Following the Attorney General's curious request for an advisory opinion, the Supreme Court pronounced itself on the matter of implementation of the constitutional provisions for gender representation in Kenya's governance structures.
Incredibly, save for the Chief Justice's dissenting position, the Court took a conservative stance, thereby giving reprieve to interests keen to perpetuate the status quo of exclusion and relegation of women from the country's governance structures.
By deferring the urgency for redressing the discrimination of women from the country's leadership structures, this ruling compounds an already uninspiring electoral contest.
The desire for a transformed, more gender equal and inclusive governance and leadership structures in the upcoming electoral cycle has been dealt a crushing blow.
The Constitution defines certain fundamentals to underpin the transformation of the nation. Key principles and values explicitly spelt out in Article 10 of the Constitution are: social justice, non- discrimination, inclusiveness, equity and equality (including gender equality) and human rights.
Further, Article 27 (6, 8) affirms the use of affirmative action to redress discrimination, marginalization and exclusion. In particular, the State is enjoined to: "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".
This provision takes cognizance of the numerous challenges to women's ascendancy to public leadership owing to entrenched patriarchal structures.
As society gradually transforms towards better regard for inclusive governance, affirmative action to improve the presence of women in leadership is a viable stop- gap measure. In fact, the stipulated threshold is quite modest, rubbishing the sort of resistance playing out.
In regard to the 349 member strong National Assembly (lower house of parliament), only 53 seats are guaranteed for women (the 47 County-based earmarked seats and 6 of the 12 special seats for nomination).
Therefore, in the event that no woman is elected beyond the above mechanisms, attaining the one third gender quota would necessitate the nomination of 64 women to bring the number of women legislators to 117.
For the 67 member Senate (upper house of Parliament), 18 seats are earmarked for women (16 special seats for women and an additional two for special interest (youth and disabled) categories to be filled through Party lists).
Therefore, if no woman is elected to the Senate, it would take the nomination of an additional four women in order to fill the gap. Article 177 of the Constitution ensures equitable gender representation is attained in the County Assemblies.
As a representative democracy, it is essential that governance bodies reflect the diversity of society. Gender is a key distinguishing characteristic as are age, ethnic and other identities.
Representation is critically about voice, interests, perspectives and presence (participation). Invoking prohibitive costs to deny affirmative action is a red herring.
The Constitution anticipates rationalization of public service remuneration. In any case, it would be far more helpful to appreciate the opportunity cost of excluding women.
History will certainly judge the tenth Parliament harshly for subverting the will of the people as expressed in the Constitution. In particular, parliamentarians have let self interest and narrow-mindedness undermine the intent for regulation of political parties, strengthening the electoral process and firming the foundation for devolved governance.
Further, they squandered an unprecedented opportunity to proactively and progressively jump start the process of enhancing the representation of women in public leadership spheres.
It is unacceptable that the Constitution Amendment bill to ensure the attainment of better balanced gender representation in the upcoming elections failed to garner the two thirds majority (at least 146 votes) required for its enactment. A lack of championship, political will and commitment to gender equity accounts for this failure.
The spotlight now shifts to political parties to audit their actions to uphold constitutional and legal principles on equal gender representation in the coming election.
Party primaries and the drawing up of Party lists need to give full regard to gender parity. Creating an enabling environment (devoid of violence, intimidation and prohibitive costs) would immensely improve the chances of more women being elected through respective party tickets.
Nothing stops parties and coalitions from operating on a principle of gender parity and fielding a gender balanced governor and running mate ticket; presidential and deputy presidential ticket etc- least because champions are needed to trail blaze on this matter.
More fundamentally, political parties ought to affirm women's leadership by granting equal opportunities for women leaders to emerge. Kenya urgently needs to remedy its laggard image in regard to women's inclusion and representation in governance structures.
In the region, exemplars like Rwanda, Uganda and Tanzania have useful lessons to lend on this matter. Key is championship leadership which highly regards women's contribution to society and the universal social justice and human rights principles on non discrimination and inclusion.
Specific, tangible and heterodox steps have to be taken by the electorate, aspirants and institutions (especially political parties, electoral alliances and the electoral management body) in regard to the gender equality in representation goal.
Atieno Ndomo is a Social Policy Analyst.