State of play
Constitutional provisions on gender equality
Provisions in Kenya’s 2010 constitution included rights to equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized.4 Before the new constitution’s promulgation, the space for political, economic and social participation by women in Kenya had been extremely small. Not only was discrimination on the basis of gender not prohibited, but the previous constitution actually contained explicitly discriminatory provisions.5
The new constitution stipulated that national and county governments take legislative and other measures, including affirmative action programmes and policies, to redress any disadvantage(s) suffered by individuals or groups because of past discrimination.6 The constitution established institutions such as the National Gender and Equality Commission (NGEC) and the Kenya National Commission on Human Rights, which were tasked with overseeing the protection and promotion of gender equality, inclusiveness and non-discrimination.
The national government subsequently created ‘focal points’ in every ministry to coordinate gender mainstreaming in national development and planning.7 (Efforts are currently under way to finalize the review of the National Policy on Gender and Development of 2000, to ensure that it is aligned with the 2010 constitution as well as with relevant legislation and policy.8) In 2014, the NGEC developed guidelines on gender-responsive budgeting.9
Each of the 47 county governments now has a gender department, tasked with developing and implementing programmes that empower women. A gender department has also been established at the Council of Governors – which brings together the leaders of Kenya’s 47 county administrations – tasked with carrying out research and developing programmes that can be implemented broadly and uniformly.10 The central government has established several funds that enable women to access affordable financial and technical support from government agencies. These include the Women Enterprise Fund, the Youth Enterprise Development Fund and the Uwezo Fund. All are aimed, at least in part, at providing micro-finance credit and other financial support to enable women to establish businesses and earn a living, thus reducing unemployment and supporting poverty alleviation.
The route towards equality
However, the real-world impact of these initiatives has been minimal. Between 2006 and 2020, Kenya dropped 36 places in the World Economic Forum’s Global Gender Gap Index, to rank 109th out of 153 countries.11 The constitution requires that not more than two-thirds of the members of elective or appointive public bodies shall be of the same gender,12 but in the 2017 elections women won only 23 out of 290 constituency seats in the National Assembly, three out of 69 seats in the Senate and three out of 47 county governorships. While this was the first time that women had been elected as senators and governors in Kenya, and the number of women in the county assemblies also increased – from 84 to 96 out of 1,450 members13 – these figures still fall far short of the constitutional threshold. Kenya has the fewest female parliamentarians of any East African Community member state.14
In December 2016, Kenyan courts declared the cabinet unconstitutional because it did not meet the two-thirds gender rule (only four of the 20 cabinet secretaries appointed were women). The executive and legislature largely ignored the ruling, and no action was taken to appoint more women to the cabinet. Following the 2017 elections, of 22 cabinet secretaries appointed in 2018, only six were women.
