The Cabinet Secretary for the Ministry of Public Service, Youth and Gender released a public statement hours after the County Assembly impeached the Governor for Kirinyaga County. In the statement, the Cabinet Secretary expressed concerns that the impeachment was “an indicator that some (of) us do not value strong women leadership”.
The Cabinet Secretary’s intervention was said to be founded on the remit of her portfolio, which is indicated in Executive Order No.1 of 2018, among other things to include: “1) Gender Policy Management 2) Special Programmes for Women Empowerment 3) Gender Mainstreaming in Ministries/Department & Agencies…”. The Cabinet Secretary was speaking to the fact that the Governor is a woman and to the assumption that she had been targeted for impeachment on account of her gender. It should be recalled that Kenya has only two female governors out of forty seven governors which may point to the prevalence of continued discrimination of women in accessing political leadership positions in the country.
The Statement by the Cabinet Secretary moved us to comment not just on its appropriateness but to delve into the question of gender in governance and the elusive implementation of the two-thirds gender representation principle, a foundational principle of our Constitutional order. We should state at the outset that we disagree wholly with the position advanced by the Cabinet Secretary, to the extent that the position plays down the values and principles enshrined Article 10 of our Constitution.

The question of gender and discrimination has been a thorny issue from time immemorial. Part of the struggle for a new constitutional dispensation was informed by the need to cure systemic gender disparity occasioned by years of sidelining womenfolk from accessing decision-making positions and opportunities for self determination. This systematic denial of women’s rights forms part of historical injustices in Kenya. Historical injustices, are difficult to cure, partly because the beneficiaries of such injustices seldom willingly admit the fact; the victims of such injustices, when economic in nature, wield little power of sway at the time of addressing them; and the process of restitution involves the beneficiaries giving up present opportunities. Moreover, original beneficiaries and victims usually are long gone. It is no-wonder therefore that restitution and affirmative action plans found protection within the Constitution, including under articles 27(6) and (8)
Addressing historical injustices requires horse-trading; bargaining and compromise. Even then, solutions sought must not in themselves create future injustices. Societies have been known to create newer more lasting inequalities while trying to resolve historical injustice in single sweeping changes. We think the aim of affirmative action plans is to make the society fairer primarily by preventing further injustice and secondarily by effecting a gradual restitution to rectify effects of prior injustice. Underlying these two goals is the understanding that inequality and discrimination tends to beget greater inequality and future attempts at restituting or reversing a trend become harder.

Equality has evolved in meaning from the mechanical definition of “access to equal resources” to “equitable access to resources” to “equal access to opportunity”. (Gosepath, 2011) A more modern definition is being adopted to entail equal access to opportunities with equitable distribution of resources. It is this quest for equality and equity that informs affirmative action.

Conversations on the appropriateness of affirmative action often raise deeper questions. It seems contradictory to provide for equal protection and benefit of the law while at the same time instituting measures that essentially discriminate against certain persons and groups on the very bases that are otherwise unlawful. It becomes difficult for affirmative action to be brought into action through ordinary legislation in places where Constitutions are the supreme law, and where such supreme law disallows discrimination. It was easier for instance for the Civil Rights Act of 1964, USA to be applied to protect against future discrimination, but much harder to restitute prior injustice. In fact, whole amendments, and in their absence, legislative and judicial craft and immense political goodwill are to thank for any progress made in promoting affirmative action programmes that seek restitution. Inclusion of specific provisions in Article 27 of the Constitution of Kenya gave affirmative action plans protection from being deemed unconstitutional. In its basic form, affirmative action is an allowable form of prospectively discriminating against a usually majority class of people in favour of and as restitution for previous discrimination suffered by another class of people. Often, individual beneficiaries of historical injustice under-appreciate the extent of cost to victims of previous discrimination. By the time questions on affirmative action and restitution are raised, the beneficiaries and victims will usually be second or third generation. With the gap having grown through generations, the parties may not readily agree on the quanta of extent of damages or the extent of restitution.

