Participatory Constitutional Reforms vs. Realization of Equal Representation of Men and Women in the Parliaments: A Study of Kenya, Rwanda and Tanzania By Victoria Melkisedeck Lihiru- LHRVIC001/1555440 Thesis Submitted for the Degree of DOCTOR OF PHILOSOPHYTown in the Department of Public Law, Faculty of Law of the UNIVERSITY OF CAPE TOWN. August 2019Cape of University Supervisor: Associate Professor Waheeda Amien The copyright of this thesis vests in the author. No quotation from it or information derived from it is to be published without full acknowledgementTown of the source. The thesis is to be used for private study or non- commercial research purposes only. Cape Published by the University ofof Cape Town (UCT) in terms of the non-exclusive license granted to UCT by the author. University COPYRIGHT The copyright of this thesis vests in the author. No quotation from it or information derived from it is to be published without full acknowledgement of the source. The thesis is to be used for private study or noncommercial research purposes only. Published by the University of Cape Town (UCT) in terms of the non-exclusive license granted to UCT by the author. i DECLARATION I, Victoria Melkisedeck Lihiru, hereby declare that the work on which this thesis is based is my original work (except where acknowledgments indicate otherwise) and that neither the whole work nor any part of it has been, is being, or is to be submitted for another degree in this or any other university. I authorise the university to reproduce for the purpose of research either the whole or any portion of the contents in any manner whatsoever. ………………………………………. Victoria Melkisedeck Lihiru September 2019. ii ABSTRACT In this thesis, the constitution-making legal frameworks in Rwanda, Kenya, and Tanzania are examined in relation to how they facilitated public participation in line with Article 25 of the International Covenant on Civil and Political Rights, 1966 and Article13 of the African Charter on Human and People’s Rights, 1986. In line with Articles 4 and 7 of the Convention on the Elimination of All Forms of Discrimination Against Women, 1979, and Article 9 of the the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, 2003, the thesis gauges the level and impact of women’s participation in the constitution-making processes in furthering equal representation of men and women in parliaments. Findings contained in this thesis are informed by primary data from international, regional and national legal frameworks relating to participation in political decision-making processes and are supplemented by secondary data from credible reports, journal articles and books. Analysis of the colonial and early post- colonial constitutional formations depicts imposition of the constitutions by the colonial governments in consultation with a few African political elites. Generally, the colonial and early post-colonial constitution- making processes were founded on weak legal frameworks, denying the public, including women, the right to take part in constitution-making processes. The onset of international and regional conventions slowly influenced the opening of the constitution-making processes to the public. The 2003 Rwandan Constitution, 2010 Kenyan Constitution, 1977 Tanzanian Constitution and the subsequent stalled 2014 Tanzanian Proposed Constitution were founded on moderate strong legal frameworks allowing some level public participation. In terms of facilitating women’s participation, these frameworks suffered shortcomings in several aspects particularly in composition of constitution-making organs, access of uneducated and rural women and ensuring substantive participation by women. However, the 2003 Rwandan Constitution, the 2010 Kenyan Constitution, the 1977 Tanzania Constitution and the 2014 Proposed Draft Constitution of Tanzania contain equality and non-discrimination provisions. When it comes to women’s participation in parliaments, the definition of equality is equated to a percentage (mostly 30 per cent), which does not represent the meaning of equality. An increased number of women parliamentarians in the Rwandan, Kenyan, and Tanzanian Parliaments, has enabled the legislation of gender sensitive laws and policies in the areas of inheritance, gender-based violence, family law and land rights. However, there are many areas in which women parliamentarians fail to represent the real interests of women. Challenges related to the practice of first-past-the-post and proportional representation electoral systems and the practice of temporary special measures continue to hinder the realisation of equal representation of men and women in parliaments. Rwanda, Kenya, and Tanzania should adopt