Affirmative Action is constitutionally sanctioned discrimination

BY Godfrey Musila

Recent nominations made by the President and Prime Minister as well as shortlists made 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.

In defence of nomination/selection of lowly ranked candidates, it has been suggested that this has been necessitated by the need to ensure constitutionally mandated diversity and inclusion. I will make no reference to specific positions or actual nominations. I address only the constitutional and theoretical arguments relating to affirmative action and inclusion.

One of the central features of our Constitution — one that marks it as a transformative Constitution — is the imposition of duties on the state to address the legacy of exclusion by taking positive corrective measures.

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 — known as affirmative action — is found in the article 27(6) of the Constitution. This provision — the general formulation on affirmative action — requires measures to be taken ‘to redress any disadvantage suffered by individuals or groups because of past discrimination.’

Other than article 27(6), there are various other provisions of a general character that demand diversity in the composition of the arms of government. Of relevance to recent events, article 13(2) (d) requires the President to promote respect for diversity of the people and communities of Kenya’.

The Constitution also imposes quotas in some areas requiring for instance at least one-third 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 they be constitutional when they violate the rights of others? With respect to appointments, affirmative action when applied would generally have the effect that some criteria other than optimal competence is the decisive factor.

In other words, the most competent candidate at the top of the list are skipped in favour of a candidate possessing reasonable competence but belongs to a category identified for empowerment because members of that group have suffered marginalisation in the past or that group is identified to meet diversity requirements.

Are the rights of those skipped violated? Yes. It will be the case that invariably; every affirmative action measure or pro-diversity measure taken violates the rights of others. In this case, it will be discrimination on grounds of ethnicity or ‘ability’, if the person selected has a disability.

Sunset clause

It is the idea that the most competent individuals are often not selected that makes affirmative action a painful, problematic and much reviled measure the world over. Yet these measures are constitutional because the Constitution mandates them.

The Constitution mandates them because there is a constitutional imperative or objective to be met: inclusion, especially in country with a dark legacy of exclusion.

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 that acts as a shield for governmental actors accused of discrimination in these circumstances supplies the conditions to be met by diversity measures.

They 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 they have to be time bound.

In conclusion, the controversy around nominations does not raise new issues. Other societies like South Africa are still dealing with them. What is different is the context.

Unlike the US and South Africa, where the debate largely revolved around race, in Kenya ethnicity is the elephant in the room. Affirmative action is, however, necessary as a measure that is central to the project of rebuilding a more inclusive nation.

Dr Musila is an advocate, consultant and Director at African Centre for International Legal and Policy Research.