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Equality Compiled Notes

Discrimination refers to unfair treatment based on characteristics such as race, gender, and disability, and can manifest in overt or covert forms. In Kenya, Article 27 of the Constitution prohibits discrimination and promotes equality, while various forms of institutionalized discrimination persist, often rooted in cultural norms. The concept of intersectionality highlights how overlapping identities can compound discrimination, emphasizing the need for comprehensive legal protections that address these complexities.
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0% found this document useful (0 votes)
11 views90 pages

Equality Compiled Notes

Discrimination refers to unfair treatment based on characteristics such as race, gender, and disability, and can manifest in overt or covert forms. In Kenya, Article 27 of the Constitution prohibits discrimination and promotes equality, while various forms of institutionalized discrimination persist, often rooted in cultural norms. The concept of intersectionality highlights how overlapping identities can compound discrimination, emphasizing the need for comprehensive legal protections that address these complexities.
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DISCRIMINATION

(STUDY THE NOTES ON DISCRIMINATION IN THE BOOK BY SANDRA FREEDMAN)

NOTES IN FOLDER

🟡 What is Discrimination?

Simple Definition: Discrimination means treating someone unfairly or differently just


because they belong to a certain group or have a particular characteristic — even if that has
nothing to do with their ability or who they are as a person.

🟢 Examples of What Discrimination Can Be Based On:

 Race – e.g., treating someone unfairly because they are Black, White, Asian, etc.
 Gender/Sex – e.g., thinking men are better than women at certain jobs.
 Disability – ignoring or excluding someone because they are blind, deaf, or have any
other physical/mental condition.
 Religion – mocking or denying opportunities to someone because of their faith.
 Age – refusing to hire young or older people even when they are qualified.
 Pregnancy – thinking a pregnant woman shouldn't be given a job or promotion.
 Sexual Orientation – treating someone badly because they are gay, lesbian, etc.

⚖️Legal Perspective in Kenya – Article 27 (Constitution of Kenya, 2010)

This article of the Constitution says:

 Everyone is equal before the law.


 No one should be discriminated against for any reason, including the list above.
 It also requires the state and individuals (like employers) to promote equality and
fairness.

📘 Example in Real Life:

Let’s say:

A woman applies for a job. She’s fully qualified. But the company says they won’t hire her
because she’s pregnant.

That action:

 Breaks Article 27 of the Constitution


 Also violates the Employment Act (2007), Section 5(3), which protects workers from
discrimination.
🔹 2. Manifestations of Discrimination

Discrimination can show up in different forms — some are obvious, while others are subtle or
even built into systems and practices. Understanding how discrimination manifests is key to
identifying it and ensuring justice and equality. Let's explore the major types:

🅰️Overt (Direct) Discrimination

Overt or direct discrimination happens when someone is clearly and intentionally treated
unfairly or unequally based on a protected characteristic like gender, race, or religion. There is
no attempt to hide the bias — it’s openly expressed in actions, policies, or speech.

📌 Example: If a job advert says “Only male applicants need apply,” that is direct
discrimination. It blatantly excludes women from being considered, regardless of their
qualifications. This is prohibited under Section 6 of the Employment Act (2007) in Kenya,
which protects individuals from such explicit forms of discrimination in employment settings.

🅱️Covert (Indirect) Discrimination

Covert or indirect discrimination is more subtle. It happens when a rule or policy seems
neutral and applies to everyone, but in reality, it unfairly affects a certain group more than
others. It often goes unnoticed unless someone examines the outcomes of the policy.

📌 Example: A company requiring all staff to work on Saturdays might look like a fair rule at
first. But it indirectly discriminates against Seventh-Day Adventists, who observe the Sabbath
on Saturday and therefore cannot work on that day for religious reasons. This form of
discrimination can be difficult to detect and prove, but it is still unlawful. Legal scholars like
Sandra Fredman (2011) highlight that even though indirect discrimination is hidden, its effects
are just as harmful.

🅾️De Jure vs. De Facto Discrimination

These are two broad categories used to describe where and how discrimination happens —
either through law or in practice.

 De Jure Discrimination (Latin for “by law”) occurs when discriminatory practices are
officially written into laws or policies. A historic example is apartheid in South Africa,
where laws legally enforced racial segregation.
 De Facto Discrimination (Latin for “in fact” or “in practice”) occurs even when no law
directly supports it. This is discrimination that exists informally, often through social
attitudes, customs, or institutional behavior.

📌 Kenyan Example: Before the 2010 Constitution, LGBTQ+ individuals in Kenya were not
explicitly protected under the law. Even though the Constitution mentioned equality, the lack of
specific protection led to de facto discrimination — where LGBTQ+ people were treated
unfairly in practice, such as being denied services or protection by law enforcement.

🅳 Positive vs. Negative Discrimination

These two forms show that not all discrimination is harmful — positive discrimination (also
known as affirmative action) can actually be used to correct past inequalities.

 Positive Discrimination involves taking special steps to support marginalized groups


who have been historically excluded or disadvantaged. It is legally supported in Kenya
under Article 27(6) of the Constitution, which allows measures like quotas to promote
equality.

📌 Case Study: The Two-Thirds Gender Rule in Kenya is a form of affirmative action.
It aims to ensure that no more than two-thirds of any gender is represented in
Parliament, helping increase women's political participation.

 Negative Discrimination, on the other hand, is harmful and unfair. It involves excluding
or mistreating someone based on characteristics like tribe, race, or religion without any
just cause.

📌 Example: Denying someone a job just because they belong to a certain tribe is a
classic example of negative discrimination. It deepens inequality and violates
constitutional rights.

✅ Summary in Your Words

Discrimination isn't always obvious — it can be loud and direct or quiet and hidden in everyday
rules and behaviors. Whether it’s in the law (de jure), in practice (de facto), positive (to fix past
wrongs), or negative (to harm or exclude), all forms affect real people and require attention
under the law. Kenya’s Constitution, especially Article 27, plays a central role in fighting all
these forms.
🔹 4. Institutionalized Discrimination

Institutionalized discrimination refers to unfair treatment or exclusion that is built into the
structure of society — through laws, policies, institutions, or even cultural norms. Unlike
individual discrimination (which might be one person treating another unfairly), institutional
discrimination is systemic, meaning it's part of how things are run, often unnoticed unless
challenged.

📌 Example: One strong example in Kenya is the continued practice of female genital
mutilation (FGM) in some communities. Even though the government passed the Prohibition
of FGM Act (2011), which criminalizes the practice, it still persists due to deep-rooted
traditional beliefs. This shows how societal norms can support discriminatory practices even
when laws are in place to stop them.

📖 Legal Reference: Legal scholar R. Deskoka (1983) emphasizes the role of affirmative action
in combating institutional discrimination. By intentionally promoting access and opportunity for
marginalized groups, affirmative action helps to dismantle long-standing systems of bias that
operate quietly within schools, the workplace, and government institutions.

🔎 In summary, institutionalized discrimination is harder to spot because it often feels “normal”


or culturally accepted — but its impact is deeply unequal and harmful. Tackling it requires
changing both laws and mindsets.

🔹 5. Harassment & Victimisation

Discrimination is not always about being excluded — it can also come in the form of hostile or
intimidating treatment, especially when someone speaks up against injustice. This is where
harassment and victimisation come in.

🔸 Harassment

Harassment refers to unwanted or offensive conduct directed at someone because of their


personal characteristics — such as gender, religion, race, or disability. It can be verbal, physical,
or psychological and creates a toxic or uncomfortable environment.

📌 Example: In the workplace, sexual harassment is one of the most common forms. For
example, if a supervisor keeps making sexual jokes or inappropriate comments toward a
colleague, that is harassment. According to the Employment Act, Section 6, employers are
legally required to prevent and punish sexual harassment in the workplace.

🔸 Victimisation

Victimisation occurs when someone is punished or treated badly because they reported
discrimination or stood up for their rights. It discourages people from speaking out and
undermines justice.
📌 Example: If a worker reports harassment and is later fired or demoted because of it, that’s
victimisation. It sends a message that whistleblowers will suffer — which is exactly what anti-
discrimination laws are designed to prevent.

📚 Case Study: Catherine Mwangi v. Nairobi Hospital (2019)

In this landmark case, Catherine Mwangi filed a complaint after facing sexual harassment at
work. The court found in her favor and awarded her damages for the trauma and injustice she
faced. This case serves as an important reminder that courts in Kenya are increasingly
recognizing and enforcing protections against workplace harassment, and that employers have a
duty of care to protect their employees.

Customs and Traditional Aspects of Discrimination

Definition:
Many forms of discrimination in Kenya are rooted in cultural norms,
traditions, and customary laws, often conflicting with constitutional
equality. These practices disproportionately affect women, ethnic minorities,
and marginalized groups.

A. Gender-Based Discrimination in Customary Practices

1. Female Genital Mutilation (FGM)


o Practice: Despite being outlawed under the Prohibition of FGM Act
(2011), FGM persists in communities like the Kisii, Maasai, and Samburu,
where it’s tied to "rites of passage."

o Legal Conflict: Customary law vs. statutory law. The Children’s Act
(2022) and Anti-FGM Board work to eradicate it, but enforcement is weak
in rural areas.

o Case Example: In 2021, a Kuria village secretly conducted mass FGM


ceremonies, leading to arrests under the FGM Act.

2. Wife Inheritance & Property Disinheritance


o Practice: Among the Luo, Luhya, and Kalenjin, widows are "inherited" by
male relatives, often against their will. Customary law also denies women
inheritance rights.

o Legal Progress: Rono v. Rono (2005) and the Succession Act (1981) now
protect widows’ property rights, but enforcement lags.

3. Child Marriage & Dowry Practices


o Practice: Communities like the Pokot and Somali traditionally marry off girls
as young as 12 in exchange for dowry (livestock, money).

o Law: The Marriage Act (2014) sets the legal age at 18,
but customary/Islamic marriages often bypass this.

B. Ethnicity & Clan-Based Exclusion

1. Tribal Clans and Land Allocation


o Practice: In the Rift Valley, land ownership is historically tied to
Kalenjin/Kikuyu clans, excluding "outsiders."

o Legal Response: The National Land Policy (2009) and Truth, Justice,
and Reconciliation Commission (TJRC) recommended redistributive
justice.

2. "Witchcraft" Accusations Against the Elderly


o Practice: Among the Kisii and Luhya, elderly (especially women) are
branded "witches" and ostracized or killed.

o Case Law: Republic v. Mugo (2017) convicted a mob for lynching an elderly
woman in Kisii.
C. Traditional Justice Systems vs. Formal Law

 Example: Some communities (e.g., Maasai) resolve rape cases through


"compensation" (livestock paid to the father, not the victim), undermining
the Sexual Offences Act (2006).

 Conflict: Article 159 of the Constitution recognizes alternative dispute


resolution (ADR), but it cannot override statutory rights.

D. Affirmative Action vs. Resistance

 Positive Customary Change: The Samburu Women’s Trust trains


female elders ("Ntoyie") to challenge patriarchal norms.

 Backlash: In 2020, a Meru chief was attacked for promoting girls’ education
over early marriage.

Legal & Scholarly References

1. Kevin Kitching (2005): Highlights how international law (e.g., CEDAW)


pressures states to reform discriminatory customs.

2. Sandra Fredman (2011): Analyzes how "indirect discrimination"


frameworks can challenge neutral-seeming traditions (e.g., male-only
inheritance).

3. R. Deskoka (1983): Argues that affirmative action must target culturally


entrenched biases.

Discussion Questions

1. Should Kenya abolish all customary laws that conflict with the Bill of Rights,
or is there value in preserving culture?
2. How can the government better enforce anti-FGM laws in resistant
communities?

Would you like me to integrate this into the full lecture or add more case
studies (e.g., LGBTQ+ discrimination in traditional contexts)?
INTERSECTIONALITY
Introduction to Intersectionality

1.1 Definition and Origins

Intersectionality is a concept that originated in feminist legal and sociological theory,


introduced by Kimberlé Crenshaw in her 1989 paper, "Demarginalizing the Intersection of
Race and Sex." It is a framework used to understand how different systems of oppression (such
as racism, sexism, classism, ableism, and others) intersect to create unique forms of
discrimination that individuals may face. The term intersectionality seeks to explain the
interconnectedness of various forms of social injustice and emphasizes that people's
experiences of oppression or privilege cannot be understood solely through one category like
gender or race, but must consider how multiple factors interact.

Key Idea:

 Traditional Anti-Discrimination Laws: Anti-discrimination laws have often been built


around the assumption that discrimination can be understood through single axes—such
as race, gender, or disability—in isolation. For example, a law may protect women from
gender discrimination or people of color from racial discrimination. However, such
laws often fail to account for people who are affected by both race and gender or other
overlapping identities.

Example: A Black woman may experience discrimination that cannot be fully


understood by looking at either racism or sexism alone. Her experience of oppression is
distinct from that of a Black man (who may face racism but not sexism) or a white
woman (who may face sexism but not racism).

 Intersectionality emphasizes that there is a need to understand the intersection of


race, gender, class, and other factors to better address the unique forms of
discrimination people face.

The Case of Black Women:

Crenshaw's primary example in her 1989 paper involved Black women. She highlighted that
Black women face discrimination in ways that cannot be captured by analyzing gender (as in
the case of white women) or race (as in the case of Black men) alone. For instance, Black
women are often excluded from both gender equality movements (which might focus on the
struggles of white women) and civil rights movements (which may focus on the struggles of
Black men).

Kenyan Context:
In Kenya, intersectionality plays a significant role in understanding discrimination within the
country. Here, certain groups of women—particularly those who are poor, disabled, or come
from rural areas—experience forms of discrimination that are not only rooted in gender but
are compounded by their economic status, location, and disability. A poor, disabled woman
from a rural area may face multiple layers of oppression, including:

1. Gender-based discrimination (as a woman).


2. Economic marginalization (due to her low-income status).
3. Geographic isolation (living in a rural area where resources and opportunities are
scarce).
4. Disability discrimination (if she has a disability that makes access to public services,
education, and work difficult).

On the other hand, a wealthy, able-bodied woman from an urban area like Nairobi may not
face the same degree of intersectional discrimination, despite also being a woman. The
combined effect of her wealth and urban location would afford her better opportunities and
access to resources, compared to a poor, disabled woman in a rural area.

Kenya’s Constitution and Intersectionality:

Kenya's Constitution (Article 27) prohibits discrimination on the grounds of race, gender,
ethnicity, disability, and other factors. However, while the Constitution acknowledges
discrimination, it does not specifically address the intersectional nature of discrimination.
This means that while people may be protected against discrimination based on race or gender,
the unique experiences of those facing multiple layers of oppression are not explicitly
recognized or addressed.

For instance:

 A disabled woman in Kenya might experience gender-based violence, but also lack the
accessibility to seek help due to her disability, leaving her in a vulnerable and
marginalized position that is not fully addressed by laws focused on gender alone.
 Similarly, a rural woman may face economic disenfranchisement, and her gender may
compound her inability to access services like education or healthcare.

Why is Intersectionality Important in the Kenyan Context?

In Kenya, intersectionality helps us understand the complexity of discrimination beyond one-


dimensional categories. It provides a framework for addressing inequalities in a holistic way,
ensuring that policies and laws cater to the multiple factors that affect individuals' lives.

 Intersectionality can inform better policy-making: For example, understanding that


disability and gender intersect in specific ways allows for policies that target the unique
challenges faced by disabled women.
 It pushes for inclusive justice: Ensuring that marginalized groups—those facing
multiple forms of discrimination—receive the protection and resources they need to
thrive.
 Calls for comprehensive laws: The Constitution needs to evolve to not only address
discrimination on a singular basis but also to consider the intersections that affect
marginalized individuals. This might include more specific legal frameworks and
policies designed to tackle intersectional discrimination.

Conclusion:

Intersectionality is a vital concept for understanding the nuanced nature of discrimination in


today's world. In Kenya, as in other countries, people do not experience discrimination solely
based on one social identity—whether that be gender, race, or disability. Instead, the
combination of these factors creates distinct forms of marginalization that cannot be fully
addressed by traditional, single-axis discrimination frameworks. Intersectionality calls for a
broader, more inclusive approach to social justice, demanding that laws, policies, and practices
consider the full complexity of people's identities and experiences.

Intersectional Theory in Feminist Discourse

2.1 Core Principles

Intersectionality in feminist discourse, as proposed by Kimberlé Crenshaw, offers a critical lens


through which we understand how multiple, interlocking systems of oppression work together
to create unique experiences of discrimination and privilege. These systems include racism,
sexism, classism, ableism, and other forms of systemic inequality. The core principles of
intersectionality address both how these systems are interrelated and why analyzing them in
isolation results in an incomplete understanding of inequality.

Interlocking Systems of Oppression

 Oppressions are not independent: Crenshaw's central idea is that systems of


oppression such as racism, sexism, and classism do not exist independently but interact
and reinforce each other. The experience of Black women, for instance, cannot be fully
understood by addressing racism and sexism separately because these forms of
oppression overlap and create a unique, compounded experience.
 Analogy of a woven basket: To explain this, Crenshaw uses the analogy of a woven
basket. Just like a basket's strength relies on the interwoven strands, the combined
effects of multiple systems of oppression create a stronger, more complex form of
discrimination. If one strand is removed (i.e., analyzing just race or just gender), the
overall structure (the experience of discrimination) becomes weaker or incomplete. In
other words, the multiple biases that intersect to create oppression cannot be understood
by focusing on one at a time.
Rejection of Single-Axis Analysis

 Single-axis analysis refers to the traditional approach in both feminist and anti-racist
movements, which tends to address oppression based on one axis (e.g., race or gender).
Crenshaw critiques this because single-axis frameworks fail to capture the lived realities
of people who experience multiple forms of oppression simultaneously.
 Feminism often centers white women: Traditional feminist movements have
predominantly focused on the experiences and challenges of white women, while anti-
racist movements have centered around the experiences of Black men. This leaves
Black women, who face both racism and sexism, invisible and their specific challenges
overlooked.
 Intersectionality exposes this flaw by highlighting that the discrimination faced by
Black women is not just the sum of racism and sexism. It is a distinct form of
discrimination that requires its own analysis.

Structural and Political Intersectionality

 Structural Intersectionality: This concept focuses on how laws, policies, and


institutions fail to account for the experiences of marginalized groups that face multiple
forms of oppression. A relevant example in the Kenyan context is the lack of maternity
protections for informal sector workers (a large proportion of women in Kenya). These
women often face challenges like economic insecurity, lack of access to healthcare,
and discrimination that are not fully addressed by existing labor laws, which may focus
on formal employment or fail to consider gender and class simultaneously.
 Political Intersectionality: This focuses on how advocacy movements or social justice
organizations often exclude certain voices within their campaigns. In Kenya, for
example, feminist groups may focus on issues affecting heteronormative women, but
may marginalize or exclude LGBTQ+ women or other groups who face both gender-
based violence and homophobia. By focusing on a singular identity (e.g., gender or
sexuality), political movements risk leaving out those whose oppression is more complex.

2.2 Key Thinkers

Kimberlé Crenshaw (1989, 1991)

 Crenshaw's Work: Kimberlé Crenshaw is the foundational scholar behind the concept
of intersectionality. Her work, especially her case studies, such as DeGraffenreid v.
General Motors (1976), illustrated how Black women could not be seen as Black (as
Black men are) or women (as white women are). In this case, Black women were
excluded from employment opportunities because they did not fit into the dominant
racial or gender categories.
 Crenshaw’s Influence: She argued that Black women’s lived experiences were erased
by policies that treated race and gender as separate issues. By intersectionally analyzing
issues of race, gender, and class together, Crenshaw demonstrated how discrimination
against Black women could be understood only by analyzing these forms of oppression
together, not separately.
Leslie McCall (2005)

 McCall’s Framework: Leslie McCall extended the idea of intersectionality in her 2005
paper, categorizing it into three distinct approaches:
1. Anticategorical: This approach rejects the use of fixed categories like race and
gender altogether. It challenges the idea that we can divide people into specific
social categories at all, advocating instead for a focus on fluid and dynamic
identities.
2. Intracategorical: This approach focuses on examining particular groups that
exist within the intersection of categories. It studies specific groups, like Black
women, that occupy a unique position in the intersection of multiple systems of
oppression.
3. Intercategorical: This approach involves comparing different categories (e.g.,
Black women vs. Black men or white women) to understand how different
social identities interact and compare across different groups.

Implications of Intersectionality in Feminist Discourse

Intersectionality encourages feminist discourse to evolve from a focus on single-issue


movements toward more inclusive, nuanced approaches that consider multiple forms of
oppression simultaneously. It also pushes for broader justice that takes into account gender as
well as race, class, ability, sexuality, and other factors.

 In feminist discourse, intersectionality has led to a more inclusive definition of


feminism, one that challenges white feminism by embracing the experiences of women
of color, working-class women, and transgender women, among others. Feminist
movements today, particularly in Kenya, are increasingly aware of the intersections
between gender, class, and other forms of social inequality.

Conclusion

Intersectionality is a powerful tool in feminist discourse, helping to better understand the


complex realities of those who experience multiple forms of oppression. It highlights that the
struggle for gender equality cannot be separated from struggles against racism, classism,
ableism, and other forms of social injustice. As Crenshaw and McCall demonstrate, by
examining the intersections of different identities, we can gain a deeper, more comprehensive
understanding of discrimination and work toward real, systemic change.

Would you like to explore intersectionality's application in Kenyan law or any specific areas
such as gender-based violence or disability rights?

Forms of Intersectional Discrimination

Intersectionality as a framework helps us understand how multiple systems of oppression work


together, creating unique experiences of discrimination. The forms of intersectional
discrimination discussed here — multiple discrimination, additive/cumulative
discrimination, and compound discrimination — illustrate different ways in which
overlapping identities and social positions can lead to complex, layered forms of injustice.

