Women and the Law in Kenya

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TITLE: WOMEN AND THE LAW – THE KENYAN STORY
A THESIS SUBMITTED IN PART FULFILMENT OF THE
REQUIREMENT FOR THE AWARD OF BACHELOR OF LAWS
DEGREE BY KABARAK UNIVERSITY.
BY: DOUGLAS JUSTUS WABUKO
LAW-M-0706-9-10
(2014)

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WOMEN AND THELAW: THE KENYAN STORY
DECLARATION
I, Douglas Justus Wabuko of registration number LAW-M-0706-9-10, declarethat
this research paper, ”WOMEN AND THELAW : THE KENYAN STORY” is the result
of my own work and that it has not been submitted either wholly or partly to this
or any other university for the award of a degree or any other academic
qualification.
School of Law – Kabarak University
Student’s name …………………………………………….
Signature ………………………………………………………
Date ……………………………………………………………..
For official use
Supervisor’s name…………………………………………
Signature ……………………………………………………..
Date …………………………………………………………….

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ACKNOWLEDGEMENTS
I wish to acknowledge and thank the following people who have played a big role in this study
in some form or another – be it by participating, sharing ideas, motivating, and giving emotional
and spiritual support:
The Almighty God for having granted me an opportunity of further studies and for life.
My loving Mum for sacrificing a lot just to take me through my degree and always believing in
me, always encouraging me to keep up with the fight to the very end. God bless you.
My supervisor, Mrs. Fancy Too, for her invaluable counsel, guidance, patience and unwavering
support.
The LLB Class of 2014 for inspiration and necessary correction as we took this journey together.
The Kabarak School of Law for having offered a conducive learning environment that has made
me able to grow as a person both in my career and in life.

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DEDICATION
I dedicate this paper to my loving Mum Keziah Wabuko.

Table of Contents
CHAPTER 1....................................................................................................................................... 8
INTRODUCTION............................................................................................................................................................................8
Background...................................................................................................................................................................................8
OBJECTIVES OF THE STUDY........................................................................................................................................................9
RESEARCH QUESTIONS ...............................................................................................................................................................9
JUSTIFICATIONS FOR THE RESEARCH .......................................................................................................................................9
METHODOLOGY.........................................................................................................................................................................10
Literature Review ......................................................................................................................................................................10
CHAPTER BREAKDOWN ............................................................................................................................................................11
Chapter Two: The Journey of Constitution Makingin Kenya – Engendering Women’s Rights in the Legal
Process....................................................................................................................................................................................11
Chapter Three: The Constitutional 2010 – A Fair or Raw Deal?...................................................................................11
Chapter Four: Comparisons ................................................................................................................................................11
Chapter Five: Conclusion – Are we there yet? ................................................................................................................12
CHAPTER 2: THE JOURNEY............................................................................................................ 12
Introduction................................................................................................................................................................................12
Kenya Women’s Movement....................................................................................................................................................12
Case Study..............................................................................................................................................................................13
Discrimination............................................................................................................................................................................14
Citizenship...................................................................................................................................................................................15
Post-1992....................................................................................................................................................................................15
Bomas ..........................................................................................................................................................................................16
The 2005 Referendum..............................................................................................................................................................18
Soldiering on...............................................................................................................................................................................18
2010 Referendum......................................................................................................................................................................20
CHAPTER 3..................................................................................................................................... 21
Gender Issues in the New Constitution of Kenya ......................................................................... 21
Representation in Decision Making Organs..........................................................................................................................21
National Assembly................................................................................................................................................................22
Senate .....................................................................................................................................................................................22
Counties..................................................................................................................................................................................23
Public Bodies..........................................................................................................................................................................23

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Electoral System....................................................................................................................................................................23
Equality and Non-discrimination............................................................................................................................................23
BattlingInequalities..............................................................................................................................................................23
Non Discrimination...............................................................................................................................................................24
Citizenship..............................................................................................................................................................................24
Marriage and Family.............................................................................................................................................................24
Economic and Social Rights.................................................................................................................................................25
Judiciary.......................................................................................................................................................................................25
The Republic...............................................................................................................................................................................26
Environment and Natural Resources Management ............................................................................................................26
CHAPTER 4: COMPARISONS.......................................................................................................... 27
Rwanda........................................................................................................................................................................................27
Uganda ........................................................................................................................................................................................29
South Africa................................................................................................................................................................................31
The Nordic Countries ................................................................................................................................................................32
Quotas........................................................................................................................................... 33
Pros and Cons of Quotas..........................................................................................................................................................34
Pros..........................................................................................................................................................................................34
Cons.........................................................................................................................................................................................34
CHAPTER 5..................................................................................................................................... 35
Conclusion...................................................................................................................................................................................35

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CHAPTER 1
INTRODUCTION
Background
Laws from many years ago excluded women generally from public life. They did not enjoy the
right to advanced education, to hold public office, to vote or to sit on a jury, to name but a few.
In areas of private law, married women could not own property and mothers could not claim
custody of their children, among many things. As in many other African societies, Kenyan
women were not in the public leadership position. Since 1963, there were no women in
parliament for a long time. In 1997 as the constitution negotiations were at the peak, there was
only 3% women’s representation. Social economic barriers, culture and tradition, political
culture, patriarchy, lack of resources all stood on the way to women’s leadership.1
Even though women form a majority of the Kenya’s population and play an active role in the
development of the society, Kenya remains a very patriarchal society, and the male dominance
still prevails in many aspects of life. This situation has been reinforced by the social-cultural
factors and the women continue to be marginalized and discriminated.
Women have been systematically removed from fully participating in the development process
despite their active participation in the production processes alongside men. Even where
women's legal rights have been provided for, ignorance of such rights exacerbated by illiteracy
ensures that they do not benefit from such provision. The effectiveness of laws in according
women equal opportunities with men depends largely on the society's willingness and ability to
enforce such laws.
However, Kenya has gone steps ahead in instituting new laws and policies that are continually
redressing the situation.
A constitution is expected to represent the aspirations of all citizens. It should represent gains
towards gender equality and equity and the protection of the human rights of all people in a
state.
Chapter 4 of the Constitution of Kenya 2010 has been dubbed by most commentators as the
most comprehensive chapter under the constitution. The Bill of Rights has introduced several
significant changes that were not in the 1963 Independence Constitution. The Independence
Constitution only recognized one category of fundamental rights which is the category of civil
and political rights. It does not mention the Second Generation Rights which are Social,
Economic and Cultural Rights and the Third Generation of Human Rights i.e. the Group Rights.
1 Wanjiku Mukabi Kabiraand Elishiba Njambi Kimani,‘The Historical Journey of Women in Leadereship’ (2012)
JETERAPS 843.

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Under the 2010 Constitution, there is the Civil and Political Rights. These are the freedoms and
rights that citizens enjoy and do not require any resource from the government e.g. the right to
life,2 one just needs to live. The government does not need to do nothing more. The Second
Generation Rights are the economic, social and cultural rights such as the right to health,3 food4
and education.5 These rights require obligation on the part of the government. There is also the
Group Rights commonly referred to as the Third Generation Rights. These are rights that
citizens enjoy collectively.
OBJECTIVES OF THE STUDY
(i) To understand the provisions for gender and in particular women equality in both the
old and the new Constitution 2010 and in statutes.
(ii) To understand the struggle the gallant women of Kenya have undergone in the fight
towards gender equality.
(iii)To interrogate the steps taken to include provisions for gender equality in the
Constitution of Kenya 2010.
(iv)To make a comparison between Kenya and other jurisdictions including Uganda,
Rwanda, South Africa and Sweden.
RESEARCH QUESTIONS
(i) What steps have women taken to ensure gender equality and non-discrimination?
(ii) Which are the provisions in the Constitution of Kenya 2010, the Independence
Constitution, Kenyan legislation and international instruments that touch on women
and equality?
(iii)What considerations were put in place to promote women’s rights in the Constitution
making process in Kenya?
(iv)How does Kenya compare to other jurisdictions on matters of gender equality?
JUSTIFICATIONS FOR THE RESEARCH
Since time immemorial one gender has been the ‘stronger’ one. The male gender was viewed
as being ‘superior’ to the female gender. Females have been known as the ‘fairer sex’. And such
can be traced back to the stone ages where the men went to hunt and gather as the women
stayed home to take care of the children and the home. Warriors from that time used to be all
male. The males were expected to have many wives as a sign of strength and prestige. The
women were to be in the shadow of the men.
2 Article26(1) of the Constitution of Kenya 2010.
3 ibid Article43 (1) (a).
4 ibid Article43 (1) (c).
5 ibid Article43 (1) (f).

