Introduction
Article 27(8) of the Constitution of Kenya, 2010
The two-thirds gender principle is a constitutional requirement anchored in Article 27(8) of the Constitution of Kenya, 2010, which mandates the State to take legislative and other measures to ensure that not more than two-thirds of members of elective or appointive bodies shall be of the same gender. This provision seeks to address historical and systemic gender imbalances in leadership and decision-making structures in Kenya.
The net effect of this constitutional provision is that:
No elective or appointive body should consist of more than two-thirds of one gender.
Parliament is mandated to enact laws for implementation of this principle.
The State is required to develop policies that give effect to the implementation of this principle.
The article has generally classified the rule into two categories:
Elective Positions
The electorate is to have a platform within which either gender is elected in a manner that fulfils this principle. To date there is no two-thirds gender legislation for elective positions.
Appointive Bodies
Appointive bodies and authorities are further obligated to ensure this principle is embedded during appointments in the public sector.
Since the promulgation of the Constitution, the realization of this principle has remained one of the most significant yet unfulfilled constitutional imperatives.
Legislative Efforts
Bills presented in Parliament to legislate the two-thirds gender principle
Article 261 established the Commission for the Implementation of the Constitution to monitor, facilitate and oversee the development of legislation required to implement the Constitution. The Attorney General was also tasked to liaise with this Commission in tabling the relevant bills. The following bills were presented in Parliament:
Constitution of Kenya (Amendment) Bill, 2011
Kilonzo Bill
Published by then Minister of Justice Kilonzo, in consultation with CIC and IIEC. The bill sought to incorporate the words of Article 177(1)(b) into Articles 97 and 98. It failed at first reading as members felt it was too early to amend the Constitution.
Constitution of Kenya (Amendment) Bill, 2014
Mutambu Bill
Required that the electoral system shall not delete Article 81(b) which provided that the electoral system should ensure the two-thirds gender principle in elective positions. The bill was considered retrogressive and was withdrawn before any debate took place.
The Constitution (Amendment) Bill, 2015
Chepkong'a Bill
Sought progressive realization of the two-thirds gender principle. NGEC and most stakeholders opposed the bill as it had not taken into account the proposals by the technical working group. The bill never progressed after internal disagreements came to light.
Constitution of Kenya (Amendment) (No. 4) Bill, 2015
Aden Duale I Bill
Followed the failure of the Chepkonga Bill and Supreme Court advisory opinion. Sought to have political parties submit party lists meeting the necessary membership in both houses, with application limited to 20 years. Failed in Parliament due to lack of quorum.
Constitution of Kenya (Amendment) Bill, 2015
Judith Sijeny Bill
Tabled in the Senate as an alternative to the Duale Bill. Sought to revisit the affirmative seats after 20 years. Did not touch on Article 177. Failed due to lack of quorum.
Constitution of Kenya (Amendment) (No. 6) Bill, 2015
Aden Duale II Bill
Had similar provisions as the first Duale Bill and further extended the sunset clause by ten years. Was not put up for debate and lapsed with the expiry of the 11th Parliament.
Constitution of Kenya (Amendment) Bill, 2018
Aden Duale III Bill
A reintroduction of Duale Bill II. Suffered the same fate and was never debated until the expiry of the 12th Parliament.
Constitution of Kenya (Amendment) Bill, 2019
Gladys Boss Shollei Bill
Sought to amend Article 97 by adding seats, including persons with disabilities (at least 5%), and reducing wards in County Assemblies. Also sought to amend Article 98 by introducing additional elective seats. Lapsed with the 12th Parliament.
Constitution of Kenya (Amendment) Bill, 2019
Farhiya Ali Haji & Mutula Kilonzo Junior Bill
Sought to realize the two-thirds gender principle by lifting the provisions of Article 177(1)(b) into Articles 97 and 98. Also tasked Parliament with developing laws, policies and measures to realize this principle.
Kenya (Amendment) Bill, 2023
Beth Syengo Bill
A replica of the 2019 bill. Introduced eligibility of persons nominated under affirmative action seats once in both Houses and the County Assembly. The JLAC committee tabled the report on 31st October 2023 but it has never progressed past the second reading.
Constitution of Kenya (Amendment) (No. 2) Bill (Senate Bills No. 16 of 2025)
Current Bill
Tabled for the second reading. NGEC held a high-level stakeholder meeting to sensitize members on the provisions. The bill seeks to replicate Article 177(1)(b) and introduce sunset clauses. The Commission presented its memorandum in February 2025 and remains actively engaged.
Judicial Interventions
Court cases shaping the realization of the principle
In response to the looming constitutional uncertainty at the time of the 2013 General Elections, the following cases highlight the interventions sought as guided by Article 261:
Advisory Opinion No. 2 of 2012
NGEC, alongside other institutions, supported seeking an advisory opinion from the Supreme Court. The Court held that realization of the two-thirds gender principle in Parliament would be progressive rather than immediate, and directed Parliament to enact the necessary legislation by August 27, 2015.
Petition No. 207 & 208 of 2012 — CREAW & 8 others v. AG
The court ruled that the Constitution required the State to adhere to the two-thirds gender rule immediately so as to realize Economic and Social rights.
Petition No. 182 of 2015 — CREAW v. AG
The court gave the Attorney General 40 days to table in Parliament a bill on effecting the two-thirds gender principle.
Petition No. 12 of 2016 — NGEC v. Cabinet Secretary, Minister of Interior
The court ruled that compliance with the gender principle should be at the appointment stage and not just the shortlisting stage.