3.1 Multiple Discrimination

Definition: Multiple discrimination occurs when an individual experiences discrimination


based on several grounds (such as race, gender, disability, or religion), but the different
biases are treated separately, as if each form of discrimination is isolated from the other.

In the context of Kenya, for example, a Muslim woman might face gender-based
discrimination in the form of lower pay or exclusion from leadership positions within the
workplace. However, she may also face religious discrimination for wearing a hijab, with
employers perceiving it as incompatible with their idea of professional attire. These two types of
discrimination — gender and religion — act simultaneously but are often viewed separately,
failing to capture how they overlap to create a unique form of discrimination.

This scenario highlights the limitations of single-axis analysis, where we treat gender as one
issue and religion as another, without accounting for how the combination of the two creates a
distinct and compounded form of exclusion.

3.2 Additive/Cumulative Discrimination

Definition: Additive or cumulative discrimination occurs when various forms of discrimination


pile up, each one exacerbating the negative effects of the others. It is important to note that
additive discrimination does not necessarily mean the separate types of discrimination interact.
Instead, it suggests that different forms of discrimination add to the marginalization of an
individual or group, making their situation worse.

For example, consider a disabled, low-income woman in Kenya. She might face:

 Ableism: Discriminatory practices due to her disability, such as lack of accessible


public spaces or healthcare services.
 Classism: Her low income limits her ability to access treatment, healthcare, or even basic
education, reinforcing her disadvantaged position in society.
 Sexism: Gender-based stigma, which could include social expectations or
discriminatory behavior from others, particularly in the context of her disability (e.g.,
being viewed as unfit for marriage, work, or participation in social activities).

These separate forms of discrimination accumulate, making the woman's experience of


marginalization more intense. The intersection of ableism, classism, and sexism means that she
does not just face one type of oppression — she faces a confluence of them that deepens her
vulnerability and excludes her from social participation, employment, and public life.

In Kenya, such additive discrimination can often go unrecognized because policies or laws that
address one form of discrimination may fail to acknowledge how other forms of oppression
compound the harm.
3.3 Compound Discrimination

Definition: Compound discrimination occurs when multiple forms of discrimination interact,


creating a unique form of oppression that cannot be understood by simply adding up the effects
of each individual form of discrimination. Unlike additive discrimination, where the forms of
discrimination are treated as distinct and separate, compound discrimination demonstrates how
overlapping systems of oppression interact to create a new, complex form of discrimination.

For example, consider the situation of sexual violence against refugee women in Kenya.
Refugee women often face:

 Gender-based violence (sexual violence, domestic violence), which is rooted in gender


inequality and patriarchal power dynamics.
 Nationality discrimination (xenophobia or ethnic discrimination), where refugee
women may be seen as foreign, marginalized, or treated with suspicion, complicating
their access to legal protections.
 Class-based discrimination (economic vulnerability), where refugee women are often
economically dependent on aid, informal labor, or other precarious sources of income,
leaving them vulnerable to exploitation and abuse.

These forms of discrimination do not just exist in parallel. They interact with one another, and
the unique experiences of refugee women in Kenya cannot be fully understood without
considering how gender, nationality, and class combine to create a distinct form of
oppression. Refugee women’s experiences of sexual violence are compounded by the lack of
legal recourse and the stigma of being a refugee. Moreover, they may be marginalized within
the larger refugee community itself due to gendered roles or prejudices based on their ethnic
backgrounds or economic status.

This form of intersectional discrimination is often overlooked because policies and laws that
address gender violence may fail to recognize the additional challenges faced by refugees,
while policies for refugees may fail to account for the gendered violence they endure. Thus,
compound discrimination requires multifaceted solutions that consider all the dimensions of a
person’s identity and social position.

Discussion and Application in the Kenyan Context

Understanding these forms of intersectional discrimination is crucial for addressing inequalities


in Kenyan society. For example:

1. Multiple Discrimination: The invisibility of Black women, LGBTQ+ individuals, or


rural women in Kenyan policies or legal frameworks can exacerbate the challenges they
face in employment, education, and healthcare. Recognizing the overlap of race,
gender, and class in Kenya can provide better policy responses.
2. Additive/Cumulative Discrimination: The economic vulnerability of rural, disabled
women in Kenya needs a more intersectional approach, where policies address not just
disability but also access to services, social stigma, and economic inequality. For
instance, social welfare programs must integrate gender and disability rights to support
the most vulnerable groups.
3. Compound Discrimination: Refugee women in Kenya, especially from Somalia or
other conflict-affected regions, experience compounded oppression through the
combination of gender violence and xenophobia. Solutions to address gender-based
violence in refugee camps or settlements must account for the intersectionality of their
experiences, providing not only protection from violence but also empowerment
through economic resources, legal support, and social inclusion.

Conclusion

By understanding the different forms of intersectional discrimination, we can see that the
discriminatory practices faced by marginalized individuals are not isolated but interconnected.
These forms of discrimination create more intense barriers to equality and justice. Kenya’s
legal frameworks need to be more inclusive, integrating the complex realities of gender, race,
class, and other forms of social identity to ensure that all individuals, especially those from
marginalized communities, can fully participate in society.

Manifestations of Intersectional Discrimination

Intersectional discrimination, as discussed earlier, operates in complex ways, often combining


multiple forms of oppression that cannot be addressed separately. In Kenya, as elsewhere, these
forms of discrimination manifest in various settings, including the workplace, law and policy,
and gender-based violence (GBV). Let’s break down how intersectional discrimination appears
in these contexts, using both theoretical and Kenyan-specific examples.

4.1 In the Workplace

Sheppard (2011) highlights that labor laws frequently overlook intersectionality, meaning that
multiple forms of discrimination (e.g., gender, race, class) are not addressed together, leaving
marginalized groups unprotected or inadequately supported. This oversight can lead to situations
where discriminatory practices based on the combination of these factors are ignored, or their
full impact is not understood.

Kenya’s Situation: The Employment Act in Kenya prohibits gender discrimination, but this
protection is often inadequate for certain groups. For example, migrant domestic workers,
who are often women from rural areas or other countries, may experience intersectional
discrimination. These women often face race, gender, and class-based exploitation — they
may be mistreated because of their migrant status (race), gender (being women), and
economic vulnerability (class).
 Race: As migrant workers, they might face racial prejudice or be perceived as inferior
to Kenyan nationals.
 Gender: As women, they are more likely to be subject to abuse, exploitation, and
harassment in their workplace (often in private homes).
 Class: Their economic status might make them vulnerable to low wages, long hours,
and poor working conditions.

The Employment Act does not fully capture how these intersecting forms of discrimination
combine to make their experiences of exploitation worse. Migrant domestic workers may not
have legal protections against such compounded oppression, leaving them open to abuse in
ways that are not fully addressed by the law.

4.2 In Law and Policy

Kenya’s Constitution (Article 27(4)) provides broad protections against discrimination based on
characteristics such as race, gender, and disability. However, it does not explicitly recognize
intersectional discrimination, leaving a gap in addressing the complex ways in which multiple
forms of discrimination interact. This can make it difficult for the courts to provide full relief to
individuals who face discrimination based on the combination of their identities.

Example: A woman might file a case for gender discrimination in the workplace, and the court
could rule in her favor. However, if this woman also faces discrimination based on ethnicity (for
example, being from a marginalized community) or disability (such as mobility challenges), the
court may fail to recognize how these additional factors compound her situation.

This gap in recognition means that the legal framework may address gender-based
discrimination but fail to address the combined discrimination she faces due to her race,
disability, or other overlapping characteristics. As a result, the legal relief provided might
only address one layer of the issue, leaving others unaddressed.

4.3 In Gender-Based Violence (GBV)

Kimberlé Crenshaw's work, especially in her 1991 article Mapping the Margins, demonstrates
how women of color, particularly those who are marginalized by race, face higher rates of
gender-based violence (GBV) than white women, but are often underserved by shelters and
legal systems that are designed with a one-size-fits-all approach. This means that women of
color often experience violence that is compounded by social, economic, and cultural factors,
but mainstream GBV services are unable to fully address their unique needs.

Kenya's Situation: In Kenya, Maasai women (often from rural areas) face gender-based
violence in the form of female genital mutilation (FGM), child marriage, and poverty, all of
which intersect to exacerbate their vulnerability. However, mainstream GBV programs often
fail to adequately address the intersectional discrimination faced by these women.

 FGM and Child Marriage: These practices are often rooted in cultural beliefs that
disadvantage women and girls. They are forms of gender-based violence but also
intersect with issues like poverty (where economic dependency may keep women and
girls from seeking help).
 Poverty: Maasai women who are also economically disadvantaged are at a greater risk
of gender-based violence because they may not have access to resources such as
healthcare, education, or legal recourse. Additionally, their rural location may further
isolate them, making it harder to access support services like shelters or counseling.

The lack of tailored programs that address the specific intersectional challenges faced by
Maasai women means that mainstream GBV interventions are often inadequate. These
women may not find shelters that understand their cultural context, or legal systems may not be
sensitive to the intersectionality of their circumstances.

Conclusion

In each of these domains — workplace, law and policy, and gender-based violence —
intersectional discrimination is not simply an accumulation of individual biases but the unique
way in which overlapping systems of oppression interact to create compounded barriers for
marginalized individuals. In Kenya, addressing this intersectionality requires a more nuanced
understanding of how gender, race, class, and other identities combine to shape individuals’
experiences of discrimination.

The current legal frameworks often fail to recognize the complex realities that individuals
face when multiple forms of discrimination intersect. For migrant domestic workers, rural
Maasai women, or other marginalized groups, Kenya needs laws and policies that not only
address single-axis discrimination but also consider the layered nature of discrimination they
face. Only by doing so can Kenya move closer to a more inclusive and equitable society.

Critical Debates & Essay Points on Intersectionality

The concept of intersectionality, as a framework for understanding how overlapping systems of


oppression (e.g., gender, race, class, disability) shape people's experiences, has become a
powerful tool in analyzing social inequality. However, like any theory, it has both strengths and
criticisms, particularly in its application within legal systems like Kenya's.

5.1 Strengths of Intersectionality

1. Exposes Hidden Biases in Law and Society:


One of the main strengths of intersectionality is its ability to reveal biases that are often
overlooked in traditional legal and social analyses. Intersectional analysis brings to light
the complex ways in which marginalized groups (e.g., women of color, disabled
women) experience discrimination that is compounded by multiple factors such as race,
gender, class, or disability. For example, in Kenya, a disabled woman from a rural area
might face different forms of discrimination than an able-bodied woman, yet the law
may only address gender-based discrimination without considering the intersection with
disability or rural poverty.
2. Promotes Inclusive Policymaking:
Intersectionality calls for inclusive and tailored policies that acknowledge the diversity
within marginalized groups. For instance, Kenya’s Sexual and Gender-Based Violence
(SGBV) courts could benefit from intersectional awareness by designing their
services to be more accessible and effective for marginalized women, such as those from
rural communities or with disabilities. This could mean creating legal frameworks that
not only recognize gender violence but also the unique challenges that women face due
to their other identities.
o For instance, rural women or ethnic minorities might face unique barriers to
accessing justice, like language differences or cultural stigmas. An intersectional
approach could ensure that policies are inclusive of these specific needs.

5.2 Criticisms of Intersectionality

1. McCall (2005): Complexity for Legal Frameworks:


Leslie McCall, in her 2005 work, argues that intersectionality can be too complex to be
fully operationalized in legal systems. Intersectionality highlights the nuances and
overlapping axes of identity, which can make it challenging for legal frameworks to
properly address. The idea of multiple, layered discrimination can seem overwhelming,
especially when traditional legal systems are designed to address single-axis
discrimination (e.g., race or gender alone).

In legal systems like Kenya’s, which is still in the process of building capacity for gender
equality and human rights, adopting intersectionality as a guiding principle could be
seen as too ambitious. The complexity of intersectional discrimination could be seen as
a challenge for Kenya’s judicial system, which already faces issues like backlog of
cases, insufficient resources, and lack of legal expertise on nuanced human rights
issues.

2. Counterpoint:
However, this criticism has been met with arguments that intersectionality is not
something to be avoided but embraced to make legal systems more effective and
inclusive. In this context, it’s worth mentioning the South African approach. For
instance, in the case of Mahlangu v. Minister of Labour, South Africa's courts
recognized intersectional discrimination, showing that legal frameworks can adapt to
address compound discrimination.
o South Africa’s Constitution is highly progressive in recognizing intersectional
identities, and its legal system has increasingly addressed issues of multiple
forms of discrimination (e.g., race, gender, disability) within labor laws and
policies.
o Kenya could learn from South Africa’s innovative legal rulings and case law to
expand the legal protection of marginalized groups and ensure that their multiple
identities are taken into account in court cases.
5.3 Application in Exams

When discussing intersectionality in an exam, it’s important to focus on the real-world impact
of the theory and its application in specific legal contexts. Here’s an example of how to structure
an essay on this topic:

 Thesis Statement:
"While Kenya’s Constitution prohibits discrimination, its failure to recognize
intersectionality limits redress for marginalized groups."

This thesis sets the stage for a critical analysis of Kenya’s legal framework in the
context of intersectional discrimination. It clearly acknowledges the constitutional
protections in place while highlighting the gap in fully addressing the complexity of
discrimination based on multiple identities.

 Evidence:
To support this thesis, draw on key sources such as Crenshaw (1989), who discusses the
need for an intersectional approach to understanding discrimination. Sheppard (2011)
is also important, as it discusses how labor laws fail to address the intersection of
gender, race, and class, which is a key issue in the Kenyan context. FIDA-Kenya v.
Attorney General (2018) is a case that can be used to illustrate how gender-based
violence often fails to be fully addressed in Kenya due to the intersectional challenges
faced by women from marginalized groups.
o Crenshaw (1989): Use this to argue that while Kenya’s Constitution prohibits
discrimination on various grounds (race, gender, etc.), it fails to recognize how
these forms of discrimination can overlap and create compounded harm for
marginalized individuals, such as disabled women or rural women.
o FIDA-Kenya v. Attorney General: This case can be used to highlight gender-
based violence as a form of intersectional discrimination, where women from
marginalized communities (e.g., ethnic minorities or rural areas) may not
receive the same protections under the law as more privileged women.
 Solution:
Advocate for legal reforms that explicitly recognize intersectionality and compound
discrimination in Kenya’s legal and policy frameworks. This could involve adopting
South Africa’s approach to intersectional discrimination and ensuring courts consider
the unique challenges faced by women with multiple marginalized identities.

The solution could also involve calling for the implementation of specific policies
aimed at addressing the needs of marginalized groups in sectors like education,
healthcare, and employment.

Conclusion:

While Kenya’s Constitution provides a framework for equal protection under the law, the lack
of recognition of intersectionality means that marginalized groups often find their claims for
justice inadequately addressed. A legal reform that explicitly recognizes compound
discrimination would ensure that individuals who face multiple forms of oppression are
properly supported and protected. This would not only align Kenya with international human
rights standards but also ensure that its legal system is more inclusive and effective in
addressing complex social issues.

Conclusion & Further Study on Intersectionality

Key Takeaway:

The key takeaway from the discussion of intersectionality is that laws and policies must evolve
to address overlapping oppressions that affect marginalized individuals. Intersectionality
provides a framework to understand that discrimination is not isolated to a single axis (e.g.,
gender or race), but rather occurs at the intersection of multiple identity categories such as race,
gender, class, disability, sexual orientation, and more. This perspective reveals that traditional
single-axis approaches to anti-discrimination laws often fail to capture the complexity of lived
experiences for individuals facing compound discrimination.

For example, a disabled, low-income woman in Nairobi might experience discrimination


differently than an abled, middle-class woman, due to the interlocking nature of discrimination
based on gender, class, and disability. This intersectional approach calls for a more nuanced
understanding of how marginalized individuals are impacted by multiple systems of
oppression.

Further Reading

1. Roseberry (2011) – How Age Intersects with Other Discriminations:


Roseberry’s work on multiple discrimination addresses how age intersects with other
identity categories, such as gender and race, in the context of discrimination. This is
particularly relevant when discussing groups like older women, who might face
compounded discrimination in the workplace or healthcare settings. It also explores the
complexity of laws and policies that are insufficient in addressing such intersections.
o Kenya’s Context: The intersection of age with gender in the Kenyan context
could be illustrated through the challenges faced by older women in accessing
employment opportunities, especially in rural areas, where gender roles are
more rigid and age-based discrimination is more pronounced.
2. Kenyan Case Law: Rono v. Rono (succession rights intersecting with
gender/culture):
In the case of Rono v. Rono, succession rights were challenged, with gender and cultural
norms playing a significant role in the decision-making process. This case demonstrates
how cultural traditions and gender-based discrimination can intersect, often placing
women at a disadvantage in matters of inheritance and property rights.
o Implication for Intersectionality: This case serves as an example of how
Kenya's legal system must evolve to account for intersectional oppression,
particularly in the context of family law. Cultural norms (e.g., patriarchy in
inheritance practices) can intersect with gender discrimination, resulting in a
system where women have limited rights. Recognizing intersectionality could
lead to reforms that challenge both cultural practices and gender inequality
simultaneously.

Exam Tip: Use Hypotheticals

In exam scenarios, using hypotheticals is an effective way to showcase depth in understanding


the concept of intersectionality. By presenting a real-world scenario, you can demonstrate how
various forms of discrimination interact and compound the disadvantages faced by certain
groups.

Example Hypothetical: "Discuss how a disabled, low-income woman in Nairobi might face
intersectional discrimination."

 Analysis:
A disabled, low-income woman in Nairobi might face multiple layers of
discrimination. Disability in Kenya is often stigmatized, and access to healthcare or
mobility aids is limited, especially for low-income individuals. At the same time, as a
woman, she may face gender-based discrimination in employment and education.
Additionally, her poverty would limit her access to basic services, leaving her in a
position where she faces discrimination in multiple arenas—healthcare, education,
employment, and even legal access.
 Intersectionality in Action:
This scenario demonstrates how gender, class, and disability create a unique form of
oppression that can't be addressed through a single-axis approach. Legal reforms
should, therefore, acknowledge and address these compounded layers of
discrimination by providing specific support for marginalized groups, such as economic
empowerment programs, access to healthcare, and education, specifically designed
for women and disabled individuals in low-income settings.

Conclusion

In conclusion, intersectionality offers a powerful lens through which to examine and address
social inequality and discrimination. By recognizing that individuals experience multiple forms
of oppression simultaneously, it challenges traditional legal frameworks and calls for inclusive
policies that account for these complex identities. In Kenya, this approach would require the
integration of intersectional thinking into both laws and policies, particularly in areas like
gender-based violence, employment discrimination, and family law.

For further study, it’s important to explore how intersectionality is applied in various legal
contexts, both within Kenya and globally, and examine how existing legal systems can better
serve marginalized populations by recognizing the overlapping nature of discriminatory
practices. The case law examples, such as Rono v. Rono, and insights from further readings,
will help deepen understanding and provide practical frameworks for addressing intersectional
discrimination in both legal and policy contexts.
SEMINAR 5: DOMESTIVE NORMATIVE AND
INSTITUTIONAL FRAMEWORK ON EQUALITY
AND NON-DISCRIMINATION IN KENYA
Introduction to Equality and Non-Discrimination in Kenya

1.1 Conceptualizing Equality and Non-Discrimination

Equality and non-discrimination are foundational principles in modern human rights law and
form the cornerstone of a fair and just society. These concepts are critical when analyzing the
evolution of Kenya's legal framework, particularly in addressing discrimination across various
protected characteristics such as race, gender, disability, religion, and ethnicity.

 Equality: The concept of equality asserts that all individuals, regardless of their identity
or background, should be afforded the same opportunities and treatment. In essence, it
means that individuals should not be subject to arbitrary distinctions that disadvantage
them based on characteristics unrelated to their merit, abilities, or needs.
o Example: A woman applying for a job should not be discriminated against based
on her gender, but rather evaluated on her qualifications and skills.
 Non-discrimination: Non-discrimination goes hand-in-hand with equality, providing a
legal and moral basis for prohibiting differential treatment based on specific
characteristics such as race, gender, disability, age, sexual orientation, and more. It
ensures that individuals are treated fairly, without bias, and with equal consideration in
all aspects of life.
o Example: A person with a disability should not be denied access to public spaces
or services simply because of their disability. Similarly, a person should not be
excluded from education or employment based on race or gender.

Key Question:

How has Kenya’s legal framework evolved from the Independence Constitution (1963) to
the 2010 Constitution in addressing discrimination?

Kenya’s journey toward equality and non-discrimination has been shaped by its constitutional
evolution. The Independence Constitution (1963), the post-independence amendments, and
the 2010 Constitution mark significant milestones in Kenya’s legal framework for addressing
issues of discrimination.

1. The Independence Constitution (1963):


o The 1963 Constitution was drafted after Kenya gained independence, but it did
not prioritize equality or explicitly address non-discrimination. It was largely
based on colonial legal frameworks, and while it provided some basic civil rights,
it failed to provide comprehensive safeguards against discrimination, particularly
along lines such as gender, race, and ethnicity.
o Example: The 1963 Constitution did not grant equal political rights for women,
and ethnic discrimination was often institutionalized in the political structures.
2. Post-Independence Amendments:
o Over time, the 1963 Constitution was amended, particularly in the 1980s and
1990s, but these amendments were mostly incremental and did not significantly
address systemic discrimination. The Kenyan political landscape during these
years was marked by authoritarian rule and political instability, which
hindered meaningful reforms in equality.
o Gender discrimination remained pervasive, particularly in political
representation and access to land and inheritance rights for women.
3. The 2010 Constitution:
o The 2010 Constitution marked a revolutionary shift in Kenya’s legal framework,
explicitly embracing the principles of equality and non-discrimination. It
introduced a bill of rights that guarantees fundamental freedoms and explicitly
prohibits discrimination on the grounds of race, gender, disability, ethnicity,
age, and other categories.
o Article 27 of the 2010 Constitution is a cornerstone of non-discrimination,
stating that “every person is equal before the law and has the right to equal
protection and equal benefit of the law.” It also prohibits discrimination,
ensuring that no one is treated unfairly or given less favorable treatment based on
personal characteristics.
o This constitutional shift provides a stronger foundation for legal action and
advocacy for marginalized groups, including women, persons with disabilities,
and minority communities.

