Scrapping two-third gender rule is wrong and foolish

Saturday August 27 2011

The Cabinet last week decided the Constitutional provision that persons of one gender can hold no more than two-thirds of any appointive or elective public office was impossible to implement and recommended scrapping this provision.

There are so many things wrong with these two decisions that it’s hard to know where to begin. Let’s start with the basics — why we needed such a provision in the first place. Setting targets for women’s representation is understood to be both an end in itself as well as a means.

An end in that, in a fair and equal society, all constituencies in that society should, naturally, be represented to the extent that they are demographically represented in the population. Demographically, women comprise just over 50 per cent of Kenya’s population — ergo, women should have just over 50 per cent of all appointive and elective public offices in Kenya. But Kenya is not yet a fair and equal society. Thus, female Kenyans require special measures.

But setting and achieving targets are also means. The thinking has been that for women to make a difference in the public sector — as opposed to just sitting prettily as tokens (not that we mind sitting prettily, not as tokens but because we like to be fabulous) — there needs to be a critical mass of women. One woman alone (even given supportive and understanding male counterparts) could not, for example, have passed the Sexual Offences Act. One woman alone could not, as another example, have convinced Treasury that levying tax on sanitary pads and tampons was a barrier to girl’s education — let alone have convinced it that it should, in fact, subsidise them.

Both Tanzania and Uganda have achieved the 30 per cent target for women’s political representation — and Rwanda has gone above and beyond that to achieve 50 per cent. All three have achieved the target by incorporating some level of proportionality into their electoral systems. Under a purely proportional electoral system, citizens vote for political parties — who then distribute the number of seats gained to those on their political party lists. When all do so according to the targets set for women and other constituencies, those targets can easily be met.

What electoral experts here (including the Independent Review Commission) had asked for was mixed-member proportional representation. This hybrid electoral system allows for both direct elections to geographical constituencies as well as elections of political parties. In the end, the political parties, during their negotiations on the draft, threw out MMPR! The Committee of Experts, having been warned not to interfere at this stage, thus took the step of leaving the targets in — but without a formula to achieve them. Hence the conundrum we now find ourselves in.


The formula put forward to the Cabinet — that only women be allowed to stand in some constituencies each electoral cycle — is obviously not one that many people would be happy with. But it seems to be what the political parties — by having thrown out MMPR — have reduced us too. What is clear is that the Cabinet’s position is not tenable — that is, dropping the not more than two-thirds principle. It is a position that is utterly unconstitutional. And it is a position that few Kenyans would support (with the exception of the most recalcitrant among us). The Cabinet Task Force to resolve the matter must therefore begin on that note — the problem is not the principle, it is the means to achieve it. And the political parties should be ashamed of themselves for leaving us all — not just Kenyan women — in this particular pickle. 

L. Muthoni Wanyeki is undertaking graduate studies at Sciences Po in Paris France