Article 27 of the constitution of Kenya ascertains equality before the law for all people in Kenya and guarantees equal benefit of the law without distinction of any kind such as ‘race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, conscience, belief, culture, dress, language or birth.’ 1
Sub article (6) also offers redress to victims of past discrimination through actions such as affirmative programs and any other legislative measures and stipulates that benefit of law shall be based on genuine need2. Women and men are also accorded equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres under sub article (3)3.the constitution further guarantees gender equality by setting a provision that not more than 2/3 of members of elective or appointive positions shall be of the same gender through article 27(8) 4
Articles Related to Article 27
Article 27 substantially expands the list of protected grounds and the scope of the right to non-discrimination compared to the previous Constitution and is supplemented in part three of the Bill of Rights which makes specific provision for particular vulnerable groups and persons, with the aim of ensuring “greater certainty as to the application of those rights and fundamental freedoms to certain groups of persons”. It covers the application of rights to children, persons with disabilities, the youth, “minorities and marginalized groups” and older persons. Articles 53, 5 556 and 577 provide specific rights for children, youth and older persons respectively. the constitution further seeks to enforce article 27 through Article 100 which prescribes that parliament shall enact legislation to promote the representation in parliament of a) women b) persons with disabilities) youth, d) ethnic and other minorities, and e) marginalized communities.8 And Article 22(3) which requires the Chief Justice to make rules governing proceedings brought under the Bill of Rights, 9 and sets out criteria for the validity of such rules. In addition to ensuring that the rights of standing in subsection (2) are “fully facilitated”, this subsection sets out three important criteria. First, it requires that any formalities relating to proceedings should be kept to a minimum, and that the court should not be “unreasonably restricted by procedural technicalities”, except as required by the rules of natural justice. Second, it requires that fees must not be charged for the commencement of proceedings, an important condition given the significant poverty which afflicts many victims of discrimination. Finally, it provides that interested parties with particular expertise may participate in proceedings as a friend of the court. Taken together, these three measures are important steps to ensuring that victims of discrimination are able to access justice and remedies, an obligation under a number of international instruments to which Kenya is party. Article 23 states that the High Court has jurisdiction to hear and determine applications for redress under the Bill of Rights, and that parliament “shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts”10 including an injunction, a declaration of invalidity of law, and an order for compensation. In addition to the complaints procedure available under these articles, Article 59(3) 11 provides that every person has the right to complain to the Kenya National Human Rights and Equality Commission established under Article 59(1)12 of the Constitution, alleging that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
Limitations
There is no specific limitation of Article 27 itself. Instead, limitations are permissible only under provision of Article 24 which is deliberately narrow in scope .Article 24 strictly constrains any limitation of rights or fundamental freedoms in the Bill of Rights, including the right to equality and freedom from discrimination. Article 24(1) states: (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, including— a) the nature of the right or fundamental freedom; b) the importance of the purpose of the limitation; c) the nature and extent of the limitation; d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose. It is particularly welcome that the provision specifies those considerations which should be taken into account in determining whether a restriction on a right is proportionate, including whether there are any less restrictive means of achieving its purpose. Indeed, Article 24(2) and 24(3) set out detailed requirements applicable to legislation, the state, or persons seeking to justify the limitation of a freedom. Secondly, it includes dignity, equality and freedom as the bases of a democratic society. Article 24 permits Article 27 to be qualified “to the extent necessary for the application of Muslim law before the Khadi’s’ courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance”. Article 170 of the Constitution establishes Khadi’s’ courts with jurisdiction to determine questions of “personal status, marriage or divorce or inheritance” 14 in proceedings in which all parties are Muslims. Some commentators have raised concerns over coercion of women to submit to these courts and research suggests that Khadi judgments have discriminated against women in determining questions of family law. Concern about the potential for discriminatory judgments in these courts is thus heightened. In addition to the exception to Article 27 provided for Khadi’s’ courts, three particular areas which are the right to life, which prohibits abortion in all except strictly limited circumstances; the provisions on marriage which discriminate against same-sex couples; and a number of provisions which discriminate against persons of “unsound mind”