Evolution in Practice:

 Positive Steps: The 2010 Constitution has paved the way for several reforms, such as
the two-thirds gender rule in political representation, aimed at addressing gender
imbalance in political offices. It also provides greater recognition of disability rights,
affirmative action policies, and greater attention to minority groups.
 Challenges and Gaps: While the 2010 Constitution has set a higher standard for
equality and non-discrimination, there are still challenges in implementation, such as
cultural resistance to gender equality, discriminatory practices in the workplace, and
lack of access to justice for marginalized groups. The two-thirds gender rule remains
unimplemented, and marginalized groups, such as LGBTQ+ persons and persons with
disabilities, still face systemic barriers to equality.

Summary:

Kenya’s legal framework has evolved significantly, from a constitution that largely ignored
issues of equality and non-discrimination to one that actively seeks to address these issues. The
1963 Constitution laid the groundwork, but it was the 2010 Constitution that marked a
fundamental shift towards equality and non-discrimination, providing robust legal protections
and paving the way for further reforms. However, the implementation gap and cultural
challenges remain significant hurdles in fully achieving the principles enshrined in the
Constitution.

Historical Context: The Independence Constitution (1963)


2.1 Limited Protections in the 1963 Constitution

The Independence Constitution of Kenya (1963) marked the country's transition from colonial
rule to independence, but it fell short in offering comprehensive protections against
discrimination and ensuring equality for all its citizens. While it provided a foundation for the
legal system, it was limited in scope, especially in terms of safeguarding against discrimination.

1. No Explicit Bill of Rights:


o The 1963 Constitution did not include a Bill of Rights, which is a fundamental
legal document outlining the rights and freedoms of individuals. This was a major
gap in the legal framework, especially in terms of ensuring equality and non-
discrimination.
o Absence of a Bill of Rights meant there were no clear, enforceable rights for
individuals or groups, and citizens had limited recourse if their rights were
violated.
2. Anti-Discrimination Provisions:
o The Constitution did include limited anti-discrimination provisions focusing
mostly on race and ethnicity. These were largely aimed at addressing the
injustices of colonial rule and providing post-colonial redress for European and
Asian minorities, rather than offering broad protections for all groups.
o The anti-discrimination provisions specifically aimed to ensure that European
and Asian communities—who had historically been privileged under colonial
rule—were not marginalized in the new political landscape of an independent
Kenya.
o Example: These provisions focused on preventing the dispossession of property
or discrimination based on race, but they did little to protect women, persons
with disabilities, or other marginalized groups from systemic discrimination.
3. Gender and Customary Law:
o Gender discrimination was deeply entrenched in Kenya’s customary laws
during this period, and the Independence Constitution did not provide strong
legal recourse for women facing gender-based discrimination.
o For instance, inheritance rights were governed by customary law, which
overwhelmingly favored male heirs over female ones. This practice limited
women’s property rights and their economic autonomy.
o Example: Women often faced significant barriers in land ownership and
inheritance, as customary practices in many Kenyan communities gave
inheritance rights exclusively to sons, excluding daughters and wives from
property ownership.
4. Exclusion of Marginalized Groups:
o Groups such as persons with disabilities, LGBTQ+ individuals, and various
ethnic minorities were not adequately recognized or protected under the legal
system.
o Persons with disabilities, for example, had no specific legal protections against
discrimination in education, employment, or accessibility, while LGBTQ+
persons faced both legal and social marginalization.
oThis lack of legal recourse for marginalized communities meant that their rights
were often violated without any clear mechanism for seeking justice or remedies.
5. Limited Political Representation for Women:
o The Independence Constitution did not ensure equal political representation for
women. Women were not explicitly guaranteed the right to participate in politics,
and their representation in elected offices was extremely low.
o This marginalization was compounded by cultural norms and patriarchal
structures that discouraged women from participating in public life.

Key Takeaways:

 Limited Anti-Discrimination Provisions: The 1963 Constitution had narrow anti-


discrimination provisions, primarily aimed at addressing racial and ethnic inequalities
that arose from colonial rule, but left out gender, disability, and other critical grounds of
discrimination.
 No Bill of Rights: Without a Bill of Rights, there were no clear constitutional protections
for individual freedoms, which meant that marginalized groups, especially women and
persons with disabilities, had no strong legal recourse.
 Customary Law: Customary laws, which governed family and inheritance issues,
reinforced gender inequality, particularly disadvantaging women in matters like
inheritance and property ownership.

Conclusion:

While the 1963 Constitution laid the foundation for Kenya’s independence, it was not a robust
tool for addressing the deeper structural inequalities in Kenyan society. It lacked a Bill of
Rights, offered limited protections against discrimination, and perpetuated gender and ethnic
discrimination through customary laws. These gaps were eventually addressed in later legal
reforms, particularly with the adoption of the 2010 Constitution, which significantly broadened
protections for equality and non-discrimination.

The 2010 Constitution: A Transformative Approach

The 2010 Constitution of Kenya represented a significant shift in the country's legal landscape,
with a comprehensive focus on equality and non-discrimination. It provided stronger, more
inclusive protections for all citizens, addressing many of the gaps in the 1963 Independence
Constitution.

3.1 Article 27: The Bedrock of Equality

Article 27 is central to the Constitution’s approach to equality and non-discrimination. It


introduces transformative measures that aim to correct historical injustices and ensure that all
individuals, regardless of their background, have equal rights and protections under the law.

1. Key Provisions of Article 27:


o Art. 27(1): States that "every person is equal before the law." This establishes the
universal principle of equality and ensures that no one is subject to
discrimination before the law, regardless of their identity.
o Art. 27(4): This provision prohibits discrimination on various grounds, including:
 Race
 Sex (including gender)
 Pregnancy
 Marital status
 Health status
 Ethnic or social origin
 Colour
 Age
 Disability
 Religion
 Conscience, belief, and culture
 Dress
 Language
 Birth

This broad anti-discrimination clause extends protections to multiple groups and


categories, ensuring a more comprehensive approach to equality than the limited
scope of protections under the 1963 Constitution.

o Art. 27(8): This provision allows affirmative action to address historical


inequalities faced by marginalized groups, such as women, persons with
disabilities (PWDs), and minorities. Affirmative action can include measures
such as quotas or special programs designed to promote the participation and
advancement of these groups in various sectors (e.g., education, employment,
politics).
2. Judicial Interpretation:
o FIDA-Kenya v. AG (2011): In this case, the Court affirmed that gender
discrimination violates Article 27, solidifying gender equality as a constitutional
right. This case was a pivotal moment in enforcing the rights of women in Kenya
and emphasized the legal obligation of the state to prevent gender-based
discrimination.
o Eric Gitari v. NGO Coordination Board (2015): In this landmark case, the
Court struck down laws that criminalized associations based on sexual
orientation, affirming the right to dignity and the right to non-discrimination
under the 2010 Constitution. This decision represented a significant step in
protecting the LGBTQ+ community in Kenya, an area previously marginalized
by both law and societal norms.

3.2 Key Institutions & Mechanisms

The 2010 Constitution also established institutions and mechanisms to monitor and enforce
equality provisions, ensuring that they are implemented effectively.
1. Kenya National Commission on Human Rights (KNCHR):
o The KNCHR is tasked with monitoring the state’s compliance with human rights
and equality laws. It is an independent institution that plays a crucial role in
advocating for equality and holding the government accountable for its
commitments under the 2010 Constitution.
o The KNCHR engages in advocacy, provides legal aid to victims of
discrimination, and ensures that human rights violations are addressed.
2. National Gender and Equality Commission (NGEC):
o The NGEC focuses specifically on addressing issues affecting marginalized
groups, including women, persons with disabilities, ethnic minorities, and
other vulnerable communities.
o It plays a vital role in promoting gender equality and ensuring that affirmative
action provisions are implemented, especially in areas like political
representation, education, and employment.
3. Judiciary and Public Interest Litigation (PIL):
o The Kenyan judiciary has been instrumental in upholding the rights enshrined in
the 2010 Constitution, especially through the Public Interest Litigation (PIL)
mechanism.
o PIL allows individuals or organizations to file cases on behalf of marginalized
groups, even if they themselves are not directly affected. This is a crucial tool in
ensuring that discrimination and inequality are addressed.
o Baby A v. AG (2014): This case was a significant moment for citizenship rights
in Kenya, where the Court ruled in favor of a child born to a Kenyan mother
and a foreign father, affirming that the child was entitled to Kenyan citizenship.
This ruling furthered the application of equality principles in family law and
citizenship.

Conclusion:

The 2010 Constitution represents a transformative shift in Kenya’s legal framework, ensuring
that equality and non-discrimination are central to the country’s governance. Article 27 of the
Constitution provides a robust framework for addressing inequalities and protecting the rights of
marginalized communities, while key institutions like the KNCHR and NGEC play critical
roles in enforcing these rights. Judicial decisions, such as those in FIDA-Kenya v. AG and Eric
Gitari v. NGO Coordination Board, demonstrate the Constitution’s commitment to equality,
even in areas previously neglected, such as gender equality and LGBTQ+ rights. These legal
reforms have positioned Kenya as a leader in the region in terms of promoting constitutional
rights and non-discrimination.

Judicial Interpretation of Equality & Non-Discrimination

Kenya's 2010 Constitution places a strong emphasis on equality and non-discrimination, not
only in public spaces but also in private entities. The judiciary has been instrumental in
interpreting and enforcing these principles, ensuring that legal protections extend to all aspects of
life, from socio-economic rights to private sector practices. Below are key cases and emerging
trends that highlight the ongoing evolution of equality and non-discrimination in Kenya’s legal
framework.

4.1 Landmark Cases

1. Mitu-Bell Welfare Society v. Kenya Airports Authority (2021):


o Issue: The case revolved around the forced evictions of informal settlers at
Mombasa’s Kipevu area by the Kenya Airports Authority (KAA), who were
seeking to expand the port area.
o Ruling: The Court ruled that the State must respect the socio-economic rights of
marginalized groups, including informal settlers. The evictions were declared
unconstitutional because they violated the rights of the residents to adequate
housing and dignity, particularly since the evictions did not follow due process or
offer viable alternatives.
o Significance: This case reinforced the principle of substantive equality, which
goes beyond formal equality (i.e., treating everyone the same) to address
historical disadvantages and ensure fairness in the application of rights. It
marked a significant step in recognizing that marginalized groups must not be
disproportionately affected by state actions.
2. Rose Wangui Mambo v. Limuru Country Club (2014):
o Issue: The case involved gender discrimination in the practices of a private
club. Rose Wangui Mambo, a woman, had been denied membership at the
Limuru Country Club, which was a men-only club.
o Ruling: The Court ruled that the club’s practice of excluding women from
membership violated Article 27 of the Constitution, which prohibits
discrimination based on gender. The Court extended the application of
constitutional non-discrimination provisions to private sector entities,
affirming that private clubs and organizations must adhere to the principles of
equality and non-discrimination as enshrined in the Constitution.
o Significance: This case expanded non-discrimination beyond the public sector,
showing that private entities (like clubs, businesses, and employers) must also
comply with constitutional equality provisions.
3. Samow Mumin Mohamed v. Ministry of Interior (2014):
o Issue: This case involved the ethnic profiling of Somali Muslims by the Kenya
Police, particularly in the aftermath of terrorism-related incidents in Kenya.
Samow Mumin Mohamed, who had been detained and harassed by police,
challenged the practice as unconstitutional.
o Ruling: The Court ruled that ethnic profiling based on nationality or ethnicity is
unconstitutional. It affirmed that such profiling violated the rights of individuals
to equality and non-discrimination.
o Significance: The ruling was important in protecting minority groups, especially
Somali Muslims, from systemic discrimination and highlighted the Court's role
in upholding constitutional protections against ethnic bias.
4.2 Emerging Trends

1. Horizontal Application (Art. 20(1)):


o Article 20(1) of the Constitution ensures that fundamental rights and freedoms
bind both public and private actors. This means that individuals, employers,
private clubs, and other private institutions are also subject to the Constitution's
non-discrimination provisions.
o Example: In the case of Rose Wangui Mambo v. Limuru Country Club, the
Court applied Article 27 to a private entity, extending equality protections to the
private sector. This emerging trend ensures that non-discrimination is not limited
to state actions but applies across all sectors of society.
2. Substantive Equality:
o Substantive equality goes beyond formal equality (treating everyone the same)
to consider historical disadvantages and structural inequalities. The Court has
been increasingly willing to consider contextual factors, such as poverty,
historical oppression, or disability, in its decisions.
o Example: In the case Mary Masinde v. Vihiga County (2015), the Court
addressed women’s land rights and considered the discriminatory impact of
customary practices, which often disadvantage women in rural communities,
particularly when it comes to inheritance rights. The decision was a step toward
ensuring substantive equality by acknowledging that some individuals face
compounded disadvantages based on their gender and social status.
3. Intersectionality:
o Intersectionality is becoming a critical framework in interpreting discrimination
in Kenya. Courts are increasingly recognizing that individuals may face multiple
forms of discrimination simultaneously (e.g., gender and disability, race and
socio-economic status). The AIDS Law Project v. AG (2015) case is a notable
example, where the Court recognized that HIV status and gender together
created unique forms of discrimination against women.
o Example: In AIDS Law Project v. AG, the Court addressed the intersectional
discrimination faced by women living with HIV, who often suffer compounded
stigma due to their gender and health status. The ruling emphasized the need for
legal protections that consider the intersecting factors that contribute to an
individual's vulnerability to discrimination.

Conclusion:

The judicial interpretation of equality and non-discrimination in Kenya reflects an evolving


understanding of justice that extends beyond formal legal equality. Through landmark cases, the
judiciary has interpreted the 2010 Constitution to ensure equal protection against
discrimination for all, regardless of their social, ethnic, or gender identity. The growing trend
toward horizontal application of rights, the embrace of substantive equality, and the
recognition of intersectionality are crucial in ensuring that all marginalized and vulnerable
groups are protected. These trends demonstrate Kenya's commitment to not just equality before
the law, but to substantive fairness that addresses historical inequalities and multiple forms
of discrimination.
5. Gaps & Challenges in Equality and Non-Discrimination in Kenya

While Kenya has made significant strides in promoting equality and non-discrimination through
its 2010 Constitution, there remain several gaps and challenges that undermine the effective
implementation of these rights. These challenges range from a lack of comprehensive anti-
discrimination laws to cultural resistance, and they often prevent marginalized groups from fully
benefiting from the constitutional protections afforded to them. Below is an exploration of these
gaps and challenges:

5.1 Lack of Comprehensive Anti-Discrimination Legislation

 Problem: Unlike countries like South Africa, which has the Promotion of Equality and
Prevention of Unfair Discrimination Act (PEPUDA), Kenya's legal framework
primarily relies on constitutional litigation to address discrimination. While the 2010
Constitution contains strong anti-discrimination provisions under Article 27, there is no
detailed, standalone anti-discrimination law that provides practical guidance for
enforcement.
o Consequences: This gap means that individuals who experience discrimination
often face procedural hurdles in accessing justice. Victims of discrimination in
Kenya typically have to rely on the judiciary and litigation through the courts,
which can be a lengthy and expensive process. Additionally, there are few clear
mechanisms for public accountability or government enforcement of the non-
discrimination provisions. The absence of clear anti-discrimination legislation
also means that the law lacks the specificity that could provide guidance for
judicial officers and administrators in dealing with discrimination claims.
o Example: A victim of racial discrimination in the workplace or gender-based
violence may struggle to find adequate legal recourse if their case does not fit
neatly within existing legal frameworks. The constitutional approach requires
individuals to bring cases before the courts, often without clear legal protections
and processes for addressing such issues comprehensively.

5.2 Weak Enforcement of Affirmative Action

 Problem: The two-thirds gender rule (Article 27(8)) was established to promote gender
equality in elective positions, ensuring that no gender occupies more than two-thirds of
the positions. However, Parliament has failed to fully implement this rule despite
court orders and constitutional mandates. The failure to pass enabling legislation has
been a major obstacle to its enforcement, and the issue remains a point of contention in
Kenya's political landscape.
o Consequences: The lack of political will and resistance from male politicians
have delayed the implementation of this key affirmative action provision. As a
result, women remain underrepresented in Parliament and other elected bodies.
Women’s participation in political decision-making remains constrained by the
absence of effective legislation to ensure gender parity. This is despite the
constitutional mandate for equal representation and the explicit recognition of
affirmative action in the Constitution. Furthermore, without a clear enforcement
mechanism, it is difficult to hold individuals or institutions accountable for non-
compliance with the two-thirds gender rule.
o Example: The Gender Principle Bill (2018 and 2020), which sought to
implement the gender rule, lapsed in Parliament twice due to lack of quorum and
political resistance, showcasing the weak enforcement of affirmative action
laws. Male MPs often sabotage or delay the passage of such laws to maintain
male-dominated power structures.

5.3 Cultural Resistance

 Problem: Cultural attitudes and traditional practices continue to undermine legal


protections for marginalized groups, especially in rural areas. While Kenya’s
Constitution and various laws have affirmed the rights of women, ethnic minorities, and
persons with disabilities, these rights are not always upheld in practice, particularly in
regions where customary law prevails over statutory law. Cultural resistance to gender
equality, inheritance rights, and other forms of legal empowerment for women and
marginalized communities remains prevalent.
o Consequences: Enforcement of legal rights in rural areas, especially concerning
gender equality, can be challenging due to the strength of patriarchal customs.
Despite court rulings in favor of women’s rights (such as inheritance rights),
traditional attitudes often result in weak enforcement and resistance to changing
practices. In some communities, women may still be denied inheritance rights
or excluded from decision-making processes despite judicial rulings affirming
their constitutional rights.
o Example: The ZAK v. MA (2013) case involved a land inheritance dispute,
where the Court upheld the right of women to inherit property. However,
despite the Court’s ruling, the enforcement of these rights is still weak in rural
areas, where customary laws prioritize male inheritance. Cultural norms often
conflict with statutory law, leading to resistance from family members and
communities who uphold patriarchal practices, leaving women vulnerable to
discriminatory customs.

Conclusion

While the 2010 Constitution of Kenya has made significant strides in ensuring equality and
non-discrimination, several gaps and challenges remain that hinder the full realization of these
rights. The lack of comprehensive anti-discrimination legislation, weak enforcement of
affirmative action policies, and cultural resistance to legal changes continue to impede
progress. To address these challenges, there is a need for:

 A comprehensive anti-discrimination law that clearly outlines procedures for


enforcing equality.
 Political will to enforce the two-thirds gender rule and address cultural resistance to
gender and social equality.
 Awareness campaigns to challenge discriminatory cultural practices and encourage
respect for constitutional rights.

Without addressing these gaps, marginalized communities—particularly women and minorities


—will continue to face systemic barriers in accessing justice and achieving equality in Kenya.
SEMINAR 6: COMPARATIVE NORMATIVE AND
INSTITUTIONAL FRAMEWORKS ON EQUALITY
AND NON-DISCRIMINATION
Introduction to Comparative Equality Frameworks

The concept of equality and non-discrimination is a cornerstone of modern legal systems


globally. Many countries, including Kenya, draw inspiration from international and regional
legal frameworks when crafting their constitutions and laws. A comparative approach to
studying equality frameworks offers valuable insights into how various legal systems tackle
issues of discrimination and marginalization. By comparing Kenya’s legal framework with that
of South Africa, the United States, and international human rights norms, we can identify
strengths, weaknesses, and lessons that can improve Kenya's legal approach to equality.

1.1 Why Compare?

Legal systems often borrow and adapt principles from other jurisdictions that have faced similar
challenges in addressing discrimination and promoting equality. Comparative law helps legal
practitioners, academics, and policy-makers gain insights into best practices and innovative
solutions that might work within their own legal contexts. Studying international and regional
equality frameworks enables countries like Kenya to learn from the experiences of others,
particularly from jurisdictions that have successfully implemented laws promoting gender
equality, racial justice, and protection for marginalized communities.

For example, Kenya's 2010 Constitution drew significant inspiration from South Africa’s 1996
Constitution, which is widely regarded as one of the most progressive in the world concerning
equality and human rights protections. Germany and Canada also serve as notable sources of
inspiration, particularly regarding their commitment to non-discrimination and affirmative
action in both public and private sectors.

Key Question: How Do South Africa, the US, and International Systems Address
Discrimination, and What Lessons Can Kenya Learn?

This key question encourages a deeper exploration of how countries with strong legal traditions
of equality have approached the issue of discrimination. By analyzing their legal frameworks,
we can identify key differences and similarities with Kenya’s constitutional and legislative
approaches, along with lessons that Kenya can draw upon for reform. Below is an overview of
how South Africa, the United States, and international human rights systems address
discrimination:
South Africa: A Progressive Constitution with Strong Equality Provisions

South Africa’s 1996 Constitution is a model of progressive legal reform, particularly in the area
of equality and non-discrimination. Key features include:

 Bill of Rights: The South African Constitution has a robust Bill of Rights that prohibits
discrimination on various grounds, including race, gender, sexual orientation, disability,
and age. This is similar to Kenya’s Article 27, but South Africa also explicitly recognizes
intersectionality in its legal framework.
 Equality Court: South Africa established an Equality Court to handle discrimination
cases swiftly. This court is specialized in ensuring that individuals who experience
discrimination can seek redress without facing the lengthy legal processes common in
regular courts.
 Affirmative Action: South Africa employs affirmative action policies aimed at
correcting the historical injustices of apartheid. These policies are applied in public and
private sectors to promote racial and gender equality.

