Kenyan MPs must now fast track the two thirds gender rule bill

expedite Gender rule KTN

Currently there are three bills pertaining to the issue of the Two Thirds Gender Principle which remains a constitutional crisis facing the country as Kenya is headed to the 2017 General Election.

The fact that there are three bills related to the same topic is a clear indication that the matter can no longer be ignored and a solution needs to be found at the earliest time possible to stop the country from facing a constitutional crisis in the election year.

It will be like the case of Arthur Koestler’s book Darkness at Noon, a book about communist revolution which greatly stressed “the end justifies the means”.

The earlier the issue of two thirds gender equality principle is sorted out the better. It does not matter how it’s done or which bill is passed, what remains a fact is that it must be a mandatory constitutional requirement to meet the principle.


What matters is that by the time Kenyans are going to the ballot in August 8, 2017, there will be a law pertaining to the two thirds gender principle in Parliament which includes the Senate and National Assembly.

The fact that there is more than one bill on how Kenya can achieve the two thirds gender principle shows that as a country we have moved so many steps from when Phoebe Asiyo initiated an affirmation action motion on April 23, 1997.

During that time, Asiyo motion sought to compensate for women’s absence in representative elective positions from grassroots to national level.

Asiyo in her contention wanted the government and political parties to commit to nominating a third of women candidates in parliament and at local authorities. Although this was outrightly dismissed in the male dominated parliament the spirit of ensuring gender justice in representation has never died.

In November 2001 Beth Mugo also came up with an affirmative action bill. This time, the then Attorney General Amos Wako instead of taking appropriate action referred this motion to the Constitution of Kenya Review Commission. The Attorney General then defended his action discounting claims of gender injustice and reiterating that Kenya was a signatory to international conventions of gender equality.


This same game replayed when before the 2013 General Election the Attorney General Githu Muigai instead of handling the issue of two thirds as chief legal officer went to the Supreme Court.

The Attorney General in his wisdom filed a request with the Supreme Court for an advisory opinion as to whether the two thirds gender principle was to be realised by the first General Election in March 2013 after promulgation of the new Constitution or over a longer period of time. The Supreme Court delivered a majority decision that the realisation of the two thirds gender principle under Article 81 (b) is progressive. It also noted that Parliament should enact legislation on the same by August 2015.


However, by August 2015 the National assembly had not fulfilled this and asked for an extension.

However, the clock is ticking very fast and because the Independent Electoral and Boundaries Commission has released its diary of events leading to the 2017 General Election, Parliament can no longer afford to dilly dally. The August House has to move very fast and ensure that there is a constitutional mandate towards the two third gender principle for affirmative action to be realised in Parliament that will be convened after the 2017 elections.

One of the bills in the National Assembly is the Constitution of Kenya (Amendment) (N04) Bill of 2015 which was filed by Aden Duale, who is the leader of majority.

The Bill is a strong legal framework promoting women in elective position and will ensure that the august House is constitutionally constituted at any given point since it guarantees immediate realisation of the principle.

The Duale Bill is also gender neutral and would equally benefit men if the scales were to tilt in favour of women.


The Duale Bill is a simple and direct formula that adheres to the principles on legislation on election as outlined in Article 82 of the Constitution.

The Duale Bill, in its entirety “seeks to give effect to the one third gender principle through the creation of special seats that will ensure the gender principle is realised in Parliament for a period of 20 years from the next General Election”.

“It is hoped that by that time both genders will have been given a level playing ground and be able to compete on an equal plane.”

The Bill by Duale proposes to amend Article 81, 97, 98 and 177 of the Constitution so as to provide that the two thirds gender rule for elective positions shall lapse after 20 years from the 2017 General Election.

The Bill further seeks to ensure empowerment through nomination is spread to as many people as possible and “any person who is elected to any House of Parliament or Legislative Assembly by way of nomination shall enjoy such a nomination to a maximum of two terms”.

Stakeholders keen on ensuring gender justice including the National Gender and Equality Commission are recommending that Kenyans lobby their Members of Parliament to debate and pass the Constitutional Amendment (No 4) Bill of 2015. It calls for political will from the Executive and Legislature on the not more than two thirds gender rule.

National Gender and Equality Commission in its recommendations for support of the Bill notes: “Both sides of the House must act as the principle key champions in the campaign promoting equality and inclusion of special interest groups in all spheres of life.

With all these and with male champions like Aden Duale advocating for the realisation of the two thirds gender rule as a constitutional mandate, light is indeed glowing at the end of the tunnel of gender injustice that has been so dark.