Tuesday, February 1, 2011

Gender Issues in the New Constitution of Kenya

The gender gains provided for in the Constitution of Kenya provide a begin point for Kenya in providing a legal backing for ensuring equal enjoyment by women and men of socially valued goods, opportunities, resources and rewards. It is important to underline that these gender provisions are just a beginning point and that more efforts and political will are needed for the laws to be fully functional in the day-to-day life of men and women.

Some of the important gender provisions in the Constitution of Kenya are as follows:

1.0 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. It is important to note that even though these provisions don’t 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:

1.1  National Assembly

In the new Constitution, the National Assembly is an important decision making organ of the country. It determines national revenue allocation, appropriates funds for expenditure by the national government, and exercises oversight for national revenue and its expenditure (Article 95). The National Assembly also acts as a check-control for the executive and exercises oversight of State organs (Article 95 (5)). It 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, 47 seats have been reserved for women elected by registered voters from the 47 counties (Article 97 (b)). Even though this provision is not comprehensive, the 47 assured elected women through the counties 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.

1.2  Senate

The Senate is another important decision making organ at the county level. According to Article 96, 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, 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.


1.3  Public Bodies

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 (Article 81 (b)).  Furthermore, Article 232 (1) accords adequate and equal opportunities for both men and women in the appointment, training and advancement at all levels of public service. These provisions are important especially for women in Kenya, for in the past women have been sidelined in enjoying equal participation in the public service.

1.4  Electoral System

In Article 81 (e), women are protected from acts of inequalities that tend to limit their participation in running for elective posts. The Constitution maintains a one third requirement for either gender in elective bodies giving women of Kenya at least one third minimum in elective bodies.

In Article 91 (f), political parties are required to respect and promote human rights and fundamental freedoms, and gender equality and equity. In the past, women who are willing to run for elective posts have suffered violence, intimidation, improper influence or corruption to hinder them from running for elective posts. This has partially contributed to the low representation of women in decision making organs at the constituency or city/town council levels. The provisions of Article 81 will go a long way in creating an environment that encourages equal participation for men and women willing to run for these elective posts.

2.0 Equality and Non-discrimination

2.1 Battling Inequalities

Gender inequalities have continued to be pervasive and persistent across many dimensions of life, from domestic households to social institutions to the economy. In most developing countries such as Kenya, gender inequalities have been manifested in terms of disparities in basic rights, in access to and control of resources, in employment and earnings, and in political voice (World Bank 2001).

The new Constitution of Kenya guarantees the right to equality for both men and women. Equality under Article 27 (2) is defined to include the full and equal enjoyment of all rights and fundamental freedoms. Article 27 (3) asserts that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. Furthermore, the scope within which women and men are protected from violence has been widened to include the private spheres (Article 29 (c)).

The establishment of a Kenya National Human Rights and Equality Commission enhances the framework for the promotion of gender equality and equity and in coordinating gender mainstreaming in national development (Article 59).

2.2 Non Discrimination

The State has also been limited in terms of discriminating any person on any ground such as race, sex, pregnancy, marital status, health status, ethnic or social origin, color, dress, language or birth (Article 27 (5)). In Article 27 (6), 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.

In the past, women have had fewer opportunities than men in accessing professional skills through higher education and professional training. This has limited their capacity to participate in gainful employment. In addition, most cultures in Kenya have also limited women from accessing and controlling a major socio-economic capital such as land.

Therefore, affirmative action measures through programmes and policies are important in breaking the historical injustices that women have faced. Affirmative action policies and programmes will also go a long way in bridging the poverty gap between men and women.

2.3 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 (Article 13). In addition, women can now transfer citizenship to their children whether born in foreign countries or born to foreign fathers (Article 14 (1)). This is a major shift compared with the former Constitution, which limited women from transferring citizenship to their children born to foreign fathers.

2.4 Marriage

In Article 45 (3), 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.

3.0 Economic and Social Rights

The economy determines many of the opportunities available for people to improve their standard of living. Social Scientists have linked economic policy and development as affecting gender equality (Chen 2003). The correlation established between economy and equality argues that a higher economic level is usually followed by increased education, democracy and greater gender equality (Lofstrom 2001).

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 (World Bank 2001). 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.

4.0 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 (Wikipedia). In the new Constitution, judicial authority is vested in and exercised by the courts and tribunals (Article 159 (1)). 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.

5.0 The Republic

Article 10 stipulates the Republic of Kenya’s national values and principles of governance. This includes the participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and sustainable development among others (Article 10 (2)). 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)).

6.0 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) 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)).


  1. This is some good piece. I am doing gender and the written word is strong and comes with alot of hope for women, but are we ready psychologically to see this changes implemented and functioning? REMEMBER Kenya is PARTRIACHAL!

    Graduate student: Wvu. USA

    1. Thanks for your comment. I agree with you the key work is in the implementation phase and making the constitution fully functioning. There are signs showing that partiachal attitudes and systems are fighting this process, but I am hopeful that gender equality and empowerment will win.

  2. yap! good stuff, implementation though is also processes.

  3. i am having a gender exam tomorrow and i have just seen this piece right now and its amazing!!!its going to save me BIG TIME!thank you for being awesome

  4. this has helped me finish my research as quick as possible kudos!

    1. You are welcome, just hope you cite your research academically required.

  5. vvvvvvvvvvvvvvvery delighted thanx alot more

  6. the provision on the rights of parties to a marriage in article 45(3) of the constitution, provides for the recognition of each spouse to enjoy equal rights to property and in no way creates equal spousal ownership of property or joint property.
    please refer to the case of W.M.M V B.M.L[2012]eK LR.

  7. Good article. My fear was just confirmed by the results of the just concluded general elections.How many women got ELECTED as governors-Zero. How many were ELECTED as senators-Zero just because of the fact that there was a slot for women rep(a position exclusively for women- maybe if men were allowed to vie for it we would not have missed a man woman rep). Kenya still has a long way to go whether we are on the right track is something only time will tell in my opinion.

  8. This is a good analysis and very informative. Tx Jesse

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