Lessons for Kenya: Kenya could benefit from establishing a specialized Equality Court to
handle discrimination cases, thereby ensuring faster and more efficient justice. Moreover,
affirmative action mechanisms, particularly in education and employment, could be
strengthened to promote inclusivity.

United States: Civil Rights and Anti-Discrimination Law

In the United States, the battle for civil rights has been shaped by the Civil Rights Movement
and landmark legislation such as the Civil Rights Act of 1964, the Voting Rights Act of 1965,
and the Americans with Disabilities Act (ADA) of 1990. Key features include:

 Equal Protection Clause: The 14th Amendment guarantees equal protection under the
law, prohibiting discrimination by the state based on race, religion, gender, and national
origin. The US Supreme Court has played a critical role in interpreting and enforcing
this clause.
 Civil Rights Act of 1964: This comprehensive piece of legislation prohibits
discrimination on the grounds of race, color, religion, sex, or national origin in
employment, public accommodations, and education. It laid the foundation for the
affirmative action policies in higher education and public employment.
 Federal Anti-Discrimination Agencies: The Equal Employment Opportunity
Commission (EEOC) and Department of Justice play key roles in enforcing anti-
discrimination laws and investigating complaints.

Lessons for Kenya: Kenya could look to the US civil rights framework for establishing
stronger anti-discrimination agencies that have the capacity to monitor and address
discrimination. Additionally, Kenya might benefit from affirmative action policies modeled
after those in the US to promote equality in sectors like employment and education.
International Systems: UN Human Rights Framework

At the international level, various human rights treaties and conventions address equality and
non-discrimination, such as:

 Universal Declaration of Human Rights (UDHR): The UDHR emphasizes the right to
equality and prohibits discrimination. The International Covenant on Civil and
Political Rights (ICCPR) and the International Covenant on Economic, Social, and
Cultural Rights (ICESCR) further develop these rights.
 Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW): This international treaty specifically addresses gender-based
discrimination and mandates state parties to eliminate such discrimination in all areas,
including political participation, employment, and family rights.
 Convention on the Rights of Persons with Disabilities (CRPD): This convention
emphasizes the importance of addressing discrimination against people with disabilities
and mandates reasonable accommodation and equal access in various sectors,
including education, employment, and healthcare.

Lessons for Kenya: International human rights treaties such as CEDAW and the CRPD provide
important guidance for Kenya in strengthening its legal framework to better protect
marginalized groups, such as women and persons with disabilities. Kenya could improve
international compliance by ensuring that its domestic laws align with these treaties and
monitoring mechanisms for effective enforcement.

Conclusion: Comparative Insights for Kenya

Comparing Kenya's equality framework with those of South Africa, the US, and international
human rights norms highlights several key lessons:

 Specialized Courts: Like South Africa’s Equality Court, Kenya could benefit from
establishing specialized courts or tribunals to handle discrimination cases, ensuring
quicker resolution and specialized expertise.
 Affirmative Action: South Africa’s robust affirmative action policies and the US civil
rights framework offer valuable lessons on promoting inclusivity in sectors such as
education and employment, areas where Kenya could strengthen its own policies.
 International Alignment: Kenya should continue to align its laws with international
human rights standards, particularly concerning gender equality and the rights of
marginalized groups.

By incorporating these lessons into Kenya's legal system, the country can enhance its ability to
address discrimination and promote equality in a more comprehensive and effective manner.
South Africa: A Global Leader in Equality Law

South Africa has emerged as a global leader in the realm of equality and anti-discrimination
law, largely due to the progressive nature of its Constitution and jurisprudence. After the end
of apartheid in 1994, South Africa sought to dismantle systemic racial, gender, and social
inequality through constitutional reforms. Below, we explore South Africa's constitutional
framework, landmark jurisprudence, and how these aspects provide lessons for Kenya in
addressing equality and non-discrimination.

2.1 Constitutional Framework

Section 9 of the South African Constitution

The South African Constitution is a model of progressive legal reform, particularly when it
comes to equality and non-discrimination. Section 9 (often referred to as the Equality Clause)
provides the legal foundation for equality in the country:

 9(1): "Everyone is equal before the law." This provision guarantees formal equality,
meaning that individuals must be treated equally under the law, without discrimination.
 9(3): Prohibits discrimination on various grounds, including race, gender, sexual
orientation, disability, and other grounds that historically led to marginalization.
 9(4): Allows affirmative action measures to promote equality. This includes policies like
Black Economic Empowerment (BEE) aimed at addressing the racial and economic
inequalities caused by apartheid.

Key Difference from Kenya

While South Africa has a comprehensive constitutional and legislative framework designed to
combat discrimination, including the Promotion of Equality and Prevention of Unfair
Discrimination Act (PEPUDA) of 2000, Kenya lacks a similar dedicated anti-discrimination
law. In Kenya, most anti-discrimination provisions are embedded in the Constitution (e.g.,
Article 27), but the absence of a standalone law like PEPUDA means that discrimination cases
are often handled through constitutional litigation, which can be slower and less efficient.

 PEPUDA provides a detailed framework for individuals who experience discrimination


to seek redress and for the state to enforce policies promoting equality.
 Kenya would benefit from PEPUDA-style legislation to create a clearer and more
practical approach to fighting discrimination in all spheres of life.

2.2 Landmark Jurisprudence


South Africa's jurisprudence has been instrumental in shaping the legal landscape on issues of
equality and non-discrimination. The following landmark cases demonstrate how the country's
courts have tackled issues of gender discrimination, sexual orientation, employment
discrimination, and indigenous rights.

A. Gender & Inheritance

 Bhe v Khayelitsha Magistrate (2005): This case is a landmark decision in which the
South African Constitutional Court abolished the male primogeniture (the tradition that
gave inheritance rights only to male heirs) under customary law. The Court ruled that the
practice was discriminatory against women, violating Section 9 of the Constitution.
 Kenyan Link: This ruling can be compared to Rono v Rono (2005) in Kenya, where the
High Court ruled on inheritance rights under customary law. However, Kenya still
struggles with the tension between customary law and constitutional rights. The
implementation of constitutional reforms related to inheritance and gender equality in
Kenya remains challenging, particularly in rural areas.

B. Sexual Orientation

 Minister of Home Affairs v Fourie (2006): This case legalized same-sex marriage in
South Africa, marking a milestone in the country's commitment to dignity and equality.
The Court found that the failure to recognize same-sex marriage violated the
Constitution.
 Contrast with Kenya: In Kenya, the Eric Gitari v NGO Coordination Board (2015)
ruling decriminalized LGBTQ+ associations, but the country has not legalized same-
sex marriage. South Africa’s legal recognition of same-sex marriage stands in stark
contrast to Kenya’s more conservative stance on LGBTQ+ rights.

C. Employment Discrimination

 Hoffman v South African Airways (2000): In this case, the Constitutional Court ruled
that discrimination based on HIV status is unconstitutional. A job applicant who was
HIV-positive was unfairly denied employment, and the Court found this discriminatory,
highlighting the importance of dignity and non-discrimination in employment law.
 Kenyan Equivalent: In AIDS Law Project v Attorney General (2015), the Kenyan
High Court ruled that discrimination based on HIV status is also unconstitutional. Both
South Africa and Kenya have similar legal approaches in protecting individuals from
discrimination based on health status, but South Africa’s case law is more developed,
with broader implications for employment discrimination.

D. Indigenous Rights

 Endorois Welfare Council v Kenya (2010): This case before the African Commission
on Human and Peoples’ Rights (ACHPR) recognized indigenous land rights under
the African Charter. The decision influenced the development of Kenya's Community
Land Act (2016), which aims to protect the land rights of indigenous communities.
 Impact: The Endorois case is a direct link between international jurisprudence and
domestic law in Kenya. It demonstrates how African human rights frameworks can
influence national laws to better protect the rights of marginalized groups, such as
indigenous communities.

Key Lessons for Kenya

 Dedicated Anti-Discrimination Legislation: South Africa's PEPUDA is a strong


example of a comprehensive legal framework that Kenya could model in order to
streamline anti-discrimination measures. Kenya’s current reliance on constitutional
litigation is not as efficient as having a dedicated law like PEPUDA.
 Affirmative Action and Equality in Employment: South Africa's emphasis on
affirmative action policies, including the Black Economic Empowerment (BEE)
program, has allowed the state to actively address the legacy of apartheid through
positive discrimination. Kenya could develop more robust affirmative action policies
for women, youth, marginalized communities, and persons with disabilities in various
sectors, including employment and education.
 Inclusion of Sexual Orientation in Legal Frameworks: South Africa's legal
recognition of same-sex marriage represents a commitment to equality for LGBTQ+
individuals. Kenya could take a more progressive stance on LGBTQ+ rights,
particularly in terms of legal recognition and protection from discrimination.

Conclusion

South Africa’s Constitutional framework and landmark jurisprudence serve as guiding


principles for countries like Kenya that are striving to address inequality and discrimination.
By learning from South Africa’s experience, particularly its anti-discrimination laws and
affirmative action policies, Kenya can continue to improve its legal frameworks to protect
marginalized groups and promote substantive equality. Key reforms, including the creation of
a dedicated anti-discrimination law, enhanced affirmative action measures, and the legal
recognition of sexual orientation could help Kenya progress toward a more inclusive and
equal society.

United States: From Segregation to Substantive Equality

The United States has a long history of legal battles and reforms aimed at addressing racial
inequality and discrimination. The country’s journey from legal segregation to efforts toward
substantive equality is central to understanding how legal systems can evolve to address deep-
rooted societal inequalities. Key moments in U.S. history, such as the Plessy v Ferguson and
Brown v Board of Education rulings, along with ongoing debates over affirmative action,
offer valuable lessons for countries like Kenya, particularly as it strives to address equality and
non-discrimination within its legal framework.
3.1 The Civil Rights Journey

Plessy v Ferguson (1896)

In Plessy v Ferguson (1896), the U.S. Supreme Court upheld the doctrine of "separate but
equal", which legally sanctioned racial segregation in public facilities and services. This
decision enshrined a system of institutionalized racism, where Black Americans were relegated
to separate, inferior public spaces (e.g., schools, transportation, bathrooms) under the false
assumption that they were equal in quality.

 Key Issue: Racial segregation was considered constitutionally acceptable as long as the
separate facilities were deemed to be equal in quality. In practice, however, this led to
significant inequalities.
 Impact on the U.S.: This decision institutionalized racial discrimination and was a
key pillar of Jim Crow laws that enforced racial segregation in the U.S. for nearly six
decades.

Brown v Board of Education (1954)

In a landmark ruling, Brown v Board of Education (1954) overturned Plessy v Ferguson by


declaring that racial segregation in public schools was inherently unequal. The ruling marked a
pivotal moment in the civil rights movement and paved the way for further dismantling of
legalized segregation in the U.S.

 Key Concept: The Brown decision was significant because it shifted the legal
understanding of equality from formal equality (equal treatment) to a more substantive
understanding, which recognizes that simply treating people equally under the law does
not address deep historical and structural inequalities.
 Impact on the U.S.: Brown is a foundational case in the evolution of U.S. civil rights
law, influencing future decisions on desegregation, voting rights, and broader equality
issues.

Key Concept: Formal vs. Substantive Equality

Formal Equality

 Formal equality refers to the equal treatment of individuals under the law, typically
achieved through race-blind or gender-blind policies. This concept assumes that
treating everyone the same ensures fairness.
 Example: In the U.S., a "color-blind" or "race-neutral" policy that does not take race
into account in decision-making processes (e.g., employment or university admissions).
 Limitations: Formal equality often overlooks the historical context and systemic
disadvantages faced by marginalized groups, which can result in perpetuating inequality
even in a legally equal society.

Substantive Equality

 Substantive equality goes beyond equal treatment and addresses the historical
disadvantages faced by specific groups. This approach recognizes that equal treatment
does not automatically result in equal outcomes, particularly for those who have been
historically marginalized.
 Example: Affirmative action programs that actively promote the inclusion of
disadvantaged groups in education, employment, and other public spheres are examples
of substantive equality. These programs seek to level the playing field and ensure that
historically disadvantaged groups, such as Black people or women, have real
opportunities.
 Kenyan Context: Article 27(8) of Kenya's Constitution allows for affirmative action to
address inequalities, but the implementation of these measures, such as the two-thirds
gender rule for political representation, has been ineffective or incomplete in practice.
This reflects a need for substantive measures that go beyond formal equality.

3.2 Affirmative Action Debates

The debate over affirmative action in the U.S. has been central to the discussion of how to
balance equality of opportunity with the need to address past discrimination. Affirmative
action policies are designed to create more inclusive opportunities for historically marginalized
groups, but they have also been a source of controversy.

Grutter v Bollinger (2003)

In Grutter v Bollinger (2003), the U.S. Supreme Court upheld the use of race-conscious
university admissions policies at the University of Michigan Law School. The Court found that
considering race as one of many factors in admissions was necessary to promote diversity and
remedy the historical exclusion of Black and Latino students from higher education.

 Key Ruling: The ruling allowed for the use of affirmative action in university
admissions, but emphasized that it should be limited and not the sole determining factor
in decisions. The goal was to ensure that applicants from historically disadvantaged racial
and ethnic groups had the opportunity to contribute to diverse academic environments.
 Impact: The ruling reaffirmed that affirmative action is a valid tool for promoting
diversity and addressing inequality, but it also set limitations to prevent the over-
reliance on race as a sole determinant of admissions.
Kenyan Context: Affirmative Action and the Two-Thirds Gender Rule

In Kenya, Article 27(8) allows for affirmative action to promote equality and representation
for marginalized groups, such as women and persons with disabilities. However,
implementation has been slow and incomplete, particularly with regard to the two-thirds
gender rule, which mandates that no more than two-thirds of members of any public office
should be of the same gender.

 Example: Despite constitutional mandates, the Kenyan Parliament has failed to fully
implement the two-thirds gender rule, and women remain underrepresented in key
decision-making bodies. This illustrates how formal constitutional provisions often fall
short without strong political will and effective affirmative action policies.

Key Takeaways for Kenya

 Substantive vs. Formal Equality: Like the U.S., Kenya must move beyond formal
equality and adopt more substantive measures that address the historical and
structural inequalities faced by marginalized groups. Affirmative action policies in
Kenya need to go beyond gender quotas to ensure real social and economic
opportunities for disadvantaged groups.
 Affirmative Action: Kenya can learn from the U.S. debate over affirmative action by
recognizing that these policies are necessary to remedy the long-term impacts of
discrimination. However, they must be targeted and time-bound, with clear metrics for
success to ensure that they are not just symbolic but have real-world impact.
 Lessons from the U.S. Experience: While Kenya’s affirmative action efforts have
faced implementation challenges, the Grutter v Bollinger case and the ongoing debates
in the U.S. over affirmative action provide valuable lessons in balancing diversity with
equality. Kenya's legal reforms in education, employment, and political participation
can draw on these lessons to craft more inclusive and effective policies.

African Regional Frameworks on Equality and Non-Discrimination

The African regional legal framework plays a crucial role in shaping the continent's approach
to equality and non-discrimination. Key instruments such as the African Charter on Human
and Peoples’ Rights (ACHPR) and the African Court on Human and Peoples’ Rights
(AfCHPR) provide critical protections for marginalized groups, particularly women, people with
disabilities, and minorities. These frameworks are essential in advancing human rights across the
continent and ensuring that African states adhere to their obligations under international law to
protect citizens from discrimination.

4.1 African Charter on Human and Peoples’ Rights (ACHPR)


The African Charter on Human and Peoples’ Rights (ACHPR) is a significant regional
human rights instrument adopted in 1981 by the Organisation of African Unity (OAU), now
the African Union (AU). It seeks to promote and protect human rights in Africa, including
equality and the prohibition of discrimination.

Key Provisions

1. Article 2: Prohibition of Discrimination


o Article 2 of the ACHPR prohibits discrimination on any grounds, including race,
gender, language, religion, political or other opinion, national or social
origin, fortune, birth, or other status.
o This provision enshrines the right to non-discrimination as a core value,
emphasizing that all individuals are entitled to enjoy their human rights and
freedoms without discrimination.
2. Article 18(3): Women's Rights Protection
o Article 18(3) specifically recognizes and protects the rights of women and
requires States Parties to take all necessary measures to eliminate
discrimination against women and promote gender equality.
o This provision is particularly important in advancing women's rights across the
continent, including access to equal opportunities, legal protections, and freedom
from gender-based violence.

Key Cases Under the ACHPR

1. Egyptian Initiative for Personal Rights v Egypt


o Case Summary: The Egyptian Initiative for Personal Rights v Egypt case
addressed forced HIV testing by the government and its violation of individuals’
privacy rights and freedom from discrimination based on health status.
o Outcome: The African Commission found that forced HIV testing violated
human rights and called on the Egyptian government to cease these practices.
o Significance: This case highlights the protection of personal dignity, health
rights, and freedom from discrimination based on health status.
2. Equality Now v Ethiopia
o Case Summary: The Equality Now v Ethiopia case focused on gender-based
violence (GBV) and States' obligations to protect women from such violence.
o Outcome: The African Commission found that Ethiopia had failed to take
sufficient measures to prevent and address GBV, particularly female genital
mutilation (FGM) and early marriage.
o Significance: The case emphasized the state's responsibility to ensure that
women and girls are protected from violence and that national laws must reflect
and protect international human rights standards.

4.2 African Court on Human and Peoples' Rights (AfCHPR)


The African Court on Human and Peoples’ Rights (AfCHPR) was established in 2004 to
complement the ACHPR by providing judicial protection of human rights across the continent.
The Court has been instrumental in addressing cases of discrimination and inequality by
interpreting African human rights law.

Key Case: APDF v Mali (2018)

 Case Summary: In the case of APDF v Mali (2018), the African Court recognized
women’s reproductive rights as fundamental human rights. The case involved Mali's
discriminatory laws regarding reproductive health, particularly laws that denied
women access to safe abortion and reproductive health services.
 Outcome: The Court ruled that the failure to guarantee reproductive rights for women
was a violation of the ACHPR and other international human rights standards.
 Significance: This ruling was pivotal in affirming reproductive rights as essential
human rights, emphasizing that state parties must take concrete steps to ensure that
women have access to safe reproductive health services.

Implications for Kenya

 The African Charter and the African Court provide strong frameworks for non-
discrimination and equality. Kenya, as a member of the African Union, is obligated to
adhere to these standards, particularly the prohibition of discrimination on various
grounds (e.g., gender, disability, ethnicity) and the protection of women's rights.
 Kenya can draw valuable lessons from cases like Equality Now v Ethiopia, where
gender-based violence was a central issue. Kenya has similar challenges regarding
gender-based violence and female genital mutilation (FGM), and it is crucial for the
government to strengthen its commitment to ending such practices and providing
adequate protections for women and girls.
 The APDF v Mali case underscores the importance of ensuring that women's
reproductive rights are protected by law. Kenya has made significant strides in
maternal health and women’s rights, but issues like unsafe abortions and access to
reproductive health services continue to present challenges that need to be addressed at
both legal and policy levels.

Conclusion

The African regional frameworks represented by the ACHPR and the African Court play a
vital role in advancing equality and non-discrimination across the continent. By incorporating
provisions that protect women’s rights, prohibit discrimination, and provide legal avenues for
redress, these frameworks help ensure that states are held accountable for their obligations under
international human rights law.
Kenya can learn from key cases and regional legal precedents to strengthen its own efforts to
tackle discrimination, especially in areas such as gender equality, reproductive rights, and
protection against violence. These frameworks offer valuable tools for advocating for the rights
of marginalized groups and ensuring that constitutional principles of equality are upheld in
practice.

International Human Rights Systems: Key Frameworks and Lessons for Kenya

The international human rights system plays a significant role in the promotion of equality
and the prohibition of discrimination globally. Key treaties and conventions, such as the
International Covenant on Civil and Political Rights (ICCPR), the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW), and the Convention
on the Rights of Persons with Disabilities (CRPD), are essential tools in ensuring that
countries, including Kenya, uphold fundamental human rights principles, particularly in areas
such as equality before the law and non-discrimination.

5.1 United Nations Treaties

A. ICCPR (International Covenant on Civil and Political Rights)

 Article 26 of the ICCPR guarantees equality before the law and equal protection of the
law without discrimination. It ensures that all individuals are entitled to enjoy their civil
and political rights on an equal basis, regardless of race, color, sex, language, religion,
or any other status.
 Relevance for Kenya: Kenya is a party to the ICCPR and, as such, is legally bound to
uphold the provisions of Article 26. However, challenges remain in the practical
application of this provision, especially in addressing systemic inequalities faced by
marginalized groups. Legal reforms are needed to ensure that Kenya fully complies with
these obligations.

B. CEDAW (Convention on the Elimination of All Forms of Discrimination Against


Women)

 CEDAW is a critical international treaty aimed at eliminating discrimination against


women in all areas of life, including in the political, economic, and social spheres. The
treaty outlines the specific measures that countries should take to ensure equality of
women and gender justice.
 Key Provisions:
o Article 2 mandates state parties to take appropriate measures to eliminate
discrimination against women by enacting legislation, ensuring political rights,
and addressing gender-based violence.
o Article 5 focuses on cultural and social practices that may perpetuate
discrimination, urging states to take corrective actions.
 Relevance for Kenya: While Kenya has made notable strides, such as the adoption of the
Two-thirds Gender Rule (Article 27(8) of the 2010 Constitution), its full
implementation remains a challenge. CEDAW provides a global framework for
strengthening Kenya’s gender equality efforts, particularly in eliminating harmful
practices such as FGM, early marriage, and gender-based violence.

C. CRPD (Convention on the Rights of Persons with Disabilities)

 The CRPD is a treaty specifically aimed at ensuring that persons with disabilities are
treated equally and have access to the same rights as other individuals. It emphasizes
non-discrimination, accessibility, and inclusion in areas such as education,
employment, and health services.
 Relevance for Kenya: The Persons with Disabilities Act (2003), alongside Kenya's
obligations under the CRPD, mandates that the government ensure equal access to
services, education, and employment for people with disabilities. However, enforcement
remains a challenge in some areas, such as access to physical spaces, education, and
healthcare.

