With the 2027 elections coming up, the question of gender equality is intensifying by the day. This is exemplified with the looming conversation of the scrapping of the woman representative seat.[2] Article 27(8) of the Constitution mandates that no more than two-thirds of members in elective public bodies be of the same gender.[3] Additionally, Article 81(b) requires electoral systems to comply with this principle.[4] Gender equality in this context, refers to the equitable inclusion of women as compared to men in both elective and appointive seats as envisioned in article 27(3).[5]
Even though Kenya has firm constitutional provisions to achieve gender equality, its implementation falters. Kenya through the ratification of the Convention for the Elimination of all forms of Discrimination Against Women (CEDAW) has committed to take all appropriate measures to eliminate discrimination against women in the political and public life and ensure to women, on equal terms with men.[6] However, as of 2025, women make up 23.3% of the National Assembly.[7] The struggle is notably at the national assembly this is because both the Senate[8] and the county assemblies[9] have mechanisms such as special seats to ensure that women’s presentation and the two-thirds gender rule is achieved.
Tracing the roots of this disparity post-2010, leads to the Supreme Court’s 2012 Advisory Opinion (No 2 of 2012) that urged progressive realisation in matters of political representation.[10] This is where the rain started beating us. The Supreme Court reasoned that the use of the word “shall” in Article 81(b) required a series of actions by multiple state organs, making it a matter of progressive realisation rather than an instantly enforceable right.[11] It continued to posit that in contrast to the Petitioner's definition, which connoted a mandatory obligation, it was important to look at it from a broader perspective that calls for a chain of actions. Therefore, in this case, it did not call for immediate action but rather a discharge of public obligation such as legislative measures. Additionally, the phrase “to give full effect” was interpreted to mean that there are certain specific measures that, while not stipulated in the Constitution, can only be taken in stages. Therefore, the gender rule cannot be immediately realised.[12]
An important argument arose for the Supreme Court’s deliberation; whether this progressiveness is the same as that in Article 43 on socio-economic rights. The Supreme Court took judicial notice that women’s disadvantage was accounted for by much more than political exclusion; it arose from deep socio-cultural relations in society.[13] Therefore, achieving the inclusion of women required more than just prescribing gender quotas in law.[14] The Supreme Court further stated that it is not the classification of a right as a social and economic right that leads to its progressive realisation rather, it is the inherent nature of the right.[15] For example, rights under Article 43 are socio-economic because they require the fulfilment of economic feasibility, while Article 81, on the other hand, requires multiple steps to achieve its objective. These steps would have included certain measures by the state for example legislative measures, affirmative action programmes and policies.
Judgments do not occur in a vacuum. In analysing the judgement, one has to examine the prevailing circumstances rather the context that in which it arose. The Supreme Court at that time was concerned about a judicial or constitutional crisis if the quota was not met in the 2013 elections. The trickle-down effect has been that, up to 2025, we have not been able to achieve the two-thirds gender rule.[16] One of main reasons has been that the requirement is to be progressively realised, and therefore, Parliament can continue with its duties despite not achieving this quota.
I strongly support the dissenting opinion of Prof CJ Mutunga as he correctly pointed that owing to Kenya’s patriarchal history, political rights require immediate implementation, as affirmed by international instruments like CEDAW,[17] which Kenya has ratified under Article 2(6) of the Constitution.
What then is this progressive realisation? ‘Progressive realisation’ refers to a situation where a state is expected to take continuous, deliberate, and measurable steps toward achieving a right over time, primarily due to financial or structural constraints. This principle is commonly associated with economic, social, and cultural rights, where implementation may depend on resource availability.[18] However, political rights, particularly those tied to democratic representation and equality, require immediate action because their realisation is not contingent on financial or infrastructural development.[19]
Moreover, the Constitution already provides the necessary framework for ensuring gender parity through mechanisms such as nomination seats, affirmative action, and legislative intervention.[20] The failure of Parliament to pass the requisite laws does not justify postponing constitutional obligations. Therefore, the argument that the two-thirds gender rule requires progressive realisation is legally unsound and a misapplication of constitutional principle.