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Such notions have however come to be disproved as more and more women fought for their
space in society proving that they could be just as competent as their male counterparts.
I for one believe we are all equal and I want to be able, with the aid of scholarly material to be
able to show why gender equality is a good thing, why the fight to total gender equality should
not relent, challenges that arise and the hope of a future where one will be judged by what
they can do without looking at their gender.
In this study I would also touch on the issue of the third gender as I believe this is an important
phenomenon which is just coming up and must be explored with vigour.
METHODOLOGY
My dissertation will be basically a review of the struggle for gender equality up to this moment.
This will include sourcing for materials from books in the school library. I will also rely on
secondary sources such as journals and papers from known scholars such as Professor Maria
Nzomo and Professor Wanjiku Mukabi Kabira. I will also use material from the internet relevant
to this research especially when carrying out the comparisons between Kenya and other states
on matters of gender equality.
Literature Review
In Prof. Maria Nzomo’s paper by AAWORD on “Women in Politics”, she argued that even those
women who had taken key political leadership positions like Mrs. Eva Peron of Argentina, Mrs.
Sirimavo Bandaranaike of Sri Lanka, Mrs. Indira Gandhi of India, Mrs. Corazon Aquino of the
Phillipines and Mrs. Benazir Bhutto of Pakistan among other women leaders, initially derived
part of their political legitimacy from association with prominent male politicians.6
Prof. Nzomo also looked at the barriers towards women’s participation in politics in Kenya,
among them the attitude arising from socio-economic cultural engineering, lack of access to
formal education, access to resources of production and income as well as male dominated
political parties.
Prof. Nzomo also noted how Prof. Wangari Maathai’s decision to seek a high court injunction to
restrain the government from implementing its decision to build a skyscraper in Uhuru Park had
been reduced to a personal gender issue between Wangari Maathai and male members of the
political systems who attacked her personally as a frustrated divorcee who had no credentials
or mandate to challenge state decisions.
Prof. Nzomo also referred to examples where it was clear that women had failed to make an
impact. Failure of women to make an impact for example, the 1969 abolition of the Affiliation
6 Wanjiku Mukabi Kabira, Time for Harvest : Women and Constitution Making in Kenya (firstpublished 2012 UONP
2012) 18.

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Act that required fathers of children outside marriage to provide some financial support. She
also pointed to the defeat of the Marriage and Divorce Bill which as a consequence denied
house allowance to married women in the public service. 7
The amendment to the Constitution after reforms initiated by the 1997 Inter Party
Parliamentary Group (IPPG) on nominations to parliament (50% would to go to women) has
shown that through Affirmative Action, social engineering can occur. It has enriched parliament
by bringing women to the August house that have a clear agenda of bringing in women-friendly
laws. The Sexual Offences Act 2006 is a very good example.8
The demands for greater representation of women in parliaments articulated within the
context of larger processes of democratization over the past twenty or so years, reflects robust
women’s movements that are alert to the opportunities presented by transitions. Women’s
movements have thus seized on opportunities for redesigning political institutions-parliaments,
political parties and electoral systems- in ways that produce fairer outcomes, particularly for
marginal groups. Women’s movements have signaled decisively that there is room for women’s
agency to shape politics and that, formal political rights are an important precondition for
advancing equitable social policies.9
CHAPTER BREAKDOWN
Chapter Two: The Journey of Constitution Making in Kenya – Engendering Women’s Rights in the
Legal Process
This chapter will focus on the journey taken to achieve of gender equality from the pre-colonial
times to the 2010 Constitution. The chapter will touch on key figures in the struggle, key and
turning points in the fight and the progress made thus far. It will also touch on the legal
framework and raise the main legal issues that arose during the Constitution making process.
Chapter Three: The Constitutional 2010 – A Fair or Raw Deal?
This chapter will seek to highlight the provisions of the Constitution 2010 touching specifically
on women.
Chapter Four: Comparisons
This will focus on comparing Kenya with Uganda, Rwanda, South Africa and the Nordic
countries on matters of gender equality and especially political participation of women in the
said jurisdictions.
7 Kabira (n 3) 18.
8 ibid 20
9 Shireen Hassim,‘The Virtuous Circleof Representation: Women in African Parliaments’in Gretchen Bauer and
Hannah E. Britton (eds), Women in African Parliaments (Lynne Rienner Publishers,Inc.2006)

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Chapter Five: Conclusion – Are we there yet?
CHAPTER 2:THE JOURNEY
Introduction
A historical analysis of Kenya throughout the pre-colonial, colonial and post independence
periods suggests rather distinct patterns with respect to the legal status of women. A general
trend however has been either that women have been subtly discounted from the mainstream
society or that the law has out rightly discriminated against them in many spheres of life.
Women have been less able to enjoy certain rights than men. They have had poor access to
education. They have controlled significantly lesser resources than their male counterparts.
They have been more vulnerable to social, economic and political shocks. Penal laws have not
responded to their specific needs. And they have played lesser roles in terms of exercise of
public power.
Law can be used to reinforce or give permanence to certain social injustices leading to the
marginalization of certain groups of people. In the realm of women's rights, legal rules may give
rise to or emphasize gender inequality. Legal systems can also become obstacles when change
is required in legal rules, procedures and institutions to remove the inequality by the
oppressed.
Kenya Women’s Movement
This movement has its roots in self-help groups which existed even in pre-colonial societies.
Whilst trade unions and co-operative societies remained male dominated, women self-help
groups became women’s way of expressing their desires, needs and concerns.10
The women had their structures, values and a form of resistant ideology through them. The
traditional type of women’s group formation stemmed from the realization that women share
certain problems which could effectively be tackled only through collective effort. Women had
common problems which were not experienced by men – not the child birth or menstrual kind
– but social and economic.
The women groups as we know them today were mostly born during the state of emergency in
Kenya and soon after independence. They borrowed largely from the traditional women groups
2012) 13.

