Monday, April 15, 2013

Historical Economic Stratification: Therapeutic Constitutional Affirmative Action in Kenya

Kenya is evolving from a poor governance structure characterized by, inter alia, corruption and poverty. Although government statistics indicate a decline in poverty levels, Kenya still remains a highly disparate society and income inequality is a major public policy concern. The United Nations Development Program has ranked Kenya as one of the most unequal societies in the world with up to 60 percent living in absolute poverty, while a further 23 percent are on the borderline of poverty. Distribution of benefits of economic growth has therefore been a challenge for Kenya, with the poor majority feeling no impact thereof. However, they have been the ultimate recipients of inflationary effects in the economy and escalating costs of necessities.  
 
The poor remain poor because they are poor
The level of inequality has pushed 86 per cent of Kenyans to live in poor conditions, where access to health, education and other decencies of life is impeded. These inequalities result from high unemployment rates, failed policy interventions and high corruption, which diverts large sums of public resources meant to lift those at the bottom of the pyramid. A number of policy interventions like youth empowerment programs and land reforms that needed to spur growth in key agricultural sector have either failed or are yet to be implemented, further stratifying the people economically.

In respect of formulation of policies and laws as well as enforcement thereof, the processes have at all times been done at the national level, disregarding the concerns of the populace in the grassroots level. The ultimate consequence of that setting was the alienation of the interests of these people, especially the economically indisposed. Poverty became entrenched in the system as a few individuals yielded from the failed institutions. This inequity has triggered and perpetuated deep-rooted disparity in Kenya. To the poor majority, there was an apparent revert to the Hobbesian state of nature as life became short, nasty, brutish, solitary and poor; each man fighting for his own survival, even to the detriment of another.
Representation of the minority groups’ interests was a derelict of decay, as the people’s representatives who pledged partition the property, power and even enact legislations that alleviated the real problems that Kenyans faced became power-hungry and narcissistic. This occasioned a great injustice to the Kenyan hoi polloi that the incompetent systems did not favour, while the few influential ones reaped to flatulence. Subsequently, aggressions and bad blood was ingrained in Kenya (an archetype of the results is the catastrophe that came along in 2007/08 as an upshot of the disputed elections) as ethnic tensions were fueled by perceptions of marginalization and exclusion, in both the political and economic arena. These problems posed a threat to the mere existence of citizens, as the marginalized groups attempted to make their status be recognized and affirmative action plans be implemented, to the opposition of the ruling class.

Almost a decade of constant agitation compelled the KANU government to form a consensus with other political parties, civil society and major religions to form the Constitution of Kenya Review Commission Act of 2000, which created the Constitution of Kenya Review Commission. Pursuant to the goals of review and people’s views in the run-up to the National Constitutional [Bomas] Conference, there was required a transfer of very substantial powers and functions to local levels, and affirmative action schemes be incorporated in the Constitution for equality.

It was also very clear that the transfer has to be to bodies which are democratic and participatory with an advantageous position allocated to these vulnerable groups and marginalized societies, as they were not content with mere administrative decentralization. Some demands of the people, expressed in terms of devolution, were as much criticisms of that political system and how it had been used as advocacy of an alternative structure. The CKRC considered that some of the problems of alienation and unjust distribution of resources would be taken care of by the system of government at the national level that it had recommended. In addition, affirmative action was ingredient, and a critical ingredient, of the general restructuring of the state.
The state’s reluctance to adopt the CKRC’s recommendations was met with a catastrophe, as an upshot of disputed presidential elections. Many Kenyans lost their lives and a multitude displaced. There was still a chance of reoccurrence of this ‘tribal cleansing’ as the people had had a full share of poor policies and inequitable distribution of resourced. There was thus need to interrogate and establish a structure that would confer power of self-governance to the people and allocate resources to them in an equitable manner, and the inculcation of affirmative action plans in the legal system of Kenya.

