by Gabrielle Bardall, PhD, CIPS Research Associate
For all its progressive constitution, high-tech society, and exceptionally resourced Independent Electoral and Boundaries Commission (IEBC), Kenya is the worst performer in the East African Community (EAC) regarding women in parliament. These failures have been attributed to a lack of political will to enforce laws designed to bolster participation and defend against violence. Regrettably, few signs of change follow the 2017 elections.
On the bright side, the August 8th elections saw important gains for women’s representation at various levels of government. Twenty-two women won constituency seats (up from 16 in 2013), including four from pastoral, conservative communities, bringing the overall level of women in the National Assembly to 22%. Women have been elected to governor and senate seats for the first time (three out of 47 governorships and three out of 68 senate seats), and have made gains at the county assembly level, where they hold 6.6% of the seats.
But let there be no mistake: these incremental gains actually mask serious concerns in women’s political participation in Kenya. The first of these is a looming constitutional crisis. In 2010, a new constitution introduced a 30% gender quota. Seven years later, the quota has yet to be enacted. A discouraging 4:1 ruling by the Supreme Court before the 2013 elections determined that the quota provision would not apply to the general election but should instead be rolled out progressively by August 2015. Nearly two years after the failure to meet this deadline, the Supreme Court again ruled on quota implementation, this time giving Parliament 60 days to pass a law guaranteeing its application. Again, no law was passed and some parliamentarians (including the leader of the Kenyatta ruling coalition) denounced the ruling as an attack on parliamentary independence.
The stage was set for a constitutional crisis well before election day 2017, when it became clear that the quota would inevitably be violated because not enough women had been nominated as candidates. Thus, parliament will be unconstitutional from the moment it is seated. At that time, any Kenyan may go to court and seek the dissolution of the 12th Parliament for failure to meet the constitutional gender quota. Human rights and civil society groups are already poised to move, demanding that Parliament act to resolve the issue within the first 100 days or face a legal challenge. Yet, with the country exhausted by months of uncertainty and high-intensity political drama, will there be sufficient popular appetite for such a disruptive move in the name of gender equality? Or will women continue to be a constitutional exception?
Even were it to be implemented, the design of the current quota structure does few favours to women in politics. Kenya’s first-past-the-post electoral system uses a combination of reserved seats and “Tier Proportional Representation” (Tier-PR) to bolster women’s representation in the national assembly and senate. This combines some of the least favourable quota options available. Reserved seat quotas often marginalize women from MPs elected in openly competed seats, impose higher campaign costs on those least able to afford them, and weaken geographic ties between women MPs and their constituents, all of which ultimately impact the legitimacy of elected women. As Pakistan has demonstrated, Tier-PR amplifies these effects while having the added drawback of completely cutting direct ties to constituents and making women MPs dependent on their male counterparts for their spots in parliament.
Combine these quota rules with the absence of any enforcement mechanisms for political party candidacy requirements, and the result is an ineffective, piecemeal quota system reflected in the numbers. Less than 7% of National Assembly seats are won by women through open competition, reflecting a minor decrease from pre-quota years. The Raila-Uhuru standoff this year has led many to call for electoral system reform. This would also be a good time to re-evaluate quota design, by either drawing on other options for temporary special measures in Kenya’s single-member district system or moving towards a less-problematic mixed system.
Finally, the shadow of ethnic-based election violence in 2007 has obscured the actual election violence in 2017: that of “pervasive” violence against women in elections (VAWIE), as found in multiple studies to be released in the coming months (DFID, IFES, IRI, and NDI). Kenyan women candidates relate being shot at, beaten, sexually assaulted by colleagues, held hostage, being threatened with public stripping and rape, cursed and shunned by village elders, and having their supporters murdered and their homes burned.
While male candidates also regularly experience violence in Kenya, research suggests that women candidates may be uniquely targeted for gender-specific violence, which may be on the rise as a backlash against increased numbers of women competing for elected office. Whether backlash or deeply embedded in Kenyan politics, VAWIE has serious negative implications. Beyond the obvious impact on personal security, this violence creates a significant competitive disadvantage for women candidates, heightens the already high dependence on male political counterparts, and undermines the integrity of the election as a whole.
Here again, the legal structures in place to protect women candidates and punish perpetrators have not been enforced, and political parties and media are also complicit in failing to hold perpetrators to account. When analysts decry the unequal playing field, they should not exclude the disequilibrium caused by the effects of VAWIE, as well as by the quota design and implementation issues.
In Kenya, the Big Man power struggle and the resulting threat of violence have crowded out serious concerns affecting women’s political participation. The hyper-focus on the presidential stand-off could well drain any remaining political capital to address other problems. The rhetoric of fraud and fear has been instrumentalized by the leading parties to such an extent that the actual unconstitutional status of parliament and presence of widespread VAWIE are at risk of not receiving the legal attention they merit.