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especially because of their focus on social welfare. They reflected the Harambee spirit of self-
help espoused by the founding President the Late Mzee Jomo Kenyatta for example’ Nyakinyua
Women’s groups in central province.11
The Struggle
The struggle for a people driven process of reviewing the Constitution had been going on since
the amendment of Section 2A of the Independence Constitution. Kenyans had hoped that there
would be a comprehensive review before the 1997 general elections. Instead, Kenyans were
served with the Inter Party Parliamentary Group (IPPG) package – a compromise between the
government and the opposition.
Prior to the promulgation of the current Constitution, Kenya’s constitution unashamedly
validated the subjugation of women and justified it on customary or religious grounds with
respect to matters of ‘personal law’ i.e., marriage, divorce, adoption, inheritance of property
and burial. Such blanket exemption meant that people could be discriminated against by the
application of ‘personal laws’ without any opportunity to oppose such discrimination.
The Judicature Act Cap 8, laws of Kenya sets out the sources of Kenyan law and places the
Constitution as the supreme law of the land. In the event of conflict of laws, the constitutional
provision prevails. The constitution is supposed to embody all the fundamental principles and
values of the Kenyan people and ensures that these values are given the fullest legal protection
and grounding. Despite the exclusion of sex as a basis of discrimination in the 1997
amendments, the then constitution of Kenya at Section 82 (4) reserved the right to discriminate
in matters of marriage, inheritance, burial, divorce, adoption and other matters of law. S. 82 (4)
also reserved the right to discriminate in the application of customary law in the case of
members of a particular race or tribe.12
CaseStudy
In Virginia Edith Wambui v. Joash Ochieng Ougo and Omolo Siranga (1982-88)1 KAR commonly
known as the SM otieno case, it involved a prominent Nairobi lawyer called S.M. Otieno who
passed away in 1986 without leaving a will. Immediately upon his death, his widow Wambui
Otieno embarked on making burial arrangements to inter her husband in Ngong. However, the
husband’s clan, Umira Kager wanted to bury his body in Nyalgunga Nyanza which was his
ancestral home in accordance with the Luo customs. The matter led to a dispute that ended up
in the High Court. The widow prayed for a declaration that she was entitled to claimher
husband’s body and bury it on their farm at Upper Matasia, Ngong near Nairobi. Frank Shields J.
11 ibid., 14
12 P. Kameri-Mbote & M. Nzomo, ‘The Coverage of Gender Issues in the Draft Bill of the Constitution of Kenya
2002:Have the Hens Finally Come Home to roostfor Kenyan Women?’ [2004] UONLJ 3

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(as he then was) issued an injunction restraining the brother of the deceased and the Umira
Kager clan elders from burying the deceased at the ancestral lands of the clan. The clan
immediately appealed against the ruling and the Court of Appeal set aside the ruling and orders
of the lower court. The case was then taken for a full trial at the High Court where a three-judge
panel, this time presided over by Justice Bosire gave the body of the deceased jointly to both
parties to be buried in Nyanza.13 The widow unsuccessfully appealed against this decision finally
bringing to an end the legal tussle that had span for six months.
The Court in this case upheld the Luo customs and traditions stating that the wife had no duty
to bury him and that in the absence of customary law, the duty could only lie with the personal
representative of his estate. The court stated in part. “……there is no way an African citizen of
Kenya can divest himself of the association with the tribe of his father if those customs are
patrilineal. It is thus clear that Mr Otieno having been born and bred a Luo remained a member
of the Luo tribe and subject to the customary law of the Luo people.”
A subsequent ruling in Pauline Ndete Kinyota Maingi v. Rael Kinyota Maingi (Civil Appeal No. 66
of 1984) dismissed provisions of a will and upheld the Kamba customary law; the deceased’s
custom. The court ruled that: “…before wishes of an African citizen of Kenya who has made a
will directing where his mortal remains should be interred could be given effect to, the
executor of his will must prove that the African custom was repugnant to justice and morality
or inconsistent with written law, otherwise, such wishes would not be given effect to.”
The above cases are a clear demonstration of the precariousness of women’s legal rights that
are not constitutionally grounded.
Women’s attempts to ingrain equality in the compact of governance through legislative
processes have failed as men used their numbers to buttress ‘common wisdom’ on
relationships between men and women.
Since independence, Kenyans through Parliament have reviewed the constitution without
optimum consultation especially with women. This is more so because of women’s under-
representation inside parliament, which has had very few female members of parliament. Two
issues stood out from the independence constitution; discrimination and citizenship.
Discrimination
Discrimination of women has been an issue for a long time and the government was prompted
to set up a taskforce to review laws relating to women in the early 1990s and the amendment
of the constitution in 1997. This amendment addressed concerns with Section 8214 of the
13 Otieno v. Ougo & Another, [2008] 1 KLR (G & F) 918 (HC)
14 Section 82 Independence Constitution of Kenya.

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Independence Constitution which had excluded sex as an objectionable ground for
discrimination. While the amendment included sex among those grounds, a number of laws
were exempted by S. 82(4)15 from the provisions against discrimination. These included laws
affecting non-Kenyan citizens; laws of adoption, marriage, divorce, burial, devolution of
property on death, personal law matters and laws affecting members of a particular tribe or
race of customary law exclusively concerning them.
The laws exempted by S.82 (4)16 were in areas that directly affected women, and where the
enjoyment of the rights has been less than optimal. This section legitimized the traditional
position which accorded women fewer priviledges than men in matters concerning their
families, marriage, divorce and succession. It also presented problems for the implementation
of progressive statutes at the time such as the law of succession Act Cap 160 Laws of Kenya
which seeks to give both men and women equal rights in matters of succession. The section
also gave no support to such legislative attempts such as the Marriage Bill (1985) which sought
to give equal rights to spouses in a marriage in matters concerning custody of children, divorce
or division of matrimonial property.
Citizenship
Citizenship is another area where the rights of women were directly trampled on by
constitutional provisions on citizenship. A woman could not pass on her citizenship status in
Kenya to her husband or to their children (if married to a foreigner) who would have to acquire
their father’s citizenship. A Kenyan woman married to a foreigner does not pass on her
citizenship to her husband, though a Kenyan man can pass on citizenship to his wife if he
marries a foreign woman. This is at S. 91 of the Independence Constitution.
The Citizenship Act Cap 70 gives equal rights to both men and women who wish to acquire
Kenyan citizenship. However, one would have to apply for citizenship in the prescribed manner,
which includes complying with the provisions of the Constitution.17
Post-1992
For many women leaders, their focus had been ensuring that women’s interests were taken on
board in the process and in the body and soul of the new constitution. They breathed the
Constitution, the water and food had the taste of a draft Constitution and even roses smelt like
the draft Constitution. They were involved in negotiating the law for the review process, in
collecting the views from the public, collating the views and drafting the new Constitution.
15 ibid
16 ibid
17 Kameri-Mbote & M. Nzomo, (n 12) 3

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The journey formerly began in February 1992 when women were brought together by the
National Council of Women of Kenya, and Africa Women’s
Development and Communication Network (FEMNET,) for a National Women’s Convention. It
was the year of elections and women felt that this was the year of reckoning. They needed to
organize themselves. The agenda was how to access political power. Women declared the
parties of their choice; they said time had come for women to be involved in politics. Prof.
Maria Nzomo presented the key address based on her paper, Women in Politics, 1991. Women
declared that they were on a journey to elective leadership and other leadership positions.
They never looked back.18
Women formed several teams in the process which included:
 The National Women’s Negotiating Team
 Affirmative Action Committees
 Women’s Co-ordinating Committees
 Women’s Consortium on the Constitution Technical Committees.
The first meeting on women and the constitution making post-1992 was held in January 1998.
This was convened by the Collaborative Centre for Gender and Development (CCGD). Its main
aim was to understand issues related to the constitution and constitutionalism and how women
could participate.
After the 1997 elections, the debate on the nature and process of coming up with a
comprehensive review of the constitution was started. Parliament debated the issue and in
1998, a twenty five member inter-party team was appointed by the then Attorney General,
Amos Wako to seek the views of individuals and organizations on the amendment of the
Constitution. This culminated in a national meeting at the Bomas of Kenya in May 1998.
Women were present to make their case. It was at these consultations that women negotiated
under the leadership of the Women’s Political Caucus for both their participation in the process
and also the structures that would facilitate the review of the constitution.
Bomas
The consultation of stakeholders at Bomas was followed by other four stakeholders’
consultations at Safari Park Hotel. Women then had an opportunity to negotiate for their
inclusion into the drafting of review bill at Safari Park. Women had five of the twelve slots. The
women included were:19
 Hon. Martha Karua
18 Wanjiku Mukabi Kabiraand Elishiba Njambi Kimani,‘The Historical Journey of Women in Leadereship’ (2012)
JETERAPS 843
2012) 34.

