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Where Women Are

 | 
Nanjala Nyabola
, 
Marie-Emmanuelle Pommerolle

Gender & Kenya’s 2017 Elections: The Legal Framework

Texte intégral

The Constitution of Kenya, 2010

Part 1. Electoral system and process

81. General principles for the electoral system

1Parent Category: Chapter Seven - Representation of the People

2The electoral system shall comply with the following principles--

  1. freedom of citizens to exercise their political rights under Article 38;

  2. not more than two-thirds of the members of elective public bodies shall be of the same gender;

  3. fair representation of persons with disabilities;

  4. universal suffrage based on the aspiration for fair representation and equality of vote; and

  5. free and fair elections, which are—

    1. by secret ballot;

    2. free from violence, intimidation, improper influence or corruption;

    3. conducted by an independent body;

    4. transparent; and

    5. administered in an impartial, neutral, efficient, accurate and accountable manner.

Part 2. Rights and fundamental freedoms

27. Equality and freedom from discrimination

3Parent Category: Chapter Four - The Bill of Rights

  1. Every person is equal before the law and has the right to equal protection and equal benefit of the law.

  2. Equality includes the full and equal enjoyment of all rights and fundamental freedoms.

  3. Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.

  4. The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

  5. A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).

  6. To give full effect to the realisation of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.

  7. Any measure taken under clause (6) shall adequately provide for any benefits to be on the basis of genuine need.

  8. In addition to the measures contemplated in clause (6), 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.

Part 2. Composition and membership of Parliament

97. Membership of the national assembly

4Parent Category: Chapter Eight - The Legislature

  1. The National Assembly consists of—

    1. two hundred and ninety members, each elected by the registered voters of single member constituencies;

    2. forty-seven women, each elected by the registered voters of the counties, each county constituting a single member constituency;

    3. twelve members nominated by parliamentary political parties according to their proportion of members of the National Assembly in accordance with Article 90, to represent special interests including the youth, persons with disabilities and workers; and

    4. the Speaker, who is an ex officio member.

  2. Nothing in this Article shall be construed as excluding any person from contesting an election under clause (1) (a).

Part 2. County governments

177. Membership of county assembly

5Parent Category: Chapter Eleven - Devolved Government

  1. A county assembly consists of—

    1. members elected by the registered voters of the wards, each ward constituting a single member constituency, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year;

    2. the number of special seat members necessary to ensure that no more than two-thirds of the membership of the assembly are of the same gender;

    3. the number of members of marginalised groups, including persons with disabilities and the youth, prescribed by an Act of Parliament; and

    4. the Speaker, who is an ex officio member.

  2. The members contemplated in clause (1) (b) and (c) shall, in each case, be nominated by political parties in proportion to the seats received in that election in that county by each political party under paragraph (a) in accordance with Article 90.

  3. The filling of special seats under clause (1) (b) shall be determined after declaration of elected members from each ward.

  4. A county assembly is elected for a term of five years.

Part 2. Rights and fundamental freedoms

27. Equality and freedom from discrimination

6Parent Category: Chapter Four - The Bill of Rights

  1. Every person is equal before the law and has the right to equal protection and equal benefit of the law.

  2. Equality includes the full and equal enjoyment of all rights and fundamental freedoms.

  3. Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.

  4. The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

  5. A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).

  6. To give full effect to the realisation of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.

  7. Any measure taken under clause (6) shall adequately provide for any benefits to be on the basis of genuine need.

  8. In addition to the measures contemplated in clause (6), 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.

Bibliographie

Bibliography

Government of Kenya. 2010. Constitution of Kenya. Nairobi, National Council for Law Reporting with the Authority of the Attorney General.

Legal Cases

Centre for Rights Education & Awareness (CREAW) v Attorney General & another (Petition no 182 of 2015).

Centre for Rights Education and Awareness & another v Speaker of National Assembly & 5 others (Petition no 371 of 2017).

© Africae, 2018

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