Fallacies of Equality and Inequality: Will Our Rights Lie in Limbo At the Pleasure of the State?


“…Having celebrated the repeal of Kenya’s older Constitution that legitimated discrimination in the areas of adoption, marriage, divorce, burial, devolution of property on death and personal law, I expected that the new constitutional dispensation would make the quest for equality and non-discrimination on the grounds of sex easier. However, in the short period that the Constitution has been in operation, the fallacies of the constitutionally entrenched principle of gender equality have become apparent in the areas of political representation and appointments to offices.” – Prof. Patricia Kameri Mbote, SC., 24th January 2013.

Kenya’s new constitutional dispensation is a radical departure from the old order and therefore it must be expected that there will be resistance to admission of new entrants by those so-called gate-keepers currently enjoying rights. My argument back then and now is that the task of implementation of the Constitution, by and large, remains in the hands of certain bureaucrats bent on exploiting society’s inherent inequalities and exclusions for their own selfish gains. Therefore, even where the supreme law steps in to try and redress these inherent incongruences, its success is wholly dependent on implementation. Herein lies, what Prof. Kameri Mbote terms, a “discernible chiasmus in the practical application of equality and non-discrimination which results in discrimination”.

In previous posts here and here, I have tried to shed light on the centrality and importance of the Equality and Non-Discrimination provision in the Constitution. In this connection, I concur fully with those that lay sharp emphasis on the role of the judiciary as the guardian of constitutional norms and values as well as being the primary institution charged to breathe life into the Constitution through interpretation.

Sitting in a packed auditorium listening to Prof. Kameri-Mbote giving her Inaugural Lecture, I couldn’t help but wonder whether our judiciary so far has been performing its crucial role as vanguard of equality and non-discrimination which includes demanding fidelity to the Constitution by the executive, the legislature and the public.

Judging from the recent Advisory Opinion of the Supreme Court, the patriarchal mindset among the majority of our apex court judges remains a major stumbling block in the development of a robust, indigenous and patriotic jurisprudence in Kenya

In the said Advisory Opinion handed down last month, the Supreme Court sought to answer the following question raised by the Attorney General: Whether Article 81(b) as read with Article 27(4), Article 27(6), Article 27(8), Article 96, Article 97, Article 98, Article 177(1)(b), Article 116, and Article 125 of the Constitution of the Republic of Kenya require progressive realization of the enforcement of the one third gender rule or if it requires the same to be implemented during the general elections scheduled for 4th March 2013.

The Supreme Court’s Opinion was divided with the majority view supporting progressive realisation of the gender equity rule whereas a dissenting view in the minority argued for immediate realisation of the constitutional rule. The four Supreme Court judges in majority namely Justices Tunoi, Ojwang, Wanjala, Ndungu were of the opinion that the gender equity principle in Article 81(b) of the Constitution is a statement of aspiration and would only transform into a specific, enforceable right after it is supported by a concrete normative provision.

Chief Justice Willy Mutunga dissented with majority view. The thrust of his minority opinion is a full endorsement of the ratio decidendi in the case of Centre for Education Rights Awareness & Others-v- The Attorney General High Court Petition No. 208 of 2012. In this case, the petitioners asked the court to declare as unconstitutional, null and void, the appointment of 47 persons as County Commissioners on the basis that 37 of them were of the male gender while only 10 were of the female gender. The court, in its judgment, agreed with the petitioners and stated as follows:

“In my view, the primary obligation imposed by Article 27(8) on the state is to do its utmost to meet the constitutional requirement. An effort must be made, bearing in mind the historical disadvantage to which women have been subject, to ensure gender equity. From the facts before me, there does not appear to have been any effort made to meet the requirements of the Constitution (…) The Constitution is thus very clear on what rights are subject to the progressive realisation test-the social and economic rights to health care, education, water, housing, and sanitation. Such rights require the allocation of resources, and as is the case with similar provisions in the International Covenant on Economic, Social and Cultural Rights, the state’s obligation is made subject to the availability of resources. Had it been the intention to make the principle that not more than two thirds of elective and appointive positions should be of the same gender subject to progressive realisation, nothing would have been easier than for the Constitution to make this specific provision.”

However, as it stands, our Supreme Court has ostensibly relegated the fundamental constitutional right to equality to the back-burner to be realised progressively at the State’s pleasure, pace and discretion. Prof. Mbote illustrates the same point using the recent FIDA case on the Supreme Court composition. In that case, the court went out of its way to remind the litigants that the “law of equality permits many practical inequalities” and that “a classification having some reasonable basis does not offend merely because it is not made with mathematical niceties or because in practice it results in some inequalities.” Finally, the judges in that case advised the Petitioners and their supporters thus:

“Keep your feminine missiles to their launch pads until the State acts on policies and programmes as are envisaged in Article 27(6) and (8) and the Legislature has legislated accordingly to set the formulae, mechanisms and standards to implement the spirit and import of the whole Constitution within the time frame set by the Constitution or in default of their complying within that time frame”

It is my submission that the precedents set in Federation Of Women Lawyers Kenya (FIDA-K) & 5 Others v Attorney General & Another, Milka Adhiambo Otieno & Another -v- The Attorney General & Others as well as the persuasive force of the Supreme Court’s Advisory Opinion is a clear sign that there is strong resistance by gate keepers of the status quo, blocking the realisation of rights to equality and non-discrimination. In an article written in 1970 titled “Should Trees Have Standing?”, Christopher Stone explains the resistance that quests for admission into the rights’ enjoying categories elicit from the entities that already have rights and have the power to bestow rights. Stone argues that: “until the rightless thing receives its rights, we cannot see it as anything but a thing for the use of us”

In Kenya’s constitutional era it is important to remember that the mere grant of rights does not assure instant enjoyment of equality by new entrants with already established parties. Therefore a new level of engagement with these gate-keepers is required so as to start changing mindsets and inculcate a new culture guided by the national principles and values enshrined in the supreme law.

According to Prof. Mbote, what is needed are “measures beyond law to challenge, engage and disarm gate keepers”. I respectfully disagreed with this assertion. My contention is that the justiciability of the Constitution, in particular the Bill of Rights, needs to be further tested and explored. Strategic litigation is a tool that has not been fully exploited in the post-2010 constitutional Kenya. While many may argue that patriarchy and retrogressive values persist at both the Bar and the Bench, Kenyans must continue to assert their rights and insist that the State be held accountable for its actions and in-actions. As discussed above, judicial pronouncements like those in CREAW & Others v. The AG and the Minority Opinion in the Supreme Court Advisory Opinion no. 2 of 2012 provide us with a glimmer of hope that the dream of Kenya’s transformation is not lost.

One thought on “Fallacies of Equality and Inequality: Will Our Rights Lie in Limbo At the Pleasure of the State?

  1. I agree with you, we don’t need “measures beyond law to challenge, engage and disarm gate keepers”, but rather that strategic litigation may be key. We have to continue challenging the State and the judiciary to live up to the laws set in the constitution.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s