Why court found Cabinet non-compliant with the law
The Two-Thirds Gender Rule
The two-third gender rule is perhaps the best deal women got out of the 2010 constitution. It simply states that any state body, elected or appointed, should not have more than two-thirds of its members from one gender. The rule first appeared in the Constitution of Kenya Review Commission (CKRC) draft constitution and remained in all the other draft constitutions.
The CKRC report explains that the public was clear that Kenya’s diversity was not reflected in government institutions, especially in terms of gender as women’s representation was far from proportionate to their population. Women needed a constitution that protected and promoted their desire to enjoy the same rights and opportunities as men – especially in leadership roles. The unrelenting campaigns by gender advocates eventually led to the inclusion of several provisions in the constitution that addressed gender equality, discrimination and gender representation, including the two-thirds gender rule. This appears in at least three constitutional provisions most critical being Article 27 on equality.
Despite these clear provisions, the path to practical implementation remains very rocky. Old patriarchal tendencies continue to permeate our society and people in decision-making positions have continued to give women short shrift.
As a result women and gender advocates have gone to court several times to enforce the two-thirds requirements in the composition of courts, county executives, commissions, et cetera. Perhaps the most glaring violation is in the composition of parliament. Despite Article 81 requiring that at least one-third of elected representatives be women, and despite a Supreme Court opinion of November 2012 requiring that a law to give effect to this requirement be passed by August 27, 2015– Parliament has refused to comply: MPs just stay away.
But the non-compliance by Parliament is not the only high-level breach of the two-third rule; another offender is the Cabinet of the national government, which has been non-compliant since late 2015.
Suing the President
On December 17, 2015, the President reshuffled his Cabinet, dismissing some Cabinet Secretaries, but increasing the total size of Cabinet, while having fewer women. Two human rights advocates – Marilyn Kamuru and Daisy Amdany – together with the Centre for Rights Education and Awareness (CREAW) – quickly moved to Court to challenge the President’s action.
Their complaint was straightforward. . While reducing the number of women in the cabinet from 6 to 5, the President had increased the number of cabinet positions from 21 to 23: 18 men and 5 women. Women only made up 21% of the Cabinet. Not only had the president violated the two-third gender principle, he had retrogressed– by lowering the numbers, when the constitution expected that the numbers should increase as a way of inching closer to full equal opportunity for men and women.
Advocates from Katiba Institute represented the petitioners. The lawyers took the court through the historical journey that saw the inclusion of the two-third gender principle as a means of ending systemic discrimination against women. They also argued that the action of the President – and the National Assembly in approving the cabinet – was demeaning to women. The message was simple – women were less worthy of recognition. Through his action of debasing women, the President not only violated the law on equality and dignity, but had also contravened core values and principles of the constitution contained in Article 10, including the rule of law, social justice, inclusiveness, and protection of the marginalized. Worse, he had violated his oath of office and specifically failed to honour a specific obligation of the constitution; that is of protecting and promoting constitutionalism.
A Contemptuous and Dismissive Attorney General
The Attorney General, defending the President, was highly contemptuous and dismissive of the petitioners’ complaint. First, for the longest time, the Attorney General failed to show up in court or file documents to defend the case. This led to undue delay, with the result that a case that begun in December, 2015 was not decided until December, 2016 despite the time sensitiveness of the suit. When he finally showed up in court, the Attorney General argued that the only requirement the President had to satisfy in constituting the cabinet was of regional and ethnic balance (which is required by another Article of the constitution). He argued that cabinet positions, not being elected positions, were not subject to the two-thirds gender rule. In any event, he argued that, even if the constitution did require that the cabinet be two-thirds gender compliant, that had to be achieved progressively— as if to say that should any of the other arguments have been wrong; the gender rule would be achieved at the pace of the state. His demeanour and response were clear: the state did not care much for the issues raised.
The National Assembly neither filed any response to the petition nor made any submissions—a clear indication of the contempt it had for the issues raised in the case.
The Court Upholds the Constitution
Justice Louis Onguto, deciding the case, stated that it was unthinkable that —though the constitution generally prohibited the state from maintaining gender imbalance in appointive and elective positions —it imposed a lesser duty on the President in constituting the cabinet. He found that the two-thirds gender rule applied to the composition of the cabinet as it was the state organ exercising executive authority. Judge Onguto reiterated that, apart from complying with the stipulations of the constitution, the constitution itself had to be given life and that the various provisions governing the composition of the cabinet and the gender rule had to be read together in a manner that gives full effect to the purpose of the constitution. The Judge was emphatic that the President had failed to show any good reason why women had to get a poor deal in the composition of cabinet even when the constitution was unequivocal on the need for equality and gender inclusion. The obligation about gender was one that had to complied with immediately in the case of appointed bodies like the cabinet. Indeed, “It is loathsome that over six years later, the State still claims to realize some of these rights progressively”.
However, the court realized that the cabinet was a “crucial organ of the state” without which the executive could not function; and also took note of the fact that elections were coming up in eight months. The judge felt he should take account of “public interest and good order”. So he suspended his order stating that Article 27(8) of the constitution had been violated for eight months or until a new cabinet was constituted by either the present government or a new government. He made it clear that, when appointing a new cabinet, the president and the National Assembly had to ensure that the two-thirds principle was satisfied.
The Judge noted, with optimism, that it was such basic acts as making appointments in compliance with the two-thirds gender principle that had the potential of bringing about a “paradigm shift” (or radical change) in the treatment of a disadvantaged gender. He commented that it would be the same in the education field.
Despite the delay in the issuing of this decision and the suspension of the orders, the impact of the decision should not be underestimated. The decision is the best weapon gender advocates have to challenge any appointments – to the cabinet, parastatals and other public boards or bodies – that fail to comply with the two-thirds gender rule. We can expect the case to be a beacon to illuminate Kenya’s path to a State that values and cherishes equality.
The author is a lawyer and a former Litigation Intern at Katiba Institute