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 Hon. Phoebe Asiyo
 Hon. Zipporah Kittony
 Mrs. Abida Ali Aroni
 Mrs. Martha Koome
 Prof. Wanjiku Mukabi Kabira
At the drafting stage to develop the law, the representatives of the women ensured that:20
i. Women supported a structure that ensured consultations with Kenyans starting from
the constituency to the district and to the national levels.
ii. The affirmative action for women’s representation at all levels was entrenched.
iii. Women’s organizations as nominating bodies were entrenched in the law.
iv. Thirty percent of the district representatives at the National Conference were women.
This formed the basis for women’s negotiations throughout the process. Women wanted the
principles of equality, non-discrimination, unity and tolerance for diversity, patriotism and
inclusiveness, justice and peace as basic parameters to be clearly stated and entrenched in the
drafts.
Also sought for was the provision for affirmative action. The general view was that whatever
other constitutional provisions were made, they were to ensure or facilitate women’s
enjoyment of rights at par with the men. Such equality would not be achieved unless the
provisions of the principle of affirmative action was included which would then enjoin the
Kenyan society to take special and deliberate measures to correct the inequalities brought
about by past gender based injustices that placed women in a subordinate position to men.
Commentators have defined affirmative action to mean positive discrimination that seeks to
empower those that are disadvantaged by historical factors. It is a deliberate policy or program
that seeks to remedy past discrimination by increasing chances of the affected to participate in
what they were previously denied. The object of affirmative action otherwise known as positive
discrimination is to enhance the participation or marginalized groups in decision making and
implementation and make a difference in the political climate and culture. 21
Women also wanted for violence against women to be treated as torture, inhumane, cruel and
degrading punishment. They also wanted a minimum of thirty percent women’s participation
and representation in all decision-making positions and employment in both public and private
sectors.
20 Kabira,(n 19) 34
21 Muhavi Mugambi, ‘Constitutional Gains for Kenyan Women’
<WWW.academia.edu/3408070/CONSTITUTIONAL_GAINS_FOR_KENYAN_WOMEN> accessed 23 March 2014

18
At the Bomas Conference, women in the committees on the Bill of Rights, representation of the
people, constitutional commissions, devolution, culture, land and environment not only
safeguarded the women’s gains in the CKRC draft but also expanded these gains. The draft
constitution ensured recognition of the ethnic, cultural and religious diversity. It outlawed
discrimination, made proposals on equality issues, confirmed affirmative action for women’s
right to participate in elective and appointive bodies, proposed one third as the minimum
women’s representation in all public bodies, equal rights to citizenship for women and men,
protection of women in relation to motherhood, pregnancy and equal rights in marriage.
The 2005 Referendum
However, during the campaigns for the 2005 referendum, Kenya’s politics went wild. The
arguments on why one should vote either ‘Yes’ or ‘No’ for the Draft Constitution became
political arguments, ethnicity and power struggle.22 Many Kenyans in 2005 did not read the
document but would still vote either for or against it. Clearly, the vote was not about the draft
constitution. Women, as the rest of the country, were divided along ethnic and political lines.
Election propaganda was everywhere. Misinterpretation and misinformation on what was in
the draft became the order of the day. Ethnic hatred became part of civic education.23 Such
issues for example reproductive rights of women became ‘rights for women to become
immoral.’ The right to or not to marry became ‘lesbianism’ and many of such wild theories and
propaganda.24 Eventually, the draft was defeated in the plebiscite. Women lost their gains from
the 2005 draft Constitution that was defeated in the referendum.
2006 saw the Ministry for Justice and Constitutional Affairs under the leadership of Hon.
Martha Karua restart the process of the review of the Constitution. A Multi-Sectoral Forum was
established.
Soldiering on
Women came together to address the question of the bill that Hon. Martha Karua as minister
for Justice and Constitutional Affairs had prepared and which included an affirmative action
provision to increase the number of women in parliament by fifty seats as the constituency
boundaries were being reviewed. They then formed the National Women’s negotiating team
who solicited over six hundred thousand signatures. They made history in that respect as they
were the first organized group to bring petitions and signatures to the clerk of the National
Assembly. However, parliament did not pass the affirmative action provision.
2012) 63.
23 Kabira (n 22) 263.
24 Ibid 63

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The Constitutional Amendment law 2008 established a Committee of Experts (CoE) to look at
the CKRC draft 2002; the Bomas Draft 2005; and the Referendum draft (popularly known as the
Wako draft) 2005 to identify and build consensus on the contentious issues. The journey by
women began again.25
Women’s gains in the harmonized draft and their proposals in the Bomas and the 2005
referendum drafts had largely been left intact. However, after the Parliamentary Select
Committee (PSC) had a look at the harmonized draft, the committee decided to remove the
thirty percent women’s representation in parliament and instead opted to have a female
representative from each of the forty seven counties.
Women organized, lobbied, prayed and did everything within their power but PSC stood firm
and would not hear their cry. As Prof. Wanjiku Mukabi Kabira puts it, “We agreed to move on. It
was not after all for nothing that we had struggled. We had to water the seed that had
sprouted and prepare the land to plant more. We had to also ensure that those that had
sprouted were watered regularly, pruned and tendered until they could stand on their own and
bear fruit.”26
Women then agreed that they had to appreciate whatever gains had remained in the
Harmonized Draft, which were quite a number. They were in agreement that the new
constitution would change women’s lives and society as a whole and they would have to
consolidate whatever gains they had and continue to water them until they bore more fruit.
Although women got thirteen percent representation in the national assembly through the
position of women representatives from the counties, there is need to nurture those and
through open seats competitions, add others to move towards higher numbers. They would
also nurture the gains of their representation in the upper house where they got twenty five
percent and the thirty percent women’s gains at the counties level and ensure that women
changed the way local governments would be managed. It is also of note that most of the
women’s gains in the land chapter, bill of rights, citizenship and freedoms against
discrimination remained.
Women would especially remain grateful to the efforts of Hon. Njoki Ndung’u (now a Judge in
the Supreme Court) and Ms. Atsango Chesoni who were in the Committee of Experts and
ensured that the gains made by women were protected to the point of the harmonized draft
where the PSC watered down the affirmative action provisions.27 However, most women
resolved to move ahead and support the referendum. Women chose a positive outlook of the
matter. They decided to look at the glass as being half full and move on.
25 Ibid 68
26 Ibid 69
27 Ibid 69

20
2010 Referendum
This referendum still had political overtones. Fortunately, the main partners in the post 2007-
2008 grand coalition government, President Mwai Kibaki and Prime Minister Raila Odinga were
speaking the same language. This was useful in bringing together the political elite with the
exception of some politicians mainly from the rift valley region. The church also rejected the
draft constitution on the grounds that it legalized abortion and the inclusion of Kadhi’s courts in
the constitution.
There were calls for building consensus on the contentious issues but many people were tired
of having to deliberate many times and opted for the draft to remain the way it was. When
referendum day came, no one could stop the drum beats of history. With 8.7 million votes cast,
six million supported the new constitution.28
Since the adoption of the Constitution of Kenya 2010, various legislation to compliment support
for the rights of women have been adopted as law. There is also the Prohibition of Female
Genital Mutilation Act No. 32 of 2011 which prohibits the practice of female genital mutilation,
to safeguard against violation of a person‘s mental or physical integrity through the practice of
female genital mutilation. In 2012, Parliament passed the Breast Milk Substitutes (Regulation
and Control) Act of 2012 which provides for appropriate marketing and distribution of breast
milk substitutes, so as to provide for safe and adequate nutrition for infants through the
promotion of breastfeeding and proper use of breast milk substitutes. There is also the Cancer
Prevention and Control Act No.15 of 2012 whose object and purpose interalia is to extend to
every person with cancer full protection of his human rights and civil liberties by guaranteeing
right to privacy, outlawing discrimination and ensuring the provision of basic health care and
social services.29
28 Ibid 286
29 Mugambi, (n 21) 8

