CRJ11CAL REVIE\V OF POLITICAL REPRESEl\TATIO . OF KENYA. -A IA!'X \VOME ' BY RUKHSAR i\1 IR M WI 078152 A DISSl~RTATION .. UBMlTfED JN PARTIAL F LFILMENT OF THE REQUIREMENTS OF THE AWARD OF THE OEGIU~E OF BACII ELOR OF LAWS TRA TmlORE 'IVERSJTY STRA TIDIORE L W CHOOL AJ>RIL 2018 1 Table of Contents Aclrno\vledgments ............... ............................................... ... ... ....... ..... ... .. ........ ... ...... ........ ....... ... .. 4 Dissertation Declaration For·m .... ..... .... ......... .. ........................ ......... .... ........ .......... ..... ......... ........ 5 Abstract ............ .. ..... ....... .. ...... ... ....... ..... .... ............ ................................. ..... ...... .... ........ .. .......... .. ... 6 1.0 Background ..... .... ......................... ...... ..... ......... .... ............ ......... .... ........................ .. ................. 7 1 .1 T ntroduction ...... .................. .......................... ........... ......... .... ........ ... ...... ... ......... .. ... .......... .. 7 1.2 Background of the Kenyan- Asian ............................................ . ........... . .. ... ... . . ..... .. ....................... 8 1.3 The question of citizenship .... ...... .... ........ .... ............ ....... .................................................. 9 1.4 Literature revie\v ........ .. ...... ................. .... ... ..... . ........ .. . . ..... .. ...... ............ 11 1.4.1 Are Kenyan-Asians a tribe? ....................................................................................... .l2 1.4.2 Discrimination of women in Kenya .. ... ...... . ......... .. . ... ... .... .. ..................... 12 1.5 Statement of the Problem ... . ... ...... . ...... ... . . .... ..... ..... .......... .. ...................... 13 1.6 I-Iypothesis . . . ............................. . . ...... . ......... ... .. .......................... . ....... . 13 1. 7 Justification of the study . . ... ......................... . .... ...... . . . . . .... .... . .... .... . ........ .. 14 1.8 Research objectives .............. .. . ... ... ........ . .. ...... ... ..... .. . . ..... ..... . ................ 14 1.9 Research questions ... .. ... ..... .... ................................. ... .... . ... ........ .. .. . .. . ... 14 1.10 Lin1itations ........................................................................................ 15 1.11 Chapter breakdown .. .. .... ... .. . .. . ................................. ............... .. ....... ... . 15 1.12 Conclusion .... ... . . . ...................... ... . ............. . ... . . .. . . ..... .... ..... .. . . ... . . ...... 15 2.0 Theoretical Framework .. ..... . . . ...... . ....... . ....... ... . ...................................... . .. . 17 2.1 Introduction .. ... . . .... ....................... ... .... ..... . ........... . . . .... . ... . ... . .. . ...... ... 17 2.2 Identity politics and the Kenyan-Asian . ... .. . ..... . .... .............. . ...................... 17 2.3 African feminism and the Kenyan-Asian . . ................. . ... .. .... ... ........ ... ........ 19 2.4 Triple heritage theory ....... ..................................... ... ...... ....... .. ... ....... .. 23 2.5 Conclusion ................. .... .... ........ . ....... .. . ............ . .. .... .. .. .................... 25 3.0 Kenyan-Asians, representation of a minority .. ............................. .... . .. .. ....... .. .. 26 3.1 introduction .......................... ...... ... .......................... .. ....... ... .... .. ....... 26 3.2 Discrimination of minorities . ... ...... .... ..... ...... . ........ . .. . .. ....... . .................. 27 2 3.3 Historical influence of Kenyan-Asians in Kenya .. .. .... . .. .. ...... . . . ....... . . ......... . . 28 3.4 Presence of the Kenya-Asian .... ...... ...... .... .. ...... . .................. .. ................. 29 3.5 Representation of women . . ... . .. . . . ... . . .... . . . ...... .. ....... ... . . .... ... ...... .. . ...... . . .. 31 3.6 Conclusion ... .............. .. .... .. . ....... .... .. . .... ... . . .. . . ... . . . . .. ... ...... .. ... ....... .... 