5.1 Key Cases

Pius Njawe Noumeni v Cameroon (UNHRC, 2004)

 Issue: The case involved a journalist who was arbitrarily detained by the Cameroonian
government for expressing his views on the government's policies. He argued that his
freedom of expression was violated, and his equality before the law was infringed
upon.
 Outcome: The UN Human Rights Committee (UNHRC) found that the government’s
actions violated the ICCPR, particularly Article 26, which guarantees equality before the
law. The case underscored the importance of non-discrimination in freedom of
expression and access to justice.
 Relevance for Kenya: Kenya can learn from this case in addressing issues related to
freedom of expression, access to justice, and equality before the law, especially in
light of ongoing concerns over media freedoms and the treatment of marginalized
communities.

5.2 Lessons for Kenya

A. Need for a PEPUDA-like Law

 South Africa’s Promotion of Equality and Prevention of Unfair Discrimination Act


(PEPUDA) (2000) provides a comprehensive framework for addressing discrimination
in various sectors, including employment, education, and healthcare. It mandates that
all public and private actors must comply with equality principles, and it allows victims
of discrimination to seek legal redress.
 Lesson for Kenya: Kenya could benefit from a similar dedicated anti-discrimination
law to provide a clear and accessible legal framework for addressing issues of
discrimination. While Kenya has made progress in its constitutional protections, a
PEPUDA-like law would help streamline cases, create specialized mechanisms for
addressing discrimination, and enhance enforcement.

B. Stronger Enforcement of Regional Rulings

 The Endorois case (2009), decided by the African Commission on Human and
Peoples’ Rights, ruled in favor of the Endorois community, recognizing their land
rights and condemning the Kenyan government for violating their right to culture and
property. The case led to recommendations for the government to compensate the
community and return their land.
 Lesson for Kenya: While Kenya has made progress in recognizing indigenous rights
through legislation (e.g., the Community Land Act of 2016), the implementation of
regional rulings and human rights recommendations remains inconsistent. There is a
need for stronger enforcement of both regional and international rulings to ensure that
marginalized groups receive justice and that international obligations are respected at
the national level.

Conclusion

The international human rights system, including United Nations treaties and regional
frameworks such as the African Charter, offers valuable tools for promoting equality and
non-discrimination. Kenya can draw lessons from international precedents, such as the
PEPUDA in South Africa, to strengthen its legal framework and enhance enforcement
mechanisms. Furthermore, ensuring that regional rulings, such as the Endorois case, are
effectively implemented will help improve justice for marginalized communities. In this way,
Kenya can further its commitment to human rights and equality and uphold its constitutional
obligations under international law.

Comparative Analysis: Kenya vs. South Africa vs. US

This comparative analysis looks at how South Africa, the United States, and Kenya address
issues of equality and non-discrimination, focusing on key aspects such as constitutional
equality, affirmative action, LGBTQ+ rights, and customary law reform.

1. Constitutional Equality

South Africa

 Constitutional Framework: The South African Constitution (1996) is widely regarded


as one of the most progressive in the world, particularly when it comes to equality.
Section 9 of the Constitution guarantees equality before the law and prohibits
discrimination based on various grounds, including race, gender, sexual orientation, and
disability.
 Additional Law: South Africa also has the Promotion of Equality and Prevention of
Unfair Discrimination Act (PEPUDA), which provides detailed legal provisions to
address discrimination and promotes substantive equality.

United States

 Constitutional Framework: The 14th Amendment to the US Constitution guarantees


equal protection of the law, prohibiting discrimination on the grounds of race, religion,
or national origin. Additionally, Civil Rights Acts (such as the Civil Rights Act of 1964)
further codify anti-discrimination protections.
 Key Feature: The 14th Amendment has played a central role in cases related to racial
segregation and has been instrumental in promoting formal equality.

Kenya

 Constitutional Framework: Kenya’s 2010 Constitution (Article 27) guarantees


equality before the law and prohibits discrimination on various grounds, such as race,
gender, disability, etc. However, Kenya lacks a standalone anti-discrimination law,
which can create challenges in addressing complex discrimination cases.
 Gap: While the Constitution is progressive, its lack of a dedicated framework like
PEPUDA makes it harder for citizens to effectively seek redress for discrimination
without relying on constitutional litigation.

2. Affirmative Action

South Africa

 Policy: South Africa has broad affirmative action policies, particularly through Black
Economic Empowerment (BEE), which seeks to redress historical imbalances by
promoting economic inclusion for black South Africans. The Constitution allows for
affirmative action to promote equality for marginalized groups.
 Implementation: BEE has resulted in significant policy reforms and tangible results in
sectors like education and business.

United States

 Policy: Affirmative action in the US is limited primarily to areas like university


admissions. The Grutter v Bollinger (2003) ruling upheld race-conscious admissions
in higher education but emphasized that affirmative action should be used as a tool for
achieving diversity rather than outright quotas.
 Key Debate: Affirmative action has been highly controversial, with debates centered
around race-based policies in universities and employment.
Kenya

 Policy: Kenya’s Constitution (Article 27(8)) allows for affirmative action, particularly
in gender representation (e.g., the two-thirds gender rule in Parliament). However, the
implementation of this rule has been weak, and affirmative action policies are often
under-enforced.
 Challenges: While Kenya has made progress in gender representation, the lack of
effective implementation of policies means that marginalized groups may not fully
benefit from affirmative action measures.

3. LGBTQ+ Rights

South Africa

 Policy: South Africa is a global leader in LGBTQ+ rights, having legalized same-sex
marriage through the Minister of Home Affairs v Fourie (2006) case. The
Constitution also explicitly prohibits discrimination based on sexual orientation
(Section 9).
 Progressiveness: South Africa’s LGBTQ+ rights are comprehensive and have been
integrated into national policy, including anti-discrimination laws and marriage
equality.

United States

 Policy: The US legalized same-sex marriage in Obergefell v Hodges (2015), and it is


now recognized across all states. However, LGBTQ+ rights still face state-level
resistance, especially concerning adoption rights, military service, and discrimination
in certain areas.
 Key Debate: The legal recognition of same-sex marriage is seen as a significant victory,
but there are ongoing battles over discrimination in employment and healthcare.

Kenya

 Policy: LGBTQ+ rights in Kenya remain largely unrecognized. Eric Gitari v NGO
Coordination Board (2015) decriminalized the formation of LGBTQ+ associations but
did not extend to same-sex marriage or comprehensive legal protections against
LGBTQ+ discrimination.
 Challenges: There is a cultural and religious resistance to LGBTQ+ rights in Kenya,
which significantly limits legal recognition and protection for LGBTQ+ individuals.

4. Customary Law Reform


South Africa

 Reform: South Africa has made significant strides in reforming customary law,
particularly in relation to gender equality. The case of Bhe v Khayelitsha Magistrate
(2005) abolished the male primogeniture rule in inheritance law, which discriminated
against women.
 Gender Progress: South Africa has also seen cases like Shilubana v Nwamitwa (2008),
which upheld women’s rights to positions of chieftainship under customary law.

United States

 Reform: Customary law reforms in the US are not as prominent, as the country does not
have a similar emphasis on customary law as in African countries. The US legal system
primarily focuses on statutory and case law rather than traditional practices.
 Focus: Customary law in the US is largely applicable within tribal jurisdictions for
Native American communities, but issues like gender equality and inheritance are
mostly handled by federal law.

Kenya

 Reform: Kenya has faced slow progress in customary law reform, particularly with
respect to gender equality. The case of Rono v Rono (2005) addressed gender
disparities in inheritance, but customary laws continue to hold significant sway,
especially in rural areas.
 Challenges: The contradiction between customary law and constitutional rights
remains a major issue, especially regarding gender inheritance and land rights.

Summary: Key Takeaways

 South Africa leads in equality law through its Constitution and PEPUDA, with broad
affirmative action policies, progressive LGBTQ+ rights, and substantial customary
law reform.
 The United States has made strides in equality but is marked by debates around
affirmative action and LGBTQ+ rights, with a strong focus on formal equality.
 Kenya has made progress in constitutional protections but faces challenges in
implementation, particularly in areas like affirmative action, LGBTQ+ rights, and
customary law reform.

Each country’s approach provides valuable lessons for Kenya to refine its own legal framework
and improve the enforcement of equality and non-discrimination protections for all citizens.

Critical Debates & Exam Application


7.1 Essay Points

Question: "Can Kenya’s equality framework benefit from South Africa’s PEPUDA model?
Discuss."

Arguments:

Yes, Kenya’s equality framework can benefit from PEPUDA:

 Clear Procedures for Discrimination Claims: South Africa’s Promotion of Equality


and Prevention of Unfair Discrimination Act (PEPUDA) provides a structured,
accessible process for victims of discrimination to seek justice. Kenya lacks a dedicated
anti-discrimination law like PEPUDA, which can make it harder for individuals to
effectively claim redress for discrimination.
 Coverage of Private Sector Discrimination: PEPUDA’s provisions extend to private
sector entities (e.g., businesses, organizations), ensuring that discrimination within these
sectors is addressed. Kenya’s private sector is often under-regulated in terms of
equality, which limits opportunities for those who face discrimination in such spaces,
such as gender or ethnic-based exclusion in employment or services.

Challenges to adopting PEPUDA:

 Cultural Resistance: A significant challenge in Kenya is cultural resistance,


particularly in areas like LGBTQ+ rights and customary laws (e.g., gender roles in
inheritance, land ownership). For example, same-sex relationships are criminalized in
Kenya, and cultural norms may hinder acceptance of LGBTQ+ rights and gender
equality reforms, which PEPUDA strongly supports.
 Resource Constraints for Enforcement: Kenya may face difficulties in enforcing laws
similar to PEPUDA due to resource limitations in the judiciary and law enforcement.
Structural barriers, such as lack of training for legal personnel and inadequate funding
for equality commissions, could impede the effectiveness of any equality law modeled
after PEPUDA.

7.2 Hypothetical Problem

Problem: "A Kenyan woman from a pastoralist community is denied a bank loan due to her
gender and ethnicity. Compare remedies under Kenya’s Article 27 and South Africa’s
PEPUDA."

Answer Outline:

Kenya:

 The woman can sue for violation of Article 27 of the Constitution, which guarantees
equality before the law and prohibits discrimination on grounds of gender, ethnicity,
and other factors.
 She could file a Public Interest Litigation (PIL), as seen in cases like Mary Masinde v
Vihiga County (2015), where women’s land rights were contested, showing the
precedent for challenging discriminatory practices.
 Article 22 allows any person to approach the court for enforcement of rights under the
Constitution, which can provide a remedy for discrimination.

South Africa:

 Under PEPUDA, the woman could file a complaint with the Equality Court. PEPUDA
allows individuals to seek remedies for discrimination from both the public and
private sectors, including financial institutions.
 The Equality Court would have the authority to investigate the discrimination, issue
an order for compensation, or mandate changes to discriminatory practices in the
bank.
 PEPUDA also provides a mechanism for affirmative relief, which could help the
woman access redress for systemic disadvantages faced by women and ethnic minorities
in accessing financial services.

8. Conclusion & Further Reading

Key Takeaway: South Africa’s PEPUDA offers a robust model for addressing discrimination
in both public and private sectors, which could greatly benefit Kenya, especially given its gaps
in enforcement of equality laws. However, Kenya would need to address its resource
constraints and cultural resistance to ensure effective implementation of such a law.

Further Reading:

 Hermann et al. (2020): Discusses how global constitutions advance equality and
explores models like South Africa’s PEPUDA.
 Gerapetritis (2016): Offers a comprehensive analysis of affirmative action worldwide,
including comparative insights into Kenya, South Africa, and other jurisdictions.

Exam Tip: Use comparative cases (e.g., Fourie vs Eric Gitari) to illustrate depth in your
analysis, showing how different legal systems approach equality and discrimination issues. Use
case law to highlight real-world examples of how equality frameworks can be applied in
practice.
SEMINAR 7: DISCRIMINATION ON THE BASIS
OF GENDER
Introduction: Understanding Gender Discrimination

1.1 Definitions and Key Concepts

Gender Discrimination refers to differential or unequal treatment based on a person’s gender,


often resulting in the reinforcement of systemic inequalities. This discrimination can manifest in
various forms, including unequal pay, limited access to resources, and exclusion from decision-
making processes. It stems from societal norms, stereotypes, and structures that place certain
genders in positions of dominance while marginalizing others.

Sex vs. Gender

 Sex refers to the biological differences between males, females, and intersex individuals.
These differences are typically based on physical characteristics such as reproductive
organs and chromosomes. However, sex is often viewed through a binary lens—male or
female—though it is more complex, as evidenced by intersex individuals who may have
characteristics of both sexes or a mix of male and female biological traits.
 Gender, on the other hand, refers to the socially constructed roles, behaviors,
activities, and expectations that society deems appropriate for men, women, and non-
binary individuals. These roles are not biologically determined but are culturally shaped
and can change over time or vary across different societies. Gender encompasses the
ideas of masculinity, femininity, and non-binary identities. Unlike sex, gender is fluid
and can vary widely between cultures, and within the same culture over time.

Kenyan Context:

In Kenya, gender discrimination is prohibited under Article 27 of the Constitution, which


guarantees equality before the law and prohibits discrimination on the basis of gender, among
other grounds. This is a progressive legal framework aimed at promoting gender equality and
empowering marginalized groups, particularly women and girls.

However, the reality in Kenya is that persistent gaps exist in areas such as political
representation, land ownership, and wage equality. For instance:

 Women remain underrepresented in political offices, often facing gendered barriers


such as social expectations, traditional norms, and lack of financial resources.
 Women’s land ownership rights are limited due to patriarchal customs that prioritize
male inheritance and control over land.
 In the labor market, there is a noticeable wage gap between men and women, with
women often earning less than men for similar work, despite legal provisions aimed at
ensuring equal pay for equal work.
Theoretical Lens:

1. Carol Smart (1989):


Carol Smart argues that law is not neutral, but instead reflects patriarchal norms that
serve to perpetuate male dominance in society. She contends that legal systems are often
structured in ways that benefit men, while marginalizing or failing to address women’s
experiences of discrimination. In the context of gender discrimination, this perspective
helps to understand how laws and legal structures may unintentionally uphold
inequalities by reflecting dominant gender norms and ignoring the systemic nature of
patriarchy.
2. Ngaire Naffine (1990):
Ngaire Naffine critiques the idea of the "Man of Law," the conventional legal subject
who is typically depicted as rational, autonomous, and male. This critique highlights
how the legal system is constructed around male-centered ideals and fails to recognize
women’s experiences, concerns, and contributions. By treating men as the default legal
subject, the law marginalizes women and other gender minorities, rendering their specific
issues invisible or secondary. In relation to gender discrimination, this theory suggests
that the legal framework may not adequately address or understand the lived realities of
women and gender minorities.

Explanation and Discussion:

The Kenyan Constitution’s stance on gender discrimination, as outlined in Article 27, offers a
progressive framework aimed at ensuring equality between genders. However, this legal
framework does not always translate into practice, as the social, cultural, and economic
structures often continue to reinforce gender-based inequalities. For example, despite legal
provisions for equal representation, women are still underrepresented in politics and
leadership roles, and cultural traditions such as bride price or patriarchal inheritance
practices continue to limit women’s land rights and economic freedom.

The theoretical frameworks offered by Carol Smart and Ngaire Naffine highlight that gender
discrimination is not just about the individual biases of people but is embedded within the legal
and social systems. These systems often reflect patriarchal values, making it difficult to
challenge deeply ingrained gender norms. To combat this, there is a need for both legal reform
and societal change that goes beyond simply prohibiting discrimination and seeks to address the
root causes of gender-based inequality.

In Kenya, the persistence of gender inequality is often institutionalized, meaning that changing
attitudes or enforcing legal provisions may not be sufficient on their own. There must be holistic
efforts to educate and change cultural norms, challenge customary laws, and implement
affirmative action to ensure that women and gender minorities are not just equal on paper but
also empowered in practice. The gender wage gap, for example, reflects not just individual
employer bias but a systematic undervaluation of women’s work in economic structures.

In conclusion, while Kenya has made significant strides in addressing gender discrimination,
there is still much to be done to ensure that gender equality is not just a legal principle but a
lived reality. This requires challenging the patriarchal foundations of both law and society,
implementing affirmative measures to empower marginalized genders, and changing the
cultural narratives that reinforce gendered inequalities.

Sexual Equality vs. Inequality

2.1 Formal vs. Substantive Equality

Formal Equality and Substantive Equality represent two distinct approaches to addressing
discrimination and inequality.

 Formal Equality refers to equal treatment under the law, where individuals are treated
the same regardless of their background, gender, or other characteristics. It emphasizes
that all people should be treated equally in similar circumstances.
o Example in Kenya: Under the Employment Act, there is a principle of equal
pay for equal work, meaning men and women performing the same work should
receive the same salary. This approach ensures that individuals have the same
legal rights but doesn't account for the historical and structural inequalities
that might disadvantage one group over another.
 Substantive Equality, on the other hand, goes beyond simply treating people the same—
it addresses the underlying structural barriers that may prevent equality in practice.
This approach acknowledges that some groups face additional challenges due to social,
economic, or cultural factors, and thus, the law must be actively used to correct these
disparities.
o Example in Kenya: The two-thirds gender rule in Article 27(8) of the
Constitution aims to ensure that no gender, particularly women, is
underrepresented in elected positions. This is an example of substantive equality
because it doesn't just treat men and women the same; it recognizes the historical
underrepresentation of women in political leadership and seeks to actively
address that gap. In this case, the law moves from a formal equal treatment to a
structural intervention to help women achieve political equality.

Critique (Nyamu-Musembi):

Nyamu-Musembi critiques formal equality, particularly in patriarchal societies like Kenya,


where legal provisions that appear neutral may not necessarily lead to genuine equality. For
instance, gender-neutral laws may fail to account for customary biases and societal norms that
inherently disadvantage women. This means that simply applying a "gender-neutral" legal
approach does not always lead to equal outcomes.

 Example: Gender-neutral land laws may overlook customary biases that favor male
ownership, meaning that women may not be able to benefit equally from land ownership
rights despite the law being "neutral" in its wording. In this case, the law doesn’t account
for the structural barriers women face in accessing land, particularly in rural or
traditional communities.
2.2 Gender-Neutral Laws: A Double-Edged Sword

Gender-neutral laws are laws that do not explicitly mention gender and are intended to apply
equally to all individuals, regardless of their gender. While these laws are an important step
toward egalitarian legal systems, they can be problematic in certain contexts, especially in
societies where gender inequality is deeply embedded in cultural norms and customary
practices.

 Patricia Kameri-Mbote & Kabira (2008): They argue that while Kenya’s 2010
Constitution uses gender-neutral language, this language must be actively interpreted
to address existing inequalities. Simply having gender-neutral laws does not
automatically lead to gender equality. These laws must be proactively implemented and
interpreted in a way that acknowledges and seeks to redress historical and cultural
inequalities.
o Example: In FIDA-Kenya v AG (2011), the Kenyan courts recognized that while
gender-neutral laws existed, they were insufficient to guarantee women’s rights.
The case led to a court order compelling Parliament to enact specific laws to
protect women’s rights. This highlights the need for active legal interpretation
to ensure that gender-neutral laws are used effectively to promote equality and
not perpetuate inequality.

Explanation and Discussion:

In Kenya, while the 2010 Constitution and various laws provide the framework for gender
equality, formal equality alone is not sufficient in a context where deep-seated cultural and
social norms continue to perpetuate gender discrimination. Substantive equality is necessary to
actively dismantle these barriers and promote real empowerment for women and marginalized
groups.

 Formal equality, while crucial for ensuring that laws apply equally, fails to address the
historical and societal context that creates barriers for women. For example, a gender-
neutral law on land ownership might assume equal access, but in practice, women may
face cultural biases that prevent them from inheriting or owning land. The law may not
automatically rectify these biases unless affirmative actions or special provisions are
included.
 Substantive equality, on the other hand, acknowledges these barriers and takes active
steps to remove them. The two-thirds gender rule is a great example because it
recognizes that women’s participation in politics has been historically limited and thus
seeks to rectify this by mandating a minimum representation for women. Similarly,
affirmative action policies and special provisions for maternity leave or family care
recognize the unique challenges women face in the workplace.

Overall, while gender-neutral laws are a step forward, they are not enough to ensure true
equality. Active interpretation, as seen in cases like FIDA-Kenya v AG (2011), and substantive
measures such as the two-thirds gender rule are critical for moving beyond formal equality and
creating a more inclusive and equitable society.

Intersectional Gender Discrimination

3.1 Crenshaw’s Framework Revisited

Kimberlé Crenshaw’s Intersectionality Theory is critical to understanding how multiple forms


of discrimination overlap and compound each other, especially for individuals who belong to
more than one marginalized group. Intersectional gender discrimination considers how
gender, race, class, disability, and other social identities interconnect to create unique
experiences of oppression.

 Gender: For example, women may face exclusion from leadership positions, which is a
form of gender-based discrimination.
 Race & Ethnicity: For Maasai women in Kenya, their ethnic identity intersects with
their gender to create additional challenges, as Maasai cultural norms often exclude
them from positions of power, like clan leadership.
 Class: Poverty adds another layer of discrimination, as it limits access to justice. Maasai
women might not be able to access courts or legal resources due to financial constraints.
 Culture: Cultural practices, such as female genital mutilation (FGM) and child
marriage, are harmful and disproportionately affect women, particularly in certain
communities like the Maasai.

Legal Gap: In Kenya, courts rarely apply intersectionality explicitly, unlike in South Africa,
where courts have explicitly dealt with intersectional discrimination, such as in the Bhe v
Khayelitsha case (2005). In this case, South African courts recognized how gender and
customary law intersected to disadvantage women in inheritance matters, and made a ruling that
dismantled discriminatory male inheritance practices.