The decision to defer implementation of the gender rule until August 2015 then lacked legal justification and creates uncertainty in governance.[21] According to the Chief Justice Mutunga, it sets a dangerous precedent that constitutional obligations can be postponed based on political expediency. Additionally, it places the burden on future Parliament, making it harder to implement necessary legal frameworks with the urgency and immediacy that is required. The decision by the Court made it complicit to the crime of regressing the fight for gender parity. The warning we missed and are currently paying the price. The matter of gender in a patriarchal society required radical actions by the state. It was the spirit of the Constitution that society would raise itself to the high standard it set on gender inclusivity and not have the law play catch up with society.
A pivotal moment in Kenya’s history came about when CJ Maraga issued the advisory opinion to the president in 2020 (the Maraga Opinion). In this advisory, he invoked Article 261(7) of the Constitution of Kenya and suggested to the President to dissolve Parliament due to the failure to enact legislation that implemented the two-thirds gender rule in accordance with Article 27 as read together with Article 81(b) of the Constitution of Kenya.[22]
The Maraga opinion outlined Parliament’s nine-year inability to enforce the two-thirds gender rule, despite four court rulings mandating adherence.[23] Maraga dismissed claims regarding constitutional crises or issues related to the pandemic, highlighting that the dissolution mechanism was intentionally incorporated as a ‘radical remedy’ to promote compliance with constitutional change. He clearly asserted that his responsibility was not to use discretion but to ascertain if parliament had followed court orders which it evidently had not.[24] His strong claim that ‘we must reject impunity’ summarised the core idea that no entity, not even Parliament, is above constitutional responsibilities.
Here we are, nearing the 2027 elections, and Parliament keeps operating even though it has not enacted the two-thirds gender rule. This continuous non-compliance is worrying if not triggering. Over the years there have been several unfruitful legislative efforts[25] such as The Mutambo Bill (2014) which proposed reducing constituencies, counties, and elected representatives while abolishing gender quotas, but it faced strong opposition and was never debated.[26] The Duale I Bill (2015) proposed increasing special seats in Parliament to ensure gender balance, applying a "sunset clause" of 20 years, eliminating pre-existing nominated seats, and limiting nominations to two terms.[27] It failed to pass despite multiple attempts. The Sijeny Bill mirrored it but was also unsuccessful twice.[28] The Chepkong’a Bill (2015) sought a "progressive implementation" approach, contradicting the Supreme Court advisory, and was rejected.[29] Lastly, The Duale II Bill (2018) replicated the first Duale Bill but extended the sunset clause by 10 years and deferred implementation until after the 2022 elections.[30] It failed due to low parliamentary attendance. None of these bills succeeded in amending the Constitution.
While the Constitution is clocking 15 years, we are not celebrating its successes rather we are still finding excuses on its implementation. What lies in the future then? according to me the situation is not going to change anytime soon. In any case if the removal of woman representative seats goes through, we will be in more trouble than before. However, all is not lost. The cure might lie in first curing the disease of the systemic exclusion of women. This involves challenging the deep-rooted historical, social, cultural and economic-power relations in the society. Kenya's prospects for attaining gender equality in political representation relies on assertive judicial implementation of constitutional provisions, legislative changes with robust accountability systems, and grassroots shifts in cultural norms. Additionally, laws ought to require temporary special measures similar to Rwanda’s reserved seats model and impose penalties on parties that do not achieve gender quotas.[31] Simultaneously, civic education initiatives need to dismantle patriarchal standards by utilizing youth-driven digital activism and financial support for women candidates.
In conclusion, Kenya’s legal commitment to gender parity in political representation remains aspirational without enforceable mechanisms. The future demands more than just words. As Maraga states, at times we must ‘bear suffering’ to maintain the rule of law and dismiss impunity. In the absence of effective enforcement tools and political dedication, our constitutional guarantees of gender equality will stay unachieved. Our democracy cannot assert its legitimacy if it selectively enforces its core principles. Genuine constitutional loyalty requires us to respect not only the provisions that are easy to follow but particularly those that push us to create a more just society.
