Wednesday, February 26, 2014

Why Kenya is not Uganda: The Homophobic Deception


Public lie or private life?

Kenya is not Uganda. We have a potent constitution, unlike Uganda (read Museveni Private Property) where there is hardly any operative law, save for taxation laws. Uganda has a failed Constitution, and that is why it legislates even on matters of morality. It is sad that our National Assembly intends to push their idleness to this debate, instead of legislating on matters  of national importance . We shall soon see an "anti-cheating pastors Bill" in the wake of such immorality. Or an "anti-Mavuno Youth Bill." Let us get our priorities right.

But there is hope: by our Constitution alone, any move to ratify anti-homosexual laws is rendered unconstitutional. This piece is basically an insight on constitutional protection of Gay and Lesbian members of the society. Please note that the information is predicated upon robust research, and is nonetheless a personal opinion whereof any positive criticism is open to.

In Protection of Dignity for Social Justice
Human dignity: Fundamentals
Article 10(2)(b) of the Constitution of Kenya: "The national values and principles of governance include ... human dignity, equity, social justice, inclusiveness, equality, human rights [and more importantly] non-discrimination." This cannot be overemphasized. Human dignity involves treating every person with honor or respect. Gays and Lesbians have a that innate right to be valued and receive ethical treatment, and this clause of the Constitution promotes this stance. Human dignity is a fundamental value that must be inculcated in our people. The homosexuals ought to be respected and allowed to interact freely, without making them feel worthless and unaccepted.

Article 19(2): "The purpose of recognizing and protecting human rights and fundamental freedoms is to [inter alia] preserve the dignity of individuals ...and to promote social justice." The dignity of the individual is core in the human rights realms. Social Justice is basically enshrined to enable all members to pursue their goals and attain their fullest potential, their race, sex, age, and even sexual orientation notwithstanding. Article 28 reverberates this position in this way: "Every person has inherent dignity and the right to have that dignity respected and protected." Read that again.

Constitutional Interpretation
Article 20(3)(b): Courts required to "adopt the legal interpretation that most favours the enforcement of a right or fundamental freedom" in the application of a provision of the Bill of Rights. Rather than be perceived to limit a right, the interpretation of the Bill of Rights is to be made in such a broad and liberal manner so as to encompass as much institutional space for enjoyment of rights as possible. This is articulately captured in Article 259(1)  of the constitution, which demands that it be interpreted in a manner that—
  • promotes its purposes, values and principles;
  • advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
  • Good laws grow with the society
  • permits the development of the law.
As such, interpretation of the Constitution ought to be cognizant to the development of the society, such as the gay and lesbian rights, technology, inter alia, which were not present in the Precambrian era. This interpretation is one recognizing that a Constitution is a living document, and grows with the societal needs and demands, rather than adopt an obdurate position that suffocates development of the people. Such obstinacy is indeed not healthy for jurisprudence.

Limitation of Rights
Article 24(1): "A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors" Derogating the right of homosexual persons from associating (Freedom of Association in Article 36) or even forming quasi-matrimonial unions is unfounded constitutionally. Pause...

Equal Protection of the Law
Equality in Law
Article 27(1): Every person is equal before the law and has the right to equal protection and equal benefit of the law. Article 27(2) provides that equality includes the full and equal enjoyment of all rights and fundamental freedoms. Articles 27(4) & (5): provide that the State [and any person] shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. Article 259(4)(b): the word "includes" is to be construed to mean "...includes, but not limited to." This list is thus not exhaustive, and given an interpretation hereinabove referred to, then sexual orientation is indeed a ground against which no discrimination should be accorded. Basic premise: no discrimination. No law enacted in violation of this clause can stand the threshold of constitutionality (thanks to Article 2(4) that is our make-shift supremacy clause).

Same Sex Marriage
Same sex marriage
In view of marriage, Article 45(2) provides as follows: "Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties". It gives the right, but does not prohibit a choice not to exercise this right. Every citizen, for instance in Article 43 has a right to adequate food of acceptable quality (see sub-clause (c) thereof). Will it be offensive for someone to partake of inadequate food of unreasonable quality? If the Constitution grants a right to proper housing, a person has that right, but it does not mean that the freedom to choose poor housing is precluded. I wonder if we are getting the point here... If you have two doors, and you have the right to enter through Gate A, you are not prohibited to enter through Gate B, are you? That is the point!