This is a significant gap in Kenya’s legal framework, as courts often treat forms of
discrimination separately (gender vs. class vs. culture) instead of acknowledging the
interconnectedness of these oppressions.

3.2 Contemporary Responses to Intersectional Gender Discrimination

CEDAW (1979): The Convention on the Elimination of All Forms of Discrimination


Against Women (CEDAW) is a landmark international treaty that requires states to eliminate
gender discrimination in all forms. CEDAW’s provisions cover a broad range of issues,
including education, employment, marriage, and political participation. However, while Kenya
has ratified this treaty, slow progress has been made in its full implementation, as indicated in
the country’s periodic reports to the UN. This slow progress suggests that while gender equality
is enshrined in Kenyan law, the application of CEDAW principles remains inconsistent.

 Example: While gender equality is constitutionally guaranteed in Article 27 of Kenya’s


Constitution, cultural practices (such as FGM and child marriage) continue to hinder
women's rights, especially in rural or conservative communities. The law may prohibit
these practices, but the enforcement of these laws is often weak due to societal
resistance, lack of awareness, and insufficient resources for monitoring.

Maputo Protocol (2003): The Maputo Protocol is an African treaty that seeks to protect
women’s rights across the continent, banning harmful practices like FGM and protecting
reproductive rights. Kenya ratified the Maputo Protocol, but enforcement remains weak.
The implementation gap is particularly evident in rural areas where harmful cultural practices
are deeply entrenched.

 Example: While FGM is illegal in Kenya, its prevalence remains high, particularly
among certain ethnic groups, indicating that laws alone are insufficient. Cultural
resistance and lack of resources for enforcement continue to hinder the full realization
of the rights guaranteed by the Maputo Protocol.

Discussion:

Intersectionality highlights the complexity of gender discrimination in Kenya, especially when


gender intersects with other forms of discrimination, such as class, race, and culture. In
communities like the Maasai, gendered violence and discrimination are compounded by
economic marginalization and harmful cultural practices. This creates a situation where
women face multiple layers of discrimination, and legal frameworks often fail to address the
full extent of these intersecting oppressions.

The lack of intersectional analysis in Kenyan courts can be problematic, as it limits the scope
of legal redress for individuals who face multiple forms of discrimination. For example, Maasai
women may seek justice for gender discrimination, but their claims might not fully address
how class (poverty) and culture (traditional gender roles) complicate their access to justice.

Furthermore, while CEDAW and the Maputo Protocol provide important international
frameworks for eliminating gender-based discrimination, the weak enforcement of these
treaties in Kenya demonstrates the disconnect between legal commitments and actual change on
the ground. This suggests that cultural and societal factors, as well as resource limitations,
need to be addressed to ensure that legal protections translate into tangible improvements in the
lives of marginalized women.

To address intersectional gender discrimination more effectively, Kenya’s legal system could
take inspiration from cases like Bhe v Khayelitsha in South Africa, which recognized the
intersectionality of gender and customary law in the context of inheritance rights. By
acknowledging and addressing multiple forms of discrimination simultaneously, Kenya’s
legal system could better protect the rights of women from marginalized communities,
particularly those facing cultural oppression, economic disadvantages, and gender
discrimination.
Law as a Tool for Change (or Reinforcement)

4.1 Feminist Legal Critiques

Carol Smart (1989) argues that law is not a neutral institution. Instead, it often reinforces
patriarchal structures and gender inequalities. For example, in rape trials, the focus often
shifts from the perpetrator’s actions to the victim’s morality or behavior (e.g., whether she was
dressed provocatively). This reflects how legal systems tend to blame women for their
victimization, perpetuating harmful gender norms and biases.

 Kenyan Context: The Sexual Offences Act (2006) was a significant legal step toward
protecting women from sexual violence. However, the implementation has been
problematic. Low conviction rates and victim-blaming are still prevalent in the judicial
system. This reflects a broader societal issue where women’s experiences of violence are
often minimized or dismissed, and perpetrators are not held accountable.

Sylvia Tamale (1999) highlights the issue of hostile masculinity faced by women in
Parliament in Uganda. She notes how women politicians are often marginalized or mocked in a
deeply patriarchal political environment. The term "hens crowing" refers to the dismissal of
women’s voices in political discourse, where their contributions are undervalued, and they face
significant gender-based hostility. While Tamale’s critique focuses on Uganda, it is highly
relevant to Kenya, where women in leadership positions, particularly in Parliament, often face
similar challenges of disrespect and undermining from their male counterparts.

 Example: Kenyan women parliamentarians have faced gender-based violence, both


verbal and physical, and are often subjected to sexist remarks and disparaging
treatment. This culture of hostile masculinity in politics reflects the wider social
attitudes towards women’s leadership and empowerment in Kenya.

4.2 Progressive Jurisprudence

Progressive jurisprudence refers to the legal theory and practice aimed at challenging and
dismantling oppressive systems. Progressive judgments by courts have contributed to
advancing gender equality by interpreting the law in ways that recognize and address
historical injustices.

 Mercy Mutitu v Kenya Commercial Bank (2019): This landmark case recognized
workplace sexual harassment as a form of discrimination and an infringement on a
woman’s dignity and rights. The court’s decision reinforced the principle that sexual
harassment in the workplace is not only a personal grievance but a legal issue that needs
to be addressed within the framework of equality and non-discrimination under
Kenya’s Constitution (Article 27). This case is a step forward in progressive
jurisprudence, as it sets a legal precedent for protecting employees from gender-based
violence in the workplace.
 Mitu-Bell Welfare Society v Kenya Airports Authority (2021): This case addressed
the issue of forced evictions in informal settlements. It specifically focused on the
rights of women who are disproportionately affected by evictions and displacement.
The ruling protected these women, recognizing that societal vulnerability, especially for
informal settlement dwellers, often intersects with gender and economic inequality. It
also reinforced the importance of the state's responsibility to ensure that women are not
disproportionately affected by socio-economic policies.

Progressive jurisprudence in Kenya, as seen in these cases, plays a crucial role in shaping
social change. Judicial interpretations that address issues like sexual harassment in the
workplace or forced evictions not only provide remedies for the individuals involved but also
send powerful messages about the state's obligation to protect marginalized groups and ensure
equality in all spheres of society.

Discussion

Law can be both a tool for change and a mechanism for reinforcing existing inequalities.
While progressive cases like Mercy Mutitu v Kenya Commercial Bank and Mitu-Bell
Welfare Society v KAA represent steps forward, feminist legal critiques show that gender
discrimination is still deeply entrenched in the legal system. The Sexual Offences Act (2006),
despite being a progressive law, still faces significant challenges in implementation and
enforcement, particularly due to cultural attitudes that blame victims of sexual violence rather
than holding perpetrators accountable.

For law to be an effective tool for change, it must not only protect rights on paper but also be
actively interpreted and enforced in ways that address the real-world barriers to gender
equality. This means recognizing that formal equality (treating all individuals the same) is not
enough in a society with deeply ingrained patriarchal structures. Substantive equality—
which focuses on addressing underlying inequalities—is needed to create a truly equal
society.

In Kenya, continued efforts are required to challenge patriarchal norms, not only through
progressive legal rulings but also by changing cultural attitudes and improving the
enforcement of laws that protect women and marginalized groups. Legal reforms must go hand
in hand with social changes to ensure that the law serves as a true tool of empowerment and
equality.

Social Movements & Theoretical Shifts

5.1 Feminist Waves in Africa

Feminism in Africa, like in other parts of the world, has evolved through various waves that
address the changing needs and challenges faced by women in different socio-political contexts.
The waves reflect shifts in both the theoretical foundations of feminism and the practical
actions taken by women to challenge gender inequalities.
First Wave: Voting Rights (1960s)

The first wave of feminism in Africa primarily focused on political rights, particularly the right
to vote. This was a time when many African nations were fighting against colonial oppression
and were beginning to grant political participation to their citizens. Women’s suffrage became a
crucial demand, with women advocating for political empowerment alongside broader anti-
colonial struggles.

 Example: In many African countries, women's suffrage movements led to political


reforms. Women like Funmilayo Ransome-Kuti in Nigeria campaigned for political
rights, including the right to vote, which was eventually achieved in many African
countries during the 1960s and 1970s.

Second Wave: Legal Equality (1980s–2000s)

The second wave of African feminism focused on legal equality—fighting for equal rights in
areas such as education, employment, and marriage. This wave sought to address legal
systems that reinforced gendered discrimination, often by challenging both formal and
customary laws that marginalized women.

 Key Issues: Marriage laws, inheritance rights, and access to education for women.
This wave sought to overturn patriarchal legal structures that limited women’s rights.
 Example: In countries like Kenya, organizations like FIDA-Kenya played a critical role
in challenging discriminatory laws and advocating for legal reforms to ensure women's
rights in areas like family law and land rights.

Third Wave: Intersectionality (2000s–Present)

The third wave of African feminism is heavily influenced by the concept of intersectionality,
which highlights how gender discrimination intersects with other forms of oppression, such as
race, class, sexuality, and disability. This wave is more concerned with identity and social
justice, moving beyond issues of legal equality to address the lived experiences of marginalized
women in society.

 Key Movements: The #MyDressMyChoice protests in Kenya (2014) are a prominent


example, where women stood up against gender-based violence (GBV) and the
harassment of women wearing dresses deemed "inappropriate." These protests also
highlighted public safety and the right to dress freely without facing violence or
judgment.
 Theoretical Shifts: Chimamanda Ngozi Adichie, a prominent Nigerian author, has been
a significant voice in the third wave of African feminism. Her famous Ted Talk, "We
Should All Be Feminists," challenges cultural stereotypes about gender roles and
advocates for an inclusive and equal society. She highlights the importance of
challenging the narrow definitions of masculinity and femininity that limit both
women and men.
 Sam Kellerman further explores the complexities of gender identity, discussing how
we need to move beyond gender binaries and embrace a more inclusive approach to
gender, recognizing non-binary and fluid identities.

5.2 Kenya’s Feminist Movements

Kenya has witnessed significant feminist movements that have been at the forefront of
challenging gender inequalities and advocating for women’s rights. These movements are
both legal and activist-oriented, mobilizing women across different classes and ethnic
backgrounds to demand equal treatment and justice.

FIDA-Kenya (Federation of Women Lawyers)

FIDA-Kenya is one of the key players in advancing women’s rights in Kenya. The organization
is involved in litigating gender rights cases, often tackling issues related to inheritance, marital
rights, sexual violence, and land rights. FIDA-Kenya also plays a critical role in legal
advocacy, pushing for policy reforms to better protect women from discrimination and
violence.

 Notable Work: FIDA-Kenya’s involvement in landmark cases, such as FIDA-Kenya v


Attorney General (2011), has helped ensure that gender discrimination is addressed in
Kenya’s legal framework. Their work has influenced the interpretation of the
Constitution (2010), particularly Article 27 on equality.

#TotalShutDownKE

The #TotalShutDownKE movement is a social protest movement aimed at raising awareness


and demanding action against gender-based violence (GBV) and femicide in Kenya. The
movement started in 2018 in response to the escalating levels of violence against women, with
activists organizing marches, protests, and social media campaigns to pressure the
government to take concrete action in addressing the systemic failure to protect women.

 Impact: #TotalShutDownKE has raised national awareness about the issue of femicide
and GBV, calling on the government to increase its accountability and take stronger
steps to protect women. It has also fostered greater solidarity among women and gender
justice organizations.

Discussion

The feminist movements in Africa, particularly in Kenya, reflect a broader shift in feminist
theory from formal equality to substantive equality, which seeks to not only ensure legal
rights but also address the social, cultural, and economic structures that perpetuate gender
inequality. While the first and second waves focused on legal rights, the third wave
emphasizes the importance of intersectionality—recognizing the complexity of women's
experiences in relation to race, class, ethnicity, and sexuality.
Kenya’s feminist movements, such as FIDA-Kenya and #TotalShutDownKE, show the
growing collective action among women to address gender-based violence, legal inequality,
and social injustice. However, the struggle continues as there are persistent challenges, such as
cultural resistance, gender biases in the legal system, and economic disparities, that hinder
full gender equality.

Feminist thought in Kenya and Africa continues to evolve, with contemporary movements
increasingly focusing on identity politics and social justice, moving away from the traditional
focus on legal reforms alone. The work of Chimamanda Ngozi Adichie and Sam Kellerman
signals a broader shift toward rethinking gender roles, embracing inclusive feminism, and
challenging patriarchal systems at all levels of society.

Gaps and Way Forward

6.1 Persistent Challenges

1. Cultural Resistance
o Customary laws: In Kenya, customary laws often override statutory rights,
especially in rural areas. Issues such as inheritance and land rights tend to be
governed by traditional norms, which may not align with the gender equality
principles outlined in the 2010 Constitution.
o Inheritance Disputes: Customary practices still favor male heirs in inheritance,
often leaving women without access to property and resources. This conflict
between customary and constitutional law often results in women’s
marginalization, despite constitutional guarantees of equality and property
rights.
2. Implementation Failures
o Two-thirds gender rule: Despite the constitutional provision (Art. 27(8))
mandating a gender-balanced Parliament, the two-thirds gender rule has not
been fully implemented. This reflects a lack of political will and resistance to
gender equity in political spaces, resulting in underrepresentation of women in
the legislature.
o Lack of enforcement: Even though laws against gender-based violence (GBV)
and discrimination exist, their enforcement is often weak, with high rates of
impunity for perpetrators of GBV. Victims may face challenges in accessing
justice due to bureaucratic delays, social stigmas, and lack of resources.

6.2 Recommendations

1. Legislative Reforms
o Gender Equity Bill: Enacting a comprehensive Gender Equity Bill could help
enforce affirmative action in both the public and private sectors, addressing
gaps in the two-thirds gender rule and promoting gender balance in leadership
positions.
o Intersectional Anti-Discrimination Laws: A more comprehensive framework
addressing the intersectionality of gender with other forms of discrimination
such as race, class, and disability would help protect marginalized groups more
effectively. This can be modeled after the Promotion of Equality and
Prevention of Unfair Discrimination Act (PEPUDA) in South Africa, which
explicitly recognizes intersectional discrimination.
2. Judicial Training
o Sensitizing judges on feminist jurisprudence is crucial. Judges should be
trained to understand and apply intersectional analysis in cases involving gender
discrimination. This would allow the legal system to better address the complex
realities of marginalized women, especially in cases where customary laws
conflict with constitutional rights.
o Specialized Courts: Establishing specialized courts for gender-based violence
(GBV) cases could improve the efficiency and effectiveness of the judicial
system in addressing GBV, similar to South Africa’s specialized sexual offenses
courts.

7. Exam Application & Essay Points

7.1 Hypothetical Question

Question: "Critically assess whether Kenya’s legal framework adequately addresses


intersectional gender discrimination."

Answer Outline:

 Progress:
o Constitution: Kenya’s 2010 Constitution (Art. 27) guarantees equality before
the law, which has paved the way for significant gender equality reforms.
o Mercy Mutitu Case (2019): Recognized workplace sexual harassment as
discrimination, reflecting an evolving judicial stance on gender rights.
o Maputo Protocol: Kenya’s ratification of the Maputo Protocol (2003)
emphasizes the elimination of harmful practices (e.g., FGM) and protection of
reproductive rights.
 Gaps:
o Weak enforcement of CEDAW: While Kenya has ratified the Convention on
the Elimination of All Forms of Discrimination Against Women (CEDAW),
enforcement remains weak, and there has been insufficient progress in
eliminating gender inequalities.
o Customary law conflicts: As seen in cases like ZAK v MA, customary
practices continue to undermine constitutional rights, especially in the areas of
inheritance and land ownership.
7.2 Comparative Analysis
Issue Kenya South Africa

Constitutional Rights Strong on paper (Art. 27) Strong + PEPUDA enforcement

Intersectionality Rarely applied in courts Recognized (e.g., Bhe, Fourie)

GBV Response Laws exist, but high impunity Specialized sexual offenses courts

 Kenya: While Kenya’s Constitution (Art. 27) provides strong protections against
gender discrimination, the application of intersectional analysis in court is rare. The
response to gender-based violence (GBV) is hindered by weak enforcement and
impunity for offenders.
 South Africa: South Africa not only has strong constitutional protections (Section 9)
but also a dedicated law (PEPUDA) that enforces anti-discrimination measures.
Additionally, the country has specialized courts for sexual offenses, ensuring better
justice delivery for GBV victims.

8. Conclusion & Further Engagement

Key Takeaway: While gender discrimination in Kenya is legally prohibited, cultural norms
and customary laws still entrench gender inequality in certain contexts, particularly in rural
areas and traditional communities. The legal framework is strong on paper, but
implementation gaps remain, especially in areas such as gender-based violence and political
representation.

Action Step: Engage with Chimamanda Ngozi Adichie’s Ted Talk "We Should All Be
Feminists" to reflect on how law can be aligned with feminist praxis. The talk challenges
societal norms and provides valuable insights on how we can all contribute to gender equality.

Further Reading:

 Smart (1989): Explores how the law perpetuates gender norms and reproduces
patriarchy.
 Tamale (1999): Discusses gender politics in African parliaments, emphasizing the role
of feminist advocacy in political spaces.
SEMINAR 9: DISCRIMINATION ON THE BASIS
OF RACE AND ETHNICITY
Conceptual Foundations: Race, Ethnicity & Structural Discrimination

1.1 Legal Definitions

 Race:
o Race is often considered a socially constructed identity that is shaped by
physical characteristics such as skin color, facial features, and hair type.
However, race is deeply embedded in historical power structures that have been
used to classify and divide people, particularly through systems of colonialism,
slavery, and apartheid.
o While race may seem biologically based, it is socially defined and tied to
dominant historical narratives. For example, the colonial categorization of
people as "Black," "White," "Asian," or "Indigenous" was often used to justify
exploitation and disenfranchisement.
 Ethnicity:
o Ethnicity refers to a cultural identity that is rooted in shared elements such as
language, ancestry, traditions, and customs. For example, in Kenya, ethnic
groups like the Kikuyu, Luo, and Kalenjin have their distinct languages,
customs, and historical narratives.
o Unlike race, ethnicity is often self-ascribed or linked to a shared communal
identity, though it can still be weaponized in political discourse. In Kenya, the
concept of "negative ethnicity" has been used to foster division and conflict,
particularly in the context of tribalism in politics.

Key Distinction Between Race and Ethnicity:

 Race is typically an externally imposed label, often defined by those in power. For
example, during colonialism, European powers often imposed racial categories such as
"Black" or "White," irrespective of the internal cultural or ethnic diversity within those
groups.
 Ethnicity, on the other hand, is more often self-ascribed and associated with cultural
pride and identity. However, it can also be manipulated and politicized for
discriminatory purposes, as seen in Kenyan politics where ethnicity can be
manipulated for political gain, particularly during election cycles.

Legal Frameworks Addressing Racial and Ethnic Discrimination:

1. International Convention on the Elimination of All Forms of Racial Discrimination


(ICERD) - 1965:
This international treaty, ratified by Kenya, aims to eliminate racial
o
discrimination and promote equality among people of all races and ethnicities.
o Under this convention, states commit to measures that prohibit discrimination
based on race and to actions that promote the full integration of marginalized
racial groups into society.
2. Kenyan Constitution (Article 27):
o Kenya’s Constitution, specifically Article 27, guarantees equality before the
law and prohibits discrimination on the basis of race, ethnicity, and other
grounds such as gender, religion, and social status.
o This provision is crucial because it lays the groundwork for legal recourse when
individuals or groups face racial or ethnic discrimination. However, structural
and historical inequalities still persist, and these are often difficult to address
through constitutional provisions alone.

Challenges in Addressing Structural Discrimination:

While legal frameworks can provide strong protections, structural discrimination—deeply


ingrained in social, political, and economic systems—often proves difficult to eradicate. In
Kenya, ethnic favoritism and tribalism can still impact political and economic opportunities,
especially during elections or when distributing resources. The legacy of colonial divisions and
neocolonial economic structures continues to affect marginalized racial and ethnic groups,
making the fight against discrimination an ongoing struggle.

Historical Systems of Racial Oppression

2.1 Apartheid vs. Kenya’s Colonial Legacy

 Apartheid (South Africa):


o Apartheid was a legally enforced system of racial segregation and
discrimination in South Africa from 1948 to the early 1990s. Under apartheid,
the Group Areas Act and other legislation legally separated racial groups into
different geographical areas and restricted their movement, residence, and rights.
o Black Consciousness: Steve Biko, a key figure in the resistance to apartheid,
championed the Black Consciousness movement, which aimed to promote black
pride, raise awareness of racial oppression, and reject the dehumanizing
narratives imposed by apartheid. Biko's ideas were grounded in the need to
counter internalized racism and empower black South Africans to resist
domination.
o Frantz Fanon’s Influence: In his seminal work, Black Skin, White Masks (1952),
Frantz Fanon explores the psychological effects of colonialism and racial
oppression. He discusses internalized racism, where the colonized adopt the
values, preferences, and behaviors of their colonizers, often leading to self-hatred
and a preference for lighter skin tones. This phenomenon can be seen not only in
South Africa but in other former colonies, including Kenya.
 Colonial Kenya:
o Colonial Kenya experienced a form of racial oppression that was somewhat
different from apartheid but similarly entrenched in colonial power structures.
The British colonizers seized vast lands from indigenous communities and
established the White Highlands, areas reserved exclusively for white settlers,
while African communities were displaced and restricted to overcrowded reserve
areas.
o The Mau Mau Uprising (1952–1960) was one of the most significant responses
to British colonial rule, marked by armed resistance to land dispossession and
political subjugation. The revolt was violently suppressed, and many of the key
figures were either executed or imprisoned. However, it remains a symbol of anti-
colonial resistance and fight for justice.
o Like in South Africa, Kenya also experienced the psychological effects of
colonialism. Internalized racism manifested in many Kenyan communities,
particularly the preference for lighter skin tones, as colonial ideals of beauty and
racial hierarchy became ingrained in the culture.