No. 371 of 2016 and 401 of 2017 — CREAW and CRAWN
The court held that the National Assembly had failed to meet the two-thirds gender principle and that the 12th Parliament as proposed would be unconstitutional. The court found that failure to meet the principle violated the fundamental rights of women in Kenya.
Human Rights Petition No. E337 of 2020 — NGEC & 2 others v. AG, National Assembly and Others
NGEC filed this petition seeking a declaration that Parliament was unconstitutionally constituted for failure to meet the two-thirds gender principle, based on the Chief Justice's advisory opinion. The petition sought the President to dissolve Parliament.
Pending Judgment — 5th June 2026
Currently the journey remains ongoing, with a significant milestone on the horizon: a pending court judgment expected on 5th June 2026. This case represents another pivotal moment in determining the enforceability of the two-thirds gender principle and may provide renewed direction on the obligations of the State. The Commission is focused on key outcomes and is committed to raising public awareness, accountability, and constitutionalism.
The Role of NGEC
National Gender and Equality Commission's central role
Under the National Gender and Equality Commission Act Section 8, the Commission has a mandate to promote gender equality and freedom from discrimination. The Commission has played a central role in championing the realization of the two-thirds gender principle.
Technical Working Group (TWG)
NGEC convened and chaired a TWG established by the Attorney General in 2014. The TWG brought together government agencies, independent commissions, Parliament representatives, civil society, and development partners to develop a feasible, legally sound mechanism for implementing the principle.
Advocacy & Campaigns
NGEC spearheaded the 'Tubadili Tusitawi Pamoja' campaign linking gender equality, inclusive governance, and sustainable development. The Commission engaged media, civil society, and development partners to shape public discourse and counter misconceptions.
Multi-Sectoral Working Group (2024)
The Commission actively participated and pushed the agenda on the realization of the two-thirds gender principle, utilizing this platform to advocate for the adoption of specific measures.
Memoranda to Parliament
The Commission has continuously submitted memoranda to Parliament whenever called upon, across various committees, relentlessly pushing for electoral reforms and the realization of the two-thirds gender principle and Article 100 of the Constitution.
High-Level Stakeholder Engagement (2026)
The Commission appeared before the Senate Standing Committee on Justice, Legal Affairs and Human Rights to present its memorandum on the Constitution of Kenya (Amendment)(No.2) Bill, 2025. The Commission affirmed that reforms should also deepen inclusion of historically marginalized groups.
After rigorous evaluation, the TWG identified a preferred option: adopting a "top-up" mechanism similar to that used in County Assemblies under Article 177 of the Constitution. This proposal involved creating additional seats to ensure compliance with the two-thirds requirement where electoral outcomes fell short. The proposal was designed to be gender-neutral and responsive to constitutional requirements while ensuring minimal disruption to existing electoral structures.
Compliance by Appointive Bodies
Status of adherence across institutions
Appointive positions are to be realized through employment and leadership appointments. Various statutes mandate institutions not to appoint more than two-thirds of one gender.
Executive
Current Cabinet composition has not met the two-thirds gender threshold.
Judiciary
The Judiciary has attained this threshold and is now geared towards gender parity, which is commendable.
Advisories were sent out to various institutions, including:
The Selection Panel of the Independent Electoral and Boundaries Commission on compliance with the not more than two-thirds Gender Principle, 5% of PWDs and inclusion of other Special Interest Groups.
The Tea Board of Kenya on the two-thirds gender principle in appointive positions at the Board and other companies in the tea sector.
The Kenya Union of Savings and Credit Cooperatives Limited Board of Directors (KUSSCO) on the non-compliance with the not more than two-thirds Gender Principle.
Challenges
Legislative, political, and social barriers
Political Resistance
Persistent political resistance, gender biases, and misconceptions surrounding affirmative action have stalled legislative progress. A government-backed bill failed to secure the required two-thirds majority despite extensive lobbying.
Patriarchal Societies
Deep-rooted patriarchal attitudes in society continue to present structural barriers to the acceptance and implementation of the two-thirds gender principle.
Negative Stereotypes
Negative stereotypes and misconceptions framing the principle as a 'women's issue' rather than a constitutional and developmental imperative undermine broad-based support.
Power Games
Internal political power dynamics within Parliament and political parties have repeatedly derailed bills and eroded legislative goodwill needed for passage.
Conclusion
The path forward
The journey towards the realization of the two-thirds gender principle in Kenya has been marked by sustained advocacy, strategic litigation, extensive stakeholder engagement, and persistent institutional leadership by NGEC. While significant progress has been made in shaping the discourse and developing viable implementation frameworks, full realization remains constrained by political, cultural, and structural challenges. Nevertheless, NGEC continues to play a pivotal role in driving this agenda forward, guided by the constitutional vision of equality, inclusion, and representation for all.
The two-thirds agenda remains a principle, and the journey to elevating it to enforceable rule has been marred with minimal goodwill from the sectors tasked to bridge this gap.
At a Glance
11+
Bills Tabled
6+
Court Cases
2014
TWG Formed
2026
Judgment Due
Key Provisions
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Article 27(8) — Constitutional basis
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Article 81(b) — Electoral system requirement
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Article 97 & 98 — National Assembly & Senate
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Article 177(1)(b) — County Assemblies (model provision)
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Article 100 — Marginalized groups representation
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Article 261 — Implementation Commission mandate