Unlike the Bomas Draft Constitution (2005) where Article 50(3) was clear that 'A person shall not marry a person of the same sex,', this Constitution does not make such prohibition. Look at how abortion was dealt with in Article 26(4).

Various Clauses' Analysis
Article 31: "Every person has the right to privacy...." Let people enjoy their private lives privately. Public lie or private life? Enough said...  Article 36 states that "Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind." As such, the Gay and Lesbian Coalition of Kenya (GALCK) for instance, should be recognized and protected like Maendeleo Ya Wanawake Organization (MYWO), as it is one such association that the gay and lesbian members of the society can join. And so can they form any association, by operation of this constitutional provision.

Let us live and let live. I am pushing the agenda for equal protection. Public lie or private life? Let people live their lives to the fullest, as long as the same does not infringe on your space. Kenya is not Uganda: we have a Constitution. We have reason and a conscience.



Monday, January 27, 2014

MISSION TRANSITION


THIS IS OUR TIME: LIVING UPON THE FULFILLED PROPHESY
Transitional Song: Going, going...gone! Raila, Ruto and Uhuru
“I’ve been to the mountain-top…and I have seen the Promised Land. I may not take you there, but I can confirm that I have seen the Promised Land.” And we have seen the generation that prophesized the paradigmatic shift in the manner our institutions, laws and the society generally operates. I am glad the older folk actually envisaged it: a land where man shall not be adjudged by colour, race or tribe, “but by the content of their character…” They dared to dream, and initiated a movement that saw the total annihilation of the tyrannical system, and instead, sought to indoctrinate a structure of egalitarianism. Petulant as the then governments were, the Saviours of Masses dared the state, and were bullied. You remember the assault on Reverend Timothy Njoya. You remember the Nyayo Torture Chambers. In your mind, you can already see the dreadlocked Koigi wa Wamwere, Paul Muite, Raila Odinga, James Orengo…you know them. 

Koigi wa Wamwere
They were persecuted and afflicted for the good of the populace. It may be unsurprising that the same people, we with our wretched selves, cannot pay tribute to them. We, the latter generation may demonize and denounce their ‘uncouth’ methods of seeking redress of social justice and equality. We may actually be blind to the brutality and dictatorial state of government then, which had become a rogue leviathan: eating up its own children and killing the neighbour’s. Seeing the light of day became a luxury, and sleeping with your own family was more than enough to ask for. Well, the supposed protector of the people became the biggest violator of their rights. Hence the push for reforms…

Moi: The father of misgovernance inspects his weapons
Reforms: that very oil that ought to oil the squeaking dry wheels of governance. Reforms were made a mandatory requirement for submission to the state. Resistance and apathy began mounting, and the government could not take it lying down. Amendment after amendment of the constitution was predicated upon hard-core high-handedness and strong-armed techniques employed by the state to dissuade dissent. Torture, detention without trial, mysterious disappearance and assassinations…we saw it all! But the Prophets of our People did not deter. They risked their lives, families and possession, to inculcate justice, constitutionalism and rule of law. Sadly, some of them are now fallen heroes, only remembered in legends drafted hurriedly in old journals. J.M. Kariuki, the Voice of the Poor; Martin Shikuku, the People’s Watchman; Raila Odinga, Son of Sorrow… Not these neo-colonialists who were carried in the pockets of President Moi, Youths for KANU, and surrogates of the tyrant himself, now disguised as “youth” and masquerading as angels of light (sic). But this is not for offspring of KANU, and their families. It is for the true heroes. Those men and women who made us take the dreadful first step. Slaves of justice…

