Of all African countries, Kenya has one of the highest percentages of women directors among its public company boards. According to one study, as of 2017 women in Kenya held 19.8% of board seats, 8% of boards have women as chairs,1 and women represent 26% of boards of state-owned corporations in Kenya.2 A frequently referenced example is the major Kenyan beverage manufacturer, East African Breweries Limited, which as of 2013 had appointed five women to its eleven-director board. 3 However, as of 2018 it only has three women on its eleven-director board.4
Several factors drive the strong presence of women on boards of Kenyan companies, including early adoption of a Corporate Governance Code addressing gender diversity, active non-governmental organizations (NGOs) that focus on advocacy and training, and a constitutional mandate that seeks to impose a quota on the representation of women in the boardroom. However, a lack of effective mechanisms to enforce compliance with these directives raises questions about further progress.
There are several forums and initiatives that are promoting overall diversity in Kenya’s boardrooms. For example, since 2014, the Nairobi Stock Exchange (NSE) has convened roundtable events for listed companies through its Leadership & Diversity Dialogue program to discuss various aspects of board diversity, including gender, culture, age, and profession. Through this dialogue, leaders of listed companies are able to share experiences, discuss challenges, and determine how the NSE can help support diversity in the boardroom.5
Furthermore, Kenya’s Institute of Directors (KID) has organized forums for corporate governance practitioners to become better educated and increase their understanding about issues surrounding board diversity. KID offers training and professional development for directors and business leaders, and identifies qualified women to serve on boards.6
Kenya was one of the first countries worldwide to modify its Corporate Governance Code to include recommendations for representation of women on public boards. In 2002, Kenya’s Capital Markets Authority, regulator of the Nairobi Stock Exchange, amended its Guidelines on Corporate Governance Practices by Public Listed Companies in Kenya to encourage participation of women on corporate boards.7 According to the Guidelines, “[t]he process of the appointment of directors should be sensitive to gender representation.”8
In 2015, the Code of Corporate Governance Practices for Listed Companies (the Code) recommends that Boards have a policy to ensure the achievement of diversity in their composition and that “[e]ach Board shall consider whether its size, diversity and demographics make it effective. Diversity applies to academic qualifications, technical expertise, relevant industry knowledge, experience, nationality, age, race and gender. The appointment of Board members shall be gender sensitive and shall not be perceived to represent a single or narrow constituency interest. Where companies establish a diversity policy, the companies shall introduce appropriate measures to ensure that the policy is implemented.”9 While the Code is not binding on publicly listed companies in Kenya or any other corporate entities, the inclusion of this recommendation increased visibility of the underrepresentation of women on boards, spurring similar progress throughout the region. For instance, Uganda’s Capital Markets Authority issued new corporate governance guidelines with identical language on gender diversity the following year in 2016.10
A new Kenyan Constitution was passed in 2010, which—as a result of advocacy by several Kenyan non-governmental organizations—includes a constitutional mandate for representation of women on boards of state-owned companies. This provision states, “Not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.”11 As the term “elective or appointive bodies” is defined broadly to include the boards of state-owned enterprises in which the government owns more than a 50% stake, a significant number of Kenya’s largest companies were brought within the scope of the mandate.
The Constitutional mandate produced immediate effects, increasing the representation of women on boards of state-owned enterprises by 5% during the first two years it was effective—from 15% in 2010 to 20% in 2012.12 However, as detailed in a 2015 African Development Bank report, because the final decision for appointing a board member for a state-owned enterprise is the responsibility of government officials, observers are concerned that “heavy intrusion of politics in these appointments, as well as cronyism,” could compromise progress.13 In addition, the absence of penalties for non-compliance with the quota creates uncertainty about whether state-owned enterprises will meet the 33% mandate set forth in the Constitution.
While the constitutional mandate has spurred progress within state-owned enterprises, no parallel mandate applies to companies in Kenya that are not state-owned. The Corporate Governance Code recommends consideration of gender diversity on corporate boards, but is non-binding and does not include penalties or incentives to encourage compliance.
