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Legal, Policy and Institutional Framework for Gender Equality in Kenya



By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publication of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*

Kenya has been on a journey towards achieving gender equality and equity, a goal that has remained elusive over the years. There have been policies aimed at promoting the same and they have always been reviewed or replaced by new ones in a bid to improve on the framework and address any gaps. There have been positive steps that have been realized along the way such as recognition of equality of men and women rights to own property or inherit property and fair labour practices, among others. Despite this, Kenya cannot boast of an impressive track record as gender inequality is still manifest.

Constitution of Kenya 2010

The Constitution of Kenya 2010 was the culmination of the recognition of the need to streamline gender issues in the country’s development agenda. It not only guarantees equality and nondiscrimination of all persons regardless of gender, but also has outlined some remedial measures to address the existing inequality in the country. It forms the basis of all other efforts since the year 2010.

National Policy on Gender and Development, 2000

Notably, the first National Policy on Gender and Development was adopted in 2000 and was meant to provide a legitimate point of reference for addressing gender inequalities at all levels of government and by all stakeholders, and further provided an avenue for gender mainstreaming across all sectors in order to generate efficient and equitable development outcomes for all Kenyans. The National Policy on Gender and Development of 2000 has since been reviewed in order to align it to the new legal framework including the Constitution of Kenya. This was superseded by the Sessional Paper No. 2 of 2006 on Gender Equality and Development which was meant to promote women empowerment and mainstreaming the needs of women, men, girls and boys in all sectors of development in Kenya so that they can participate and benefit equally from development initiatives.

National Policy for Prevention and Response to Gender Based Violence, 2014

The National Policy for Prevention and Response to Gender Based Violence’s main purpose was to put in place a framework to accelerate implementation of laws, policies and programmes for prevention and response to Gender Based Violence (GBV) by state and non – state actors for the realization of a society where men, women, boys and girls are free from all forms violence. This Policy sought to achieve the following objectives: to facilitate a coordinated approach in addressing GBV and to ensure effective programming; to improve enforcement of laws and policies towards GBV prevention and response; to increase access to quality and comprehensive support services across sectors; and to improve sustainability of GBV prevention and response interventions. The Policy also acknowledged that while it is women and girls who suffer the greatest share of GBV in the country, men and boys also experience the same. Land Laws such as the Land Act and Land Registration Act acknowledge the right of women to acquire, inherit and hold or dispose land. However, the reality on the ground is that women and girls are still being dispossessed of property especially when it comes to inheritance.

National Gender and Equality Commission

The National Gender and Equality Commission is established under the National Gender and Equality Commission Act, 2011 which was enacted to establish the National Gender and Equality Commission as a successor to the Kenya National Human Rights and Equality Commission pursuant to Article 59(4) of the Constitution; to provide for the membership, powers and functions of the Commission, and for connected purposes. The functions of the Commission are, inter alia, to: promote gender equality and freedom from discrimination in accordance with Article 27 of the Constitution; monitor, facilitate and advise on the integration of the principles of equality and freedom from discrimination in all national and county policies, laws, and administrative regulations in all public and private institutions; act as the principal organ of the State in ensuring compliance with all treaties and conventions ratified by Kenya relating to equality and freedom from discrimination and relating to special interest groups including minorities and marginalized persons, women, persons with disabilities, and children; and co-ordinate and facilitate mainstreaming of issues of gender, persons with disability and other marginalised groups in national development and to advise the Government on all aspects thereof.

State Department for Gender Affairs

The State Department for Gender Affairs falls under the Ministry of Public Service, Youth and Gender Affairs. The Ministry of Public Service and Gender was created under the re-organization of the National Government in November 2015. The mandate of the State Department of Gender is hinged on the Constitution of Kenya and Executive Order of June, 2018. It is responsible for: Gender Policy Management; Special Programmes for Women Empowerment; Gender Mainstreaming in Ministries, Departments and Agencies (MDAs); Community Mobilization; Domestication of International Treaties and Conventions on Gender; and Policy and Programmes on Gender Violence.

Gender and Development in Kenya: The Challenges

The 2014 National Policy for Prevention and Response to Gender Based Violence identified the following as the greatest contributing factors to GBV in Kenya: unequal power relations between men and women; socio-cultural norms that normalize GBV, discriminatory practices and changing gender roles; poverty; illiteracy; breakdown of the family unit and support systems; insecurity; alcohol and substance abuse; uncensored media content; and conflict; political instability as well as poor enforcement of laws and policies. While it is worthy pointing out that the 2014 Policy was geared towards dealing with GBV, the above factors contribute to much more than just GBV; they hamper the equal participation of both men and women in development matters in the country. Indeed, one of the guiding principles of the 2014 Policy was recognition of the importance of gender equity and gender equality in national development.