Sons of Impunity: taking after the Master
Looking back, we may not have enough to recompense them for the sacrifices they made. They saw the Promised Land, while at the mountain-top, and came with the news. They will not get us there: no, they are frail, haggard and blood-stained. They need rest. There is need to have new blood, untainted, so-to-say, to take the helms and lead the nation to the Promised Land. The likes of Raila, Kalonzo Musyoka, Otieno Kajwang, Kivutha Kibwana, Orengo, Kiraitu Murungi, Muite…you name them: their time is well spent, and we should be ushering them to a dusk in peace. They should not be tormented with the sickness and troubled of governing a country they so fervently delivered from the jaws of the big bad wolf. And we ought not to entrust this duty on the sons of the wolf. Listen, sons and daughters of my motherland, a serpent’s offspring is a serpent. Uhuru Kenyatta, William Ruto, Dalmas Otieno, Cyrus Jirongo…those are Moi’s children. In fact, they are more skewed towards the older generation than the youth: out they should go. We are talking about youth properly-so-called, and not those oldies with dyed hairs and borrowed tongues on “maze jo.. Hizi ni ma-time za digital.” No way…so shall we not be fooled! Our heritage shall not be under siege again. We, the youthful generation, are coming out clear with the sound of change. This is our time. The wind of change is blowing, can’t you perceive it? Cant’ you see it?

Transition: Youth properly-so-called
Stand up to the thieves of age: the generational strata. We will be discouraged by the ‘youth’ who have conformed to the ideologies of the old folk, or permutated to the likeness of the children of the oppressive leadership. The Murkomens and Kindikis are grandchildren of oppression, by the way. You cannot expect milk from a guava. We should now look at a new and final order of transition: we are on a mission! Youth properly-s-called, such as may be, ought to be ready to chin up. We hold the quail and the knife: we decide whether it lives, or it becomes soup. But we are in control. Inasmuch as we appreciate the role played by the Railas and Kiraitus (read Moses), we the youth (read Joshua) are now charged with the responsibility of taking the children of our Motherland to the Promised land. They will not take us to the Promised Land, if their minds are about combat, rebellion and uprising. Revolutions are now ballot-papered, not coups. And we can have a law, like the United State’s Second Amendment to their Constitution, to exterminate any leadership that turns out oppressive and dictatorial. 

Protest against inequality and oppression
Meanwhile, we ought to seize the power. It is our Time! Not for handouts and scraps off state jobs…no. It is our time to take the economy of this nation to new heights. It is our time to ensure the protection of the constitutionally entrenched rights of the people are respected, promoted and protected. Yea, it is our time to see to the development of our nation, where each man is equal before the law, and has enough to eat, has a home to live, and his property is protected. It is our time to iron out the hatred that was planted by the older generation, perpetuated by their surrogates, and tolerated by prodigies of oppression. It is our time, not to eat ourselves silly, but to ensure that the utilitarian interstice is abridged. To share the resources equally amongst the people, and in a voice known to all of us, sing the song of unity. 

We the people have the power, we the youth have the key to unlock the potential of our nation. We ought to distrust those who have been there and done nothing: in effect they have failed us. Those are acts of negligent omission. They are as wicked in comparison with those who ran the nation down to its knees in corruption, malfeasance, poverty and non-development. Not those that saw our young children die of starvation, or our mothers and sisters raped…Aha. It is time the untainted generation took the real power. This is our time. Hold hands…

Thursday, January 16, 2014

A DISSECTION OF SYCOPHANCY


THE CURIOUS CASE OF A KENYAN POLITICIAN

Desperate Politicians
Welcome to Kenyan politics: the process wherein the zombienisation of intelligent minds accrues. And you ask yourself: what really causes the paradigmatic shift, as from a sharp intellectual to a dancer to the tune of a political superior, more often than not, of less academic and social credentials? Very easy, my friends: sycophancy. That drink that quenches a politically thirsty mind. The food for fools. Sycophancy, that which makes man think of himself as deeply adorned, and yet is as naked as day. Stark raving madness: cheap power sourcing. I will address us to just a few of the zombies we have seen created. 

