Kevin Kipchirchir
This year marks ten years since the first election under the devolved system of government and the Constitution of Kenya, 2010. Caroline Kioko and Lucianna Thuo find that whereas an evaluation of the first decade of devolution reveals a mixed bag of results, the promise of the 2010 constitution still holds, and gains made in the first ten years of implementation can be consolidated in successive cycles to make the promise an inclusive one. The promise they reference here is the promise of a just and equal society. Through the constitution-making process, Kenyans indicated their desire for the constitution to reflect an inclusive republic.
As noted by Tecla Namanchanja during the opening of the Truth, Justice and Reconciliation Commission (TJRC)'s Thematic Hearing on Economic Marginalisation on 13 February 2012, there are some areas in this country where the people feel that they are not part of Kenya. So, we have parts of this country where people consider themselves as coming from 'Kenya Four', 'Kenya Three', and 'Kenya Two.' While the TJRC's mandate was to investigate economic marginalisation, the TJRC defined marginalisation as the social process of becoming or being made marginal (especially as a group within the larger society). It went on to define that marginality in Kenya is seen in two dimensions: spatial, relating to geography and the existence further from the centre, and societal, focusing on human dimensions such as demography, religion, culture and social structure. Caroline Kioko and Lucianna Thuo posit that adopting the devolved government structure in the 2010 Constitution heralded another promise of inclusion, given that one of the objects of devolution is protecting and promoting the rights and interests of minorities and marginalised communities. This post will analyse the fruits achieved through the devolved system of governance and how it has contributed to the realisation of the commitments in recital 8, 14 and Article 9 of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa ('Maputo Protocol').
Article 9 of the Maputo Protocol requires parties to take specific positive action to promote participative governance and the equal participation of women in the political life of their countries through affirmative action, enabling national legislation and other measures to ensure the participation of women without any discrimination in all elections, the equal representation of women with men in all electoral processes; and the recognition of women as equal partners at all levels of development and implementation of state policies and development programmes. Moreover, Article 9 (2) obligates parties to ensure increased and effective representation and participation of women at all levels of decision-making.
The requirements in Article 9 are in the backdrop of the commitments made by state parties reflected in the preamble to the Maputo Protocol. Recital 8 of the preamble reaffirms the principle of promoting gender equality as enshrined in the Constitutive Act of the African Union, among other Declarations, Resolutions and Decisions, which underline the commitment of the African States to ensure the full participation of African women as equal partners in Africa's development. Moreover, Recital 14 of the preamble reiterates the determination to ensure that the rights of women are promoted, realised and protected to enable them to enjoy all their human rights entirely.
Article 2(6) of the Constitution of Kenya provides that any treaty or convention ratified by Kenya shall form part of the law of Kenya. Consequently, the Maputo Protocol forms part of the laws of Kenya. Hence, there are several affirmative action provisions in relation to women within it. For instance, Article 27 recognises the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres for men and women.
The 2010 constitution presented Kenyan women with the opportunity to participate in governance in four different ways: (i) through election by ballot; (ii) through nomination; (iii) through appointive positions; and (iv) through leadership of legislative institutions. With devolution, it was expected that the more decentralised governance became, the more opportunity presented itself for women and other minorities and marginalised communities to be able to participate. Lucianna Thuo and J Osogo Ambani not thus
For reasons such as its grassroots reach and potential for higher levels of self-determination, it was not naive to expect that devolution would afford women more opportunities for participation through elective positions (such as the seats of member of county assembly (MCA), governor and deputy governor), appointive positions (such as membership of the county executive committees), and leadership positions in the county assemblies.
While the representation of women remained dismal, the number of women elected to the county assemblies went up from seventy-five in the 2013 general election to ninety-eight in 2017. On the other hand, five female governors were elected in 2017, up from zero in 2013. While the National Assemblies and the Senate failed to meet the two-thirds gender requirement, women accounted for twenty-two per cent and twenty-eight per cent of the membership, respectively. Similarly, most counties had women members of their county executive committees, deputy governors, and speakers of county assemblies.
Lucianna Thuo and J Osogo Ambani aptly note thus: 'arguably, the increase in female contestants and especially those who had held state or public office contributed to the higher impact of women in the gubernatorial elections of 2017.'
Evidently, devolution has enabled women to participate in different levels of governance, and their influence is now being felt more across the country. This meets the state parties' aspirations in the Maputo Protocol to promote participative governance and the equal participation of women in the political life of their countries through affirmative action, enabling national legislation and other measures to ensure the participation of women without any discrimination in all elections, the equal representation of women with men in all electoral processes; and the recognition of women as equal partners at all levels of development and implementation of state policies and development programmes.
Gurung GS and Kollmair M, 'Marginality: Concepts and their Limitations' (2007) 12 NCCR North-South Dialogue.
Thuo L and Kioko S, 'Marginalisation in Kenya in Historical Perspective (1963 - 2021): The Starts, False Starts and the Last Promise' in Osogo Ambani J and Kioko C (eds), Decentralisation and Inclusion in Kenya: From Pre-colonial Times to the First Decade of Devolution (Kabarak University Press 2022).
Thuo L and Osogo Ambani J, 'Devolution and the Promise of Democracy and Inclusion: An Evaluation of the First Decade of County Governments, 2013 - 2022' in Osogo Ambani J and Kioko C (eds), Decentralisation and Inclusion in Kenya: From Pre-colonial Times to the First Decade of Devolution (Kabarak University Press 2022).
Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol) (2003).
The Constitution of Kenya (2010).