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Is Kenya a country for or against discrimination?

Alphonce Odhiambo
In every matter that has some level of seriousness like equal
treatment of people every country has to have a clear stand on
it. It should be clear that the attitude towards same sex
marriage in Kenya is clear, the legality or otherwise of drugs use
in a country and any other matter is clear. There should be a
provision of the constitution, an article of an act, case law or
government policy that addresses the situation in a very clear
manner and doesnt contradict itself. Let us look into
discrimination and see whether its legal or illegal. Its my argument that in this
matter what the law prohibits at one article of the constitution is allows with another
article of the same constitution.

Article 27(3) of the constitution expressly prohibits discrimination and

guarantees everyone equal opportunities in political, economic, cultural and
social spheres. Of more importance and focus in this article is article 27(4)
which prohibits both direct and indirect discrimination by the state of people
based on race, sex, pregnancy, marital status, health status, ethnic or social
origin, color, age, disability, religion, conscience, belief, culture, dress,
language or birth. Subsection 5 emphasizes the prohibition but places focus
on people. In short discrimination is clearly and expressly prohibited as far as
article 27 is concerned.
The next set of law is the use of affirmative action that seeks to promote
inclusivity of women in political arena and ethnic communities in
employment. The two thirds gender rule that require the inclusion women in
the forum for major decision making in the country and the 30 per cent
ethnic representation in employment. Article 177 of the constitution
addresses ethnic distribution in county authorities and section seven of the
national cohesion and integration act requires that no public establishment
shall have more than a third of its staff from one ethnic community.
The objectives that the laws or rules created in form of affirmative action
seek to achieve are quite noble but the difficulty is in their achievement. How
does Kenya as a country achieve the percentages representation in
parliament and employment without contravening the express provision of
the constitution that prohibit discrimination? What is the relation between
representation of minorities and employment on merits? Can employers
consider both merits and representation as required by law? Is it really
possible for the two to be achieved? Its not possible at all.

1. The Cohesion and Integration Commission Act requires every public

establishment to maintain the number of its employees from the same
ethnic community to a third or below. Some of the public
establishments that the act refers to are Universities. In simple terms
the law requires that when universities employ people, out of every
100 applicants no more than 30 should come from one community.
Hypothetical situation
If Moi University wants to employ 10 employees and so puts up a job
advertisement requesting them to apply for the employment, it will
most certainly clearly lay out the qualification required for those
positions. It is only normal that when 10 employees are required over
100 people may apply so the most qualified applicants will be short
listed. What if the top 50 applicants out of the total 100 initial
applicants are from one ethnic community? However, if the ethnic bit
of the law that requires that not more than 30 percent should be from
one community didnt exist then the top 10 applicants would easily be
employed. Now that there is a requirement that out of 10 only 3 can be
employed from one community, only 3 out of 50 will be employed. The
other seven positions will go to the applicants who are less qualified
merely on the basis of their tribe or sex.
For the other seven applicants who appeared in the top 10 list and
didnt get employed merely based on the fact that their communities
are already represented, what do they blame or explain their
joblessness to? Is it not on ethnic grounds that they are denied
employment? Implementation of the Cohesion and Integration
Commissions Act that requires representation can only be effected by a
serious contravention of two express provisions of the 2010
constitution. The first provision that must be contravened is article
27(4) that prohibits discrimination on several bases including on ethnic
or social origin.
2. The two thirds gender rule does not expressly refer to women its a
section that refers to all the genders. Neither men nor women are to
form more than two thirds of the total members in representative
positions. How is two thirds gender rule achieved in parliament, is it by
curtailing the political freedom of dominant gender in the competition
so that someone elses political right can be exercised? Is it by
nullifying their election and replacing them with members of opposite
gender? Is it by forcing political parties to choose compliance with the
gender rule at the expense of going with decisions that give their shot
at gaining political seats a good chance; compliance with laws at the
expense of political success?

The same questions apply to the judiciary. When a male chief justice is
recommended for appointment pressure is mounted on the judiciary to
appoint a female deputy chief justice. What does it mean to have the
appointment to major institutions in the country given to individuals
based on their gender? What is the effect of such restriction or
pressure on the freedom of the judiciary to choose from the best of the
best? This simply means that the judges or willing applicants who are
of the same sex as the appointed chief justice are automatically locked
out from appointment. The only characteristic that locks them out is
their sex or gender. The desired representation of all gender in the
Supreme Court would also require contravention of article 27(4) of the
Constitution of Kenya 2010. The same Act prohibits discrimination on
the basis of sex.
The effects of legally recognized discrimination in Kenya
1. Promotion of ethnicity
Representation of members of other ethnic communities or the less
dominant gender in itself leads to promotion of ethnic and gender
discrimination. When one person is denied employment opportunity or
barred from applying for a job merely because he is from a community
that is already represented thus giving the opportunity to someone
else based on his ethnic origin is the simplest description of ethnic
2. Promotion of gender discrimination
How did you end up in the office you occupy, did someone have to stay
out of it for you to win? Did law bar competition so as to allow you a
free pass or did you actually compete the best of the best to be there?
When law allows one to hold an office because of his or her gender and
locks others out for their gender then its discrimination on gender
3. Encouragement of insubordination
In an office or a work place where the top management are in those
positions based on their gender or ethnic origin insubordination is
bound to arise. When a deputy chief justice is the deputy chief justice
because she is a woman and all the other Supreme Court judges, court
appeal judges and high court judges are more educated than her, more
experienced than her and probably would have won were they to be
given a chance to apply for the position, the work situation wouldnt be
the same as it would have been if she was there on merits not
affirmative action. Instructions from her to her juniors who in real
sense are her seniors will be questioned and second guessed.
4. Depriving the employment sector of the best brains in the country

When the best legal mind cannot be chief justice or assistant chief
justice because he or she is not male or female, the country is
deprived the benefits of that mind. The prevention of best employees
with the experience or training cannot be employed in companies or
universities just because they are not from the required tribe or
because other people from their tribe have already amounted to the
maximum third prescribed by the cohesion and integration act, the
country loses.
The engineer or technician that has the mind to make goods cheaper
for Kenyans or services easier to access is somewhere unemployed
because he or she is not from the right community or of the required
gender. The teacher with the best teaching techniques that would be
beneficial to the students in the country is denied the chance on
legally recognized grounds. Affirmative action that focuses on
representation is more disadvantageous than they are advantageous.