The violence that erupted in Kenya in 2007/8 as a result of the disputed presidential elections revealed deep ethnic divisions that have potential to grow into a fully fledged conflict. Over 1300 lives were lost during the violence while an estimated 500 000 people were forcefully displaced. The dispute had little to do with the results. In fact, very few Kenyans were concerned about who the winner should be. A majority of the assailants were people disgruntled with the economic disparities and distributive injustices in the country.
With deep rooted issues, violence was inevitable
Land was the major underlying issue, with citizens massacring each other in retrospect of ill-treatment in the allocation thereof. A coalition government established on 28 February 2008 undertook to offer a solution to these problems. A result of this was the invention of what came to be popularly known as Agenda 4 (discussions under this agenda item conducted to examine and propose solutions for long-standing issues such as, inter alia, undertaking constitutional, legal and institutional reform, tackling poverty and inequity, as well as combating regional development imbalances) which was wrought to commend solutions to these problems that Kenyans faced. The agenda was intended to restore justice and equity, and prevent similar occurrences in the future. 

Tackling poverty and inequity, as well as combating regional development imbalances was to be done by decentralizing power from the central government of the people through devolution. The motivation was not for the well off or well endowed areas to keep their wealth for themselves; instead a primary concern was the equitable distribution of revenue and promotion of development throughout the country. There was wide scale perception, which statistics support, that the centralized state had, for the last 50 years, singularly failed to promote economic and political development, and that only a few areas and a small elite, had benefited from the policies of the government. This system of government became unfavourable to the poor population, making it necessary to institute affirmative action programs.

Kenya could not transform from that disparate nature within the same constitutional dispensation as it would almost definitely amount to a malfunction of laws and institutions. This is because a Constitution is the highest law of the land, and if it creates a lacuna for injustices and perpetration of inequity, then no other law can cure such a defect. There was thus a need for constitutional reform in the quest of seeking for equity and equality. For this reason, The Law Review Act No 9 of 2008 was ratified, and a Committee of Experts was mandated to produce a Constitution of the people of Kenya. The document made by this Committee acquired colossal endorsement by the people in a referendum vote on 5 August 2010 and was promulgated on 27 August 2010. Arguably, this Constitution was embraced by the people due to its attempt to bridge the political, social and economic disparities in Kenya through affirmative action. It is already evident that equity was the pivot of the pursuit for economic emancipation in the Constitution of Kenya, and equity was the fuel thereof.
The paradox of the marginalized president's sister
As already made manifest, affirmative action is indispensable in attaining equity in the society. An equitable method of resource distribution must be employed to conquer distributive justice. This will in turn propel the liberation of the economically, socially and politically marginalized communities and groups to total autonomy in that respect. Affirmative action is not afforded to individuals for short-term benefits. In fact, it is not humanitarian aid but a long-term plan for sidelined members of the populace to liberate themselves and their dependants from poverty and to self-governance. It is a means of raising the platform for these people to jump-start equality.

The Constitution of Kenya, 2010 is debatably the most progressive in Africa in terms of ascertaining the rights of marginalized communities and vulnerable groups. The Constitution further recognizes that the aspiration of Kenyans is the institution of government based on essential values of human rights, equality, freedom, social justice and the rule of law. This is important in the ascertainment of the rights of minority groups. This position lies in the contrary of the former Constitution, where poor decisions and policies made in that order aggravated the constraints and privations wherein marginalized groups lived and suffered. Clinics did not have essential medicines; food shortage was rampant, poor children often dropped out of school for lack of facilities. An affirmative action plan was thus incumbent so as to alleviate this condition. Affirmative action in this research takes a dual format; in terms of Economic, Social and Cultural Rights, as well as Civil and Political Rights. 

