On this International Women’s Day 2012, allow me to start off by briefly discussing the dynamics of social change. Throughout history, it has always been the oppressed groups within any society that have been at the forefront of the struggle for equality. For instance, during the Civil Rights Movement, African American leaders were on the front lines of the struggle for social change because they knew first-hand what inequality and discrimination was all about. Within the human rights struggle in Kenya, the women’s movement has perhaps been a well organised and formidable force resulting in part to the promulgation of the Constitution in 2010. It is because of women’s own past experiences of prejudice and injustice that they continue to push for social change and reforms.
Equality is a difficult and deeply controversial ideal. At its most basic and abstract, equality is a moral idea that people who are similarly situated in relevant ways should be treated similarly. Therefore, in the context of the gender equality struggle, women and men must have full and equal enjoyment of all rights and freedoms which includes the right to equal opportunities in all areas of life. So, the struggle for ‘gender equality’ as we know is not only about women but rather about both the male and female genders. However the struggle for equality and equity between the two genders is led predominantly by women precisely because they have endured decades of prejudice and discrimination on the basis of their gender. Therefore women understand the importance of ‘equality’ both as a social ideal and more importantly as a legally binding requirement that is the hallmark of Kenya’s constitutional dawn.
Article 27 of the Constitution “Equality and Freedom from Discrimination” is the cornerstone of the new constitutional dispensation and a central feature of this article is that it applies to both the State (clause 4) as well as to the individual (clause 5). Since the promulgation of the 2010 Constitution, the most controversial aspects relating to the ‘equality’ provision have been: the issue of ‘regional balancing’, the ‘two-thirds principle’ in representation and finally the question of non-listed grounds for discrimination.
On the issue of the regional balancing as witnessed in recent cases of controversial public appointments, Article 27 (the ‘Equality Article’) is clear that the State shall not discriminate directly or indirectly against any person on the ground of ethnic or social origin. In the present case, there is a need to balance between creating a public service that represents Kenya’s diverse communities on the one hand and ensuring that fair competition and merit are the basis of all appointments on the other hand. This balance is often controversial given the ethnicised nature of Kenya’s politics therefore all discriminated individuals or marginalised groups must continue to agitate for transparency and accountability especially in public appointments.
On the issue of the “two-thirds principle”, the Equality Article provides that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender. This is reiterated in Article 81(b). The inclusion of this principle in the Constitution is widely seen as the single greatest achievement of the two decade long struggle for gender equality in Kenya. The challenge now is to ensure its full implementation while some legislators and commentators insist that this principle was intended to be aspirational and therefore must be progressively realised as opposed to being enforced immediately. The key challenge to the realization of the “two-thirds principle” is in the problematic wording of Article 97 and Article 98 which lay out the composition of members in the National Assembly and the Senate. Conventional wisdom on this impending constitutional catch-22 is to amend the Constitution as proposed by the Justice Minister Mutula Kilonzo in his Constitution of Kenya Amendment Bill, 2011. This will ensure that both Houses have more than 2/3rds of either gender as well as ensuring representation from other minorities and marginalised groups. Women have continued to push for full implementation of this 2/3 thirds principle and appear to be in favour of the Amendment Bill.
On the issue of non-listed grounds for discrimination, clause 4 of the Equality Article lists a total of 16 grounds for discrimination ranging from race to birth. The use of the word “including” in this clause indicates that the list is not restricted to these 16 grounds and may include many others that are not listed. It is clear that the same rationale is to be applied to clause 5. For instance, where the Equality Article has leaves out two common grounds for discrimination namely gender and sexual orientation, what is the position in law? As explained earlier, the fact that these two grounds have not been listed under clause 4 or clause 5 does not mean that both gender discrimination and discrimination on the basis of sexual orientation can be allowed to take place without any recourse to the Constitution. In each case, it must be alleged and proved that the discrimination was either directly or indirectly committed by the State or by a person.
In sum, the right to equality and freedom from discrimination is a fundamental component of the Bill of Rights enshrined in Kenya’s Constitution. Kenyans must be aware of their rights under the Constitution and fight for their realisation in all spheres of social, economic, cultural and political life. Women, as a demographic, are often singled out as having been at the centre of the human rights struggle in Kenya especially given the deeply patriarchal nature of Kenyan Society. The struggle for gender equality in Kenya is representative of the wider human rights struggle that has now received a much needed boost with the promulgation of the Constitution.
Therefore the challenge is all Kenyans, particularly the powerful women’s lobby groups, ensure that the spirit and letter of the Equality Article in the Constitution is followed and implemented fully.