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”.
Money is usually critical to achieving equity, and the constitution provides that the “public finance system shall promote an equitable society”, including by making special provision for marginalised groups and areas.
The judiciary has a central role as do independent commissions to identity and deal with failure, including by giving orders to the relevant body.
So, what after more than five years?
Neither Kibaki nor, particularly, Uhuru has shown the least interest in reducing disparities of incomes, resources and facilities. Numerous investigations by the Auditor General of state corruption and misuse of state money have been ignored—and the Auditor General threatened. Huge sums, illegally acquired, are squandered in bolstering political parties and patronage. Tribalism, cause of ethnic conflict and inequalities, flourishes.
Male MPs persist in refusing women their constitutional rights to fair representation. Corruption among politicians, civil servants and their business partners has increased astronomically. The disparity of facilities and teaching between schools (including private schools) for the rich and the poor has increased manifold. Few politicians and senior civil servants would deign to use government medical facilities, while the poor in government hospitals die of lack of care, understaffing and lack of medicines and equipment.
Huge mansions go up for the privileged (often with ill-gotten wealth) while shacks of the poor get washed away frequently. The rich drive, or more likely, are driven by chauffeurs, often alone, in large, elegant cars, while poor workers, starting their day while the night is still dark, walk for two or more hours—and back at the end of the day. The poor are little better off than before the constitution came into effect. Some moves towards equity have been made through devolution, including more access to medical facilities, new roads, more early childhood education (though the special grants to the most disadvantaged counties remain miserly).
Kenya is hovering between becoming an ethnic and class society, contrary to the ethos of the constitution. Neither is good for the groups for whom the provisions for equality and equity were adopted.
By Prof.Yash Pal Ghai