2.2 "Negative Ethnicity" in Kenya (Koigi wa Wamwere)

 Negative Ethnicity:
o Koigi wa Wamwere, a prominent Kenyan intellectual, coined the term "negative
ethnicity" to describe the politicization of ethnic differences for personal or
political gain. This concept highlights how ethnic identity can be manipulated by
political elites to stoke hatred, violence, and division.
o In Kenya, negative ethnicity often manifests in tribalism, where certain ethnic
groups are marginalized in favor of others. Politicians, for example, may appeal to
their ethnic communities to gain votes or influence, which exacerbates divisions
in the society and fuels ethnic-based violence.
 Post-2007 Election Violence (PEV):
o The 2007/2008 Kenyan Post-Election Violence (PEV) is a stark example of how
negative ethnicity can lead to violent conflict. After the contested presidential
election, ethnic tensions erupted, leading to widespread violence, displacement,
and loss of life. The violence was largely fueled by political elites, who
manipulated ethnic loyalties to galvanize support for their causes. In the
aftermath, the Kenyan truth and reconciliation processes aimed to address the
root causes of ethnic violence, though progress has been slow.
 Rwandan Genocide vs. 2007/08 Kenyan PEV:
o Both the 1994 Rwandan Genocide and the 2007/2008 Kenyan PEV were fueled
by ethnic manipulation by political elites. In Rwanda, the Hutu-led government
instigated the mass slaughter of Tutsis, largely due to longstanding ethnic tensions
exacerbated by colonial rule. Similarly, in Kenya, ethnic tensions between groups
like the Kikuyu, Luo, Luhya, and Kalenjin were stoked by political manipulation,
leading to widespread violence and atrocities.
o Rwanda’s genocide was driven by the deeply embedded narrative of Hutu
supremacy and the longstanding colonial-era divisions between the Hutu and
Tutsi. In contrast, Kenya’s post-election violence was largely a result of elite
manipulation and historical grievances, but it was less an organized genocide and
more localized ethnic clashes.

Key Takeaways:

 The apartheid system in South Africa and Kenya’s colonial legacy share common roots
in racial oppression and dispossession, but the mechanisms of control were different.
Apartheid legalized racial segregation, while colonial Kenya relied on economic and land
dispossession.
 Negative ethnicity in Kenya highlights how ethnic divisions can be weaponized by
political elites for personal gain, resulting in significant social and political instability, as
seen in the 2007/2008 PEV.
 The Rwandan genocide and Kenyan PEV both show the dangers of ethnic
manipulation, but with differences in scale and organization. In both cases, the influence
of historical divisions and elite manipulation played a central role in fueling violence.

Contemporary Manifestations of Race and Ethnic Discrimination

3.1 Colour-Blindness as Discrimination

 Colour-Blindness Myth:
o The phrase "I don’t see race" is often used to signify a desire for a world where
racial distinctions are ignored. While this may sound like an ideal for promoting
equality, it overlooks the structural racism embedded in societal systems.
o Colour-blindness ignores the ways in which race is still a key factor in shaping
social, economic, and political outcomes. By disregarding race, this mindset
fails to address systemic inequalities that disproportionately affect marginalized
racial and ethnic groups. Essentially, by not acknowledging race, colour-blindness
perpetuates racial injustices because it doesn’t confront or challenge the structures
that enable them.
 #BlackLivesMatter and Racial Injustice:
o The #BlackLivesMatter movement, which gained global attention after the
killing of George Floyd, highlighted systemic racial injustice, particularly in the
context of police violence and mass incarceration. In Kenya, the movement also
resonated, sparking protests and dialogues around the treatment of minority
groups.
o The protests in Kenya demonstrated that racism is not only a Western issue but
also has local manifestations. For example, there have been instances of racial
profiling in counterterrorism operations, where Somali-Kenyans have been
unfairly targeted due to their ethnic and religious background. This form of
profiling reflects a broader pattern of racial discrimination in which particular
ethnic or racial groups are unfairly subjected to increased surveillance or
discrimination based on generalized assumptions.
 Critical Race Theory (CRT):
o Critical Race Theory (CRT), as outlined by Kimberlé Crenshaw in 1995,
emphasizes that racism is not just an individual attitude but a structural problem
embedded in institutions and society. It focuses on how laws, policies, and
cultural norms reinforce racial inequalities.
o Crenshaw's work argues that race should be understood in relation to other
identities, such as class, gender, and sexuality, a concept known as
intersectionality. By considering race as part of a broader framework of
oppression, CRT seeks to reveal and challenge how race intersects with other
factors to create unique forms of discrimination.
 Kenyan Example - Racial Profiling:
o Somali-Kenyans have long faced discrimination and racial profiling,
particularly in the context of counterterrorism measures. One of the landmark
cases that addressed this issue is Samow Mumin Mohamed v Ministry of
Interior (2014). This case involved a Somali-Kenyan who was arbitrarily
detained and harassed by security forces based on his ethnicity during a
counterterrorism operation.
o The case highlighted how ethnic profiling in the name of security measures
disproportionately affects Somali-Kenyans and other minority ethnic groups.
These groups often face systemic disadvantages in employment, access to
services, and legal protection, primarily due to racial or ethnic stereotyping.

3.2 Intersectional Racial Discrimination

 Intersectionality:
o The concept of intersectionality was introduced by Kimberlé Crenshaw and is
crucial to understanding how multiple forms of discrimination (e.g., race, gender,
class) overlap and exacerbate inequalities. When discussing racial discrimination,
it is important to recognize that not all Black people or racial minorities
experience discrimination in the same way. The combination of factors such as
gender, economic status, disability, and sexual orientation can create
compounded and often more severe forms of discrimination.
 Poor, Black Women:
o The intersection of race and gender can result in compounded biases, particularly
for poor, Black women. For example, in employment, Black women are more
likely to face barriers such as lower wages, job insecurity, and limited
opportunities for advancement compared to their male or lighter-skinned
counterparts. This intersectional discrimination creates a double burden—both
racial and gendered—often leading to worse socioeconomic outcomes for this
group.
o In healthcare, poor Black women may face not only racial discrimination but
also gender-based barriers to receiving adequate care, especially in regions
where healthcare is privatized or underfunded. In Kenya, for example, women
from marginalized communities often face significant barriers to accessing
maternal healthcare, and their concerns may be dismissed due to racial and class
biases.
 Mitu-Bell Welfare Society v KAA (2021):
o The Mitu-Bell Welfare Society v Kenya Airports Authority (KAA, 2021) case
is a landmark decision that involved the eviction of informal settlers in the
Ngara area of Nairobi. The plaintiffs, who were mainly from marginalized
ethnic communities, challenged their forced eviction as discriminatory, arguing
that it disproportionately affected minority groups, especially in informal
settlements.
o The case highlighted how structural inequality and discrimination manifest in
housing and urban development policies, where marginalized groups (often
ethnic minorities or poor communities) face eviction or displacement without
adequate alternatives. The decision in this case underscores the need for inclusive
urban policies that account for intersectional discrimination, which includes
both racial/ethnic and economic status factors.

Conclusion:

 Colour-blindness is a problematic stance that obscures the deep-rooted, systemic nature


of racial discrimination and inequality. It prevents us from fully addressing the
structural factors that perpetuate racism and marginalization.
 The intersectional approach is essential for understanding the nuanced ways in which
race and other factors such as gender and class intersect to create compounded forms of
discrimination. Cases like Samow Mumin Mohamed v Ministry of Interior and
Mitu-Bell Welfare Society v KAA highlight the need for legal frameworks and social
movements that recognize the complexity of discrimination in modern society.
 To effectively challenge racial and ethnic discrimination, it is crucial for legal systems to
adopt intersectional frameworks and for activists and policymakers to work towards
comprehensive solutions that address both individual and structural racism.

Resistance Movements & Legal Responses

4.1 Global Movements

 Negritude Movement (Senghor & Césaire):


o The Negritude movement, founded by writers and intellectuals such as Léopold
Senghor (Senegal) and Aimé Césaire (Martinique), was a cultural and literary
response to colonial oppression. It aimed to reclaim Black cultural identity and
pride, promoting Black unity and resistance to the cultural dominance of colonial
powers.
o Negritude celebrated African heritage, art, and language, providing a counter-
narrative to the colonial portrayal of African culture as inferior. It sought to
restore dignity to Black people by reconnecting them with their roots and
confronting the historical dehumanization they experienced during colonialism.
 #RhodesMustFall Movement (2015):
o The #RhodesMustFall movement originated in South Africa as a student-led
protest against the legacy of Cecil Rhodes, a colonial figure whose racist views
and imperialistic actions were embedded in the infrastructure of South African
universities. The movement, sparked by student protests at the University of
Cape Town, demanded the removal of statues and symbols associated with
colonial oppression and called for decolonization of higher education
institutions.
o This movement rapidly gained global attention, spreading to other universities
and cities worldwide. It advocated for a critical examination of how colonialism
and racism continue to shape modern institutions, urging an end to the
dominance of Eurocentric education and the restructuring of knowledge
systems to include diverse perspectives.
 #BlackLivesMatter (BLM) Kenya (2020):
o The #BlackLivesMatter (BLM) Kenya movement was a localized response to
the global Black Lives Matter protests, which were ignited by the death of
George Floyd in 2020. In Kenya, the BLM movement highlighted the issue of
police brutality against marginalized communities, especially Black people and
other ethnic minorities.
o The movement drew connections between local police violence and the global
anti-Black racism seen in the United States. #BLM Kenya also raised awareness
about racial profiling and state violence against individuals based on their
ethnicity or perceived social status. It emphasized the importance of solidarity in
addressing racial discrimination, not only in Western contexts but also in
African societies, where issues of ethnic bias and state violence remain deeply
rooted.

4.2 Kenya’s Institutional Efforts

 National Cohesion and Integration Commission (NCIC):


o The National Cohesion and Integration Commission (NCIC) was established
in Kenya to promote national unity and social cohesion in a post-ethnically
charged society. One of its main tasks is to address ethnic divisions and
discrimination, particularly in the aftermath of Kenya’s 2007-2008 post-election
violence.
o Successes:
 The NCIC has had some success in prosecuting cases of hate speech,
including those involving political figures like William Ruto and Joshua
Sang, who faced International Criminal Court (ICC) charges for their
roles in inciting violence during the 2007 elections. This illustrates the
NCIC’s involvement in addressing ethnic hatred at the highest political
levels, promoting accountability.
o Failures:
 However, the NCIC's effectiveness has been criticized, particularly
regarding its weak enforcement of policies that address ethnic bias in
politics. Despite legal frameworks prohibiting ethnic-based political
campaigns, ethnic biases remain deeply ingrained in Kenya’s political
landscape, with political parties often relying on ethnic alliances to secure
votes. This ongoing politicization of ethnicity undermines national
cohesion and integration efforts, leaving many marginalized communities
vulnerable to political exploitation and discrimination.
 Judicial Progress:
o John Kabui Mwai v Kenya National Examinations Council (KNEC) (2011):
 In a landmark case, John Kabui Mwai successfully challenged ethnic
bias in the grading of Kenyan national exams. This case was important
because it highlighted how ethnic prejudice could seep into institutional
practices such as examination systems.
 The court ruled in favor of Mwai, underscoring the constitutional right to
equality under Article 27 of the Kenyan Constitution. The case was seen
as a significant step forward in combating ethnic discrimination in public
institutions and reaffirmed the judiciary's role in addressing systemic
inequalities rooted in ethnicity.
o The ruling in this case was a reminder that ethnic bias can manifest not only in
overt acts of violence or hate speech but also in more subtle forms of
discrimination in education and public services. The judicial intervention was
an important affirmation of Kenya’s commitment to promoting ethnic equality
and justice.

Conclusion:

 The global resistance movements like Negritude, #RhodesMustFall, and #BLM


Kenya have played a crucial role in highlighting systemic racial and ethnic injustices
and pushing for social change through various forms of cultural, political, and legal
action.
 Kenya's institutional responses to ethnic discrimination, particularly through the NCIC
and judicial rulings like John Kabui Mwai v KNEC, demonstrate a commitment to
addressing the legacy of ethnic divisions and promoting national cohesion. However,
the persistent ethnic biases in politics and some institutions show that stronger
enforcement mechanisms and cultural transformation are needed to ensure that
Kenya’s legal framework is fully effective in tackling ethnic discrimination.
 The ongoing struggle to decolonize institutions and eradicate ethnic-based
discrimination reflects a global challenge, but local and international movements
provide a foundation for resistance and reform. Continued advocacy and legal efforts,
both in Kenya and globally, are vital in the fight against racial and ethnic inequalities.

Indigenous Rights & Unresolved Conflicts

5.1 Endorois Precedent

 Endorois Welfare Council v Kenya (ACHPR, 2010):


o The Endorois case is a landmark decision by the African Commission on
Human and Peoples' Rights (ACHPR), which recognized the land rights of the
Endorois people in Kenya. The Endorois, a semi-nomadic indigenous
community, had been forcibly evicted from their ancestral land in the Lake
Bogoria area to make way for a wildlife reserve. This eviction, which occurred
in the 1970s, violated the community’s right to property, culture, and religion.
o The ACHPR ruling found that Kenya had violated the Endorois’ rights under
the African Charter on Human and Peoples’ Rights (Article 14), and it ordered
the Kenyan government to return the land or provide adequate compensation
to the Endorois community. This decision was seen as a major victory for
indigenous rights in Africa, as it explicitly addressed the historical injustice of
land dispossession and the right to self-determination.
o The gap in the implementation of the decision highlights a critical issue in Kenya.
Despite the Community Land Act of 2016, which seeks to address land rights
for indigenous communities, the Ogiek and Sengwer communities (other
indigenous groups in Kenya) have continued to face significant challenges in
securing land restitution. The government’s lack of commitment to fully
implement land restitution measures remains an unresolved issue, especially for
marginalized communities that were historically dispossessed of their land.

5.2 Case Comparison: South Africa vs. Kenya

 Land Redress:
o South Africa:
 Post-apartheid South Africa has made significant progress in land
redress through the Restitution of Land Rights Act (1994) and the Land
Reform Programme. The country has established a comprehensive
system for the redistribution of land taken from indigenous and Black
South Africans during the apartheid era.
 The land restitution process allows individuals and communities who
were dispossessed of land during apartheid to seek restitution and claim
back their ancestral lands. There are also compensation programs for
those whose land cannot be returned.
 Despite challenges, such as slow implementation and political resistance,
South Africa’s land reform policies are more robust and systematically
designed to address historical land injustices.
o Kenya:
 Kenya’s land reform efforts have been much slower and less
comprehensive. The legacy of colonial land dispossession, particularly
the displacement of the Maasai, Endorois, and Ogiek peoples from their
ancestral lands, continues to haunt the country.
 The Community Land Act (2016) is a positive step towards recognizing
the land rights of indigenous communities, but the implementation of
this law has been poor, especially for communities like the Ogiek and
Sengwer, who continue to face evictions from their ancestral lands
despite legal protections.
 Kenya’s land issue remains unresolved, with the government often
prioritizing economic interests, such as tourism and conservation, over
the rights of indigenous communities. The slow pace of land restitution in
Kenya is a major challenge for achieving true land justice.
 Affirmative Action:
o South Africa:
 South Africa has implemented Broad-Based Black Economic
Empowerment (BEE) policies as part of its efforts to address racial
inequality and promote economic opportunities for Black South Africans
who were disenfranchised under apartheid. These policies provide
preferential treatment for Black individuals in various sectors, including
education, employment, and government contracts. The BEE policies aim
to reduce economic disparities between racial groups by ensuring that
Black South Africans have access to the same economic opportunities as
their White counterparts.
o Kenya:
 Kenya has struggled to implement effective affirmative action policies
that address ethnic inequalities in the same way South Africa has with its
BEE programs. Although Article 27(8) of the Kenyan Constitution
provides for affirmative action in matters of gender and ethnicity, the
implementation of these policies has been weak. For instance, the two-
thirds gender rule has yet to be fully realized in Parliament, and ethnic
quotas for government jobs have little legal enforcement or impact.
 In contrast to South Africa, where BEE policies are enshrined in law and
have some degree of success in increasing the economic participation of
previously disadvantaged groups, Kenya's affirmative action policies
remain ineffective in reducing the gap between ethnic groups in terms of
political representation, land ownership, and economic participation.

Summary:

 Endorois Precedent: The Endorois Welfare Council v Kenya (ACHPR, 2010) case
was a landmark ruling that recognized the land rights of indigenous communities in
Kenya, but implementation of land rights for other communities such as the Ogiek and
Sengwer remains a challenge. The Community Land Act (2016) is intended to address
these issues, but its implementation has been weak.
 South Africa vs. Kenya - Land Redress: South Africa has made significant strides in
land restitution post-apartheid, while Kenya has struggled with delayed justice for land
injustices. Kenya's land reform laws have yet to effectively redress the dispossession of
indigenous land.
 Affirmative Action: While South Africa’s BEE policies have made strides in addressing
racial inequality, Kenya’s affirmative action policies, particularly those related to ethnic
quotas, have struggled with weak enforcement and ineffectiveness.

Conclusion & Anti-Racism Praxis

Key Takeaway:

In Kenya, race and ethnicity remain significant tools of exclusion, reinforcing structural
inequalities within the political, social, and economic systems. Despite legal frameworks that
prohibit discrimination, cultural and institutional barriers persist, making it essential to
combine legal interventions with cultural change in addressing these systemic issues.
Action Steps:

1. Read:
o "I Write What I Like" by Steve Biko: This work is essential for understanding
the Black Consciousness Movement and the necessity of decolonizing the
mind. Biko’s critique of colonialism and apartheid highlights the psychological
and social impacts of racial oppression, which is still relevant to post-colonial
contexts like Kenya.
2. Engage:
o Support indigenous land rights campaigns such as those advocating for the
Ogiek community. Indigenous groups in Kenya, like the Ogiek and Sengwer,
continue to struggle for recognition of their land rights, as exemplified in the
Endorois case and similar efforts.
o Raising awareness and supporting grassroots movements can play a critical role
in advocating for land restitution and legal reforms aimed at redressing
historical injustices.

Further Reading:

 Quayle & Verwey (2012): "Whiteness in Post-Apartheid South Africa" explores the
complexities of racial identity and privilege in South Africa’s transition from apartheid,
offering valuable insights into how whiteness operates within a post-colonial context.
 NCIC Reports: The National Cohesion and Integration Commission (NCIC)
conducts audits of ethnic bias in public and private institutions in Kenya, particularly in
county governments. These reports can provide an important overview of the
challenges in combating ethnic favoritism and discrimination in public service.

Exam Hack:

 In essays or exam responses, incorporate the theoretical frameworks of Frantz Fanon


and Kimberlé Crenshaw to showcase a deep understanding of the intersectionality and
psychological dimensions of race and ethnicity.
o Fanon’s work on colonial alienation (e.g., Black Skin, White Masks) can help
explain how internalized racism persists in post-colonial societies.
o Crenshaw’s intersectionality framework is crucial for analyzing how race and
ethnicity intersect with other identities, such as gender, class, and sexuality,
and how these overlapping forms of discrimination compound the oppression
faced by marginalized groups.

Final Thought:

Tackling race and ethnicity-based exclusion in Kenya requires a multi-faceted approach that
combines legal reforms, cultural transformation, and grassroots activism. Understanding
historical and contemporary systems of oppression, as well as engaging with decolonial
thought, will contribute to more inclusive, equitable, and just societies.
SEMINAR 10: DISCRIMINATION ON THE BASIS
OF DISABILITY
Key Concepts and Paradigms of Disability

1.1 Models of Disability

1. Medical Model of Disability


o Definition: This model views disability as an individual impairment that needs
to be treated or "fixed."
o Focus: Disability is located within the individual, and the primary concern is the
diagnosis, cure, or management of the condition.
o Critique: This model has been heavily criticized for reinforcing stigma and
treating people with disabilities as "patients" or "victims" rather than active
participants in society.
 Waddington (2015) argues that the medical model reinforces the idea
that individuals with disabilities are inherently deficient and in need of a
cure, which further perpetuates ableism (discrimination against people
with disabilities).
o Kenyan Example: Disability under this model in Kenya may be seen in contexts
like rehabilitation programs or medical interventions, often overlooking societal
barriers such as inaccessible buildings, public transport, or lack of education.
2. Social Model of Disability
o Definition: The social model shifts the focus from the individual to society. It
frames disability as a result of social barriers, such as inaccessible
environments, societal attitudes, or exclusion from social participation.
o Focus: The issue is not the disability itself, but the societal structures that fail to
accommodate differences.
o Kenyan Example: One example in Kenya would be lack of ramps in courts,
which violates Article 54 of the Constitution, which ensures that people with
disabilities have access to public services and facilities. This illustrates how
structural barriers, rather than the individual’s disability, create challenges.
o Critique: While this model emphasizes social change, it can sometimes
underestimate individual needs, such as specific medical treatments or
accommodations that may still be necessary.
3. Human Rights Model of Disability
o Definition: The human rights model combines elements of the social model and
the Convention on the Rights of Persons with Disabilities (CRPD). It
emphasizes the right to dignity, equality, and participation in all aspects of
society.
o Focus: Disability is framed within the context of human rights, asserting that
people with disabilities have the same rights as everyone else and should not be
excluded from social, political, and economic life.
o Example: Reasonable accommodation is a key principle under the CRPD,
especially Article 5, which requires states to provide reasonable adjustments in
workplaces, schools, and other settings to ensure equal opportunities for people
with disabilities. This ensures that people with disabilities can participate
equally in all spheres of life, from employment to education and civic
engagement.
o Critique: This model is regarded as more inclusive as it emphasizes
participation and inclusivity, but it also places significant responsibility on
governments to enforce rights and ensure access.
4. Ableism
o Definition: Ableism is the systemic discrimination against people with
disabilities, where able-bodied norms are favored over the needs and rights of
those with disabilities.
o Examples of Ableism:
 Job ads that require "physical fitness" for desk roles, where physical
capability is irrelevant to the job.
 Public spaces that fail to provide accessibility for people with mobility
impairments, such as lack of wheelchair ramps, elevators, or accessible
toilets.
o Impact: Ableism can result in social exclusion, economic marginalization, and
psychological harm for people with disabilities. It prevents them from fully
participating in society and denies their rights to equal opportunities.