Although many in Kenya have advocated for a formal quota for participation of women on boards of private companies, no clear path toward progress has been identified. In 2012, Stella Kilonzo, former head of the Capital Markets Authority, expressed support for a quota applicable to publicly listed companies in Kenya.14 In discussing the possibility of regulatory action, Kilonzo stated, “I have studied models in other markets like the U.K. where gender balance has been considered in the composition of the board of directors, and this is something we want to take on board.”15 However, since Kilonzo’s tenure at the Capital Markets Authority ended in June 2012, neither the Capital Markets Authority nor any other regulatory body has proposed a quota. The Capital Markets Authority has however made it mandatory for all listed companies to report at their annual meetings the number of women serving on their boards.16
A strong network of advocacy organizations in Kenya continues to push for progress within privately owned companies, as well as state-owned enterprises.17 These organizations focus on providing training to women in the corporate sector in order to increase the number of women qualified to join corporate boards, as well as working with the media to encourage companies to adhere to the recommendations set forth in the constitutional mandate and the Corporate Governance Code.
While Kenya has garnered global recognition for its relatively high representation of women on corporate boards and, in particular, its constitutional mandate, women in the corporate sector continue to battle for leadership positions. The increasingly prominent voice of non-profits and advocacy groups has raised the visibility of the issue of women’s representation in the corporate sphere within Kenya. Kenya has made significant strides in the representation of women on boards and there is reason for measured optimism about continued progress.
1 Women in the boardroom: A global perspective, Deloitte 39 (2017), https://www2.deloitte.com/content/dam/Deloitte/global/Documents/Risk/Women%20in%20the%20boardroom%20a%20global%20perspective%20fifth%20edition.pdf (citing Institute of Directors, Report of the Taskforce on Women Representation on Boards (July 2015)).
2 Where are the Women: Inclusive Boardrooms in Africa’s Top Listed Companies?, African Development Bank (June 2015), https://www.afdb.org/fileadmin/uploads/afdb/Documents/Publications/Where_are_the_Women_Inclusive_Boardrooms_in_Africa%E2%80%99s_top-listed_companies.pdf (hereinafter, “African Development Bank Report”).
3 Id. at 26.
4 East African Breweries Limited (EABL), https://www.eabl.com/en/our-business/leadership/board-directors (last visited Sept. 12, 2018).
5 Deloitte, supra note 1 (citing NSE Leadership & Diversity Dialogue Series Press Briefing Brochure).
6 Deloitte, supra note 1.
7 Guidelines on Corporate Governance Practices by Public Listed Companies in Kenya, Gazette Notice No. 3362.
8 Id. at 3.1.3 viii.
9 The Capital Markets Act (Cap. 485a), Code of Corporate Governance Practices for Public Listed Companies in Kenya (2015), https://www.kenya-airways.com/uploadedFiles/Content/About_Us/Investor_Information/Code%20of%20Corporate%20Governance%20Practices%20for%20Issuers%20of%20Securities%20to%20the%20Public%202015%20-%20Code-8.pdf.
10 Capital Markets Corporate Governance Guidelines Part 2, Section 30 (2003), http://www.cmauganda.co.ug/sites/default/files/downloads/laws_%26_regulations_guidelines_ CorporateGovernanceGuidelines.pdf.
11 Constitution of Kenya 2010, art. 27 (8).
12 D. Muturi, J. Sagwe & G. Karugo, Bringing the Other Half to the Boardroom: Case Study of State Corporations and Listed Companies in Kenya, KIM Discussion Paper Series (2012).
13 African Development Bank Report, supra note 2, at 38.
14 Moses Michira & David Herbling, CMA Push for Women Seats Stirs Listed Company Boards, Business Africa Daily (Jan. 19, 2012), http://www.businessdailyafrica.com/CMA-push-for-women-seats-stirs-listed-company-boards--/-539546/ 1310588/-/item/0/-/5f2sqb/-/index.html.
16 Deloitte, supra note 1 (citing a speech by Paul Muthaura, CEO, Capital Markets Authority).
17 For example, the Federation of Women Lawyers (http://www.fidakenya.org/) and Women’s Empowerment Link (http://wel.or.ke/) advocate for increased representation of women in corporate boardrooms in Kenya.