Affirmative action under the 2010 Constitution of Kenya

By Elina Omwoha

The Constitution of Kenya, 2010, seeks to repudiate the historical exclusion of women from the mainstream society, thus, creating a freedom for women to maneuver their way both in the private and public globe on an equal footing with men. Various provisions highlights how the issues of Affirmative Action have been acknowledged, for instance, Article 27 (8) provides for affirmative action where the State is obligated to take legislative and other measures to ensure that no more than two-thirds of the members of elective or appointive bodies are of the same gender. Additionally, Article 81 further reiterates that the same rule should be applicable in elective Public bodies. On the other hand, the constitution provides for the principle of equality before the law, it provides, ‘every person is equal before the law and has the right to equal protection and equal benefit of the law.’ To avoid doubt, it further stresses out that, ‘women and men have the right to equal treatment including the right to equal opportunities in political, economic, cultural and social spheres.

Due to the foregoing provisions, the Constitution thus imposes various obligations to the state to ensure compliance to the provisions. Some of these obligations includes; ensuring that historically marginalized groups such as women are;
a) Free to participate in mainstream society including leadership in politics.
b) Reservation of certain positions for women by the government to prevent them from unequal political competition.

Based on the 11th parliament, there is slight improvement on women representation in parliament, such that, there is an increase from 9.8% of 10th parliament, to 19% representation of women parliamentarians. However, even though the number of women representatives has increased, this percentage is still way below the expected 33.3%.
Inequalities are seen to be sown highly in the private sphere, thus, the Constitution bars discrimination in the private to ensure effective participation in the public sphere. Private sphere here includes the family and private companies among others, which are major grounds for gender discrimination. Additionally, this discrimination is extended to policies, laws Acts and decisions which tend to be discriminatory in nature or have implications of discrimination.

Challenges that women face in Political Participation

Despite the provisions on affirmative action in the Constitution, most women find it unfavorable to promote the aspect of inequality. There is increase in the number of women who aspire to venture into politics; however, these women have to navigate significant obstacles propped up by both the society and their opponents, leading to Constitutional crisis. The issue in this instance is, whether these Constitutional provisions especially the 2/3-gender rule is enough to make Kenyans vote for women. These issues arises from the effect that, none of the state organs charged with the task of implementing the constitution has a practical solution to the challenges faced, that is, neither the Political Parties Act nor the Elections Act has provisions on effective mechanisms for the implementation of Article 81 (b) of the Constitution.

Other challenges include;
1) Demeaning and insulting languages from both their male and female opponents.
2) Inadequate or lack of economic resources specifically for women, leading to uneven playing field that poses inordinate burden for them. Kenya politics needs an enormous outlay of social capital, yet the process of economic and political capital accumulation does not favor women at all. For instance in the County budgets, there is no provision for any cash designated for women empowerment, affirmative action should extend to economic needs. Affirmative Action rights for is described as being progressive in nature and not immediate, thus, to ensure successful progress then, the government should begin from including women needs in the budget as one of the ways of empowering women.
3) Inadequate political mentoring and role models in the field of politics. According to the 11th Parliament, for instance, in Kenya there is no woman Governor, there is no woman Senator. In Nairobi County, details are here, the number of men MCA’s who are elected outweighs the number of elected women MCA’s. Instead there are more women who are nominated than elected, nominated members’ opinions does not count a lot as compared to elected members opinions. Thus, the more the elected members the more the number of women are motivated or aspire to be representatives in the parliament.
4) The violent nature of politics makes it unfavorable for women to participate, which emanates from the patriarchal society that does not believe in women leadership (chauvinism) or from the political culture (political culture that favors violence).

Since the number of women is more than men, women should use their strength in number to compel political parties to hold on the quota provisions, that is, integrating the struggle for gender equity with the struggle for democracy.
Based on Article 81, the two-third rule will only be achieved only if the electoral system is strictly free and fair that is, not only free from violence and corruption but also free from intimidation. Therefore, a proper way or structure needs to be included to enable safety for women during elections. Additionally, the perpetrators of violence against women should also be held responsible/accountable and convicted.

The role of the law in tackling both institutional and structural barriers should also be incorporated. In holding it responsible, women will be encouraged to engage in politics effectively while at the same time achieving the aspect of equality.
Capacity building of women to enhance their engagement in the field of politics, this will include; women inclusion in the government budgets to empower them both economically and socially.


4 Comments (+add yours?)

  1. Terry Muttayi
    Jan 13, 2015 @ 08:56:32

    Elina, Greetings to you. My name is Sgt Teresah Muttayi. I work for the National police service in Kenya. I am a member of the Kenya Association of Women in Policing (KAWP), Representing Coast and North Eastern Region. I am also the coordinator of the International Association of Women police (IAWP) in Eastern Africa. As KAWP and IAWP Board member, i have been involved in counter human trafficking thus working with SOLWODI(K) in conjunction with other stakeholders, We are also involved in Prevention Against Gender Based Violence, Prevention of youths using hard drugs partnering with NACADA. I would like to work with you to ensure a safer Kenya with happy citizens thus promoting National peace and Unity.Hoping to hear from you. Terry

    Liked by 1 person


  2. East African Counter Human Trafficking Efforts
    Jan 22, 2015 @ 07:08:34

    Dear Terry, it is great coming in contact with you. Thanks for your interest to work with us, we welcome your idea and open for a further communication to see which areas we can collaborate in. Please do not hesitate to contact us for a further planning. Our contacts are; Mob. +254720812638 Email;



  3. winnie kungu
    Jul 02, 2015 @ 09:05:30

    hi am winie law student in kenya would really like to be part of the organisation fighting of rights of women



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