Key Takeaway:

 These models of disability—medical, social, and human rights—present different


perspectives on how disability should be understood and addressed in society.
 The social and human rights models offer a more inclusive approach by recognizing the
importance of removing barriers in society, ensuring that people with disabilities are
able to participate fully in all aspects of life.
 Ableism remains a challenge in society, where laws and policies can often fail to account
for the systemic discrimination that people with disabilities face, requiring continuous
advocacy and legal reforms.

By shifting towards a rights-based approach, Kenya and other countries can create an
environment where individuals with disabilities are recognized not as victims, but as
empowered citizens with equal opportunities.

Legal Definitions of Disability

2.1 International Frameworks

1. Convention on the Rights of Persons with Disabilities (CRPD) (United Nations, 2006)
o Definition: According to Article 1 of the CRPD, disability is an evolving
concept that arises from the interaction between individuals and the barriers
they encounter in society.
o Key Idea: Disability is not solely an inherent trait of an individual but results
from the interaction between a person's impairments and the societal,
environmental, and attitudinal barriers they face. This shift in understanding
emphasizes that society, rather than individuals, should adjust to accommodate all
people.
o Significance: The CRPD advocates for the full integration of persons with
disabilities (PWDs) into all aspects of life, focusing on the removal of barriers to
accessibility, participation, and equality.
2. World Health Organization’s International Classification of Functioning, Disability,
and Health (WHO ICF)
o Definition: The WHO ICF defines disability through two primary dimensions:
 Functioning: The physical and mental capacities of a person.
 Environmental Factors: The barriers or facilitators in the environment
(e.g., physical accessibility, societal attitudes, legal frameworks).
o Classification: The ICF framework views disability as a dynamic interaction
between health conditions (like an impairment) and external factors (like societal
barriers).
o Significance: The ICF encourages a more holistic approach to disability, focusing
not only on the individual's condition but also on how the environment and
society shape their experiences.

2.2 Kenyan Law

1. Constitution of Kenya (2010) – Article 54


o Guarantees Rights of PWDs: Article 54 of the Kenyan Constitution guarantees
specific rights to persons with disabilities, such as:
 Access to public spaces, including facilities and services.
 Right to education without discrimination.
 Right to participate in public life and inclusion in decision-making
processes.
o Emphasis: The Constitution acknowledges the importance of inclusivity and
mandates the state to take steps to ensure equal opportunities for PWDs in
social, economic, and political life.
2. Persons with Disabilities Act (2003)
o Definition: The Act defines disability broadly as any long-term physical,
mental, or sensory impairment that substantially limits the individual's ability
to perform activities.
o Challenges: While the Act provides important legal protections for persons with
disabilities, it has been criticized for lacking an intersectional lens—meaning it
does not sufficiently address the specific challenges faced by disabled women,
disabled children, or those with multiple and intersecting identities (e.g.,
disabled persons from marginalized ethnic groups).
o Gap: The Persons with Disabilities Act does not explicitly recognize
psychosocial disabilities (such as mental health conditions), which are
increasingly being acknowledged in international human rights frameworks like
the CRPD.
o UNDP (2021) addresses the gap by urging for recognition of psychosocial
disabilities and mental health issues as a form of disability. This is important as
these conditions are often stigmatized and overlooked in both legal frameworks
and disability advocacy.

Key Takeaway:

 The international frameworks like the CRPD and WHO ICF provide a
comprehensive view of disability, emphasizing the interaction between impairments
and barriers in society. This marks a shift from focusing solely on the individual to
considering the societal environment and the role of social structures in fostering
inclusion.
 Kenya's legal framework, especially the Constitution and Persons with Disabilities
Act, offers a strong foundation for recognizing and promoting the rights of PWDs.
However, there are gaps in the law, particularly the lack of an intersectional approach
and psychosocial disability recognition, which may hinder full inclusion.

Normative Content of Anti-Discrimination Law

3.1 CRPD Article 5: Equality and Non-Discrimination

The Convention on the Rights of Persons with Disabilities (CRPD) establishes several
foundational principles aimed at ensuring the equality and dignity of persons with disabilities
(PWDs). Specifically, Article 5 of the CRPD addresses the right to equality and non-
discrimination, setting standards that guide state obligations toward PWDs.

1. Equality (5(1)):
o Key Principle: PWDs must be equal before the law and enjoy the same rights
as others without discrimination.
o Implication: This guarantees legal equality, meaning persons with disabilities
should not be treated differently under the law unless such treatment is objectively
justified.
2. Non-Discrimination (5(2)):
o Key Principle: The CRPD prohibits both direct and indirect discrimination on
the basis of disability.
o Direct Discrimination: When an individual with a disability is treated less
favorably than others due to their disability (e.g., being denied employment
because of a physical impairment).
o Indirect Discrimination: Occurs when a seemingly neutral policy or practice
disproportionately disadvantages persons with disabilities, such as requiring a
certain physical fitness for a desk job.
o Significance: This provision emphasizes that disability should not be a barrier to
access or participation in any aspect of life, ensuring equality in opportunities,
services, and social engagement.
3. Reasonable Accommodation (5(3)):
o Key Principle: States must provide reasonable accommodations to ensure that
PWDs can fully participate in society, especially in employment, education, and
other key areas.
o Examples: Adjustments might include things like:
 Providing sign language interpreters for deaf individuals.
 Modifying physical spaces (e.g., ramps for wheelchair access).
 Allowing extra time for exams or providing materials in alternative
formats.
o Case Study: Lawrence Mute (2021): A notable example in Kenya is the John
Kabui Mwai v KNEC case, where the Kenyan courts ruled in favor of providing
equal access for a candidate with a disability during exams. However,
enforcement of reasonable accommodations often remains inconsistent,
highlighting a gap in practice despite legal provisions.
o Challenges:
 Despite these provisions, in Kenya, reasonable accommodation in public
and private spaces remains poorly implemented, with PWDs facing
barriers to equal participation in society.
 This inconsistency in enforcement signals that policy needs to be
translated into action to ensure that PWDs can enjoy the rights they are
legally guaranteed.

3.2 African Instruments: AU Disability Protocol (2018)

1. African Union (AU) Disability Protocol (2018):


o Key Provision (Article 8): Requires states to prohibit all forms of
discrimination based on disability, ensuring equal rights and opportunities for
PWDs.
o Objective: The protocol aims to harmonize the protection of disability rights
across Africa, recognizing that disability is both a human rights and a
developmental issue.
o Importance: It complements the CRPD and emphasizes that disability rights are
essential to achieving social justice, equality, and economic development in
African states.
2. Kenya’s Compliance:
o Ratification: Kenya ratified the AU Disability Protocol, signaling its commitment
to ensuring the rights of PWDs.
o Gaps in Implementation: While the country has made strides in aligning its laws
with international human rights frameworks, such as the CRPD, there is still a
lack of domestic legislation specifically dedicated to enforcing disability rights
comprehensively.
o The Way Forward: Although Kenya has ratified key international and regional
instruments, the country must now focus on developing and enforcing domestic
laws that address the specific needs of PWDs, ensure reasonable
accommodations, and prohibit discrimination in all spheres of life.
Key Takeaways:

 The CRPD and AU Disability Protocol provide comprehensive anti-discrimination


frameworks that highlight the importance of equality, non-discrimination, and
reasonable accommodations for persons with disabilities.
 Kenya has made progress in aligning its legal framework with international standards,
but enforcement remains a significant challenge. Practical measures must be taken to
ensure that PWDs enjoy the full range of rights guaranteed by these international
agreements.
 Reasonable accommodations are essential for inclusive access to education,
employment, and public services, but gaps in implementation persist, requiring stronger
legal enforcement and monitoring.

Forms of Disability Discrimination

Disability discrimination can take various forms, including direct and indirect discrimination.
Understanding these distinctions is crucial for addressing and preventing unfair treatment of
persons with disabilities (PWDs).

4.1 Direct vs. Indirect Discrimination

1. Direct Discrimination:
o Definition: Direct discrimination occurs when a person with a disability is treated
less favorably than others because of their disability. This type of discrimination
is overt and explicit.
o Example: If a deaf applicant is denied the opportunity to apply for a driver's
license solely because of their hearing impairment, this is an example of direct
discrimination. The disability is being treated as a barrier to participation, even if
it may not necessarily prevent the applicant from performing the role in question.
o Jurisprudence: In the case of Robert Mboya Nyaringo v Kenya Forest Service
(2014), the denial of promotion to an employee because of their disability was
ruled to be direct discrimination. This case reinforced the principle that PWDs
cannot be denied opportunities solely due to their disability status.
2. Indirect Discrimination:
o Definition: Indirect discrimination occurs when a neutral policy, practice, or
requirement has an adverse effect on persons with disabilities, even though it is
not intentionally discriminatory. This form of discrimination is often more subtle
and may not immediately appear to be biased.
o Example: A job advertisement that requires a "clean criminal record" may
indirectly discriminate against people with disabilities who have been arrested or
detained during mental health crises. This requirement does not specifically target
persons with disabilities but may exclude them from the job market due to the
history of mistreatment or lack of accommodation for their condition.
o Impact: Indirect discrimination is often harder to detect because it may not be
immediately apparent that a policy disproportionately impacts a certain group of
people. It often requires a deeper analysis to reveal how certain conditions or
standards disadvantage those with disabilities.

4.2 Intersectional Discrimination

Intersectionality refers to the complex ways in which different forms of discrimination (e.g.,
based on gender, race, disability, etc.) overlap and compound the disadvantage experienced by
certain individuals. For persons with disabilities, intersectional discrimination is particularly
important as they may experience discrimination not only based on their disability but also on
factors like gender, ethnicity, or socioeconomic status.

1. Disabled Women:
o Vulnerability: Disabled women often face multiple layers of discrimination.
They are not only subject to disability discrimination, but also to gender-based
violence (GBV) and gender discrimination.
o Case Example: In the FIDA-Kenya v AG case, the discriminatory treatment
of disabled women was highlighted, specifically in terms of gender-based
violence (GBV). Disabled women experience higher rates of violence, as they
may be seen as more vulnerable or less capable of defending themselves.
Additionally, societal stereotypes about their sexuality or worth exacerbate their
vulnerability to abuse.
2. Disabled Refugees:
o Challenges in Refugee Contexts: Disabled refugees, particularly those with
mental health conditions or physical disabilities, face heightened discrimination.
They are often marginalized both within the refugee community and in the
broader society.
o Case Example: The Samow Mumin Mohamed case revealed how disabled
individuals were ignored in counterterrorism profiling in Kenya. Somali-
Kenyan refugees, including those with disabilities, were disproportionately
targeted for security measures, and their disability was overlooked in the
profiling process. This omission reflected intersectional discrimination, where
individuals' disability status compounded the prejudice based on their ethnicity
and refugee status.

Key Takeaways:

 Direct discrimination is explicit and occurs when individuals with disabilities are
treated unfairly due to their condition, while indirect discrimination is more subtle and
often arises from policies that unintentionally disadvantage PWDs.
 Intersectional discrimination highlights how multiple identities (e.g., gender, disability,
ethnicity) intersect, creating compounded forms of disadvantage. For example, disabled
women are particularly vulnerable to gender-based violence, and disabled refugees often
face double marginalization based on both their disability and refugee status.
 Legal frameworks like the Persons with Disabilities Act and the Constitution of
Kenya aim to address these forms of discrimination, but enforcement remains
inconsistent. Addressing these issues requires a more intersectional approach to both
policy development and legal practice.

Domestic Legal Framework in Kenya: Addressing Disability Discrimination

Kenya has made significant strides in incorporating protections for persons with disabilities
(PWDs) within its Constitution and domestic legislation. However, challenges remain in
implementation and ensuring real equality for disabled individuals.

5.1 Constitutional Protections

1. Article 21(3): State’s Obligation


o Provision: This article mandates that the state take legislative, policy, and other
measures to ensure the rights of marginalized groups, including persons with
disabilities (PWDs), are upheld. It underscores the affirmative duty of the state
to act on behalf of marginalized groups and correct systemic disparities.
o Significance: This provision is foundational because it places an obligation on
the state to actively promote equality for PWDs. The Constitution recognizes
disability as a matter of public concern and pushes for tangible actions.
2. Article 54(1): Right to Dignity and Access to Public Spaces
o Provision: This article guarantees that PWDs shall be entitled to enjoy the same
rights and freedoms as other citizens, including the right to access public spaces
and dignity.
o Impact: Article 54 ensures physical and social inclusion by requiring that public
spaces, services, and facilities be accessible. This reflects the social model of
disability, which stresses that disability arises more from barriers in society than
from the individual’s impairment.
o Critique: While the Constitution provides protections, critics such as Megret &
Msipa (2014) argue that the implementation is often tokenistic. For example,
despite the constitutional guarantee, there is limited representation of PWDs in
government bodies like Parliament. This discrepancy points to the lack of
political will and enforcement mechanisms.

5.2 Persons with Disabilities Act (2003)

1. Section 15: Employment Quota for PWDs


o Provision: The Persons with Disabilities Act sets a 5% employment quota for
PWDs in both the public and private sectors. This is an affirmative action
measure designed to increase the participation of PWDs in the workforce and
reduce systemic exclusion from employment opportunities.
o Reality: Despite this legal provision, compliance remains low, with only 1.7%
compliance recorded in 2023 by the National Cohesion and Integration
Commission (NCIC). The low compliance rate indicates the lack of effective
implementation and highlights the barriers PWDs continue to face in securing
employment. These barriers include physical accessibility to workplaces,
discriminatory hiring practices, and negative stereotypes about the capabilities of
disabled individuals.
2. Landmark Case: Mitu-Bell Welfare Society v KAA (2021)
o Case Overview: This landmark case involved the eviction of PWDs from
informal settlements near the Kenya Airports Authority (KAA). The evictions
violated the rights of PWDs under Article 54 of the Constitution, which
guarantees PWDs' right to dignity and access to adequate housing.
o Legal Outcome: The court’s ruling reinforced the constitutional guarantee of
equal treatment and protection for PWDs, affirming that evictions that fail to
account for the needs of PWDs are unconstitutional.
o Implication: This case marked an important legal victory for PWDs, illustrating
how courts can enforce constitutional provisions to protect vulnerable groups
from exploitation and neglect. However, the broader implementation
challenges remain, especially regarding widespread enforcement of accessibility
and anti-discrimination provisions.

Key Takeaways and Critiques

 Constitutional Protections: While Kenya’s Constitution provides robust protections for


PWDs, the real challenge lies in the implementation. The gap between the legal
framework and real-world outcomes persists, with many PWDs continuing to face
barriers in education, employment, and access to public services.
 Persons with Disabilities Act: The employment quota and other measures in the
Persons with Disabilities Act aim to address exclusion in various sectors. However, the
low compliance rate and failure to implement inclusive practices show that legal
provisions are not always effectively enforced.
 Landmark Cases: Cases like Mitu-Bell Welfare Society v KAA highlight the
importance of judicial review in protecting the rights of marginalized groups. However,
legal precedents alone cannot ensure broad societal change without sustained efforts to
address implementation gaps at the policy level and public attitudes toward disability.

Recommendations:

 Enhanced Enforcement: There is a need for stronger enforcement mechanisms to ensure


compliance with disability quotas in employment and accessibility standards in public
spaces.
 Intersectionality: Future laws and policies should explicitly address the intersectional
nature of disability, recognizing that women, children, and refugees with disabilities face
compounded forms of discrimination.
 Public Awareness: Public education campaigns can help reduce ableism and foster a
more inclusive society, ensuring that disabled individuals are treated with the dignity
and respect they deserve.

Contemporary Challenges & Reforms: Disability Rights in Kenya


While Kenya has made significant legal advancements in addressing the rights of persons with
disabilities (PWDs), chronic barriers persist, both in terms of access to justice and political
participation. These barriers are often physical, attitudinal, and systemic, indicating that while
the legal framework is progressive, implementation and social attitudes remain significant
challenges.

6.1 Access to Justice

Physical Barriers:

 Challenge: Courts in Kenya often lack accessibility for PWDs, especially in terms of
physical infrastructure like ramps, elevators, and braille for those with visual
impairments.
 Example: The case of Lawrence Mute (2021) highlighted the issue of accessibility in
courts, where PWDs face exclusion from meaningful participation due to the lack of
basic accommodations.
 Impact: The physical inaccessibility of public spaces, including courts, directly violates
constitutional provisions for equal access to justice. Without the necessary adaptations,
PWDs are unable to effectively engage with legal processes, leaving them marginalized.

Attitudinal Barriers:

 Challenge: Even when physical barriers are addressed, attitudinal barriers persist. In
some cases, judges and legal practitioners dismiss the testimony of PWDs, often
seeing it as unreliable or invalid due to biases and stereotypes about disability.
 Impact: These discriminatory attitudes in the legal system result in unfair treatment
for PWDs. It reflects a broader societal issue where PWDs are not perceived as credible
or equal participants in society, which ultimately impacts their legal outcomes.

6.2 Political Participation

Legal Capacity Barriers:

 Challenge: Legal capacity is a key barrier for PWDs in Kenya when it comes to political
participation. Laws relating to guardianship and incompetency often limit the ability of
PWDs to make decisions for themselves, particularly in electoral or legal contexts.
 UNDP (2021) notes that guardianship laws still hinder political participation, as many
PWDs are denied the right to vote or stand for office due to presumed incompetence.
 Impact: This directly contradicts the principles of equality and non-discrimination in
the Constitution and the Convention on the Rights of Persons with Disabilities
(CRPD). The presumption of incompetence undermines PWDs' autonomy and their
right to political participation.
Baby A v AG (2014):

 Case Overview: This case was a landmark judgment that recognized the rights of
children with disabilities, particularly their right to education and access to services
without discrimination.
 Significance: It affirms that disability rights should be considered in a broader social
context and emphasizes that children with disabilities should not be excluded from full
participation in society, including political representation.

7. Comparative Perspectives

7.1 South Africa vs. Kenya

South Africa and Kenya both have made legal strides to include PWDs in public life, but their
implementation strategies differ significantly:

 Reasonable Accommodation:
o South Africa: The case of Hoffman v SAA (2000) led to strong legal precedents
that enforce reasonable accommodation in the workplace for PWDs. This case
clarified that employers must adjust work environments to make them
accessible.
o Kenya: Although Kenyan law also mandates reasonable accommodation, cases
such as John Kabui Mwai show weak enforcement, and PWDs often face non-
compliance in employment, education, and public services.
 Quotas:
o South Africa: The Employment Equity Act (BEE policies) ensures broad
disability representation in employment, alongside state-enforced quotas for
PWDs in public services.
o Kenya: Kenya's 5% employment quota for PWDs in both the public and
private sectors is rarely met. The low compliance rate (1.7% as noted by NCIC
in 2023) indicates that the legal framework lacks sufficient enforcement
mechanisms and incentives.

7.2 EU’s Missteps:

The EU has faced criticism for narrowing the definition of disability in its legal frameworks,
which led to weak enforcement of rights for PWDs. The lesson for Kenya is to adopt the
CRPD’s broad view of disability, which goes beyond physical impairments to include
psychosocial disabilities and other forms of invisible disability.

8. Exam Strategies & Essay Points

8.1 Hypothetical Question:

"A blind law student is denied e-exam accommodations at a Kenyan university. Analyze under
CRPD and domestic law."
Answer Outline:

 CRPD Art. 5(3): The university must provide reasonable accommodations, such as
screen-reader software, to ensure the student’s equality in exams.
 Kenyan Law: Under Article 54 of the Constitution and the Persons with Disabilities
Act, PWDs are entitled to access education on an equal footing with others, and the
university has an obligation to remove barriers.
 Practical Challenges: Remedies may be delayed, and there could be institutional
reluctance in enforcing such accommodations.

8.2 Critical Essay:

"Assess whether Kenya’s disability framework meets the social model’s standards."

Arguments:

 Yes: The Constitution, CRPD ratification, and Persons with Disabilities Act are
progressive in promoting equal rights for PWDs, aligning with the social model of
disability that focuses on removing societal barriers.
 No: Despite these laws, architectural barriers, attitudinal biases, and weak
enforcement mechanisms mean that the social model’s standards are not fully met.
PWDs still face significant challenges in accessing public services, employment, and
education.

9. Conclusion & Advocacy Pathways

Key Takeaway:

Kenya’s legal framework for PWDs is robust on paper, but systemic ableism continues to
prevent full inclusion. The state’s commitment to equality is clear, but implementation lags
behind due to cultural resistance, institutional non-compliance, and attitudinal barriers.

Action Steps:

 Litigation: Use the Mitu-Bell precedent to push for PWD rights in housing and
eviction cases.
 Policy Reform: Amend the Persons with Disabilities Act to include intersectionality,
particularly addressing the needs of disabled women, refugees, and ethnic minorities.
 Public Advocacy: Promote campaigns aimed at reducing ableism, encouraging public
awareness, and fostering a more inclusive society.

Further Reading:

 Bantekas (2018): "CRPD Art. 5 in practice" – practical implications of anti-


discrimination law for PWDs.
 Arnardóttir (2009): "Multidimensional equality" – exploring intersectionality in
disability rights.

Exam Hack:

When writing comparative essays, cite the CRPD alongside AU Protocols to provide a
transnational perspective, showing the broader legal landscape in which Kenya’s disability
framework exists.

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