Two-Thirds Gender Rule: Will the 13th Parliament Comply With the Constitution?

Members of the 13th Parliament where sworn-in last week in accordance with the law. However, the constitutional requirement under Article 81(b) that two-thirds of the members of parliament should not be of the same gender was once again not met.

The 13th parliament has a total of 416 legislators. The National Assembly has 349 MPs of which 12 are nominated while the Senate has 67 Senators, 20 of which are nominated. Each of the bicameral Parliament earns a monthly salary of Sh710,000.

It means Kenyan taxpayers will spend an extra Sh700 million every year in salaries for additional MPs required to meet the elusive two-thirds gender rule if lawmakers approve proposals by President William Ruto.

The National Assembly requires a total of 116 female lawmakers to meet the two-thirds-gender rule. Therefore, to comply with the requirement, Parliament must craft a formula to accommodate an extra 81 women while the Senate needs one female to comply with the rule as envisaged in the Constitution.

This means that the 82 MPs needed to comply with the gender top-up rule will earn a monthly salary of Sh58.2 million or Sh698.6 million every year. The Sh698.6 million excludes other perks such as Sh5,000 committee sitting allowance, mileage allowance as well as car loan and mortgage.

The 11th and 12th Parliaments repeatedly failed to pass laws the order compliance the constitutional two-thirds gender rule. Regionally, Kenya, despite being the oldest democracy in Eastern Africa (14 years), followed by Burundi (11years), has the lowest presentation women in parliament. In Uganda, women accounted for 36 per cent of the country’s political leadership as of 2021.

In Tanzania, the scenario became even more impressive with the ascension of Suluhu Hassan to the position of president on March 19, 2021, following the sudden death of John Magufuli on March 17, 2021. At least 36 per cent of parliamentarians in Tanzania were women, as of January 2021. Rwanda has the highest women representation in parliament in Africa (64 per cent) followed by South Africa (46 per cent) and Namibia (44 per cent) respectively. Continentally, East Africa has the second highest representation of women in parliament (32 per cent) after Horn of Africa (33 per cent) and highest representation in local government (35 per cent).

The Kenyan 11th parliament failed on three attempts to enact relevant laws to address the question of two-thirds gender rule in Kenya. This has left the political landscape greatly imbalanced. For instance, of the 1, 450 elected members of county assemblies in Kenya in 2017, only 96 are women: mere 6.62 per cent. As of October 2019, the global participation rate of women in national level parliament is 24.5 per cent.

 In 2018, women accounted for just 8 per cent of all national leaders and 2 per cent of all residential posts. Since 1960, to 2015, 108 women have become national leaders in 70 countries, with more being prime ministers than presidents. As of Aril 1, 2019, the global average of women in national assemblies was 24.3 per cent.

By July 2019, only 23 per cent of sovereign nations had more than 30 per cent women in parliament. The current annual growth rate of women in the National Parliament is about 0.5 per cent worldwide.  At this rate, gender parity in national legislature will not be achieved until 2068. However, the question of gender equity in leadership is not solely a Kenyan problem.

In the United States – hitherto world’s bastion of democracy, until it suffered an attack on January 6, 2021, when pro-Trump protesters stormed the Capitol in an attempt to stop Congress from confirming Joe Biden as the 46^th president – just 23.6 per cent of women are part of the House of Representatives, and only 25 per cent are part of the Senate. India, which accounts to at least 18 per cent total world population, and the largest democracy in the world, had less than 10 per cent of women in the Central Legislature and less than 5 per cent in State Legislature as of November 2018.

Women constitute 24 per cent of the 12, 113 parliamentarians in Africa, 25 per cent in the lower house and 20 per cent in the upper houses of parliament, according to Women’s Political Participation: African Barometer.

“African women constitute a mere 12 per cent of the to six party functioning in ruling and position parties and 7 per cent of women into political execution position (president, prime minister and deputy prime minister) across the continent,” Women’s Political Participation: African Barometer, noted last year.

Six out of the ten countries in the Africa with the highest number of women in parliament employ the use of Proportional Representation (PR) electoral system in order to achieve gender balance.  Only Ethiopia and Uganda – the former follows voluntary party quota whereas the latter uses reserved seats quota – in the top ten, follow First Past the Post (FPTP) system.  Kenya uses the FPTP system with a constitutional quota, which is less effective, compared to voluntary quota.

In the words of Margaret Nasha, former speaker of the parliament of Botswana, democracy means government of the people by the people, and not government of the people by Men.

In the event that Parliament fails to pass the law on two-thirds gender rule, the constitution allows any Kenyan to notify the Chief Justice of the same. The Chief Justice is then required by the constitution to advise the President to dissolve Parliament as was the case in 2020 when former Chief Justice David Maraga wrote to President Uhuru Kenyatta asking him to dissolve the 12th Parliament for the same reason.