21
CHAPTER 3
Gender Issues in the NewConstitutionof Kenya
Some of the important gender provisions in the Constitution of Kenya are as follows:
Representation in Decision Making Organs
The new Constitution of Kenya has made a major step towards ensuring gender equity in major
decision making organs. This is an important step because historically in Kenya, women have
always been under-represented in decision making at major levels of governance. In view of
their exclusion from the mainstream society women could not take advantage of any of the
available opportunities to serve in political positions. Women were ever under-represented in
positions of public power. There were fewer of them in parliamentary, civic and other elective
positions. The patriarchal set-up of the Kenyan society meant that women were relegated to
less public roles. This exclusion also meant that fewer women were part of the elite which
formed the pool of political leaders. Women were often unable to command the financial
resources that would enable them compete effectively with their male counterparts. The
political culture in Kenya is defined by male experiences and hence does not respond to or
accommodate the peculiarities of women. The vicious often violent confrontation in the
political landscape effectively locked out women from politic contests. The legal framework in
its part did not facilitate effective engagement by women in politics. The often male-dominated
political parties gave few or no opportunities for women leadership.
However though, these provisions do not give a fifty-fifty gender balance, a considerable
representation of both gender and especially of women has been guaranteed in the key
decision making organs at different levels of leadership and governance.
This can be examined further in the following decision making levels:

22
National Assembly
In the new Constitution, the National Assembly determines national revenue allocation,
appropriates funds for expenditure by the national government, and exercises oversight for
national revenue and its expenditure (Art. 95).30 The National Assembly according to Art. 95
(5)31 also acts as a check-control for the executive and exercises oversight of State organs is
therefore a very important decision making organ of the country that has to be engendered for
the overall realization of gender empowerment and gender equality.
In the composition of the national assembly, at Art. 97(b)32, 47 seats have been reserved for
women elected by registered voters from the 47 counties. This number coupled by the women
who will have been elected through the single member constituencies will provide a platform
for the advancement of women needs and voice at the national assembly.
Senate
The Senate is another important decision making organ at the county level. According to Art.
96,33 the Senate is tasked with roles such as representing the counties, protecting the interests
of the counties and their governments, legislating on county issues, determining national
revenue allocation and oversight among counties and participation in the oversight of State
Officers by considering and determining any resolution to remove the President or Deputy
President from office.
At this level, according to Art. 98 (1) (b)34 there is an assured provision of 16 women who will be
nominated through the political parties represented in the Senate. There is also a provision for
an additional 2 women to represent the youth and persons living with disabilities respectively in
Att. 97 (1) (c) and (d).35
30 Article95 of the Constitution of Kenya 2010
31 Ibid Article95 (5)
32 Ibid Article97 (b)
33 Ibid Article96
34 Ibid Article98 (1) (b)
35 Ibid Article97 (1) ( c ) and (d)

23
Counties
Art. 197(1)36 provides that not more than two thirds of the members of any county assembly or
county executive committee shall be of the same gender.
PublicBodies
In the general principles for the electoral system, not more than two-thirds of the members of
elective public bodies shall be of the same gender. This is in Art. 81 (b).37 Art. 232 (1)38 accords
adequate and equal opportunities for both men and women in the appointment, training and
advancement at all levels within the Public Service.
Electoral System
Art. 91 (f)39, provides that every political party shall respect and promote human rights and
fundamental freedoms, and gender equality and equity.
Equality and Non-discrimination
BattlingInequalities
Gender inequalities have continued to be pervasive and persistent across many dimensions of
life, from domestic households to social institutions to the economy.
The new Constitution of Kenya guarantees the right to equality for both men and women.
Equality under Art. 27 (2)40 is defined to include the full and equal enjoyment of all rights and
fundamental freedoms. Art. 27 (3)41 asserts that women and men have the right to equal
treatment, including the right to equal opportunities in political, economic, cultural and social
spheres.
Article 59 provides for the establishment of a Kenya National Human Rights and Equality
Commission. Art. 59 (b)42 it provides that the Kenya National Human Rights and Equality
Commission is to promote gender equality and equity generally and to coordinate and facilitate
39 Ibid Article91 (f)

24
gender mainstreaming in national development. This has been realized with the formation of
the National Gender and Equality Commission (NGEC).
NonDiscrimination
According to Art. 27 (4),43 The State cannot discriminate any person on any ground such as race,
sex, pregnancy, marital status, health status, ethnic or social origin, color, dress, language or
birth. In Art. 27 (6)44, the State is charged to take legislative measures such as affirmative action
programmes and policies designed to redress any disadvantages suffered by individuals or
groups because of past systematic discrimination.
Citizenship
The new Constitution guarantees equal citizenship rights with the assurance that neither
gender will be deprived of that right upon marriage or dissolution of marriage. This is in Article
13 (3).45 Women can also now transfer citizenship to their children whether born in foreign
countries or born to foreign fathers. Article 14(1)46 ensures this. This is a major shift compared
with the former Constitution, which limited women from transferring citizenship to their
children born to foreign fathers.
MarriageandFamily
In Article 45 (3)47, parties to a marriage are entitled to equal rights at the time of the marriage,
during the marriage and at the dissolution of the marriage. This will ensure equal rights of
women and men to jointly own property with their spouse during the duration of the marriage.
Article 53 (1) (e)48 has a provision to ensure that children have parental care and protection
which includes equal responsibility for the mother or father to provide for the child whether
they are married or not.
Article 68 ( c ) (iii)49 provides for the enactment of legislation for the protection of matrimonial
property with special interest on the matrimonial home during, and upon the termination of
marriage.
48 Ibid Article53 (1) (e)

25
EconomicandSocial Rights
The economy determines many of the opportunities available for people to improve their
standard of living. The correlation established between economy and equality argues that a
higher economic level is usually followed by increased education, democracy and greater
gender equality.
It’s important to note that how precisely women and men are affected by economic
development depends on what income-generating activities are available, how they are
organized, how effort and skills are rewarded, and whether women and men are equally able to
participate. According to this perspective, higher economic levels will create a higher
probability of gender equality since higher incomes translate to fewer resource constraints
within the household that force parents to choose between investing in sons or in daughters.
Article 43 of the new Constitution provides the right for both men women to access basic needs
such as highest attainable standard of health (which includes reproductive health care),
adequate housing and reasonable standard of housing, adequate food of acceptable quality,
clean and adequate water, social security, and education. These basic needs are major
underlying tenets for the attainment of gender equality and empowerment.
Judiciary
The judiciary is an important arm of government that interprets and applies the law in the
name of the Sovereign or State; it also provides a mechanism for the dispute resolution. In the
new Constitution, judicial authority is vested in and exercised by the courts and tribunals
established under the constitution according to Article 159 (1)50. During the process of
recruiting Judicial Officer (Magistrates and Judges), the Judiciary through the Judicial Service
Commission is guided by the principles of competitiveness, transparency and promotion of
gender equality. This will give an equal opportunity of participation to both men and women.
49 Ibid Article68 ( c ) (iii)

