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.