The justification for affirmative action can be appreciated when interrogated in light of the concept of the Matthew Effect. This is a concept that has been well elaborated in evolutionary biology, social science, sports science and science in general. Named after a bible story in Matthew 25.29, it demonstrates how a small advantage or disadvantage at one point grows exponentially to widen the gap between the beneficiary and victim over a long period. Inequality is a vicious cycle and the longer it prevails the greater the cost to victims and benefit to beneficiaries and the more complex the remedies required to redress it. Affirmative action therefore is an urgent endevour for any society to redress its historical wrongs.

However, affirmative action measures have to be carefully calibrated to not seem punitive to the rest of the society who have to contend with what has come to be referred to as ‘positive discrimination’ against them. Because of this, and despite their legislative and sometimes constitutional imperative, issues of affirmative action are continuous political problems that evolve through discussions and self-reflection between the people, and arriving at consensus. Affirmative action is a form of olive branch extended between members of the society in favour of the vulnerable to achieve a fairer society. Affirmative action measures may not readily be welcome when packaged as solutions to legal problems, except questions of whether they are allowed in law and whether the manner they are implemented is consistent with irreducible minimums set by the law.

During the constitution making process, Kenyans were faced with concerns about how to address historical injustices in a manner that 1) would be progressive 2) would clearly lead to the desired end 3) would not heavily burden the would-be victims 4) would be time bound or have a set point beyond which the effects would have been rectified, in order that it would be acceptable by the would-be victims, who hitherto were a more powerful majority. Achieving these required compromise. Kenyans while drafting the Constitution recognized this difficulty in addressing historical injustices in a single sweep but wanted to validate the conversations needed to inch closer to these solutions. Kenyans did not want the Constitution to be a future barrier to political solutions. They gave provisions for this process of continuous dialogue, which vary from general provisions as contained in the bill of rights, to specific requirements as contained in the article on composition of Parliament and county assemblies. The Constitution deliberately falls short of prescribing the full dose of curative answers to the inequality problem.

We will highlight some of the provisions that should generally guide the implementation of affirmative action as envisioned by Kenyans through the Constitution, and provide possible solutions to some of the challenges we have faced in achieving the requirements, all while taking care to avoid the pitfalls that will negate the very purpose of affirmative action.
The earliest inference to gender (dis) parity and generally different forms of discrimination is in the preamble, thus: “Proud of our ethnic, cultural and religious diversity…” and “…Recognising the aspirations…based on essential values of human rights, equality, freedom, democracy, social justice…” Article 32 on Freedom of conscience, religion, belief and opinion may be cited albeit as a far-fetched inference. Equality and Freedom from discrimination in general is best captured in Article 27 which highlights thus: the right to equal protection and equal benefit of the law, equal enjoyment of all rights and gender equality in terms of access to socio-political, cultural and economic opportunities. The same article in 27(4) imposes a duty on the state not to discriminate against any person on ‘any ground’ including race, sex, ethnic or social origin…and 27(5) disallows any person from discriminating against another on the grounds specified in 27(4). Sooner or later we may need the legislative assemblies to define what other grounds aside from those stated as ‘any grounds’ as used in Article 27(4) entails because discrimination is the fodder in day to day life. It is what we do when we pick one candidate over another in a job interview for example. The article against discrimination cannot disallow ‘any’ form of discrimination as it would have unrealistic results. We may perhaps construe it to mean any other grounds not specified there but which may be contained in legislation or in treaties in which Kenya is a signatory, to make it cover as much as what the text implies while not leading to an obviously absurd reality. It could be also that this provision was providing for our conversation of progress in the society, so that the Constitution will not be a stumbling block, to progressively add more grounds against which the state may not discriminate against a person. Article 27(6) is the first mention of affirmative action when it addresses the state’s duty to take legislative and other measures, including affirmative action programmes and policies designated to redress any disadvantage suffered by individuals or groups because of past discrimination. Further, 27(7) guides that any of the measures taken shall adequately provide for any benefits to be on the basis of genuine need. The final provision of the article on equality, which has been the subject of debate in public fora and in Constitutional petitions provides that in addition to the measure above, “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 has come to be known as the two-thirds gender principle.
Questions arise as to how the aspirations in Article 27(6) and (8) can be achieved. There has been a school of thought that the rights contained therein require progressive attainment, while others argue that the rights and obligations as provided are to be immediately realised. What we hold is that the provisions of article 27(6) and (8) on past injustices are urgent, whether achieved progressively or not, the journey to their achievement becomes more pressing with each second that passes.