Affirmative action with reference to these historically marginalized communities incorporates revenue raised nationally being shared equitably among national and county governments.  Furthermore, expenditure thereof is done in a manner that promotes the equitable development of the country, including by making special provision for marginalized groups and areas. County governments are given additional allocations from the national government’s share of the revenue, either conditionally or unconditionally. This ensures that there is maximum participation by the people, and the positive effects that come along with devolution are felt by the ordinary citizen. It is worth emphasizing that devolution as ingrained in the Constitution of Kenya intends to empower the marginalized communities and individuals.
In light of representation, Parliament is required to enact legislation to promote the representation in Parliament of, inter alia, ethnic and other minorities and marginalized communities. The generalized form of legislations in turn benefited a minority while the majority of the society remained sidelined. Furthermore, Parliament was composed of a hybrid cohort, who perpetuated the interests of their significant parties. Bills proposed in the house were either passed or dropped depending on the party from which the individual proposing it hails. The order of the day was cutting deals and horse-trading. At the end of the day, laws that could not pass Lord Denning’s English Oak theory (Lord Denning, in respect to transfer of laws from England to Africa alluded to the fact that the specific African circumstances should be in contemplation when doing so, as erratic transfer of law would not guarantee the same results as in England) were passed, while lost were motions that would benefit the society.

Affirmative Action is distinctively imperative in the development if the nation. No wonder its ideas are entrenched in the Constitution of Kenya, 2010, which is the highest law of the land, thus its protection is secured. Affirmative action delineates rules and mechanisms for the protection of minorities and promoting their rights and interests. It is the responsibility of the government to ensure that any inequity is detached by making legislations and policies that promote equitable allocation and distributive justice of resources. The state is reason wherefore required to take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups due to past discrimination, on the basis of genuine need.
Affirmative action attempts to avail the vulnerable and marginalized groups with the requisite means and instruments to combat inherent challenges that they face as a result of their indisposition in their day-to-day activities. It designs an equal opportunity and enunciates especially the minority groups' inclusion in enjoyment of rights and privileges. Affirmative action also articulates the compensation for past discrimination as well as political and social economic persecution and exclusion by the dominant class thus amelioration their condition. It plays a role in addressing existing discrimination and economic exclusion of vulnerable groups, and seeks to alleviate these conditions. 

Affirmative action is the only cure of historical injustices

In conclusion, we must note that affirmative action is a necessary appliance for economic emancipation of the people. The people who are   indisposed economically, socially and politically are given a leash of self-determination and improvement. It is therefore advanced hereby that equity can be achieved by affirmative action which is constitutionally protected. This will significantly reduce the chances of violation by state actors and other bodies. This position will go a long way in establishing economic participation and protection of minority groups as vulnerable as well as marginalized groups and individuals.

It must be noted that some sections of the Constitution are apparently retrogressive in so far as ameliorating the rights of minority and vulnerable groups are concerned. A paradigm is the proviso that the provisions of the Bill of Rights on equality shall be qualified to the extent strictly necessary for the application of Muslim law before Kadhi’s courts to persons professing the Muslim religion in matters relating to personal status, marriage, divorce and inheritance. This gives a lacuna for injustices to Muslim women in these spheres of their lives. As a matter of fact, the proviso on equality should have operated homogeneously for efficacy. This therefore calls for judicial activism in the tune of securing the protection of the rights of this historically marginalized group. A strict interpretation of this Article is thus incumbent. The interpretation should be as near as possible in elevating the status of these women for their own economic, social and cultural emancipation. The Judiciary should take a front line in making affirmative action-friendly interpretations of the Constitution.

It is nevertheless incontrovertible that affirmative action as established in the Constitution of Kenya 2010 is expected to espouse equity. This will be reflected in the economic disposition of the populace, as inequity will be incinerated, and class differences avoided. When people are endowed with enough to sustain themselves, the culture of violence that is often veiled in placating countenances of the citizenry is expected to be obliterated. The government will serve the people without undue preference and this will annihilate the economic discrepancies that have dogged the Kenyan society since antiquity, thereby entrenching an equitable system of distributive justice.

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