Gender on the ballot: Will Edung Ethekon enforce the two-thirds rule?
IEBC chair nominee Erastus Edung Ethekon at the Edge Convention Centre, Nairobi County, on March 25, 2025.
What you need to know:
- Chair nominee Erastus Ethekon faces pressure to enforce Kenya’s long-ignored two-thirds gender representation law.
- He inherits a stalled agenda: ensuring political parties uphold Kenya’s constitutional gender balance rule.
If approved by the National Assembly, Erastus Edung Ethekon, the presidential nominee for the position of chairperson of the Independent Electoral and Boundaries Commission (IEBC), would assume office at a time when women continue to cling to elusive threads of gender parity in elective leadership.
The IEBC has been at the centre of efforts to ensure no more than two-thirds of elective seats in the National Assembly and the Senate are occupied by persons of the same gender. While the commission attempted to ensure political parties adhered to the gender principle during the last general election, its efforts encountered significant setbacks.
The IEBC Act, 2011, (revised in 2020), mandates the commission to uphold general principles, including that “not more than two-thirds of members of elective public bodies shall be of the same gender,” in alignment with the constitutional principles of equality and freedom from discrimination. Article 27(8) of the Constitution requires the state to take legislative and other measures to implement this principle.
However, the National Assembly has consistently delayed enacting the legislation. Since 2011, 12 attempts to pass the required law have failed. A taskforce established by the former Cabinet Secretary for Gender developed recommendations for legislative reforms aimed at achieving gender parity in Parliament. The report submitted to the National Assembly has yet to produce any tangible progress.
Despite the absence of clear legal backing, the IEBC retains the authority to enforce the gender threshold, following a 2017 High Court decision that affirmed that political parties must comply with the constitutional provision.
In a constitutional petition by the Katiba Institute against the IEBC, Justice Chacha Mwita ruled that the commission must “reject any nomination list of a political party for its candidates for … the National Assembly and … the Senate that do not comply with the two-thirds gender rule.”
In 2022, when then-chair Wafula Chebukati directed political parties to ensure their nomination lists complied with the gender principle, referring to candidates selected during party primaries, a lawyer challenged the directive in court, and it was suspended.
Parties had originally submitted noncompliant lists, which the IEBC rejected and returned for revision. Some revised and resubmitted, while others had not yet done so. As the deadline approached, the chairperson reminded the parties of the need to comply.
Last general election
However, in its May 13, 2022 update on voter verification and compliance with the two-thirds gender principle, the IEBC reported that by the May 12 deadline, 75 out of 77 political parties had complied for the National Assembly seats, and 68 out of 69 had met the requirement for Senate positions, reflecting a 98 per cent compliance rate. Yet, just a day earlier, on May 11, 2022, the High Court had issued a ruling against the enforcement of the directive.
The lawyer challenging the directive claimed it was “oppressive and pointless to force political parties to skew their nomination lists in a particular way when the gender of the winner can only be determined at the ballot.” He further claimed that the IEBC had failed to conduct public participation before issuing the notice.
One of the first files Erastus is likely to open upon assuming office is the long-standing dilemma of the two-thirds gender principle. When asked about the right of marginalised groups to vote, he acknowledged that the gender principle is central to the electoral process.
“I must say, from the general principles of elections and electoral processes … we are called upon to ensure elections are not only free and fair but also reflect that not more than two-thirds of those holding elective posts are of the same gender,” he said during his interview on March 25.
How different will his tenure be in the continued absence of legislative support?
“A court ruling from 2017 has never been appealed [against]. So, technically, the IEBC is expected to ensure not more than two-thirds of elective members are from the same gender,” explained Daisy Amdany, the executive director of Crawn Trust and co-chair of the gender taskforce.
She further notes that Article 81 of the Constitution, which outlines general principles for the electoral system, requires adherence to the two-thirds gender rule. “So, constitutionally, even though there is no subsidiary legislation, they are still required to enforce it. The only issue is that we have not had an IEBC willing to uphold the Constitution,” she says.