the equality-based proportional representation electoral system. Short-term recommendations are provided based on the contextual differences and uniqueness of each country under study namely Rwanda, Kenya and Tanzania. iii ACKNOWLEDGEMENTS First, I thank God for endless mercy and grace that endures forever, and for guiding me through my PhD journey. I thank myself for perseverance, consistence, commitment and striving for excellency. I thank the Open University of Tanzania for granting me leave time for my studies. I thank my colleagues from Faculty of Law, especially Dr Gift Kweka, Dr Damas Ndumbaro and Prof Alex Makulilo for support and encouragement. I thank the University of Cape Town for accepting me as a student and assisting with funding my studies. Special appreciation goes to my supervisor, Associate Professor Waheeda Amien for constructive comments, guidance and assistance. Without it, this thesis would have been only a dream. I want to thank my parents, my father Melkisedeck Roman Lihiru and mother Lucy Sostenes Mhigi for prayers that sustain me every day. I thank my husband Herry for his understanding, presence and volunteering with editing of every chapter. I thank my children, Ethan and Divine for bearing with me when I could not be there with them during pursuit of my doctoral degree. I thank my young sisters Lemi, Martha and Sarah for their assistance in execution of my care duties. I thank my former co-workers from the Institutions for Inclusive Development Project (I4ID), Mwanahamisi Singano, Samantha Gibson, Julie Adkins and Anna Bwana for thoughts, comments and reflections. I thank my newly met friends from Vermont State, United States of America, Ed Paquin, Bryan Dague, Ashley Goff and Toni Marsh from George Washington University for their assistance in editing chapters of this thesis. I would like to thank Advocate Fatma Karume, the former President of Tanganyika Law Society (2018-2019) for useful insights on this thesis during the one and half hour’s flight from Dodoma to Dar es Salaam. Thanks to Ramada Resort, Mbezi Beach for complimenting my writing with amazing coffee and an incredible ocean view. I thank Viki Janse van Rensburg for being the final grammar editor of this thesis. The entire responsibly of this document remains with me and I am solely accountable for all errors that may occur. iv DEDICATION To all the girls and women from all walks of life, dreams are valid. To my late step father Mohamed Nuha for the trust you had in me. If you were alive, the fattest cow would be slaughtered to celebrate the attainment of my PhD. Continue to rest in peace. v ABBREVIATIONS AND ACRONYMS AEMO African Elected Members Organization AFN Assembly of First Nations CCM Chama Cha Mapinduzi CEDAW Convention on the Elimination of All Forms of Discrimination against Women CHADEMA Chama cha Demokrasia na Maendeleo CoE Committee of Experts CRA Constitutional Review Act CRC Constitution Review Commission CSW Commission on the Status of Women CUF Civic United CUF) EAC East Africa Community FPTP First-Past-the-Post GMO Gender Monitoring Office ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights IDEA International Institute for Democracy and Electoral Assistance IEBC Independent Electoral and Boundaries Commission IPPG Inter- Parties Parliamentary Group IPU Independent Parliamentary Unit IPU Inter Parliamentary Union KADU Kenya African Democratic Union KANU Kenya African National Union vi KNDRC Kenya National Dialogue and Reconciliation Committee LCC Legal and Constitutional Commission LEGCO Legislative Council LNC Local Native Councils NEC National Electoral Commission NEC National Executive Committee NKP New Kenya Party PR Proportional Representation PSC Parliamentary Select Committee RPF Rwanda Patriotic Front SCA Special Constituent Assembly TANU Tanganyika African National Union TAA Tanganyika African Association UDHR Universal Declaration of Human Rights UKAWA Umoja wa Katiba ya Wananchi UN United Nations UNHRC United Nations Human Rights Committee URTU United Republic of Tanzania USA United States of America UTP United Tanganyika Party WDC Ward Development Committees ZEC Zanzibar Electoral Commission vii Table of Contents COPYRIGHT ............................................................................................................................. i DECLARATION ....................................................................................................................... ii ABSTRACT ............................................................................................................................. iii ACKNOWLEDGEMENTS......................................................................................................