Equality Compiled Notes
Equality Compiled Notes
NOTES IN FOLDER
🟡 What is Discrimination?
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.
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:
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 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 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.
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.
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.
📌 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.
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.
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
📌 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.
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.
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.
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 Legal Progress: Rono v. Rono (2005) and the Succession Act (1981) now
protect widows’ property rights, but enforcement lags.
o Law: The Marriage Act (2014) sets the legal age at 18,
but customary/Islamic marriages often bypass this.
o Legal Response: The National Land Policy (2009) and Truth, Justice,
and Reconciliation Commission (TJRC) recommended redistributive
justice.
o Case Law: Republic v. Mugo (2017) convicted a mob for lynching an elderly
woman in Kisii.
C. Traditional Justice Systems vs. Formal Law
Backlash: In 2020, a Meru chief was attacked for promoting girls’ education
over early marriage.
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
Key Idea:
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:
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 (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.
Conclusion:
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.
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.
Conclusion
Would you like to explore intersectionality's application in Kenyan law or any specific areas
such as gender-based violence or disability rights?
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.
For example, consider a disabled, low-income woman in Kenya. She might face:
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
For example, consider the situation of sexual violence against refugee women in Kenya.
Refugee women often face:
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.
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.
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.
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.
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.
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.
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.
Further Reading
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
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.
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.
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.
Key Takeaways:
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 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.
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.
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.
Conclusion:
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:
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.
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.
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:
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.
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.
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.
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.
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.
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.
Conclusion
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
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.
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.
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.
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.
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.
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.
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.
Key Provisions
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.
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.
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.
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.
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.
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.
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
United States
Kenya
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: 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
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.
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.
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.
Question: "Can Kenya’s equality framework benefit from South Africa’s PEPUDA model?
Discuss."
Arguments:
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.
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
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:
However, the reality in Kenya is that persistent gaps exist in areas such as political
representation, land ownership, and wage equality. For instance:
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.
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):
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.
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.
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.
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:
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)
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.
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.
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.
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.
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.
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 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.
#TotalShutDownKE
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.
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.
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
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.
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
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.
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.
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.
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.
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:
Conclusion:
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.
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:
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
Key Takeaway:
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.
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.
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.
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.
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).
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.
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.
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.
Recommendations:
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.
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
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.
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.
"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.
"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.
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:
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.