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.
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| 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.
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| 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.
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| 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.
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| 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.