26
The Republic
Article 10 stipulates the Republic of Kenya’s national values and principles of governance. This
as stipulated at Article 10 (2) (b)51 includes human dignity, equity, social justice, inclusiveness,
equality, human rights, non-discrimination and protection of the marginalised. These national
values and principles of governance are an assurance especially to women that empowerment
and gender equity will be achieved.
This commitment that is enshrined in the Constitution binds all State Organs, State Officers,
Public Officers and all Persons. The national values and principles of governance are to be
maintained during application or interpretation of the Constitution, enactment or application of
any law, and during implementation of public policy decisions - Article 10 (1)52.
Environment and Natural Resources Management
Proper conservation and utilization of the environment and natural resources is encouraged
through this new constitution. Article 69 (1 and 2)53 obligates the State and every person to
protect and conserve the environment to ensure ecological sustainable development and use of
natural resources. The Constitution encourages equitable sharing among both men and women
of the accruing benefits of the sustainable exploitation, utilization, management and
conservation of the environment and natural resources (Article 69 (1) (a)).54
Article 60 (1) (f) provides for the elimination of gender discrimination in law, customs and
practices related to land and property
51 Ibid Article10 (2) (b)
53 Ibid Article69 (1) and (2)
54 Ibid Article69 (1) (a)

27
CHAPTER 4:COMPARISONS
Rwanda
Less than a decade after the grotesque happenings in Rwanda that was the genocide of 1994
which claimed the lives of more than a million people in a span of few months, Rwanda elected
thirty nine women to its eighty-member Chamber of Deputies.55 Rwanda joined the very small
league of states with high percentages of women in its legislature displacing Sweden as the
country with the highest percentage of women in its lower or single house of parliament. Since
before the 1994 genocide, women have used their strong presence in Rwandan civil society as a
basis for entering politics, while the specific situation for women in post-genocide Rwanda has
drawn many more women into the political arena. However, the most significant explanation
for the growth in women’s representation has been a strong commitment on the part of the
post-genocide government under H.E. Paul Kagame to the inclusion of women and the
expansion of women’s rights.56
Colonialism, as in many African states undermined women’s social, economic, and political
power.57 The post-independence regime too took little interest in women’s empowerment, and
were unrepresented in government. The coup d’etat that brought in army chief Juvenal
Habyarimana to power in 1973 had little impact on the position of women in Rwanda, as he
55 Gretchen Bauer and Hannah Britton, ‘ Rwanda:AchievingEquality or Servingan Authoritarian State?’ in Gretchen
Bauer and Hannah E. Britton (eds), Women in African Parliaments (Lynne Rienner Publishers,Inc.2006)
56 Timothy Longman, ‘ Women in African Parliaments/;AContinental Shift?’ in Gretchen Bauer and Hannah E.
Britton (eds), Women in African Parliaments (Lynne Rienner Publishers,Inc.2006)
57 Longman, (n 31) 134

28
also advanced a conservative social agenda that did nothing to improve women’s specific
economic, social and political power.58
Rwanda’s civil society became active in the beginning of 1989 in a move to demand
democratization and political reform in the country. Women took prominent positions in the
more overtly political civil society organizations. In 1990, we have the example of Monique
Mujawamariya becoming the executive secretary for the Rwandan Association for Human
Rights and Civil Liberties. The women were among those who pressured the then ruling party,
the National Republican Movement for Democracy and Development (MRND) until it gave up
its political monopoly in 1991. Women then became leaders in several of the new opposition
political parties.59
Agatha Uwingiliyimana became a minister for education in the first multi-party government in
March 1992 and in July 1993 she was named prime minister.
During the genocide, women were specifically targeted and sexual violence rampant in sharp
contrast to previous conflicts in Rwanda in 1960s that primarily targeted men while sparing
women, children and the elderly. It seemed as if the widespread sexual violence during the
genocide represented in part a backlash against the social and political advances that women
had made in the previous decade.60
While the genocide and war devastated women’s groups, with many leaders and members
dead or in exile, the intense problems facing women in the post-conflict period inspired
women’s organizations to assume an important social role. They took a leading role in efforts to
reconstruct their lives through emergency material assistance, counseling, vocational training
and assistance with income earning activities. These women groups enjoyed growing public
influence, which they managed to translate into a degree of political power. This extensive
involvement of women in Rwandan civil society has been a major reason for the expansion of
women’s representation in the Rwandan Chamber of Deputies.
In addition to the strong presence of women in Rwandan civil society, the substantial support
within the ruling Rwandan Patriotic Front (RPF) for women’s representation helps explain the
growth of women’s presence in the Chamber of Deputies. The leaders in RPF have
demonstrated commitment by not only appointing women to top government posts but also
establishing policies that promote the representation of women at all levels of government.61
58 Ibid 135
59 Ibid 136
60 Ibid 137
61 Ibid 139

29
In 2001, the government of Rwanda created local government committees chosen through a
tiered systemof voting. At each level of local administration- the cell, sector and district-a
committee of seven was selected which included one position for a women’s representative
chosen trough a special ballot for women. The new constitution of Rwanda of 2003
institutionalized the practice of reserved positions for women and youth. The constitution
reserved thirty percent of seats in the lower house of parliament (Chamber of Deputies) for
women. This is at Article 76 of the 2003 constitution.
Article 76 :
“The Chamber of Deputies is composed of eighty (80) members consisting of:
…twenty four (24) members of the female sex with two per Province and the City of
Kigali elected by the Councils of Districts, of Cities, and of the City of Kigali, to which are
added the Executive Committees of the women’s organizations at the level of the
Province, City of Kigali, Districts, and Sectors.”62
This rise in women’s participation cannot be attributed to quotas alone since the number of
non reserved elected seats also rose dramatically. For example, the constitutional quota for
the Chamber of Deputies guaranteed women 30 percent of the seats but in the end women
won 48.8 percent of the seats in the 2003 elections. Furthermore, women have gained strong
representation in elections where no quotas were involved, as in the election of gacaca court
(local courts for the genocide perpetrators) judges where women got 35 percent.63
Women’s participation in Rwanda’s parliament has led to the promotion of legislation that
serves the interests of women. The Forum of Women Parliamentarians was key in pushing
through revisions to the inheritance laws, a law banning discrimination against women and a
strengthening of rape laws.64
Uganda
At 24 percent, Uganda had the sixth largest percentage of women in parliament in Africa in
2004, a very large increase from the one seat held in 1980.65
Post-independence women’s organizations in Uganda like the Uganda Council of Women
(UCW) and later the Uganda Association of Women’s Organisations (UAWO) faced attempts by
the ruling Uganda People’s Congress (UPC) of President Milton Obote to compromise their
autonomy. The Obote government did little to address women’s concerns but the women were
62 Article76, 2003 Rwandan Constitution.
63 Longman, (n 31) 141
64 Ibid 145
65 Aili Mari Tripp,‘Uganda: Agents of Change for Women’s Advancement?’ 111 in Gretchen Bauer and Hannah E.
Britton (eds), Women in African Parliaments (Lynne Rienner Publishers,Inc.2006)