Our view regarding the entire issue of gender parity and affirmative action finds establishment in the general proposition that discrimination on any of the grounds in Article 27(2), among them sex, is disallowed. Any interpretation that such discrimination is generally allowed is unfounded. Affirmative action, and the measures contemplated thereafter, is the exception (not the rule) that must be carefully applied within the limits of the general provision against discrimination. The fundamental right that is granted and protected is that of freedom from discrimination, the limitations to enjoyment of that right are the provisions allowing affirmative action and restitution for past discrimination on the basis of genuine need. The exception only becomes a rule when read as an exception. As a right it would not be backed in law. Our Constitution goes to specific scenarios in 27 (6) and elsewhere, where the freedom from discrimination is expressly limited, and where further provisions shall be made to provide for other instances where the right may be limited. Any construction that expands the scope of these limitations to the benefit of a minority and to the chagrin of the substantive right granted for everyone would be improper and would threaten our constitutional order.

The two thirds gender representation principle has been touted over and over as an absolute requirement of the Constitution and indeed the High Court seemed to affirm the requirement that “not more than two thirds of members of [all/each] elective or appointive bodies shall be of the same gender”. This was cited in finding that the Cabinet which had been constituted without observing this principle to be constituted unconstitutionally. We highlight the term ‘all/each’ because while the specific provision does not have it, the determination and orders by the High Court in Constitutional Petition 566 of 2012 had the effect of constructively adding ‘each’ or ‘all’ to the provision. This addition made all the difference.

The Constitution has provided in specific articles those elective and appointive bodies that “must” observe the two-thirds gender principle or that must achieve a specific minimum representation of any special group. It has also provided in no specific terms, for the State to provide for “other measures” that will implement the two-thirds gender principle. The State has been given discretion on the policies and legislative actions that it will put in place to achieve this. We do not suppose that Kenyans in leaving such room did so in oversight nor inadvertently. If we would interpret the clause 27(8), the provision on the two third gender principle, so broadly and generally as the honorable court did, we may inadvertently render other specific provisions superfluous, including a part of the very Article 27(6).

There is no doubt that in general, elective public bodies are bound to observe the two thirds gender principle as captured specifically in Article 81 on general principles for the electoral system. Article 175 on principles of devolved government highlights thus: “no more than two thirds of the members of representative bodies in each county government shall be of the same gender” More specific instances where gender parity has been called out include Article 97 on Membership to the National Assembly which consists of… “(b) forty- seven women, each elected…”and Article 98 on membership of the Senate which consists of “(b) sixteen women members who shall be nominated by political parties according to …, (c) two members, being one man and one woman to represent the youth… and (d) two members, being one man and one woman representing persons with disabilities… ”

In all other instances, the provisions touching on discrimination or implicating affirmative action are either absent or specifically address other areas of potential discrimination for example; Article 130 on the National Executive Article 130(b) thus: “The composition of the national executive shall reflect the regional and ethnic diversity of the people of Kenya.” Article 250 on composition, appointment and terms of office of Independent Commissions at clause 250(4) thus: “Appointments to commissions and independent offices shall take into account the national values referred to in Article 10, and the principle that the composition of the commission and offices, taken as a whole, shall reflect the regional and ethnic diversity of the people of Kenya”
In emphasis, interpreting Article 27(8) standing alone to encompass all state bodies without any supporting legislation or policies as required in the article, would make superfluous the specific provisions already granted and would be a constructive rewriting of the Constitution.

