PROGRESSIVE REALIZATION OF THE GENDER RULE IN KENYA

PROGRESSIVE REALIZATION OF THE GENDER RULE IN KENYA

The concept of “progressive realization” is not a legal term; it emanates from the word “progress,” defined in the Concise Oxford English Dictionary as “a gradual movement or development towards a destination.”

Progressive realization, therefore, connotes a phased-out attainment of an identified goal. The expression gained currency with the adoption of the Universal Declaration of Human Rights in 1948 – and this landmark international instrument stepped up the growth of the “human rights movement,” worldwide. The legal milestones in this development were later marked by other instruments: such as the International Covenant on Civil and Political Rights (ICCPR) , and the International Covenant on Economic, Social and Political Rights (ICESCR). Such instruments introduced a set of expressions that has become part of the standard language of international human rights jurisprudence. Such language entails no technicality, but is simply concerned to prescribe the extent of a State’s obligation in the realization of rights embodied in the human rights Conventions.

 It is clear to us that the Constitution of Kenya, 2010 which generously adopts such language of the international human rights instruments, draws inspiration from them. We believe that the expression “progressive realization” is neither a stand-alone nor a technical phrase. It simply refers to the gradual or phased-out attainment of a goal – a human rights goal which by its very nature, cannot be achieved on its own, unless first, a certain set of supportive measures are taken by the State. The Exact shape of such measures will vary, depending on the nature of the right in question, as well as the prevailing social, economic, cultural and political environment. Such supportive measures may involve legislative, policy or programme initiatives including affirmative action.

Certain provisions of the Constitution of Kenya have therefore to be perceived in the context of such variable ground-situations, and of such open texture in the scope for necessary public actions. A consideration of different Constitutions shows that they are often written in different styles and modes of expression. Some Constitutions are highly legalistic and minimalist, as regards express safeguards and public commitment. But the Kenyan Constitution fuses this approach with declarations of general principles and statements of policy. Such principles or policy declarations signify a value system, an ethos, a culture, or a political environment within which the citizens aspire to conduct their affairs and to interact among themselves and with their public institutions.

Where a Constitution takes such a fused form in its terms, we believe, a Court of law ought to keep an open mind while interpreting its provisions. In such circumstances, we are inclined in favor of an interpretation that contributes to the development of both the prescribed norm and the declared principle or policy; and care should be taken not to substitute one for the other. In our opinion, a norm of the kind in question herein, should be interpreted in such a manner as to contribute to the enhancement and delineation of the relevant principle, while a principle should be so interpreted as to contribute to the clarification of the content and elements of the norm.

It is on the basis of the foregoing principles, that we will consider the gender-equity question under the Constitution as to whether it was not a compulsory requirement for the current Senate and National Assembly and had to be implemented progressively over time. The Constitution has prescribed certain gender minima to be met in both elective and appointive public bodies. These quotas are to be seen as a genre of affirmative-action programs, aimed at redressing the social aberrations and injustices of the past. Thus, membership of certain Constitutional Commissions is subject to certain gender prescriptions. E.g. the  Judicial Service Commission. 

The foregoing example demonstrates that, so far as the Judicial Service Commission is concerned, it is for certain that the gender-equity rule of one-third-to-two-thirds is immediately realizable. The normative prescription is clear, and readily enforceable; the required numbers of male and female members are specified, and the mechanism of bringing them to office clearly defined. The Commission will always have a minimum of three women out of eleven members: which falls short of the one-third-to-two-thirds gender rule. Article 27 (8) of the Constitution, failing a purely providential attainment of the figure of four, the State’s duty would be to take “legislative and other measures” to have the number of women-members raised accordingly.

It is therefore clear that the realization of a female membership for the Judicial Service Commission, of three, is immediate; but the attainment of the number of four is progressive, being dependent on the State’s further action.  This leads us to the inference that whether a right is to be realized “progressively” or “immediately” is not a self-evident question: it depends on a number of factors such as;-

1.            The language used in the normative safeguard, or in the expression of principle;

2.            It depends on the mechanisms provided for attainment of gender-equity;

3.            It depends on the nature of the right in question; it depends on the mode of constitution of the public body in question (e.g. appointive or elective; if elective, the mode and control process for the election);

4.            It also depends on the identity and character of the players who introduce the candidates for appointment or election; it depends on the manner of presenting candidature for election or nomination.

IMMEDIATE REALIZATION OF THE GENDER-EQUITY RULE

As proponents of immediate implementation of the gender-equity rule, we feel it is important to place a premium on the terms of Article 81(b) of the Constitution, in particular its adoption of the word “shall” . The assumption made is that the term “shall” connotes a mandatory obligation, so the rule must be enforced immediately. This contention was a factor in the Attorney-General’s mind, and he faced it by urging that the word “shall” as applied in Articles 81(b) and 27(8) of the Constitution, in fact, bore a “permissive” connotation and, therefore, the one-third gender rule was for progressive realization.

After considerable reflection upon this point, we have come to the conclusion that the expression “progressive realization”, as apprehended in the context of the human rights jurisprudence, would signify that there is no mandatory obligation resting upon the State to take particular measures, at a particular time, for the realization of the gender-equity principle, save where a time-frame is prescribed .

