Implementation of the affirmative action clause in the Constitution has not been easy, and it will continue to illicit mixed reaction from the general public, since the Constitution itself does not give a methodology to be employed in applying the said clause. As mentioned above, Article 27 of the Constitution provides that every person is equal before the law, and has the right to equal protection and equal benefit of the law. Article 27 (4) specifically prohibits any form of discrimination either direct or indirect on the basis of gender, race, sex or any other grounds. And even though Government policy is well grounded on the provisions of the Constitution to protect all citizens, article 27 (6) and (7) impose on the state the obligation to take legislative and other measures, including affirmative action programmes and polices designed to redress any disadvantage suffered by
individuals, or groups of individuals because of past discrimination. And this has been given a notch higher in Article 81 (b), which has triggered the attention of most Kenyans, including the Commission for the Implementation of the Constitution‘s (CIC) led by Mr Charles Nyachae. The principle of affirmative action in respect to gender representation in elective and appointive bodies as prescribed in Article 81(b) of the Constitution posted a challenge in light of the provisions of Article 97 of the Constitution on the membership of the National assembly. Article 81 (b) reiterates and reinforces the principle of affirmative action as prescribed in Article 27 (8) of the Constitution, which provides; in addition to the measures contemplated in clause (6). Article 81 (b) ―the State shall take legislative and other measures to implement the principle that not more than two- thirds of the members of elective or appointive bodies shall be of the same gender.‖
The two-thirds gender ratio is also a requirement at the county level and is adequately provided for in the constitution. Article 175 (c) states that ―County governments established under this Constitution shall reflect the principle that no more than two-thirds of the members of representative bodies in each county government shall be of the same gender‖. According to Article 177 (1), a county assembly consists of, among other members: First, are members elected by the registered voters of the wards. Each ward constituting a single member of a constituency who is elected on the same day of general election with Members of Parliament, being the second Tuesday of August, in every fifth year. Secondly, is
the number of special seat members necessary to ensure that no more than two- thirds of the memberships of the assembly are of the same gender. Thirdly, is the number of members of marginalised groups, including persons with disabilities and the youth, prescribed by an Act of Parliament. Article 197 (1) also stresses this principle and states that ―Not more than two-thirds of the members of any county assembly or county executive committee shall be of the same gender‖.
There are many other provisions in the Constitution that address the principle of affirmative action. Nonetheless, Article 97 of the Constitution does not provide a methodology to be used to ensure implementation of Article 81 (b) in the event that a result of an election for the National Assembly, any appointive or elective office does not achieve the required constitutional gender ratio prescribed by Article 81(b). Unfortunately, none of the State organs charged with the responsibility of implementing the Constitution has a practical solution to this difficulty. Even when the clause was taken to Supreme Court for interpretation as mentioned in chapter one, the Judges ruled that the two-thirds ratio would be achieved progressively, the five bench judge: Justices Jacktone Ojwang‘ Philip Tunoi, Smokin Wanjala, Njoki Ndung‘u and Chief Justice, Willy Mutunga ruled that the progressive realization of the affirmative action is not unconstitutional, since the gender quota will eventually be achieved in bits through appropriate legislation. Consequently, the Elections Bill could not be finalized to give effect to the contingency which was likely to be faced in light of Article 81(b) of the Constitution.
CIC also had considered different interpretations to the effect that: first, the two- thirds principle expressed in Article 81(b) is progressive and does not require immediate realisation. Secondly, the principles of affirmative action and the two- thirds gender ratio demanded realisation in the last election as well as all future elections to the National Assembly.
However, CIC was of the views that: first the principles of affirmative action and gender ratio prescribed in Articles 27(8) and 81(b) of the Constitution are not progressive. They demanded immediate realization if the latter and the spirit of the Constitution are to be respected. Secondly, the use of the word ―progressive‖ in the Constitution is specific to those provisions to which the principle of progressive realization applies. Thirdly, the Elections Bill cannot be finalized without providing an effective mechanism for the implementation of Article 81(b) of the Constitution, which clearly requires that electoral system provides a mechanism for achieving the two-thirds gender ratio.
CIC and other stakeholders have explored various options, but none would effectively address the requirements of Articles 27(8) and 81(b) of the Constitution. Consequently, CIC was of the opinion that the most prudent option would be to import the provisions of Article 177(1) (b) of the Constitution to the provisions of Article 97 of the Constitution (with necessary modifications). The effect of the proposed amendment would be that, if the required gender ratio was not achieved through the elections, political parties would be required to nominate
additional Members of Parliament to meet the gender requirement in the Constitution.
Thus, the implementation of the two thirds ratio poses a challenge to the citizens of this nation, including strong affirmative clauses in the Constitution and the Bills yet to be passed in the National Assembly. With the spirit of the constitution, the National Gender and Equality Commission was formed to look at the needs of the marginalized groups and gender issues in the country.