30
nevertheless expected to demonstrate their allegiance to the UPC government in order to gain
any recognition at all. After 1966, Uganda became a one-party state and women’s organizations
had to operate within the context of political instability, suppression of party activities, the
banning of large meetings all these made it difficult for organizations to thrive. Members of the
women organizations were reduced to ‘social hostesses’ at UPC functions.66
Things only worsened for Ugandan women after Idi Amin Dada’s military coup in 1971 on
President Obote’s government. Women experienced his oppressive rule in part because of his
anti-immorality crusades which saw the banning of miniskirts, wigs, trousers on women as well
as creams and deodorants. He also sought to clear the streets of unmarried women whom he
regarded as prostitutes.67 Those who were deemed to have violated these bans (mostly false
accusation) were attacked by Amin’s militia on the pretext of maintaining law and order and
rape was a frequent terror tactic.
A new generation of autonomous women’s organizations emerged in Uganda around the time
of the 1985 United Nations women’s conference. Although they had their roots in earlier
associational experiences, these new organizations were relatively distinct from those found in
the early post-independence up through the mid 1980s. The changes reflected broader trends
in women’s mobilization through Africa. The new associations that flourished were
independent of President Museveni’s’s government and his no-party movement National
Resistance Movement (NRM) that came into power in 1986.The women’s organizations
selected their own leaders, had their own sources of funding and set their own agendas.68
After the 1986 NRM takeover, leaders of the National Council of Women (NCW), Action for
Development (ACFODE), and other non-governmental organizations (NGOs) paid a courtesy call
to President Museveni where they requested that women be represented in government
leadership. Museveni asked them to identify women leaders and recommendations by the
women were made. Many of the recommendations were adopted immediately which included
the appointment of nine women ministers and promotion of women judges.69
Women parliamentarians have advance several women causes such as the change of rape,
sexual offences and defilement laws and influenced the Land Act. But their performance based
on their large numbers has been rendered unimpressive. This can be attributed to the
66 Aili Mari Tripp,‘Introduction: A New Generation of Women’s Mobilisation in Uganda.’1 in A.M. Tripp and J.C.
Kwesiga (eds), The Women’s Movement in Uganda : History, Challenges and Prospects (Fountain Publishers Ltd.
2002)
67 A.M. Tripp (n 41) 2
68 Ibid 1
69 A.M. Tripp (n 40) 112

31
weakness of the legislature relative to the executive, a weak tradition of lobbying and advocacy
and the loyalties of many parliamentarians to President Museveni’s government.70
South Africa
Women in South Africa cut their political teeth during the decades of the ant-apartheid
struggle. They were powerful but often invisible in the liberation movement. As apartheid was
nearing its end and transition to multi-ethnic democracy on the horizon, women used their
political skills acquired during the fight against apartheid to influence the constitution writing
process and to pressure their individual parties to advance women candidates for national
office. After the first free democratic election in South Africa in 1994, women occupied
approximately 26 percent of the seats in the national assembly.71
During the anti-apartheid era, women developed a strategy of conservative militancy. This
approach preserved their subordinate gender status but utilized non-traditional methods of
resistance against apartheid, including mass action, labour union activity and political
mobilization.72
Women returning from exile after the end of apartheid combined their plan for a national
women organization with the structures and organization of the women’s groups that remained
in the country during the struggle. This national women’s organization called the Women’s
National Coalition (WNC) was launched in 1991 and unified over 100 women’s groups and
representatives of all major political parties. This organization developed the Women’s Charter
, which was a detailed platform of action for the movement as a whole. One of the key goals of
the Women’s Charter was to advance women’s equality in the constitution.73
Women were largely excluded from the constitution writing process. There were no women
present at the negotiating table for the new constitution as women were not in leadership
positions of their respective political parties. However, the South African women did not give
up on their hopes and wishes. They networked and also pressured male leaders of the political
parties to allow women’s voices in the negotiations and guarantee women’s political equity in
the constitution. These actions led to the creation of the Gender Advisory Committee (GAC) in
the Convention for a Democratic South Africa (CODESA). Women also advocated for the
addition of one member to each party in the negotiating council under the condition that the
70 Ibid 128
71 Hannah E. Britton, ‘South Africa:MainstreamingGender in a New Democracy’ 59 in Gretchen Bauer and Hannah
E. Britton (eds), Women in African Parliaments (Lynne Rienner Publishers,Inc.2006)
72 H.E. Britton, (n 46) 62
73 Ibid 64

32
member was a woman from the party.74 Due to such efforts, the South African constitution has
one of the broadest and most inclusive equality clauses internationally.
Securing a seat at the negotiating table was only the first step in the strategy of the women
leaders. Their next step was to create a systemthat would assist women’s representation in
political office.
Once in office, women leaders in South Africa began to implement their vision of feminism that
utilized the state as a means of securing long term benefits for women. Examples of legislations
with a gender focus include the:75
 Choice on the Termination of Pregnancy Act, 1996 which extended abortion rights to all
women.
 The Films and Publications Act of 1996 which is invested with protections against the
degradation of women and children.
 The Commission for Gender Equality Act of 1996 which created the national oversight
commission focused on gender equality and status of women.
 The Domestic Violence Act of 1998 which increased the legal and institutional
protection for victims of domestic abuse.
Challenges such as institutional sexism, resistance from their male counterparts, in forms such
as overt sexual harassment to marginalization in the party and the dilemma of a ‘double
workday’, where they have to run both their homes and the country arise.76
The Nordic Countries
The Nordic countries have for decades had the highest political representation of women in the
world. This increase took place largely during the last 30 years. In 2005, women constituted
over 45 percent of the members of parliament in Sweden, 38 percent in Finland, 37 percent in
Denmark, 36 percent in Norway and 30 percent in Iceland following elections held between
2001 and 2005.
Such phenomenal percentages in female representation in the legislatures represented a slow
but steady increase over time and had resulted from a combination of factors. These include:
 The secularization of society
 Women’s increasing educational attainment
 Pressure from women organizations
 Selective use of particular electoral systems and party-base gender quotas
74 Ibid 64
75 Ibid 70
76 Ibid 76

33
 Labour force participation
Contrary to common perceptions, no constitutional clause or law demands a high
representation of women in Scandinavia. For the most part the increase can be attributed to
sustained pressure by women’s groups within parties as well as the women’s movement in
general. Women mobilized and organized to ensure that the political parties increased their
number of women candidates, that is to say, women candidates who had a fair chance of
winning. The real take-off of the increase in women’s representation in the Nordic countries
happened in the 1970s before any party-installed candidate quotas. The pressure to increase
women’s representation was applied to all political parties in Scandinavia. Some parties,
especially centre–left parties, responded by applying voluntary party quotas. In three
Scandinavian countries, quotas were introduced based on decisions made by the political
parties themselves, first in parties to the left and in the social democratic parties during the
1970s, 1980s and 1990s. Most centre and right-wing parties, however, have considered quotas
‘un-liberal’. It was not until 1993 that the Swedish Social Democratic Party introduced the
principle of ‘every second on the list a woman’. In a 50 : 50 percent quota systemlike this, the
women are no more ‘quota women’ than the men are ‘quota men’.
Quotas
Quotas for women entail that women must constitute a certain number or percentage of the
members of a body, whether it is a candidate list, a parliamentary assembly, a committee or a
government. Quotas aim at increasing women’s representation in publicly elected or appointed
institutions such as governments, parliaments and local councils. Gender quotas draw
legitimacy from the discourse of exclusion, according to which the main reasons for women’s
under-representation are the exclusionary practices of the political parties and the political
institutions at large. Quotas place the burden of candidate recruitment not on the individual
woman, but on those who control the recruitment process, first and foremost the political
parties.77
Birgitta Dahl, former Speaker of Parliament, Sweden:
“One cannot deal with the problem of female representation by a quota systemalone. Political
parties, the educational system, NGOs, trade unions, churches—all must take responsibility
within their own organizations to systematically promote women’s participation, from the
bottom up. This will take time. It will not happen overnight, or in one year or five years; it will
take one or two generations to realize significant change. This is what we are working on in
77 Dahlerup,Drude and Lenita Freidenvall.‘Quotas as a “Fast Track” to Equal
Representation for Women’ [2005]. IFJP. 14