JJ Kamotho: Seasoned Sycophant
Remember JJ Kamotho? The monarch of the “Baba” frame... Well, with that hawkish mouth and bald head, the once political magnate perfected the art of sycophancy, and you would be excused to conclude that he was breathing under the mercy of Baba Moi. And he injected the DNA to new lieutenants. We know Francis Lotodo...you can name them! These old folk can be forgiven, as they were distinctively analogue. 

What is unforgivable is a youth, properly-so-called, doing exactly what wrong the previous breed of politicians committed. And this brings us to the dissection of neo-sycophants: the breed most impervious to reason.
Prof. Muigai

In 2011, President Mwai Kibaki unconstitutionally appointed Prof. Githu Muigai as Attorney General, Justice Aldina Visram as Chief Justice, and Kioko Kilukumi as Director of Public Prosecution. You cannot have missed how Uhuru Kenyatta banged the table, terming “unacceptable” the questioning of the President’s authority. Fast-forward....and anyone questioning a political kingpin is tagged a traitor. Miscreant indeed! So hard has it hit us, that it has been normalized. We support Luo-Nyanza MPs for bashing Nairobi Governor Evans Kidero for “not respecting Raila.” But we haven’t seen it all: do you see how URP Legislators defend Ruto? And how TNA guards the interests of Uhuru from "outsiders"? Ladies and gentlemen, we are now experiencing a rebirth of sycophancy. Only in the superlative form...

From Kalonzo Musyoka’s Eastern Province assault, to Raila Odinga’s Nyanza clout.... Look at Rift Valley sheepishly following Ruto, and Uhuru calling the shots in Central Province. We are experiencing  a germination of a trend, where a Kenyan politician will do all that it takes, including selling his mother, to survive politically. 

Murkomen: Omen
Case study: look at how Onesimus Kipchumba Murkomen has metamorphosized - in the reverse gear. A once astute and intelligent tutor has acquired the dubious distinction of being parochial and inherently paranoid, and even reduced to a village dancer of Elgeyo-Marakwet. When Ruto whistles, Murkomen dances. When Ruto claps, Murkomen dances. Very hard. In his eye, the [Vice] Presidency does no wrong. Or rather, anything the Uhuruto axis does is legitimized, for as long as it is done by the combo. Even to the point of being lashed by fellow Legislators! How blind can a man get?

The President's Chief Clown
Look at the likeness with JJ Kamotho: a parrot, defending the Government with seething teeth and a drooling tongue, ready to devour anyone questioning the activities of the state. He would have no qualms singing a different tune tomorrow, if the situation suits him. Look at Kivutha Kibwana. You know his deeds in the past government. I won’t mention Joshua Kuttuny, the Uhuru’s Political Advisor (stop laughing) as he is inherently a foolish clown - a catastrophe to humanity. And many others.

What happened to integrity? When will intellectuals stand to guide the government, instead of being conformed therewith? Lawyers have been most disappointing, perhaps because we have a higher expectation from them. But we are sure that as the years go by, sycophants are mutating, to be like hard-core criminals, not disillusioned by criticism to their shifty acts. 

For once, let principle stand. Lastly, if you meet Murkomen, tell him Kuttuny is his equal intellectually. At least for now. And that is an insult to the Legal Profession!

Wednesday, July 17, 2013

Counsel's Counsel: Listen then speak.

Disagreements must exist
Have you ever been in a discussion, then all of a sudden everyone went wild? Then a simple matter becomes a shouting contest, because nobody is willing to listen to the other. Well, it is a problem in most cases, which has effectively led to many trivial matters being left unresolved, and bad blood brewed between the belligerent parties.

Sometimes a 'nod in disagreement' placates an acrimonious setup It leaves the forum confused, whether you agreed or did not. The moment someone feels you agree with them, only then can they listen to you, wanting to ascertain which part of their assertion you agreed with. If you insist on arguing your position, they will reiterate, thinking you are not getting the point, and will try harder to make you see  it. 

Shouting Contest
This now calls for wisdom. Act as though you understand. Agree 'to some extent.' Then make your point. A good argument is not a competition of the most eloquent or loudest in voice, but an exchange of ideas. 

God, in his wisdom, gave us two ears but one mouth. You are only allowed to speak one word with every two words you listen to.

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.