Implementing the Constitutional Two-Thirds Gender Principle: The Cost of Representation

Institute of Economic Affairs

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Post Date: 08 May 2015

Gender equality is one of many protections guaranteed by the Constitution of Kenya. Article 27 recognizes that every person is equal before the law and has the right to equal protection and equal benefit of the law, ensuring freedom from discrimination in very certain terms. Not only does Article 27 provide for protection against discrimination; it puts the full weight of the constitution behind initiatives aimed at the active promotion of the rights of marginalized groups and minorities, requiring the state to take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination. This includes those measures to implement the requirement that not more than two thirds of the members of elective and appointive bodies shall be of the same gender.

Chapter Seven of the Constitution (Representation of the People) sets out how the right to vote is realized. It enumerates the general principles that provide the bedrock of the electoral system. Article 81 (b) provides the following: “Not more than two thirds of the members of the elective public bodies shall be of the same gender.” The constitution does not, however, provide specifically for how these requirements are to be met. Article 100 of the constitution goes further to oblige Parliament to enact legislation to promote the representation in Parliament of marginalized groups, including women.

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