Affirmative action laws and policies: Interrogating their effectiveness in the promotion of substantive gender-based equality in Kenya

Abstract

The aim of this research is to determine why gender-based affirmative action laws and policies seem not to yield desirable results in the public sector and to suggest necessary legal reforms. This is to be done by actualising the following objectives; to investigate the impact of patriarchy on gender equality in the public sector in Kenya; to identify and discuss the legal, policy and institutional framework on gender-based affirmative action in Kenya and its response to gender disparities in Kenya’s public sector; to examine international best practices with regard to gender equality and the level of compliance with the same in Rwanda and to determine whether it offers any lessons to Kenya. This study focuses primarily on elective and appointive positions and is conducted using doctrinal research. This approach involves the review of relevant primary and secondary sources including legislation, case law, books, journals, newspaper and other articles as well as online internet sources. During this research, it has been observed that Kenya has rich and all-inclusive legal, institutional and policy frameworks on gender equality and equity. The unsatisfactory status quo highlighted above is attributable to the patriarchal approaches to constitutional interpretation, legislative processes and decision-making, which have proven to be a resistant barrier to achieving gender equality in the public sphere. Further, the manifest tension between the promotion of substantive equality vis-à-vis the promotion of formal equality has contributed to the gender disparities in the public sector as there seems to be a general endorsement of formal equality stemming from the lack of clarity in the frameworks.For there to be observable change, it is recommended that the relevant frameworks currently in place ought to be modified to be gender-specific, expansive (taking into account the intersectional nature of discrimination) and highly specialised. Further, priority ought to be given to measures that promote equality of results, while those that promote equality of opportunity ought to take a supplementary role