In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012]eKLR, the advisory opinion related to two discrete elements in respect of which the Attorney-General thus moved the Court: “The Advisory Opinion of the Court is sought on the following issues: A. Whether Article 81(b) as read with Article 27(4), Article 27(6), Article 27(8), Article 96, Article 97, Article 98, Article 177(1) (b), Article 116 and Article 125 of the Constitution of the Republic of Kenya require progressive realization of the enforcement of the one-third gender rule or requires the same to be implemented during the general elections scheduled for 4th March, 2013? B. Whether an unsuccessful candidate in the first round of Presidential election under Article 136 of the Constitution or any other person is entitled to petition the Supreme Court to challenge the outcome of the first round of the said election under Article 140 or any other provision of the Constitution?”

Regarding the one-third gender rule, the Attorney-General moved the Supreme Court seeking an opinion as to whether the terms of Article 81(b) apply in respect of the very next general elections, to be held on 4 March 2013, or on the contrary, apply progressively over an extended period of time. The Supreme Court observed as follows: [47] This Court is fully cognisant of the distinct social imperfection which led to the adoption of Articles 27(8) and 81(b) of the Constitution: that in elective or other public bodies, the participation of women has, for decades, been held at bare nominal levels, on account of discriminatory practices, or gender-indifferent laws, policies and regulations. This presents itself as a manifestation of historically unequal power relations between men and women in Kenyan society. Learned counsel Ms. Thongori aptly referred to this phenomenon as “the socialization of patriarchy”; and its resultant diminution of women’s participation in public affairs has had a major negative impact on the social terrain as a whole. Thus, the Constitution sets out to redress such aberrations, not just through affirmative action provisions such as those in Articles 27 and 81, but also by way of a detailed and robust Bill of Rights, as well as a set of “national values and principles of governance” [Article 10].

While there was no unanimous decision on whether implementation of the one-third Two-thirds gender rule was to be realized immediately or progressively, Kenya is still grappling with the question of gender representation in the elective posts in Kenya, with the recent advisory opinion from the Chief Justice directed to the President on the need to dissolve Parliament for failure to uphold the gender equity constitutional requirements complicating the debate even further. The Deputy Chief Justice has since appointed a special bench of judges to decide on the constitutional status of the advisory opinion as issued by the Chief justice. The upshot of the above is that despite Kenya’s progressive constitutional and statutory framework on achieving gender mainstreaming, the country is far from enjoying gender equality and equity especially in relation to women’s position in leadership and national development roles, with representation of women in Kenya’s Parliament remaining minimal over the years despite the promulgation of the current Constitution of Kenya in 2010.

Indeed, despite its leading economic position in the East African region, Kenya ranks the lowest among the East African countries when it comes to the place of women in leadership positions. For instance, in 2016, it was reported that women held 64 percent of seats in the lower house of Rwanda’s national legislature, the largest share of any country. However, despite this commendable state of affairs in Rwanda, there are conflicting reports on the status of women rights in everyday life, with some reporters saying that the political state of affairs is very different from every day community life of women in Rwanda. It is therefore possible to have a politically empowered group of men and women but without guaranteeing them enjoyment of other fundamental rights. As things stand, it is therefore safe to argue that the problem of gender inequality and inequity in Kenya goes beyond availability of statutory and constitutional framework. It is for this reason that the 2019 National Policy on Gender and Development was drafted in order to enable the stakeholders take practical steps towards addressing the existing challenges.

*This is article is an extract from an article by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and ADR Lifetime Achievement Award 2021 (CIArb Kenya): Muigua, K., Revisiting the Role of Law in Environmental Governance in Kenya, Available at: Muigua, K., Actualizing the National Policy on Gender and Development in Kenya, Available at: Dr. Kariuki Muigua is Kenya’s foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized as one of the leading lawyers and dispute resolution experts by the Chambers Global Guide 2021. 


Flowe, H. D., and Others, “Sexual and Other Forms of Violence During the COVID-19 Pandemic Emergency in Kenya.” (2020), available at: (Accessed on 18 December 2021).

In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012]eKLR, Advisory Opinions Application 2 of 2012.

Jagoe, K., and Others, “Sharing the burden: Shifts in family time use, agency and gender dynamics after introduction of new cookstoves in rural Kenya.” Energy Research & Social Science 64 (2020): 101413.

Kenya Law, ‘Chief Justice’s Advice to the President on Dissolution of Parliament for Failure to Enact the Gender Rule,’ Available at: (Accessed 18 December 2021).

KEWOPA, ‘Actualization and Implementation of the “Two-Thirds Gender Principle” in Kenya, Available at: (Accessed 18 December 2021).

National Gender and Equality Commission Act, 2011, Laws of Kenya.

Njogu, K., and Orchardson-Mazrui, E., “Gender inequality and women’s rights in the Great Lakes: Can culture contribute to women’s empowerment.” New York: UNICEF (2013).

