National vs. County Appointments: The Two-Thirds Gender Rule

 Two thirds and appointment in the National vs County

• Article 81 of the Kenyan Constitution mandates that the electoral system comply with the principle that no more than two-thirds of the members of elective public bodies shall be of the same gender. Additionally, Article 27 requires the government to develop and pass policies and laws, including affirmative action programs, to address past discrimination. 

• While Article 177 aims to ensure that the two-thirds gender rule is implemented at the county level by nominating special seat members, this provision does not guarantee the same at the National Assembly and Senate. 

• The Constitution stipulates that the National Assembly shall include forty-seven women, each elected by the registered voters of the counties, with each county constituting a single-member constituency. It also provides for the nomination of sixteen women by political parties and one woman representing the youth and persons with disabilities in the Senate and County Governments, in addition to appointing women into other decision-making bodies.

• In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, the court addressed whether Article 81(b), which requires that no more than two-thirds of the members of elective public bodies shall be of the same gender, applies to the general elections held on March 4th, 2013, or progressively over an extended period. The Court ruled that, although Article 81(b) was immediately applicable in County Assemblies under Article 177, its full implementation was subject to progressive realisation. 

• International Legal Framework for the Protection of Women’s Rights: Article 1 of the Universal Declaration of Human Rights (UDHR) asserts that all human beings are born free and equal in dignity and rights. Article 2 further guarantees that everyone is entitled to all the rights and freedoms set forth in the Declaration without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status. 

• The essence of Article 2 is that both women and men should enjoy equal rights. Unequal treatment, therefore, violates the spirit and intent of the UDHR and constitutes an infringement of the international obligations of member states. 

• Article 2 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) advocates for women’s rights by condemning discrimination against women in all its forms. State parties are urged to pursue a policy of eliminating discrimination against women and undertake appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs, and practices that constitute discrimination against women. 

• Article 3 of CEDAW explicitly states that women are entitled to equal enjoyment and protection of all human rights and fundamental freedoms in political, economic, social, cultural, civil, and other fields. 

• Regional Instruments for Women’s Rights Protection On the regional front, several instruments advocate for the rights of women. Article 2 of the African Charter guarantees the enjoyment of rights and freedoms recognized and guaranteed in the Charter without distinction of any kind, such as race, ethnic group, color, sex, language, religion, political opinion, or any other status.Article 18 further mandates that the State ensure the elimination of all forms of discrimination against women and protect their rights, as stipulated in international declarations and conventions.

• The solemn Declaration on Gender Equality in Africa reaffirms Africa’s commitment to gender equality as enshrined in various regional, continental, and international instruments, including the Beijing Platform for Action (1995), the Dakar Platform for Action (1994), and CEDAW (1979), as well as the commitment in Article 4(1) of the Constitutive Act of the African Union.