AFFIRMATIVE ACTION; LEGISLATING DISCRIMINATION AMONG THE DISCRIMINATED A KENYAN PERSPECTIVE.

Introduction

Human rights thrive on the egalitarian principles of universality. They accrue on the inherency of being born human. To develop, the principle of the ‘rule of law’ must strongly be founded in any given community among the communities of the world. The Universal Declaration of Human Rights proclaims rights and freedoms that are to apply universally irrespective of social groupings such as sex, origin, race and sexual orientation among others. Since the mid of the twentieth century, this codification of rights and freedoms has inspired the development of most municipal laws. In 2010, #Kenya joined the process of codified review of her laws by ushering in a bill of rights proclaimed to be among the ‘most progressive’ as enumerated in chapter four of her constitution, 2010.

Marginalization in #Kenya has long been on a ‘political patronage’ economic policy. The state has funded, economic development areas perceive as pro-government (not the exclusive consideration). The ripple effect of this policed economic marginalization has among other things seen the rise of different social-economic classes, even among a defined group.

Responding to the “long trains of abuses” of human rights in #Kenya, the Bill of Rights seeks to cure the disease of historical inequality. Gender inequality and discriminative treatment by society and successive governments are top on the agenda; anyway, civil activism has guided the constitution-making process. Affirmative action, among others, was prescribed.

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Affirmative Action; a Conflict Within and the way forward

The development of policies such as gender-based affirmative action is a constant reminder that humanity has always failed to treat each other under the equitable universality of rights and freedoms. Ironically equally, it is a constant reminder that humans have so evolved to enlightenment that they finally realize the sons and daughters of Adam are equal and must be treated as such. To avoid future strives among social classes, and for self-preservation, humanity has aspired to remedy her past wrongs through such policies as affirmative action. Yet, they might be wrong not on the vehicle to equity that is affirmative action but rather on the most appropriate path the vehicle should take.

Affirmative action (positive discrimination), has been said to be; ‘Making sure that members of disadvantaged groups, such as racial #minorities or women, get appropriate share of the opportunities available. ’This process I refer to it as ‘discrimination among the discriminated.’ Discrimination on the other hand is, ‘unfair treatment of a person, racial group, minority….’ A further definition, I will explain later is ‘the ability to see fine distinctions and differences.’

The concept of affirmative action has not been new to #Kenya. However, the Constitution of Kenya, 2010 sought to promote certain rights and freedom through gender-based affirmative action. Rights, to my understanding, are not donated by the monarchy. For in the family of humanity, exist ‘not to one above another the least pretence to be the eldest house, and to have the right of inheritance.’ Equality is right as of birth.

Guided by the desire to have a gender equitable society under the ‘Lockian’ fascinated ‘state of perfect freedoms’, where every gender thrived freely described in the following terms;

‘A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another, there being nothing more evident than that creatures of the same species and rank, promiscuously born to all the same advantages of Nature, and the use of the same faculties, should also be equal one amongst another, without subordination or subjection, unless the lord and master of them all should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty

The constitution inter alia provides that ‘the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.’ Marginalized groups should be provided with ‘specialized opportunities for access to employment, education, health, governance’ among others. Ideally, given the historical context in #Kenya, it would appear that indeed such provisions sought to address among others female gender marginalization. This would be under the assumption of only two genders exist in #Kenya (debatable). It is therefore appropriate to say that this paper will not engage itself on the discriminatory assumption of the existence of only two genders (male and female) in #Kenya, without prejudice to other universally recognized genders that exist.

To utterly shot down #female gender-based affirmative action would be a disservice. There are profound visible achievements that were immediately realized after the promulgation of the new constitution. #Women's representation in national assembly, judiciary etc, has for instance increased even though not to its desired levels. Yet, a class of discrimination arise today as a result of gender-based affirmative action, principally on grounds of social class. By encouraging individuals to identify themselves as disadvantaged within a marginalized group (women in politically and economically unflavored regions against women in politically and economically favoured regions), affirmative action has created another group of discriminated among defined groups of discriminated (women as a discriminated group generally). Given the ‘politically patronaged’ economic development history, some regions in #Kenya have developed more social-economically than others. However, in ‘non-political patronaged’ regions that have historically been economically and politically marginalized, individuals would consider themselves more marginalized. Some marginalized defined groups have been said to enjoy more rights than groups considered as not marginalized.