So how then should we approach questions touching on affirmative action measures? As stated before, the broad general principle that covers all the provisions on any form of discrimination is the unequivocal letter and spirit of Article 27(1) that first and foremost every person is equal before the law and has the right to equal protection and equal benefit of the law which includes the enjoyment of all rights and fundamental freedoms. On gender specifically, Article 27(3) thus: women and men have the right to equal treatment including the right to equal opportunities in political, economic, cultural and social spheres remains the guiding star. Further, 27 (4) and (5) respectively: the state and any person shall not discriminate on any grounds including the grounds specified, among which is sex. After this general and specific proposition, the Constitution makes exception of persons and groups that have suffered past injustices and compels that the State come up with measures that will redress any disadvantage suffered and that if any benefits accrue they must be on the basis of genuine need. Here the limitations for the enjoyment of the right against discrimination are enumerated; that affirmative action and other measures are permitted BUT thus: (1) That any affirmative action plans must be provided for by legislation and/or other measures by the State (2) That the persons or groups targetted by these legislative and other measures must be presently be suffering disadvantage attributable to past discrimination (3) That any legislative or other measures taken must within themselves adequately provide that if there are benefits to be enjoyed, then such be on the basis of genuine need.

Should this criterion not be met, then the exception is lost and the substantive right of equal protection and equal enjoyment prevails. Any further limitation of the substantive right must then be subjected to the criteria set out in Article 24 on Limitation of Rights and fundamental freedoms, which is well articulated.
Finally, Article 27(8), the State must provide for the implementation of the two thirds gender principle in appointive or elective positions, the manner and extent of which has been left to the state to decide.

These provisions are consistent with affirmative action practices the world over. The reasons any affirmative action process undergoes strict scrutiny is well-grounded thus: 1) in the philosophy that affirmative action is not a right and its application is a limitation to the enjoyment of protected rights of other persons or groups. 2) While affirmative action is applied to persons and groups collectively, the effects of benefit and relative loss are borne individually. 3) Affirmative action is itself discrimination and if allowed to be broad and unlimited it has the potential of turning the scales and forming a vicious cycle. 4) Affirmative action to an extent undermines meritocracy (and in some respects democracy) and promotes the philosophy of rewarding on the basis of need as opposed to the sweat of the brow.

Why do we suppose that the Constitution intentionally gave discretion to the State to spearhead any additional provisions for limitation of the substantive right? It has been argued in other jurisdictions that one quality of affirmative action measures is that they should be time bound or that they should be pegged on specific indicators and that their implementation should taper as the previously discriminated groups begin to attain equal access to opportunities. Because of this dynamic nature, it would be restrictive to fix it in a codified Constitution which in its nature is difficult to change. The State, as the government of the day, itself a dynamic entity, is best able to monitor the progress and can better adjust the legislative programmes and policies to reflect the progressive attainment of equality of opportunities. Further, in the event that the state fails to perceive such need, other values in our Constitution, like democracy, will kick in to direct the state accordingly.

Finally, we wish to lay emphasis that with the exception of “elective public bodies” and “representative bodies in each county government” as expressly stated in articles 81 and 175 respectively, the two thirds gender representation principle is not binding on any specific elective or appointive body except when it shall be provided for in legislation or through other measures taken by the state. These ‘other measures’ ought to be deliberate and public and not aspirations or assumed to have been taken. Essentially, they have to be law themselves. The State had not taken any legislative or other specified measures at the time of the constitutional petition 566 of 2012.

