Kenya 2: Embedding Equality under Kenya's New Constitution
This project, undertaken in partnership with the Kenya Human Rights Commission (KHRC), commenced in September 2010 and came to an end at the end of October 2011. The project was designed to complement ERT’s first project in Kenya, which aimed to build consensus on the need for new, comprehensive anti-discrimination law, by improving the implementation and enforcement of existing non-discrimination provisions. The purpose of the project was to strengthen the implementation of the right to non-discrimination under the 2010 Constitution of Kenya through documentation and awareness-raising; training to improve the understanding of key decision-makers on their role and responsibilities in respect of non-discrimination; and strategic litigation aimed at improving jurisprudence on equality and non-discrimination.
Update on recent activities
Much of ERT’s focus under the project was on researching and publishing a country report on equality and non-discrimination in Kenya, co-sponsored by the UK Department for International Development under this project, and the Arcus Foundation in the framework of a separate country project (see Kenya 3). ERT staff, together with partners from KHRC and the Gay and Lesbian Coalition of Kenya (GALCK) undertook a total of three field research trips to Kenya in November 2010, March 2011 and August 2011, collecting data and interviewing hundreds of victims of discrimination. ERT also undertook extensive desk-based research and statistical analysis to ensure a comprehensive assessment of patterns of discrimination and inequality, and completed a thorough review and comparative analysis of the legal and policy framework on discrimination and inequality. The resulting report was completed and published in February 2012 under the title In the Spirit of Harambee: Addressing Discrimination and Inequality in Kenya. The 282 page report is the first comprehensive assessment of equality and non-discrimination in Kenya, combining an assessment of the lived experience of discrimination and inequality on grounds of poverty, ethnicity, gender, disability, sexual orientation, gender identity, health status and genetic inheritance, with an analysis of the effectiveness of laws and policies on discrimination.
In early October 2011, ERT delivered three training workshops on the key concepts on equality law and how these are reflected in the Constitution of Kenya 2010. The workshops were delivered to three target groups: (i) commissioners from statutory and constitutional commissions; (ii) practicing lawyers; and (iii) government officials from across a number of departments. The training was highly successful with partners receiving positive feedback from all participating groups.
In respect of the third planned activity, the project identified six cases for strategic litigation. Of these, two cases concerned the right to reasonable accommodation of persons with physical disabilities, an undeveloped concept in Kenyan law, and two relied on the right to non-discrimination on grounds of pregnancy, a new ground established under the 2010 Constitution of Kenya. Of the remaining two cases, one concerned protection from discrimination on grounds of albinism, a ground which is not explicitly listed under the Constitution, but which it is argued falls within the scope of the open-ended list of grounds, and the other concerned denial of access to education on grounds of socio-economic status. A dedicated fund was established to support each case and make a contribution to lawyers’ and court fees beyond the lifetime of the project. Three UK equality lawyers from ERT’s Equality Lawyers Network prepared detailed briefs for use by lawyers in two cases each, and each one agreed to maintain an on-going role, pro bono, in advising the lawyers as these cases proceed.
In mid-October, KHRC completed the activities required in respect of a “Know your rights” public awareness-raising campaign. Following analysis of key audiences, KHRC concluded that the campaign should target people between the ages of 18 and 30, as this group was both receptive to the campaign’s messages and under-informed about their Constitutional rights. KHRC convened a public forum attended by over 700 law students from 12 Universities. KHRC also produced a range of promotional materials, including hats, t-shirts, etc., which were distributed at the event and which it intends to use in future campaigns. In addition, KHRC printed leaflets setting out the right to non-discrimination provided under the Constitution of Kenya 2010, and what this means in practical terms.
Impact of this project
This project made substantial progress in further embedding the rights to equality and non-discrimination which are provided under the Constitution of Kenya 2010 in policy and practice. The training provided to key decision makers was well-received, and is expected to enhance their understanding of their responsibilities in terms of non-discrimination under the new Constitution. In so doing, the training will have a long-term, wider impact, as these senior individuals influence policies, procedures and practices in their areas of expertise. Each of the six strategic litigation cases which the project identified, developed and provided funding support for, has the potential to clarify or extend the scope of the law in important areas, changes which will have a significant long-term impacts.
The nature of the project activities – which sought to contribute to systemic change in law and policy, through activities with a long-term impact – means that many of these impacts will be felt in the years after the project’s completion. However, an independent evaluator appointed to assess the project concluded that positive impact could be identified in a number of areas: (1) Increased awareness of marginalized groups on their equality rights, leading to increased requests for information and support; (2) Increased litigation of equality claims (beyond the 6 cases established under the project), arising from training delivered to practicing advocates; (3) Increased knowledge and understanding of training participants, with the potential for a long-term impact in their fields of work.
Most importantly, through the publication of a report on discrimination and inequality, the project has substantially enhanced the evidence base on the need for comprehensive equality law in Kenya. In the Spirit of Harambee breaks new ground in Kenya, bringing together for the first time all of the relevant information on discrimination and inequality in the country and providing clear, well-evidenced recommendations for improvements to law, policy and enforcement. The report has already been well received among key audiences and, following promotion later in 2012, it is hoped that the report’s recommendations will become more widely known and accepted. Moreover, the report will remain available as a resource for civil society actors to use when seeking to promote action to address discrimination or inequality issues in future.
In October 2010, ERT initiated a third project in Kenya (Kenya 3) to utilise the unitary framework on equality in promoting LGBTI rights. It was completed in the autumn of 2011.
In April 2011, ERT initiatd a fourth project in Kenya (Kenya 4) to enable Kenyan women to secure legal remedies and enhanced protection from discrimination by adding an equality component to free community based legal services.
In April 2012, ERT initiated a fifth project in Kenya (Kenya 5) with continued support from the Arcus Foundation, building on some of the work carried out under ERT's previous Arcus-funded project (Kenya 3).