In #Kenya, government policy among other things provides for lesser pass marks to university for the girl child compared to the boy child. This would appear benevolent, given the historical discrimination of the girl child education generally as a social group. The absurdity is that the basic foundation of education for both girls and boys is equal in a given area yet different from other areas. Both boys and girls in a defined area largely go to similar public schools. In high schools, the conditions of schools in Samburu would be considered largely similar between boys and girls, even though they might be far less developed than those in Nakuru. Yet, the boys in Samburu would be subjected to a higher national pass mark to university than the girls in Nakuru. The policy would be inequitable under equal protection of the law.

It is not for affirmative action to achieve unconstitutional gender balance; the ever risk where there is wide policy development. The emphasis must be ‘universal’ equality, not blanket group opportunity. Where classifications based on gender are “strictly reserved for remedial settings, they may promote notions of social group’s gender inferiority and lead to a politics of gender hostility”. For such, affirmative action must approach an ‘individualistic’ policy rather than a blanket group-subscribed policy. It must do more than ‘bring a group up’ to the starting line of the competition. #Gender-based affirmative action must look at the historical individual it brings to the table of competition and compare such an individual to another one of a similar gender. It must look at a historically marginalized man (regionally based) as more deserving compared to another non-marginalized woman (regionally based).

Politically, quota systems have been used largely to achieve a gender-balanced society. Article 97(1)(b) provides for a forty-seven women representation to the National Assembly. Such application of quota policies would discriminate against transgender, intersex and gender non-conforming. To exclude a person of neither male nor female from the 47 quota systems of political election to the National Assembly (given the consideration of the 47 seats as gender-based) would be constitutionally created discrimination. Even the argument that such women advance such groups' rights would be defeated at equity. The ability to see such fine distinctions and differences must be put in place.

#Gender-based classifications that merely “promote diversity” in leadership must be viewed with greater scepticism in Kenya society. In a state where resources are disquieting unequally distributed; even among a defined gender (women), to develop a blanket remedial rationale would be catastrophic. There can be no healthy competition today, even in the private sector, for women from Mandera County to compete with women from Nyeri County for a position of leadership. Such a wide-scoped policy would be abused to advance women's leadership development in certain regions only. As held by Chief Justice Roberts, “At the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.”

The existence of a ‘minority group of women’ even among women generally must therefore send #Kenya to review her gender-based policy. Many would argue that devolution would achieve the social and economic development that would propel women in #Kenya to an equal footing with men. Devolution however allows regions considered advanced to even advance further. Gender-based affirmative action must focus on providing an equal platform not only for women to compete with fellow women but also with men.

Gender-based affirmative action must incorporate a geographical and age distinction among other social group advancement policies that would deliberately allow certain regions and ages to enjoy more national resources allocated than others. National wealth distribution targeting women must look at women and girls, not as a general group, but rather as individuals of different geographical areas, age among others. It must look at a woman as that in Wajir against that in Kiambu. It must look at two different women in Kiambu from different social-economic groups desiring elective positions. It must look at a woman 18 years old against a woman 50 years old;??all desiring to be governors. National wealth distribution must address the historical injustices suffered by women; an injustice that would not be found equal to all women as a general group.

Conclusion

The noble aspiration that is the constitutionalized gender-based affirmative action in #Kenya to remedy prior discrimination must be supported. However, the same must be safeguarded by timeline goal targets for implementation and radical government investment in regions, age groups etc. that have long been marginalized. Government must do more than allocate money to regions. Investments must not be based on short terms returns, rather government must focus on proper roads, educational facilities, water, and food security, among others as a matter of agency. Failure to do this will only lead to some regions and individuals within defined groups taking advantage of gender-based affirmative action while others lack behind. Equally, #women must not seek equal rights to men. They must seek the highest standard of life reserved for the sons and daughters of Adam. They must be liberated from?CEDAW which tends to create the notion that the best standard is that the male gender enjoys. They must view their humanity before their womanliness's[User1]? nature; the true spirit of CEDAW and other international instruments. They must seek the enjoyment of rights first under equal protection of the law before turning to affirmative action. Affirmative action must only be viewed as a means, not the end.

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