Instances where the Constitution has mandated an absolute number of women and other marginalised groups cannot be interpreted as trying to meet a specific quantitative target but as trying to meet the qualitative target of ensuring these groups are adequately represented in decision making. This is also the aim of the two thirds gender representation principle.
The broad interpretation that the Constitution requires each/all elective and appointive bodies to observe the two thirds gender principle is not only a selective reading of the Constitution, may be slack and importantly and no-wonder, a recipe for the chaos that we have seen around the issue of implementation of gender representation specifically and affirmative action in general.

What are some of the proposals that would help us in progressively achieving the two thirds gender representation principle primarily in the areas we are obligated by the Constitution?
To achieve what is espoused by article 81 that not more than two thirds of the members of elective public bodies shall be of the same gender will require some tact. We may first begin by defining what ‘elective public bodies’ is. For instance, shall we consider the provision to mean the collective sum of all elected officials to be what “elective public bodies” means or shall we interpret it to mean “each elective public body”? With the former, all public elective positions will be construed as collectively constituting “public bodies”. This seems to be the meaning that article 81 intended, seeing that Article 250(4) on Appointments to Commissions and Independent constitutional commissions also takes this approach with the words “taken as a whole”. There doesn’t seem to be any other way this meaning would have been achieved in Article 81. The latter meaning/interpretation could have been achieved by adding the word “each” before ‘public bodies’ in Article 81 in a manner such as used in Article 175 (c) “no more than two thirds of the members of representative bodies in each county government…” This may be considered judicial or legislative craft but it is the least offensive interpretation according to us.

Taking that former interpretation of collectivity (of elective bodies) as opposed to that of individuality (of public bodies), gives Parliament an easier, more practical way to create provisions at the county assemblies where it is easier to implement the two thirds gender representation principle using the already available constitutional provisions under article 177 on membership to county assemblies. Parliament may apply the same system to include political parties which can be construed to be part of ‘elective public bodies’ by providing for closed gender seats in political parties.
The same principle of collectivity of public bodies can be applied to Article 27(8) so that elective and appointive bodies can be considered taken as a whole. Besides, nothing in that specific provision confines the measures contemplated in Article 27(8) to public elective and appointive bodies.

Another additional last resort measure that still corresponds to our (collectivity) interpretation of the article 81 would be to designate certain political party positions, wards, and constituencies on a gender basis such that those constituencies, in any specific elections may only field certain gender of candidates contesting. We could then make the system rotational among the 1500 or so county wards, 47 Counties and 290 constituencies. This is founded on the understanding that the right to vie for an elective seat, while granted and protected, is not among the non-derogable rights contained in Article 25. Such derogation of the political rights would pass the Article 24 criterion in that it would be limited specifically to meet a mandatory provision of the Constitution, and would be limiting only to the extent necessary to achieve the two-thirds principle. This however is a last resort as its application tends to encroach on the sovereignty of the people in freely choosing their representatives.

Finally, the courts holding in petition 566 of 2012 and other subsequent cases has a further consequence, beyond the crisis precipitated, that anyone may then petition for the dissolution of parliament for failing to provide for the two third’s gender representation principle in its own composition or even in legislating to that effect. We should not adopt such a trigger happy approach to this question. Parliament is not specifically mandated, in manner or substance to legislate exclusively on this principle as is widely thought.

Mwa Limu and Faith Jappann
29th August 2020

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1 thought on “On Discrimination, Affirmative Action And Implementation Of The Not More Than Two Thirds Gender Representation Principle

  1. Wonderful article…
    I choose to go with your last resort measure.
    Designate certain political party positions, wards and constituencies on gender basis instead of the mess we are in right now. Let it be dealt with at the grassroots level.
    Definitely more women will come out to contest.
    Although transparency will be an issue the law is an ass.
    As long as the requirements are met.
    Give us more articles good stuff.
    Plus do for us on transparency of this process because we are about to undergo the real turbulence????

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