Yash Ghai on Equality and Equity, the Foundations of Kenyan State and Society (The Star)

"Equality and Equity: Foundations of Kenyan state and society"
Yash Ghai
19 September 2016
The Star

The constitution establishes various values and principles to guide the conduct of the government and, to a considerable extent, society. Kenyans easily understand the concept of equality but less so that of equity. Equity as an idea is closely connected to fairness, and is a way to ensure real equality. It may mean favourable treatment to those who are disadvantaged. It is a comment on the deep inequalities in Kenya that to secure equality we sometimes have to make major adjustments in the allocation of resources so that the most disadvantaged groups are given preference in access to basic needs, including education, employment and electoral representation.

     These groups include people with disability, women, children, youth, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities. These special measures are temporary (“with regard to prevailing circumstances”), until all these groups have achieved equality with the more advantaged.

     For instance, Article 43 gives every person the right to highest attainable standards of health, adequate housing, reasonable standards of sanitation, freedom from hunger, clean and safe water in adequate quantities, social security and education. We know that there are big differences in the access of different groups to those facilities—such as between the rich and poor, between and within ethnic groups, between civil servants, private sector workers and jua kali workers. In allocating resources for Article 43 entitlements, the state must have regard to “prevailing circumstances, including the vulnerability of particular groups or individuals” (Article 20).

     The constitution makes clear that the call for equality and equity is not merely rhetoric. It sets out explicitly the requirements and sometimes techniques of equal and fair treatment in state and private sectors. Unlike previous practice, all citizens are given equal rights. Part three of the human rights chapter gives an excellent account of the needs and entitlements of children, persons with disability, youth, minorities and marginalised groups, and older members of society.

     A major theme is equitable treatment of specified groups, for example women and disabled or disadvantaged groups through direct representation in elected and executive bodies, at the national and county levels. Political parties must respect the right of all persons, including minorities and marginalised groups, to participate in the political process, without religious, ethnic, racial, gender or regional bias. The state must ensure that the recruitment of its services, including the national executive, civil service and security, reflects the “diversity of the Kenyan people in equitable proportions”... Click here to read the full article.