Professional Documents
Culture Documents
Alphonce Odhiambo
In every matter that has some level of seriousness like equal
treatment of people every country has to have a clear stand on
it. It should be clear that the attitude towards same sex
marriage in Kenya is clear, the legality or otherwise of drugs use
in a country and any other matter is clear. There should be a
provision of the constitution, an article of an act, case law or
government policy that addresses the situation in a very clear
manner and doesnt contradict itself. Let us look into
discrimination and see whether its legal or illegal. Its my argument that in this
matter what the law prohibits at one article of the constitution is allows with another
article of the same constitution.
The same questions apply to the judiciary. When a male chief justice is
recommended for appointment pressure is mounted on the judiciary to
appoint a female deputy chief justice. What does it mean to have the
appointment to major institutions in the country given to individuals
based on their gender? What is the effect of such restriction or
pressure on the freedom of the judiciary to choose from the best of the
best? This simply means that the judges or willing applicants who are
of the same sex as the appointed chief justice are automatically locked
out from appointment. The only characteristic that locks them out is
their sex or gender. The desired representation of all gender in the
Supreme Court would also require contravention of article 27(4) of the
Constitution of Kenya 2010. The same Act prohibits discrimination on
the basis of sex.
The effects of legally recognized discrimination in Kenya
1. Promotion of ethnicity
Representation of members of other ethnic communities or the less
dominant gender in itself leads to promotion of ethnic and gender
discrimination. When one person is denied employment opportunity or
barred from applying for a job merely because he is from a community
that is already represented thus giving the opportunity to someone
else based on his ethnic origin is the simplest description of ethnic
discrimination.
2. Promotion of gender discrimination
How did you end up in the office you occupy, did someone have to stay
out of it for you to win? Did law bar competition so as to allow you a
free pass or did you actually compete the best of the best to be there?
When law allows one to hold an office because of his or her gender and
locks others out for their gender then its discrimination on gender
basis.
3. Encouragement of insubordination
In an office or a work place where the top management are in those
positions based on their gender or ethnic origin insubordination is
bound to arise. When a deputy chief justice is the deputy chief justice
because she is a woman and all the other Supreme Court judges, court
appeal judges and high court judges are more educated than her, more
experienced than her and probably would have won were they to be
given a chance to apply for the position, the work situation wouldnt be
the same as it would have been if she was there on merits not
affirmative action. Instructions from her to her juniors who in real
sense are her seniors will be questioned and second guessed.
4. Depriving the employment sector of the best brains in the country
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When the best legal mind cannot be chief justice or assistant chief
justice because he or she is not male or female, the country is
deprived the benefits of that mind. The prevention of best employees
with the experience or training cannot be employed in companies or
universities just because they are not from the required tribe or
because other people from their tribe have already amounted to the
maximum third prescribed by the cohesion and integration act, the
country loses.
The engineer or technician that has the mind to make goods cheaper
for Kenyans or services easier to access is somewhere unemployed
because he or she is not from the right community or of the required
gender. The teacher with the best teaching techniques that would be
beneficial to the students in the country is denied the chance on
legally recognized grounds. Affirmative action that focuses on
representation is more disadvantageous than they are advantageous.