[1]*Joan Kiptui is an LLB finalist with a passion for constitutional law, international human rights law, and gender and the law. She considers herself as a feminist in training and actively participates in moot court and mediation competitions. When she isn’t advocating in these spaces, she’s lost in the pages of a fictional book, , where she finds both inspiration and respite, enriching her perspective on law and societal narratives.
[2] Grace Ng’ang’a, Will abolishing Woman Rep seat help cure gender rule headache? The Standard <https://www.standardmedia.co.ke/article/2001391358/will-abolishing-woman-rep-seat-help-cure-gender-rule-headache> on 2021, Scrap Woman Rep seat and reduce counties, ex-AG tells talks team KTN news Kenya 20 September 2023, 3:40 to 3:45 <https://youtu.be/n9US-HQZPzY?si=DAIR5uTzMHzeVwGK&t=220> on 17 March 2025.
[3] Constitution of Kenya (2010) Article 27(8).
[4] Constitution of Kenya (2010) Article 81(b).
[5] Constitution of Kenya (2010) Article 27(3).
[6] Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, A/RES/34/180, Article 7.
[7] Global data on National Parliaments, Kenya National assembly data on women <https://data.ipu.org/parliament/KE/KE-LC01/data-on-women/> on 1 March 2025
[8] Constitution of Kenya (2010) Article 98(1)(b).
[9] Constitution of Kenya (2010) Article 177(b).
[10] In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, Advisory Opinion Application 2 of 2012, Advisory Opinion of the Supreme court with Mutunga dissenting opinion, (2012) eKLR.
[11] In the Matter of the Principle of Gender Representation in the National Assembly and the Senate Advisory, paras 59, 67.
[12] In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, para 64.
[13] In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, para 67.
[14]In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, para 67.
[15] In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, para 67.
[16] Justice David K Maraga, ‘Chief Justice’s advice to the President on dissolution of parliament for failure to enact the gender rule’ 22 September 2020- <http://kenyalaw.org/kenyalawblog/chief-justices-advice-to-the-president-on-dissolution-of-parliament/> on 13 March 2025.
[17] In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, Mutunga dissenting opinion, paras 5.7,11.12.
[19] In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, para 54.
[20] In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, para 59.
[21] In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, para 12.
[22] Justice D.K Maraga, ‘Chief Justice’s advice to the President on dissolution of parliament for failure to enact the gender rule’ September 22, 2020- http://kenyalaw.org/kenyalawblog/chief-justices-advice-to-the-president-on-dissolution-of-parliament/ 0n 13 March 2025.
[23] Justice David K Maraga, ‘Chief Justice’s advice to the President on dissolution of parliament for failure to enact the gender rule’, para 12.
[24] Justice D.K Maraga, ‘Chief Justice’s advice to the President on dissolution of parliament for failure to enact the gender rule’, para 26.
[25] Centre for Rights Education and Awareness, ‘Tracing the journey: towards implementation of the two thirds gender principle’, <https://home.creaw.org/wp-content/uploads/2019/11/Tracing-the-Journey-Two-Thirds.pdf> on 17 March 2025, 26.
[26] Constitution of Kenya (Amendment) Bill 2014.
[27] Constitution of Kenya (Amendment) (No.4) Bill 2015.
[28] Kenya Gazette Supplement No. 143 (Senate Bills No. 16).
[29] Constitution of Kenya (Amendment) Bill (2015), Centre for Rights Education and Awareness, ‘Tracing the journey: Towards implementation of the two-thirds gender principle’, 4.
[30] Constitution of Kenya (Amendment) (No.6) Bill (2015).
[31] UN women, Revisiting Rwanda five years after record-breaking parliamentary elections, on 13 August 2018 <https://www.unwomen.org/en/news/stories/2018/8/feature-rwanda-women-in-parliament> on 17 March 2025.
