the 33 per cent quota to be comprised of women, but we note again that this is a contingent situation whose reversal is encompassed by the language and spirit of the Constitution.

Do the reserved seats in the gender rule of thirds violate “one person, one vote”?

The idea of democracy (the rule of the “demos,” the people) rests on the principle of equality: That “each should count for one, and none for more than one,” to paraphrase Jeremy Bentham. No one should have more power than others to decide the matters that affect all. No one has a natural right to rule over others by virtue of their wealth, sex, race, or wisdom. Democracy makes the people the judge of who is best qualified to make the law that governs all.

The principle of “one person, one vote” expresses this fundamental equality of every citizen. It is a principle that was powerfully expressed in the referendum approving the new Constitution. The vote cast in Kisumu had just the same weight as the vote cast in Kitengela. Each Kenyan citizen counted equally in giving the nation a new Constitution, regardless of region, ethnicity, wealth, education, and, yes, regardless of gender.

But “one person, one vote” is not the whole story of fairness in a system of representative democracy. In systems like Kenya’s, which have first-past-the-post electoral systems in which one representative is elected from each territorial district (rather than one of the many forms of proportional representation around the world), a strict reading of “one person, one vote” would require that every single electoral district would have exactly the same number of people as every other district.

One of the driving causes behind the Kenyan constitutional reform of electoral constituencies was that under the old Constitution electoral districts sometimes differed massively in population. Because of this, a vote cast in a constituency with a low population density could weigh many times more than a vote cast in a constituency with a high population density people if each of these two constituencies nevertheless elected only one representative each. It is for this reason that the new Constitution adds 80 new electoral districts, so that the inequality in voters’ power can be lessened. These reforms enhance the quality of democracy by making every citizen more equal in her or his power to shape the outcome of elections and, through their representatives, to shape the laws and policies developed in parliament. 

“One person, one vote,” then, expresses a very fundamental aspect of fairness in democratic representation. Article 89 of the new Constitution is an expression of this principle. It specifies that “the boundaries of each constituency shall be such that the number of inhabitants in the constituency is, as nearly as possible, equal to the population quota,” where the population quota is the total number seats divided by the total population.

Nevertheless, the Constitution does allow for some departures from the principle of “one person, one vote.” It does so because the strict numerical equality of citizens’ votes isn’t the only principle of fairness that matters when it comes to political representation. Consider the allowable reasons for exceptions to the rule of strict equality: “(a) geographical features and urban centres; (b) community of interest, historical, economic and cultural ties; and (c) means of communication.”

How can these be justifiable reasons for departing from strict equality and from “one person, one vote”?

The reason is obvious: Fair political representation is not only about representing individual citizens. It is also about representing the different “communities of interest” that constitute the sovereign people. A principle of strict equality would mean that there would be many representatives from dense urban areas, but few or none from many rural, sparsely populated parts of the country. The idea of giving equal voice to the different communities of interest that constitute the Kenyan popular sovereign requires some considered departures from the principle of equal votes. This is why it does not seem deeply undemocratic to allow a justifiable degree of difference in the population size across counties.  

The new system of county constituencies is designed precisely so that the differences among Kenyans are fairly represented in parliament – differences in region, language, economy, life-ways and cultures. Although one constituency may have a small population relative to the others, if the circumstances of life are sufficiently different from those in others, the constituents might feel they were not truly represented if they had no representative of their own in parliament, no matter how equally weighted their votes.

This very same logic is what makes sense of measures to secure, if not total equality, then at least a substantial measure of parity, a minimum threshold, when it comes to the representation of Kenyan women. Women are not geographically constituted such that one can draw a constituency or a county around them on a map. Yet the lived circumstances of women across Kenya are as different from those of men as the circumstances of neighbouring counties might be from each other. We understand that these geographically distinct constituencies must nevertheless each have their own representatives: why should women, too, not have an equal voice in parliament?

The point becomes even stronger when we focus on the fact that women are about equal numerically to men (in fact, they are numerically superior). If citizens from a low-population county can have a much more than proportional voice in parliament within the county-based seats, then why should women be content to have a much less than equal voice, a voice discounted in the current parliament by 80 per cent?

In any case there is nothing in the setting-aside of certain constituencies for women that violates the principle of “one person, one vote.”

It is not as if, in those constituencies or counties, male citizens do not get to vote. Their votes count for just as much as the vote of any woman citizen in choosing a representative. They just do not get to vote for a male candidate. Do we want to say that because 60 per cent of Kenyans have never had the opportunity of voting for a woman candidate, women in those constituencies did not have an equal vote? If having an equal vote means being able to vote for a candidate of one’s own gender, then 60 per cent of Kenyan women have been disenfranchised. We do not think that this is a sensible view of things. Women in those constituencies did get to vote, but in the parliamentary system as a whole they have been vastly underrepresented. They lack an equal voice in Kenyan politics, even if they have an equal vote.

To the question, “Do quotas for women violate ‘one person, one vote’?” our answer is a confident and resounding “No.”

Having an equally weighted vote is an important principle of fair representation in diverse democracies, but it is not the only principle of fairness that Kenyans have taken into account in making this Constitution more democratically responsive.

Next Week: Are set-aside seats a form of “reverse discrimination” or “unfair competition”?

Wambui Mwangi is a political scientist, photographer and writer. Melissa Williams is a professor of political science at the University of Toronto and the author of the award-winning Voice, Trust & Memory: Marginalised Groups and the Failings of Liberal Representation.