The government is yet to report on the level of gender mainstreaming in ministries, departments and agencies, or on the monitoring tools used to evaluate gender equality.15 Guidelines on gender-responsive budgeting were drawn up by the NGEC without consulting the Treasury, county governments or the Council of Governors, and so have proved impossible to implement.16 A lack of funding for promulgation means that there is barely any knowledge of the guidelines’ existence in either national or local government.17 The NGEC also reviewed the 2015/16 national budget with a specific focus on trade and agriculture.18 However, its findings were not tabled before parliament or discussed with the Treasury and other relevant state offices.19
As noted, the Kenyan government allocated new funds aimed at helping women to engage in entrepreneurial activities. However, these facilities provide very low levels of support, with women often forced to supplement their funding with loans from self-help groups and banks. Though the government often provides training on the use of its entrepreneurship funds, very few women attend such sessions; very often, those who attend lack financial literacy, and many, especially in rural areas, are unable to use credit effectively. Some, especially at the grassroots level, use the money they receive to meet domestic and other household needs.20 This often leaves them worse off than they were before.21 Moreover, a large proportion of the women who have actually succeeded in accessing such funds come from privileged backgrounds rather than from marginalized and minority communities.22
Gender equality has not been a priority for policymakers,23 which has resulted in the provision of inadequate financial and human resources and limited technical capacity, especially at county level.24 The NGEC and the National Commission on Human Rights are underfunded.25 They do not have the capacity to monitor the government effectively, a problem also due in part to a lack of disaggregated and adequate data on gender dynamics – Kenyan authorities do not routinely collect relevant data, and government databases are of poor quality.26 The level of citizen participation in governance mandated by the constitution27 has not been achieved, and public engagement often excludes women, especially in rural areas. Public engagement by the authorities rarely, if ever, involves a gendered approach.28 Budgets are too complex for the average citizen to understand.29 The design of key infrastructure and services thus remains gender-blind,30 and can perpetuate inequalities rather than tackling them.31
In short, the executive has failed to comply with constitutional provisions and has ignored legal rulings. Fiscal policies at both national and county levels of government still have no gender-related component, resulting in a gap between gender policy commitments and actual investments. The limited financial provision that has been made has been spent on ineffective, short-term projects that have failed to address systematic gendered constraints around women’s entrepreneurial development, or to address fundamental issues of inequality and historical injustice. Reform is nothing without effective implementation.
4 Articles 10, 19, 27 and 56 of the constitution.
5 Article 82(4) of the constitution.
6 Article 27(6) of the constitution.
7 Research interviews, 2017–18.
8 Ibid.
9 National Gender and Equality Commission (NGEC) (2014), ‘Guidelines for Gender Responsive Budgeting (GRB) in Kenya’, http://www.ngeckenya.org/Downloads/NGEC-GRB-Guidelines-for-national-Govt-in-Kenya.pdf. The NGEC derives its mandate from Articles 10, 27, 43 and 59, and Chapter 15, of the constitution. Its mandate is also prescribed in Section 8 of the NGEC Act, 2011.
10 Research interviews, 2017–18.
11 World Economic Forum (2017), The Global Gender Gap Report, http://www3.weforum.org/docs/WEF_GGGR_2020.pdf.
12 Article 81(b) of the constitution.
13 East African (2017), ‘More women elected in Kenya, but the numbers still fall short’, 12 August 2017, http://www.theeastafrican.co.ke/news/Women-elected-in-Kenya-/2558-4054988-d8a9guz/index.html.
14 Inter-Parliamentary Union (2019), ‘Women in national parliaments’, situation as of 1 February 2019, http://archive.ipu.org/wmn-e/classif.htm.
15 Research interviews, 2017–18.
16 Ibid.
17 Ibid.
18 NGEC (2015), ‘Financial Year 2015/2016 Budget Analysis on Gender and Inclusion: A Special Focus on Trade and Agriculture’, http://www.ngeckenya.org/Downloads/Final%20national%20Budget%20Analysis%20Report.pdf.
19 Research interviews, 2017–18.
20 Ng’etich, K., Mwangi, S. and Ijaza, A. (2014), ‘Challenges Faced by the Women Enterprise Fund in Kenya: A Survey of Hamisi Constituency, Vihiga County- Kenya’, Research on Humanities and Social Sciences, 4(14), http://www.iiste.org/Journals/index.php/RHSS/article/viewFile/14316/14624.
21 Research interviews, 2017–18.
22 Ibid.
23 Ibid.
24 Ibid.
25 Ibid.
26 Ibid.
27 Articles 10, 35, 174, 184 and 201 of the constitution.
28 Research interviews, 2017–18.
29 Ibid.
30 Ibid.
31 International Budget Partnership (2014), County Budget and Economic Forums (CBEFs) and Public Participation in Kenya: A Synthesis of Case Studies from Five Counties, https://www.internationalbudget.org/wp-content/uploads/County-Budget-and-Economic-Forums-CBEFs-and-Public-Participation-in-Kenya.pdf.