Judicial Perspectives on the Question of the two-thirds Gender Principle – Kenya

Abstract

Although on the face of it, correcting ‘historical injustices’ including righting the wrongs of exclusion of women from Kenya’s political space by enforcing affirmative action to place women in public decision-making spaces is reasonable, urgent and necessary, this may not be the case going by how the pursuit of this goal has unfolded. There has been a general resistance towards affirmative action, which resistance has paved way for the incessant discrimination against women in total disregard of the Constitution of Kenya and other supporting legislation. The study traces the struggle for representation by women in public offices within the Kenyan governance ecosystem since 2010. It unpacks the legal framework embedding affirmative action and delves into varied efforts at reducing gender disparity through attempts at passing enabling legislations and judicial interventions. This study reveals that Kenya is not short of laws on affirmative action and exposes the insufficiency goodwill to realise this constitutional aspiration. Drawing from the experiences of the Judiciary, it makes practical recommendations aimed at resolving the outstanding constitutional question. Among other recommendations, this paper enjoins the Judiciary to maintain allegiance to the law through strict interpretation of the letters of the law, and to adopt a common ideology in determining constitutional matters to avoid back and forth on its own decisions, thereby taking away progress already made among others. It further calls for judicial review of the status of implementation of past decisions as well as remodelling or restructuring the electoral system to adopt the principle of affirmative action among other recommendations.