Ogila, J., ‘DCJ Mwilu Forms Five-Judge Bench to Hear Maraga’s Parliament Dissolution Advice’ (The Standard) (Accessed 18 December 2021).

Osoro, J., ‘5 Judges Appointed to Hear Petitions on CJ Advise to Uhuru to Dissolve Parliament » Capital News’ (Capital News, 14 October 2020), Available at: (Accessed 18 December 2021).

Republic of Kenya, Sessional Paper No. 02 of 2019 on National Policy on Gender and Development, October 2019.

Republic of Kenya, National Policy for Prevention and Response to Gender Based Violence, November, 2014, 20Gender%20Based %20Violence.pdf (Accessed 18 December 2021).

News & Analysis

Why is THE LAWYER AFRICA Listing Top Law Firms and Top Lawyers?




The Litigation Hall of Fame | Kenya in 2023 (The Most Distinguished 50 Litigation Lawyers in Kenya).

We live in the age of information overload where too much information (TMI) is increasingly making it difficult to find actionable legal data about a good law firm or lawyer. At the same time, legal services are increasingly going digital and finding your next lawyer is a now a matter of a few clicks. Many existing, new and potential clients are interested to know more about the lawyer handling or likely to handle their next case or transaction as every HR Manager seeks to know how their In-house Lawyer or next hire compares to peers.

The biggest dilemma especially for commercial consumers of legal services  is where to begin the journey in finding the law firm or the lawyer to meet their immediate legal need created by their new venture,  business, transaction or dispute. In-house counsel are also called upon to justify opting for one lawyer or law firm or over the other.  Hence, the rise in the popularity of international law directories rankings as an attempt to fill the yawning gap by listing a few dozen lawyers and law firms in esoteric categories that often don’t align with the legal needs of the domestic legal market.

But ranking two dozen elite lawyers or big law firms in a big jurisdiction like Kenya there are over 20,000 lawyers is merely a drop in the ocean. The result is the same candidates are listed year after year and an In-house Legal Team looking to infuse new blood in their external counsel panel is left very little discretion. At best, International legal ranking only succeed to tilt the scales in favour of few big firms and their lawyers and to aid the choice of International Legal buyers who are constrained for time in picking their External Counsel in jurisdictions where they cannot find referrals.

The questions that beg are: What about the other top law firms and lawyers who are equally good if not better but don’t have the time to fill the technical paperwork that comes with International Legal Directories rankings? What about Domestic Legal Buyers who simply want to justify why they prefer a lawyer or law firm not listed in the International Directory? Can increasing the number of listed lawyers or law firms from less 0.1% of the profession (as captured by International Law Directories) to at least 1% of the profession or higher for those specializing in the practice area help in enhancing access to justice in Africa? Can ranking law firms by number of fee earners help in the quest for a more accurate bird’s eye view of a country’s legal landscape?

At THE LAWYER AFRICA, we have set out to list Top Law Firms and Top Lawyers in the various practice areas in a way that democratizes law rankings and listings and brings this essential value add within reach of most lawyers and every law firms doing top legal work. We don’t promise to list all the top lawyers or law firms, but we commit to make sure every lawyer or law firm we list is at the top of the game in the listed practice area. We aim to help both little known and already known law firms and lawyers doing top legal work in their area of specialization get discovered by discerning clients and possibly get more opportunities to do great work.

THE LAWYER AFRICA is looking to list up to Top 200 Law Firms in every African Jurisdiction based on their reputation and number of fee earners headcount with a goal of listing at least Africa’s Top 1,000 Law Firms which are leaders in their respective countries. We also seek to list up to Top 1,000 Lawyers in every country in Africa in at least five main practice areas, namely, Litigation, Commercial Law, Property law, In-house and Private Sector or more.

THE LAWYER AFRICA categorizes law firms in large jurisdictions as Top 5, Top 10, Top 20, Top 50 and Top 100 (and allow tying where number of counsel is equal). The Top Lawyers are listed in three categories, namely, Hall of Fame (the Distinguished Top 50 or 75 Practitioners in a Practice Area), Top 100 (the Leading Top 100 Practitioners in a Practice Area) and Up-and-Coming (the promising Top 50 or 75 Practitioners in a Practice Area).  The placing of a listings depends on a number of key factors including the number of key matters or transactions handled, years in practice and experience, size of team working under a counsel, reputation and opinion of peers (where available) as established by THE LAWYER AFRICA.

THE LAWYER AFRICA prefers to list a counsel in only one listing, as far as possible. The Team tries (as far as possible) not to contact listed law firms or lawyers before the listing is finalized in the first. However, a listed law firm or lawyer may be contacted at the pre-launch stage of a list for purposes of selling merchandise relating to the launch but such engagement will not affect the listing. In case of future listings, it is expected that interested lawyers or law firms who feel they were previously left out of the list may to provide information for consideration to determine if they qualify for the next listing but that will not guarantee any listing.

