Women’s Participation in Constitution-Making Process in Kenya (S.3, Part 5)

Abstract

This 44minutes 25seconds-long video was recorded in 2018. Justice Dr. Nancy Baraza was influential in addressing women’s concerns in the legal and constitutional reforms. In 1990, she was involved in the democratization process as a result of the oppression of Kenyans leading to the constitution review process. She was FIDA Chair and was also in the Ufungamano initiative pushing for people’s constitutional reforms. As members of Ufungamano, they encountered strong resistance from the government of the day. When the Ufungamano People's Commission of Kenya was merged with the Government Commission under the chairmanship of Prof. Yash Pal Ghai, she became a commissioner under the Constitution of Kenya Review Commission (CKRC) from the Ufungamano People’s Commission. Justice Baraza was the chair of the Committee on the Bill of Rights and was involved in the collection of public views and preparation of the Constitution of Kenya Review Commission Draft Zero (0) Constitution of Kenya. She notes that women’s involvement in the entire review process saw women's provisions entrenched in the constitution of Kenya. Prior to the constitutional reforms, the Kenyan Judiciary was not trusted by Kenyans. The desire to reform and test the effectiveness of the constitutional reforms motivated Justice Baraza to join the Judiciary. She applied for the position of Deputy Chief Justice, did the interview, passed, and was subsequently appointed to the position of Deputy Chief Justice. As regards implementation of the Affirmative Action for critical mass in Parliament, Justice Baraza notes that the Constitutional Provision (COK 27(8)) is not progressive. Unfortunately, some Supreme Court Judges subscribing to this school of thought ruled that that the Affirmative Action popularly referred to as the two-thirds gender rule, is progressive. According to Justice Baraza these Judges missed the philosophy of affirmative action and were not bold enough to move the agenda of women forward. They failed to give the country direction on the one-third gender rule. The judges made a judgement in vain as the affirmative action was not realized by August 2015. As a result, Kenya continues to have an unconstitutional parliament as bills seeking the realization of the affirmative action principle in Parliament have not been passed. While Justice Baraza notes that the Supreme Court derailed the realization of the two-thirds gender rule, the women’s movement has been weak and disjointed and so there is no common position among the women. This could have been possible with a powerful women’s movement as happened during the constitutional review process. Women, therefore, continue to be denied this constitutional right. Today Justice Baraza lectures at the University of Nairobi’s School of Law where she mentors young men and women on women's leadership and the role of women in development which is important in changing the value system which is powerful to change society. However, she thinks women parliamentarians should reach out and engage more with the women’s movement in pushing women’s agenda forward.