From that analogy, we perceive the word “shall” as an emphasis on the obligation to take appropriate action, in the course of the progressive realization of a right conferred by the Constitution.

Indeed, by the Constitution, the development of legislation is no longer the preserve of Parliament, or the legal draftspersons in the State Law Office; public participation in the legislative process is a constitutional imperative. Affirmative action programs require careful thought, multiple consultations, methodical design, and co-ordinated discharge. Such measures cannot, by their very nature, be enforced immediately.

 It was argued for some of the parties and amici curiae  that the progressive approach to the realization of certain rights is not tenable: because only the economic and social rights provided for in Article 43  of the Constitution are amenable to the progression mode. It was contended that for the Article 43-type of rights, what is at stake is resource outlay; whereas, for rights such as gender-equity rights, the question is only the political will: so the Courts should merely make orders requiring a progressive political will. We are not persuaded by this reasoning. We take judicial notice that women’s current disadvantage as regards membership of elective and appointive bodies, is accounted for by much more than lack of political will. It arises from deep-rooted historical, social, cultural and economic-power relations in the society. It thus, must take much more than the prescription of gender quotas in law, to achieve effective inclusion of women in the elective and appointive public offices. For the female gender to come to occupy an equitable status in civil and political rights, the State has to introduce a wide range of measures, and affirmative-action programs. It is not the classification of a right as economic, social,

Cultural, civil or political that should suit a particular gender-equity claim to the progressive mode of realization; it is the inherent nature of the right that should determine its mode of realization. It is relevant in this regard that Article 27(8) of the Constitution calls for “legislative and other measures” to be taken by the State, for the realization of the gender-equity rule. That such “other measures” are generic, underlines the draftsperson’s perception that the categories of actions, by the State, in the cause of gender-equity, are not closed.

We are also concerned by the fact that none of the counsel who urged the immediate enforcement of the gender-equity rule, devoted their attention to the inherently different paths of enforcement for a specific, accrued right on the one hand, and a broad, protective principle on the other. It is clear to us that Article 81  of the Constitution is a statement of general principles; these principles underpin the electoral system under which general elections are to be conducted on 4 March 2013; the gender-equity principle in Article 81(b), regarding the one-third-and-two-thirds criterion, does not stand alone, but is one of a set of principles; the general principles interlock with and operate in common with other provisions in Articles 81-92 of the Constitution. The relevant Chapter [7] of the Constitution is concerned with “Representation of the People”, and Article 81 is about the “electoral system” and “public elective bodies.” “Electoral system”, in this regard, means the policies, laws, regulations, processes, environment and institutions that determine the conduct of elections in Kenya; and “public elective bodies” refers to all public institutions the composition and membership of which is determined through some form of election. Thus, Article 81 is not confined to the National Assembly, the Senate, or County Assemblies; it contemplates all public bodies properly so-called, which hold elections for their membership. In this context, it is clear to us that the principle in Article 81(b) of the Constitution is a statement of aspiration: that wherever and whenever elections are held, the Kenyan people expect to see mixed gender.

When a critical examination is done to Article 81(b) in the context of Articles 97 [on membership of the National Assembly] and 98 [on membership of the Senate], we are obliged to draw the conclusion that it has not been transformed into a full right, as regards the composition of the National Assembly and Senate, capable of direct enforcement. Thus, in that respect, Article 81(b) was not capable of immediate realization, without certain measures being taken by the State.

Article 27(8)] would have to be introduced, to ensure compliance with the gender-equity rule, always taking into account the terms of Articles 97 and 98 regarding numbers in the membership of the National Assembly and the Senate.

OPINION ON THE GENDER-EQUITY QUESTION

As Article 81(b) of the Constitution standing as a general principle cannot replace the specific provisions of Articles 97 and 98, not having ripened into a specific, enforceable right as far as the composition of the National Assembly and Senate are concerned, it follows – and this is the burden of our Opinion on this matter – that it cannot be enforced immediately.

It was contended that the progressive mode in the implementation of the gender-equity rule would run into conflict with the constitutional principle of the separation of powers: as the Courts would be straying into business falling to the Executive or Legislative Branch. It was being urged that the judicial approach must stand in of the accrued-right principle, and it should be held that there had been a breach of Article 81(b) of the Constitution.

We are not, however, in agreement with this contention, as the provision in Article 27 (6) for the State to “take legislative and other measures, including affirmative action programs and policies designed to redress any disadvantage suffered by individuals or groups,” presupposes open-ended schemes of decision-making and programming, which can only be effected over a span of time. By accommodating such prolonged time-spans of action by the Legislative and Executive Branches, the Judiciary by no means negates the principle of the separation of powers .

The ultimate question was whether, if the Courts were to take the position that a breach of the Constitution would be entailed if the general elections of March 2013 did not yield the stated gender proportions in the membership of the National Assembly and Senate, it was conceivable that the relevant organs would in their membership, be held to offend the Constitution. We would state that the Supreme Court, as a custodian of the integrity of the Constitution as the country’s charter of governance, was inclined to interpret the same holistically, taking into account its declared principles, and to ensure that other organs bearing the primary responsibility for effecting operations that crystallize enforceable rights, are enabled to discharge their obligations, as a basis for sustaining the design and purpose of the Constitution.