34
Sweden. We did not start with a quota system. First we laid the groundwork to facilitate
women’s entry into politics. We prepared the women to ensure they were competent to enter
the field; and we prepared the system, which made it a little less shameful for men to step
aside. Then we used quotas as an instrument in segments and institutions where we needed a
breakthrough.”
Pros and Cons of Quotas
Pros
 Quotas for women do not discriminate, but compensate for actual barriers that prevent
women from their fair share of the political seats.
 Quotas imply that there are several women together in a committee or assembly, thus
minimizing the stress often experienced by the token women.
 Women have the right as citizens to equal representation.
 Women’s experience is needed in political life.
 Men cannot represent the interest of women. Only many women can represent the
diversity of women.
 Election is about representation, not educational qualifications.
 Women are just as qualified as men, but women’s qualifications are downgraded and
minimized in a male-dominated political system.
 Quotas do not discriminate against individual men. Rather quota rules limit the
tendency of political parties to nominate only men. For the voters, the opportunities are
expanded, since it now becomes possible to vote for women candidates.
 Introducing quotas may cause conflicts, but only temporarily.
 Several internationally recognized conventions on gender equality have set targets for
women’s political representation; including the Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW) which 179 countries are now party
to, as well as the 1995 Beijing Platform for Action.
 How can it be justified that men occupy more than 80 percent of the parliamentary
seats in the world?
Cons
 Political representation should be a choice between ideas and party platforms, not
between social categories.
 Quotas are undemocratic, because voters should be able to decide who is elected.

35
 Quotas imply that politicians are elected because of their gender, not because of their
qualifications, and that better-qualified candidates are pushed aside.
 Many women do not want to get elected just because they are women.
 Introducing quotas creates significant conflicts within the party organization.
 Quotas for women will be followed by demands for quotas for other groups, which will
result in a politics of sheer group-interest representation.
CHAPTER 5
Conclusion
The following are arguments made for increasing the level of women’s political representation:
 The role model successful female politicians offer to a women aspiring for political
office.
 The principles of justice between the sexes.
 Women would be better suited to address particular women interests that would
otherwise be overlooked.
 The need for a revitalized democracy that bridges the gap between representation and
participation.
We cannot make an assumption that women’s interests would be better represented simply by
electing more women in national legislatures. Literature on women’s representation in
legislatures does draw a distinction between descriptive (demographic) representation and
substantive representation. Feminine presence, versus feminist activismin politics. However, it
may be more useful to consider descriptive representation as a necessary first step to the
institutional transformation that is required if substantive representation is to be achieved. It
has also been argued that translating women’s descriptive representation requires that a
critical mass of women – at least 30 percent –be elected into a given legislative body.
Question also remains on how equal representation can be achieved at all levels of politics and
decision making. Existing research identifies a number of key factors that have helped to bring
more women into national legislatures. They include:
 Manipulation of electoral systems (the use of particular types of electoral systems and
gender-based quotas).

36
 Changing the ideological orientation of the major political parties and pressure exerted
upon them by national women’s movements.
 Social and cultural trends over time.
 Availability of women candidates to stand for national office.
Meetings such as the United Nations Conferences of Nairobi and Beijing also sought to convince
governments to adopt national gender policies and institutionalize national machineries for
women. Many women parliamentarians and activists spoke of the transformative impact that
attending such conferences had on them, inspiring them to double their efforts at home.78
Donor agencies too have a significant influence on the women agenda. In Uganda, changing
donor strategies that emphasize on non-governmental activities to a greater extent than in the
past have also contributed to the extraordinary growth in women’s political participation and
representation. In Senegal, it was the US-based National Democratic Institute that persuaded
some political parties there to adopt gender quotas in 2002.
In Southern Africa, regional organizations have also played an important role. The Southern
African Development Community (SADC) Gender Unit spearheaded, albeit unsuccessfully a
campaign to have 30 percent of positions of power and decision-making held by women by
2005 and gained pledges from leaders throughout the region. 79
Women parliamentarians across the continent have also began to push for changes in the
structure of parliamentary life to recognize that women have to balance domestic and
professional responsibilities. They have demanded on-site child care facilities for MPs and staff,
changed the hours of parliamentary work to end earlier and changed the parliamentary
calendar to match school holidays.80
The presence of a large number of women MPs has changed cultural and societal perceptions
about the nature of political leadership and governance. As women’s political participation
becomes routine and legitimized, their absence from committees and delegations is rapidly
becoming unacceptable. This normalization creates a positive environment for the recruitment,
advancement and mentoring of younger women.
African women MPs have striven to create state institutions for the advancement of feminist
change as part of long-term strategies for improving the quality of life for women in their
nations. African women MPs recognize that their time in office is often short-lived and that
78 Gretchen Bauer and Hannah E. Britton, ‘Women in African Parliaments: A Continental Shift?’ 17 in Gretchen
Bauer and Hannah E. Britton (eds), Women in African Parliaments (Lynne Rienner Publishers,Inc.2006)
79 Ibid (n 78) 17
80 Ibid (n 71) 71

37
state institutions are the key to ensuring that their goals and ideas become permanent features
of government.
Kenya with our new constitution there is great hope for women. Kenyan women need to stay
vigilant though. They cannot afford to rest after Kenya got a new constitution. There is need for
renewed energy. There is the work of implementation of the Constitution of Kenya 2010. There
is always the risk of poor implementation which would water down many of the gains achieved
through hard work over the years. It remains to be seen how the commitments of the new
Constitutions can open up new avenues of thought and practice, particularly in the
controversial arenas of women’s right to terminate pregnancies, to inherit property, and to
have access to the same rights as Kenyan men.81
81 Grace Maingi,‘The Kenyan Constitutional Reform Process:A Case Study on the work of FIDA Kenya in Securing
Women’s Rights’< agi.ac.za/sites/agi.ac.za/files/fa_15_case_study_grace_maingi.pdf>accessed 20 April 2014

38
BIBLIOGRAPHY
Journal Articles
Dahlerup, Drude and Freidenvall L, ‘Quotas as a “Fast Track” to Equal
Representation for Women’ [2005]. IFJP.
Kabira W.M, and Kimani E.N, ‘The Historical Journey of Women in Leadereship’ (2012)
JETERAPS
Kameri-Mbote P & Nzomo M, ‘The Coverage of Gender Issues in the Draft Bill of the
Constitution of Kenya 2002: Have the Hens Finally Come Home to roost for Kenyan Women?’
[2004] UONLJ
Maingi G, ‘The Kenyan Constitutional Reform Process: A Case Study on the work of FIDA Kenya
in Securing Women’s Rights’ <
agi.ac.za/sites/agi.ac.za/files/fa_15_case_study_grace_maingi.pdf
Mugambi M, ‘Constitutional Gains for Kenyan Women’
<WWW.academia.edu/3408070/CONSTITUTIONAL_GAINS_FOR_KENYAN_WOMEN>
Books
Bauer G and Britton H.E, (eds), Women in African Parliaments (Lynne Rienner Publishers, Inc.
2006)
Kabira W.M, Time for Harvest : Women and Constitution Making in Kenya (first published 2012
UONP 2012)
Muteshi J, Mapping Best Practices: Promoting Gender Equality and the advancement of Kenyan
Women (Heinrich Boll Foundation, 2006)
Tripp A.M, and Kwesiga J.C, (eds), The Women’s Movement in Uganda : History, Challenges and
Prospects (Fountain Publishers Ltd. 2002)

39
LIST OF TREATIES
Convention on the Political Rights of Women (1952)
Convention on the Elimination of All forms of Discrimination against Women (CEDAW) (1979)
Case
Otieno v. Ougo & Another, [2008] 1 KLR (G & F) 918 (HC)

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