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2018 E. Afr. L.J. 150 (2018)
Supreme Court of Kenya Advisory Opinion on the Two Thirds Gender Principle: A Critique through Dworkin's Constructive Interpretation

handle is hein.journals/easfrilaj2018 and id is 158 raw text is: 


   SUPREME COURT OF KENYA ADVISORY OPINION ON THE TWO THIRDS
   GENDER   PRINCIPLE:  A CRITIQUE   THROUGH DWORKIN'S CONSTRUCTIVE
                               INTERPRETATION

                                  Nancy Baraza*

ABSTRACT

Since independence, women  in Kenya have been underrepresented in elective politics,
recording insignificant numbers in the legislature. The constitution of Kenya 2010
entrenches articles 81which guarantees not more than two thirds representation of either
gender, aimed at increasing women's representation in Parliament. The constitution also
requires the state to put in place legislative measures to ensure equality in politics, to
ensure that at least a third of the female gender gets to parliament. However, achievement
of the one third women representation in the National Parliament has remained elusive
and to date there is no legal framework for it. The Attorney General of the Republic of
Kenya sought an advisory Opinion of the Supreme Court on how to achieve the principle.
The majority decision adopted a conservative and ruled that realization of the principle
would be progressive, thus thwarting women's hopes to achieve equitable parliamentary
representation. This Article gives a critique of the Supreme Court's Advisory Opinion.
Adopting Ronald Dworkin's  theory of constructive interpretation, this article argues that
the Supreme Court not only failed the women of Kenya but also failed to set the state for
transformative judicialism.

I.  INTRODUCTION
Approximately  half of the world's population is women   yet their participation in
representative politics has remained lower than men. In Kenya, the situation has remained
unfavorable for women even when there has been improvement in other countries in the
region.'A recent survey on women's representation in parliament since independence
showed  that out of three hindered and forty nine members of parliament, only sixty three
women   were elected, while no women  were elected to the gubernatorial positions or
senators in the elections held in 2013.2 The same study showed that out of one thousand
four hundred and  fifty seats in the country government were held by women, a clear
demonstration of women's low numbers in elective politics.

The unhappy   situation has, since independence, seen women struggle to participate
effectively alongside their male counterparts in decision making and governance and in
all other aspects of public life. However, progress in that regard has been slow, due to
combination structural impediments which include deeply entrenched patriarchal socio-
cultural values, undemocratic institutions, and policy frameworks, poverty and low levels
of civic awareness among women. For instance, in the 2002 general elections many women


* Senior Lecturer, University of Nairobi, School of Law
1 Rwanda leads in women's representation at 56%, while Uganda and Tanzania have over 30%, meeting the
United Nations recommended critical mass.
2 Nzomo M., WOMEN IN POLITICAL LEADERSHIP IN KENYA: ACCESS, AGENDA SETTING &
ACCOUNTABILITY. <https://keboellorg/sites/default/files/unloads/2014/01/women in political leader-
sip in kenpa- access influence-ld>f p 1
3 Ibid


(2018) East African Law journal


150

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