International and regional law pertaining the article
Under Article 2(6) of the 2010 Constitution of Kenya, any treaty or convention which is duly ratified “shall form part of the law of Kenya”, 15 meaning that instruments which provide important protection from discrimination now have effect as part of Kenyan law. Kenya is a party to seven of the eight UN human rights treaties which are most relevant to discrimination, with the exception being the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Kenya has signed and ratified some united nations treaties pertaining to equality which are International Covenant on Civil and Political Rights (1966) which was ratified in 1972 16 , International Covenant on Economic, Social and Cultural Rights (1966) Ratified in 1972 17 International Convention on the Elimination of All Forms of Racial Discrimination (1965) Ratified in 2001 18 Convention on the Elimination of All Forms of Discrimination against Women (1979)Ratified in 1984 19 Convention on the Rights of Persons with Disabilities (2006) Ratified in 2008 20 Convention on the Rights of the Child (1989)520 Ratified 1990 21 Optional Protocol I to the Convention on the Rights of the Child (2000) Ratified in 2002 22 Optional Protocol II to the Convention on the Rights of the Child (2000) Signed 2000 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) Ratified in 1997.23 Kenya has also adopted many of the conventions established by the African Union (AU). African Union Human Rights Treaties Which are : African Youth Charter (2006) Ratified in 2008,24 Protocol on the Rights of Women in Africa (2005) Signed in 2003 25,Protocol on the Establishment of an African Court on Human and People’s Rights (1997) Ratified in 2005 26 African Charter on the Rights and Welfare of the Child (1990) Acceded 2000 27 African Charter on Human and Peoples’ Rights (1981) Ratified in 1992 28 Convention on Specific Aspects of Refugee Problems in Africa (1969) Ratified in 1992 29 AU Cultural Charter for Africa (1976) Ratified in 1981 30
Case law
Although the Constitution of Kenya 2010 has only been in operation since August 2010, there have already been some significant judgements concerning discrimination under Article 27(4). Of particular note is Centre for Rights Education and Awareness (CREAW) & 7 Others v the Attorney-General 31 in which the court found that a prime facie case had been established that Presidential nomination of the Chief Justice, Attorney General, Director of Public were men. In addition to this, a number of positive judgements in relation to succession have also been handed down. These reflect the fact that the discrimination provision in the new Constitution does not contain any exemptions for personal or customary law. In the Matter of the Estate of M’mukindia M’ndegwa 32 (deceased) Lady Justice Mary Kasango found in favor of the wife and redistributed lands of the deceased to ensure his wife and daughters received a fair share. The judge cited the anti-discrimination provisions in Article 27(1)(5) 33 of the Constitution which include the grounds of race, sex, pregnancy and marital status and Article 60(f) 34 which specifically aims to eliminate gender discrimination in law, custom and practices related to land and property. Similar judgements can be seen In the Matter of the Estate of Mburugu Nkaabu 35(deceased) In the Matter of the Estate of the Lawrencesv Douglas Magambo 36 and In the Matter of the Estate of M’miriti MaAtune (deceased).37
International bodies and commissions
Article 59(1) provides for the establishment of the Kenya National Human Rights and Equality Commission, though Article 59(4)38 provides for the establishment of two or more commissions, should parliament pass legislation to this effect. parliament passed two Acts – the Kenya National Commission on Human Rights Act 2011 39 and the National Gender and Equality Commissions Act 2011 40. The effect of these Acts is to establish two separate commissions, one governing all human rights guaranteed in the Bill of Rights with the exception of the rights to equality and non-discrimination (Kenya National Commission on Human Rights, KNCHR), and one governing only the right to equality and non-discrimination (National Gender and Equality Commission.). international bodies such as International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights have mandate under the constitution of Kenya 2010 to accredit commissions established as per Article 59(1) 41 .of similar magnitude is the International Convention On The Elimination Of All Forms Of Racial Discrimination (ICERD), 42 International Covenant On Economic Social And Cultural Rights (ICESCR) International Covenant On Civil And Political Rights (ICCPR) 43 And Convention On The Elimination Of All Forms Of Discrimination Against Women(CEDAW).44
EMERGING ISSUES.
