Unleashing the Power of Affirmative Action and the One-Third Gender Rule
In Kenya’s dynamic legal landscape, the principles of equality and diversity are not just ideals—they are fundamental rights embodied in the One-Third Gender Rule. This critical framework is designed to ensure that women occupy a significant share of decision-making positions, challenging the longstanding imbalances in representation. By examining the robust constitutional and statutory justifications that underpin this rule, we reveal its essential role in promoting social justice and equity. Join us in exploring how these transformative legal provisions can pave the way for a more inclusive society, empowering women and fostering democratic representation for all.
a) Introduction
In Kenya’s quest for a more just and inclusive society, affirmative action has emerged as a powerful tool to bridge the gender gap in public participation and decision-making. Central to this effort is the one-third gender rule, which seeks to ensure that no more than two-thirds of members in elective or appointive public bodies are of the same gender. Although the concept is straightforward, its execution has ignited significant legal, political, and societal discussions.
This article explores the legal foundations and justification for the one-third gender rule in Kenya, drawing on the Constitution, relevant legislation, and landmark court decisions. We aim to break down complex legal ideas into an accessible discussion that highlights why this rule matters—and what still needs to be done to realize its promise.
II. Constitutional Foundation of the One-Third Gender Rule
The Constitution of Kenya, 2010, is the starting point for understanding the legal basis of the one-third gender rule. It doesn’t just suggest gender equality—it mandates it.
Article 27 guarantees equality and freedom from discrimination. Sub-article (3) explicitly provides that women and men have the right to equal treatment, including equal opportunities in political, economic, cultural, and social spheres. Sub-article (6) empowers the state to take legislative and other measures, including affirmative action, to redress historical inequalities.
Article 81(b) requires that not more than two-thirds of the members of elective public bodies be of the same gender—forming the heart of the one-third rule.
Articles 100 and 197 reinforce this principle, particularly in the context of county assemblies and marginalized groups, including women.
Together, these provisions create a constitutional obligation—not just a moral one—for affirmative action through gender-balanced representation.
III. Statutory and Policy Framework
The Constitution’s vision is further supported by legislation and policy frameworks designed to actualize gender equality.
The Elections Act (2011) includes provisions that require political parties to submit lists of candidates that reflect the principle of gender equity.
The Political Parties Act mandates that parties promote gender equality in their structures and candidate nominations, with non-compliance potentially affecting party registration and funding.
The National Gender and Equality Commission Act establishes the Commission’s mandate to monitor, facilitate, and advise on gender equality, further strengthening institutional support for the one-third rule.
Despite these laws, enforcement has remained a major hurdle, often due to political resistance and legislative inaction.
IV. Case Law Analysis
Kenyan courts have played a pivotal role in interpreting and enforcing the one-third gender rule. Several cases stand out:
In CREAW & 7 others v Attorney General [2011] eKLR, the High Court acknowledged the importance of the rule but held that it could be realized progressively, not necessarily immediately.
The Supreme Court’s Advisory Opinion No. 2 of 2012 echoed this, advising Parliament to enact legislation to give full effect to the one-third rule by August 2015—a deadline that came and went without compliance.
In Katiba Institute & Another v IEBC [2017], the court ruled that IEBC was obligated to enforce the gender principle when registering candidates and party lists, highlighting its implementation role.
FIDA-Kenya v. Attorney General & Another [2021] brought judicial frustration to the surface, with the High Court finding that the failure to implement the rule violated the Constitution and directing the Chief Justice to advise the President to dissolve Parliament under Article 261(7).
These rulings demonstrate a judiciary committed to upholding constitutional principles, even when other branches of government hesitate.
V. Challenges in Implementation
Despite strong constitutional and legal backing, the one-third gender rule faces persistent challenges:
- Legislative deadlock: Multiple attempts to pass laws enforcing the rule have failed due to a lack of political will and quorum issues in Parliament.
- Interpretational ambiguity: Courts initially allowed “progressive realization,” which some viewed as permission to delay action indefinitely.
- Weak enforcement: Institutions such as the IEBC and the Political Parties Registrar have struggled—or hesitated—to enforce compliance, often citing unclear guidelines or lack of specific legislation.
Cultural and societal resistance: Deep-rooted patriarchal norms continue to limit women’s participation in public leadership, particularly in elective positions.
VI. Justification for Affirmative Action through the One-Third Rule
Why is this rule so important?
Correcting historical injustices: For decades, women in Kenya were systematically excluded from leadership and decision-making spaces. Affirmative action helps level the playing field.
Promoting inclusive democracy: A representative democracy should reflect the composition of its people. With women making up over half the population, their voices must be heard.
Meeting international commitments: Kenya is party to global instruments such as CEDAW, the Maputo Protocol, and the Sustainable Development Goals (SDGs), all of which urge states to promote gender equality.
Upholding the Constitution: Implementing the one-third rule is not optional—it is a constitutional imperative that reflects the country’s commitment to equality, human dignity, and social justice.
VII. Recommendations and Way Forward
To realize the full potential of the one-third gender rule, Kenya must take decisive steps:
- Enact enabling legislation to give full effect to the constitutional provisions.
- Enforce compliance through robust action by the IEBC and Registrar of Political Parties.
- Increase civic education to change public perceptions and normalize women’s leadership.
- Encourage political parties to implement gender quotas internally and support female candidates.
- Empower civil society and the judiciary to hold government accountable and push for implementation.
VIII. Conclusion
The one-third gender rule is more than a legal requirement—it is a reflection of Kenya’s aspiration for an equitable society. While progress has been slow, the foundation laid by the Constitution, supporting laws, and judicial pronouncements is strong. The challenge now is to translate these legal promises into real, lived equality for all Kenyans.
Affirmative action, when properly implemented, does not give undue advantage—it creates a fair starting line. And for a nation as vibrant and diverse as Kenya, that’s not just fair. It’s necessary.
At D. Otunga & Associates, we believe in justice, equity, and the transformative power of the law to shape a more inclusive society. The one-third gender rule is not just a legal principle—it is a moral and constitutional imperative that reflects Kenya’s commitment to fairness and equal opportunity.
We proudly support affirmative action and remain committed to advancing the rights of marginalized groups, particularly women and underrepresented communities, in both public and private spheres.
If you or your organization needs legal guidance, advocacy, or representation in matters related to gender equality, constitutional law, or public interest litigation, our doors are open. Whether you’re navigating compliance issues, seeking to challenge discriminatory practices, or aiming to promote inclusive policies, we are here to help.
📞 Contact us today to schedule a consultation and let us walk with you on the path to justice and equality.
Otunga & Associates — Advocates for Justice. Champions of Equality