Kenya: Affirmative Action Fuels Discrimination.
Recent nominations by the President and Prime Minister as well as shortlists by selection panels for various constitutional and statutory bodies have raised a variety of concerns, including alleged violation of the constitution for overlooking candidates ranked at the top of lists.
Accusations of ethnic profiling have also emerged. It has been suggested that this has been necessitated by the need to ensure constitutionally mandated diversity and inclusion.
This duty is based on the recognition that sections of our society – women, ethnic minorities, the poor and some regions – have suffered marginalisation in the past due to a combination of factors that include exclusionary governmental policies and practices.
This state obligation to take positive steps – commonly known as affirmative action – is found in the article 27(6) of the constitution. This provision requires measures to be taken ‘to redress any disadvantage suffered by individuals or groups because of past discrimination.’
The constitution also imposes quotas in some areas requiring for instance at least 1/3 representation of either gender in all appointive and elective positions and five per cent representation for persons with disabilities. What does taking positive measures mean, and would such measures be constitutional especially when they violate the rights of others?
With respect to appointments, affirmative action would generally have the effect that some criterion other than optimal competence is the decisive factor for selection.
In other words, the most competent candidate(s) at the top of the list are skipped in favour of a candidate possessing reasonable competence. Are the rights of those skipped violated? Yes. Every affirmative action or pro-diversity measure violates the rights of others by discriminating on grounds of ethnicity or ‘ability’.
In my view, the most relevant question then is whether affirmative action or ‘diversity’ measures have to meet certain conditions in order to be regarded as constitutional, and thus legitimate.
Article 24 of the constitution acts as a shield for governmental actors accused of discrimination in these circumstances. Diversity measures have to be sanctioned by law. There has to be a demonstration that they are designed to meet a legitimate governmental objective. They have to be proportional, in other words, they should not be of the type where a hammer is deployed to kill a fly.
Although article 24 does not expressly include this element, they should have a sunset clause. Because affirmative action measures are discriminatory – sometimes called reverse discrimination – they derive their force of legitimacy not only from the law but also from the recognition that they have to be time bound. For instance, the equalisation fund that will be used to remedy economic marginalisaton of certain regions and groups has a constitutional lifespan of 20 years, subject to renewal by Parliament.
Reserving seats for such groups in perpetuity reinforces stereotypes while freezing social and cultural advances in society. More importantly, it will raise difficult constitutional concerns in future.
Unlike the US and South Africa where the debate largely revolved around race, in Kenya ethnicity is at the elephant in the room. What matters is how appointing authorities handle particular nominations. There is need for public education too. Affirmative action is however necessary as a measure that is central to the project of rebuilding a more inclusive and caring nation.
The writer, Godfrey Musila is an advocate, consultant and director at the African Centre for International Legal and Policy Research. Source: allAfrica.com.