The phrase “the state shall not discriminate directly or indirectly on the grounds including…” creates a possibility of legal challenge by those suffering discrimination not explicitly mentioned under the article. The article has also faulted by failing to include certain minorities by failing to explicitly protect against discrimination on grounds of albinism and gender identity or sexual orientation. Professor mamba nugget suggested that
“The constitution should have included “genetic inheritance” to cover cover people in albinism and give them reasonable accommodation for their visual impairments.” 45 similarly discrimination against the LGBT community has been an issue in Kenya which has led to assault of the victims as was recently witnessed in February 2010 where a group of male sex workers suspected to be homosexuals were assaulted by the public in Mombasa. Police have also been accused of harassing and seeking to extort money from them.
Amendments
The phrase “shall” should be replaced with “will” to offer more emphasis on the mandatory nature of the provisions against discrimination as contemplated in article 27. Similarly, explicitly covered group(s) of people should include sexual orientation and albinism to cater for the LGBT community and people born or living with albinism.
Bibliography
1 ARTICLE 27 (1) (4) COK
2 ARTICLE 27 (2) (6) COK
3 ARTICLE 27(3) COK
4 ARTICLE 27(8) COK
5 ARTICLE 53 COK
6 ARTICLE 55 COK
7 ARTICLE 57 COK
8 ARTICLE 100 COK
9 ARTICLE 22(3) COK
10 ibid (n 1)
11 ARTICLE 59(3) COK
12 ARTICLE 59(1) COK
13 ARTICLE 24 COK
14 ARTICLE 170 COK
15 ARTICLE 2(6) COK
16 International Covenant on Civil and Political Rights (1966)
17 International Covenant on Economic, Social and Cultural Rights (1966
18 International Convention on the Elimination of All Forms of Racial Discrimination (1965)
19 Convention on the Elimination of All Forms of Discrimination against Women (1979)
20 Convention on the Rights of Persons with Disabilities (2006
21 Convention on the Rights of the Child (1989)520
22 Optional Protocol I to the Convention on the Rights of the Child (2000)
23 Optional Protocol II to the Convention on the Rights of the Child (2000)
24 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) Ratified in 1997.
25 African Youth Charter (2006) Ratified in 2008,
26 Protocol on the Rights of Women in Africa (2005) Signed in 2003,
27Protocol on the Establishment of an African Court on Human and People’s Rights (1997) Ratified in 2005
28African Charter on the Rights and Welfare of the Child (1990) Acceded 2000
29 African Charter on Human and Peoples’ Rights (1981) Ratified in 1992
30 Convention on Specific Aspects of Refugee Problems in Africa (1969) Ratified in 1992 31 AU Cultural Charter for Africa (1976) Ratified in 1981
31 Centre for Rights Education and Awareness (CREAW) & 7 others v the Attorney-General
32 of M’mukindia M’ndegwa 32
33 Article 27(1)(5)
34 Article 60 (f)
35 in Re estate of the Estate of Mburugu Nkaabu (deceased)2010 eKrl
36 In the Matter of the Estate of the Lawrences Douglas Magambo 2011 eKrl
37 In the Matter of the Estate of M’miriti MaAtune (deceased). 2019 eKrl
38 Article 59(4)
39 Kenya National Commission on Human Rights Act 2011
40 Gender and Equality Commissions Act 2011
41 ibid (n 12)
42 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),
43 International Covenant on Economic Social and Cultural Rights (ICESCR) International Covenant on Civil and Political Rights (ICCPR)
44 Convention on the Elimination of All Forms Of Discrimination Against Women (CEDAW).
45″ https://www.equalrightstrust.org/ertdocumentbank/Mumbi.pdf” pg 5, part10.
