IMPLEMENTATION OF THE TWO THIRDS GENDER RULE IN KENYA, A LEGAL ANALYSISMaria-Louisa Wang’ondu | October 29, 2018
‘Women’s concerns in seeking equality in the various aspects of public life, especially in governance, is one that is constantly under discussion, and would continue to be so until the desired results are attained.’Women constitute a majority of the world’s population; yet only 22 % are in Parliament. Only in a few countries has the percentage of women in national legislatures reached the critical mass of at least 30%.
The low participation and representation of women in the public and political institutions of the country like the Senate, National Assembly and County Assemblies negates the equity principle that is affirmed and espoused in the Constitution of Kenya. The Constitution of Kenya provides for affirmative action where the State is required to take legislative and other measures to ensure that no more than two-thirds of the members of the elective or appointive bodies are of the same gender.
The concept of affirmative action means a deliberate move to reforming or eliminating past and present discrimination using a set of public policies and initiatives designed to help on the basis of colour, creed, geographical location, race, origin and gender among others. The Constitution of Kenya provides compliance with the principle of affirmative action and states that no more than two-thirds of the members of elective bodies shall be of the same gender.
Women in Kenya have been underrepresented in the political facet in Kenya. Studies have shown that from the first general elections that were held in Kenya to the 2013 general elections, men have held majority of the seats in parliament. There was 4.1% female representation in Parliament in 1997, 8.1% in 2002 and 9.8% in 2007 and even with the 2010 Constitution providing for the two-thirds gender rule, the 2013 general elections only saw 16 of the 290 women elected as members of parliament. However, after the 2013 general elections, it was quite evident that there was inadequate representation of women in parliament.
The Attorney General hence foreseeing a possibility of a constitutional crisis in the National Assembly and Senate if the two-thirds gender rule were not achieved by the electoral process alone, sought the Supreme Court’s Advisory Opinion. In its ruling, the Supreme Court directed that Parliament is under an obligation to have a framework on the realization of the two thirds Gender rule by 27th August 2015, otherwise it would be rendered unconstitutional.
This ruling was followed by the decision that was made on the 11th December 2012, where the Supreme Court of Kenya delivered a majority decision that the realization of the two-thirds gender principle under Article 81 (b) is progressive.This application was brought to the High Court by the Federation Women of Lawyers. The government was hence given time to come up with legislation to effect this rule.
In 2015, a petition was launched by CREAW v Attorney General and another at the High Court so as to ensure the effecting of the legislation. In the petition, Judge Mumbi Ngugi issued an order of mandamus directing the Attorney General to prepare the relevant bills within 40 days for tabling before parliament for the purposes of implementation of Articles 27(8) and 81(b) of the Constitution of Kenya. This led to the Two thirds gender rule law (amendment) bill and the Election Offences bill that were brought to parliament following the order. They are commonly referred to as the ‘Duale bill and the ‘Chepkonga bill’.
The ‘Duale bill’ seeks to ‘top up’ the number of women in the National Assembly should the general election fail to meet the constitutional threshold and also introduces clauses for proportionate allocation of special seats to the number of seats won by a political party after elections. The ‘Duale bill’ states that ‘Article 100 of the Constitution requires Parliament to enact legislation to promote the representation in Parliament of women, persons with disabilities, youth, ethnic and other minorities and marginalized communities. This Bill seeks to make amendments to the existing laws in order to give effect to Article 100 of the Constitution.’
It is thus quite evident that Kenya is undertaking imperative steps to ensure the representation of women in governance.
Osabutey P, ‘Towards an affirmative action law in Ghana: The issues’ The Chronicle
< thechronicle.com.gh/towards-an-affirmative-action-law-in-ghana-the-issues>On 3 March 2018.
 Dahlerup D, From a Small to a Large Minority: Women in Scandinavian Politics Scandinavian Political Studies, 11(4): 275-298.
 Kivoi D,’ Factors Impeding Political Participation and Representation of Women in Kenya’ Humanities and Social Sciences, 2 (2014), 174.
 Article 27(8), Constitution of Kenya (2010)
 Kaimenyi C, ‘An Analysis of Affirmative Action: The Two-Thirds Gender Rule in Kenya’ International Journal of Business, Humanities and Technology (2013), 91.
 Article 81(b), Constitution of Kenya (2010)
 Kaimenyi C, ‘An Analysis of Affirmative Action,’ 92
 Amdany D,’ Implementing the Constitutional Two-Thirds Gender Principle: The Cost of Representation’ The National Women’s Steering Committee In partnership with Institute of Economic Affairs (2015), 9.
Amdany D,’ Implementing the Constitutional Two-Thirds Gender Principle: The Cost of Representation’ The National Women’s Steering Committee In partnership with Institute of Economic Affairs (2015), 9.
 In the Matter of the Principle of Gender Representation in the National Assembly and the Senate 
 Centre for Rights Education & Awareness (CREAW) v Attorney General & another  eKLR
 Lilian Aluanga: ‘New Proposals to Achieve Two-third gender rule’ Standard Digital, 3 April 2016 https://www.standardmedia.co.ke/article/2000196994/new-proposals-to-achieve-two-third-gender-rule accessed on 13 March 2018.
 Section 23, The Two-Third Gender Rule Laws (Amendment) Bill (2015)