THE LAWYER AFRICA undertakes not to charge for listing any lawyer or law firm. However, upon publication of a listing, as part of recovering the sunk costs we incur in the research and publication of the listings, we shall charge a token for printing and shipping of Quality A3 Certificate for listed Law Firms and/or A4 Certificate for listed Lawyers who wish to have or display the branded souvenirs or to use our proprietary digital materials in their business  branding. We may also charge listed and unlisted law firms and lawyers an affordable fee for limited banner advertising or publishing of enhanced profiles next to the listings.

For any question or feedback on any list or listing, feel free to contact THE LAWYER AFRICA PUBLISHER at info[at]thelawyer[dot]africa.

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News & Analysis

The Roles of the Three Parts of the Permanent Court of Arbitration




H.E. Amb. Marcin Czepelak, the Fourteenth Secretary-General of the Permanent Court of Arbitration (PCA)

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News & Analysis

Brief History of the Permanent Court of Arbitration (PCA)




By Dr. Kariuki Muigua, PhD, C.Arb, Current Member of Permanent Court of Arbitration (PCA) Representing the Republic of Kenya.

The Permanent Court of Arbitration (PCA) is a 124 Years Old Intergovernmental Organization currently with 122 contracting states. It was established at the turn of 20th Century during the first Hague Peace Conference held between 18th May and 29th July 1899. The conference was an initiative of then Russian Czar Nicholas II to discuss peace and disarmament and specifically with the object of “seeking the most effective means of ensuring to all peoples the benefits of a real and lasting peace, and, above all, of limiting the progressive development of existing armaments.” The culmination of the conference was the adoption of a Convention on the Pacific Settlement of International Disputes, which dealt not only with arbitration but also with other methods of pacific settlement, such as good offices and mediation.

The aim of the conference was to “strengthen systems of international dispute resolution” especially international arbitration which in the last century had proven effective for the purpose with number of successful international arbitrations being concluded among Nations. The Alabama arbitration of 1871-1872 between the United Kingdom (UK) and the United States (US) under the Treaty of Washington of 1871 culminating in the arbitral tribunal’s award that the UK pay the US compensation for breach of neutrality during American Civil War which it did had demonstrated the effectiveness of arbitration in settling of international disputes and piqued interest of many practitioners in it as a mode of dispute resolution during the latter years of the nineteenth century.

The Institut de Droit International adopted a code of procedure for arbitration in 1875 to answer the need for a general law of arbitration governing for countries and parties wishing to have recourse to international arbitration. The growth of arbitration as a mode of international dispute resolution formed the background of the 1899 conference and informed its most enduring achievement, namely, the establishment of the PCA as the first global mechanism for the settlement of disputes between states. Article 16 of the 1899 Convention recognized that “in questions of a legal nature, and especially in the interpretation or application of International Conventions” arbitration is the “most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle.”

In turn, the 1899 Convention provided for the creation of permanent machinery to enable the setting up of arbitral tribunals as necessary and to facilitate their work under the auspices of the institution it named as the Permanent Court of Arbitration (PCA). In particular, Article 20 of the 1899 Convention stated that “[w]ith the object of facilitating an immediate recourse to arbitration for international differences which it has not been possible to settle by diplomacy, the signatory Powers undertake to organize a Permanent Court of Arbitration, accessible at all times and operating, unless otherwise stipulated by the parties, in accordance with the rules of procedure inserted in the present Convention.” In effect, the Convention set up a permanent system of international arbitration and institutionalized the law and practice of arbitration in a definite and acceptable way.

As a result, the Permanent Court of Arbitration (PCA) was established in 1900 and began operating in 1902. The PCA as established consisted of a panel of jurists designated by each country acceding to the Convention with each country being entitled to designate up to four from among whom the members of each arbitral tribunal might be chosen. In addition, the Convention created a permanent Bureau, located in The Hague, with functions similar to those of a court registry or secretariat. The 1899 Convention also laid down a set of rules of procedure to govern the conduct of arbitrations under the PCA framework.

The second Hague Peace Conference in 1907 saw a revision of the 1899 Convention and improvement of the rules governing arbitral proceedings. Today, the PCA has developed into a modern, multi-faceted arbitral institution perfectly situated to meet the evolving dispute resolution needs of the international community. The Permanent Court of Arbitration has also diversified its service offering alongside those contemplated by the Conventions. For instance, today the International Bureau of the Permanent Court of Arbitration serves as a registry in important international arbitrations. In 1993, the Permanent Court of Arbitration adopted new “Optional Rules for Arbitrating Disputes between Two Parties of Which Only One Is a State” and, in 2001, “Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment”.


PCA Website: (accessed on 25th May 2023).

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