Constitution of Kenya explained
- Written by Steve Nguru
National Gender and Equality Commission NGEC
Open. Accountable. Responsible
Though a 'Successor in title' Commission, the NGEC is a fully independent Commission with full powers as conferred under Chapter 15 of the New Constitution.
The NGEC will promote and protect gender equality and equity.
The top leadership of the NGEC has five Commissioners.
The National Gender and Equality Commission, NGEC, was formally known as the National Commission on Gender and Development, NCGD under the Ministry of Gender, Children and Social Development. The NGEC is not explicitly mentioned by name in the New Constitution. Rather, it is a 'successor in title' Commission created from the Kenya National Human Rights and Equality Commission, KNHREC.
The objectives of this Commission are mainly to promote gender equality and freedom from discrimination.
Though a successor Commission, the National Gender and Equality Commission, NGEC, is fully independent and inherits the status and powers of its parent Commission (the KNHREC) as outlined in Chapter 15 - Commissions and Independent Offices of the Constitution of Kenya 2010. Excerpts from Article 59 of Chapter 4 - The Bill of Rights, Part 5 - The Kenya National Human Rights And Equality Commission:
59. (5) If Parliament enacts legislation restructuring the Commission under clause (4)–– ....... (b) each of the successor commissions shall have powers equivalent to the powers of the Commission under this Article; and (c) each successor commission shall be a commission within the meaning of Chapter Fifteen, and shall have the status and powers of a commission under that Chapter.
To give effect, Parliament enacted the National Gender and Equality Act 2011 to establish the Commission.
As a Commission, the NGEC is empowered by Article 252 to initiate investigations based on suspicions or claims of discrimination, to have the authority of a Court to summon a witness in the course of such investigations, and to act as a peace-maker to right any wrongs and facilitate amends. Chapter 15 - Commissions and Independent Offices, excerpts:
252. (1) Each commission, and each holder of an independent office— (a) may conduct investigations on its own initiative or on a complaint made by a member of the public;
(3) The following commissions and independent offices have the power to issue a summons to a witness to assist for the purposes of its investigations— (a) the Kenya National Human Rights and Equality Commission;
(1) Each commission, and each holder of an independent office— (b) has the powers necessary for conciliation, mediation and negotiation;
From the fore-going, the NGEC is a Commission created to protect and assure access to basic rights for all in accordance with Article 249. i.e., "(1) The objects of the commissions and the independent offices are to— (a) protect the sovereignty of the people; (b) secure the observance by all State organs of democratic values and principles; and (c) promote constitutionalism."
Without a doubt, the NGEC is expected to be visible, easily accessible and lead from the front towards the realization and the protection of the Bill of Rights and especially those provisions that touch on gender and equality. Excerpts from Part 2 - Rights and Fundamental Freedoms of Chapter 4 - Bill of Rights:
27. (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).
59. (1) (b) to promote gender equality and equity generally and to coordinate and facilitate gender mainstreaming in national development;
The NGEC is also expected to carry out a historical analysis on gender and equality and initiate measures to redress any imbalances therein that have arisen out of past discriminative practice:
27. (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.
Hence the Commission will continually look into and institute measures that remedy past discrimination arising from cultural beliefs and practice such as access to property, to credit, to inheritance, to education, etc.; and to consider past economic marginalisation and discrimination, especially of minorities and persons with disabilities, etc., (Sub-Article 27. (3) & (6) above).
A good example is at the workplace where discrimination is expressly prohibited:
59. (2) (c) to promote the protection, and observance of human rights in public and private institutions;
The Commission was also vocal and active in 2013/2014 period in demanding compliance by all levels of government to remedying past economic discrimination (sub-article 27. (3)) of minorities and persons living with disabilities and other groups by not only pushing for their access to information, but also for consideration for government procurement opportunities and grants under youth and women-centered funds such as the Uwezo Fund. It is also to the NGEC that minorities such as PWDs can look to for a review and the full implementation of the income Tax Deductions And Exemptions Order, 2010 which came to effect before the passing of the current Constitution.
During the same period, the Commission also concerned itself to advising and collaborating with non-governmental organisations in the education space (sub-article 27. (3)), and who are trying to end all manner of practices that impede or tend to discriminate against the attainment of basic education.
Further, in September 2014, the Commission did invite the public for proposals how the country can attainment the two-thirds gender principle:
(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.
This question was mainly directed to political parties with regard to elective positions, and read together with (sub-article 27. (3)), of any form of discrimination or marginalisation in the political space. Therefore, the NGEC did invite them to provide for positive discrimination for women and persons with disability, PWDs, in an advisory issued prior to the General Elections of March 2013.
The same question was also directed to all levels of government with regard to appointive bodies. In that respect, the Commission, and the Country at large, continues to suffer frustration as old habits continue to defy change. For example the Commission was understandably miffed with the National Government's first extensive list of nominees for ambassadorial positions in August 2014, accusing it of disregard of the two-thirds gender principal, as well as discrimination of persons living with disabilities. To be fair to the government and to political parties, part of the public frustration stemmed from the fact that the Supreme Court had ruled almost two years before in December of 2012, that the two-thirds principal was to be applied gradually.
The same frustration were felt towards the County Governments who seemed to have taken cue from past practices of the old order, prompting a Commissioner of the NGEC to remark in April 2014 that, “It is sad that we have to seek legal redress to compel some of these county assemblies to comply with the law”. (Ndubai S, 2014). This was because County Governments were not granted the same 5 year leeway from the enactment of the constitution of Kenya 2010 as political parties and the National government in appointments over the two-thirds principal. The Commission has nonetheless been working with these 47 governments in mainstreaming gender equality, as well as positive discrimination of PWD's
The NCEG is also expected to initiate civic programs to mainstream mutual respect between genders and other groups in the community (sub-Articles 27. (4), (5)). Additionally, key to the work of this Commission will be pursuit of affirmative actions that seek to promote gender equality and freedom from discrimination. To achieve effective results countrywide, the NCEG will need to cooperate with the National Commission on Human Rights, the Commission on Administrative Justice and other related institutions, as contemplated by the National Gender and Equality Act 2011.
From a historical perspective, the idea of gender equality in Kenya is almost always assumed to be about the welfare of women only. This faulty view is however not correct as we have seen from the this section of our discussion. It is the view of this author, that it is just a matter of time before the Commission is forced to grapple with the taboo question of the 'third' gender i.e., of lesbians, gays, bisexuals, and transgenders.
For more on the commission's work, click on the mandate and function of the NGEC.
Winfred Lichuma, Chair of the NGEC
The National Gender and Equality Commission has 5 Commissioners who were appointed by the President in May 2012 for a term of 6 years. They are not eligible for re-appointment according to the National Gender and Equality Act 2011, and so will serve until May 2018.
1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney-General.
2. National Gender and Equality Act 2011. National Council for Law Reporting. The Attorney-General.
3. Website of the NGEC. Various Articles. Retrieved September 2014.