32 4.0 Comparative analysis of Kenyan women participation and representation ............... 34 4.1 Introduction .. ...... . ..... . ......... . .. . ...... ... . ...... .. ...... ... .. . ... .... ..... .... ..... ... ... . 34 4.2 Efforts made my Kenyans ............ .. ... . . ............. . ........ .. ....... .. .. . .... .. ....... . 34 4.3 Affirmative action in Kenya . . . . ...... . . . ...... ... ..... . . . . ...... . . . ..... .. . . .... . . ... ...... .. 35 4.4 Representation ofKenyan-Asian men .. . .................. . ................................. 36 4.5 Affirmative action in India and the USA .. ..... .... .. ......... ... ... ...... ... .... .. . . ....... 37 4.6 Conclusion . ... . . . ... . . . ...... . . . .... .. ... . .... . ............... . ...... . . . .... . ..... . .............. 39 5.0 Conclusion and recommendations . ...... ... .. . .... ... . . ...... . . . ...... . . . ...... . . . ...... . .. .. . .... 40 Bibliography 3 Acknowledgments First and foremost, I would like to thank my Almighty Father in heaven for the gift or life and for allowing me to be able to have attained the necessary qualifications to get here today. Secondly, 1 would like to thank my parents, Mr. Munir Mulji and Mrs. Divya MuJji, and my darling brother, Ashiq Munir, for their continued love, support and prayers all through this journey. I would like to thank my supervisor, Mr. Sipalla for constantly refining my thoughts and inspiring me. A special thank you to Mr. Douglas Gichuki, without whose guidance and support I would have been a very sad law student. And lastly, an especially special set of thank you to my dear fi·iends that have turned into famil y, Laura Kyalo, Mildred Okello, Natasha Teyie, Patience Syekonyo, Sophje Kavenya Muya, Tremayne D'souza and Harun Laval for the truckloads of love and encouragement that they sent my way to enable me to be here and finish this dissertation. 4 Dissertation Declaration Form L RUKH~AR M1.TNIR MULJJ. do hereby declare that tlus research is my original work and that m the best or my knowledge and belief it has not been previously. in it~ entirety or in part. been submitted to any oth~r university tbr a degree or diploma. Other works cited or referred Lo are ac~ord ingl ,Y acknowledged. Signed: ........... QJv\ ................................................. .. Date: ......... 3~./.~).~.0.!.~ .................... .. ... ............... ... . This dissertation has been submitted for examination with my approval as University Supervisor. Signed: ..... 5 Abstract This paper is about women who arc members oflhe Kenyan-Asian community which was recently declared to constitute one of the 44 tribes of Kenya. f endeavom to define what a tribe is in the 1 w~nty-tirst century, followed by initiating a discourse on the participation of Kenyan-Asian ,,·om.en iii politics. The paper looks at different theories that have created the modern day perceptions ofA1i·ican J·eminism and whether or not that feminism is racially exclusive. Moreover, the paper shows the developments made by way of legisla6on and use of affirmative action policies tbat have been enacted. or are in the process of being enacted, to assist in getting rid of discrimination against women. Furthermore. this paper addresses the status of the Kenyan-Asian as a minority group in Kenya, and draws the necessary conclusions for rights that are to be bestowed upon such groups. 6 1.0 Background 1. 1 Introduction Gazette Notice number 102 for 20 J 7 was tbe Presidential Proclamation by President Uhuru Kcnyatta. The proclamation stated the following: ''1 do hereby recognize. proclaim and order. 1. That Kenyans of Asian Heritage constitute a community that is one of the Tribes of Kenya: 2. That from now hencef01th, the community of Kenyans of Asian Helitage are Kenya's 44l11 Tribe" President Kenyatta. ·· 1 The Kenyan-Asian is therefore understood to be a member of any one of the sub-Asian, but primarily Indian communities. There is an anomaly in the definition. and this is because in Kenya there are different types of Asians and not all can claim the identity of a Kenyan-Asian. This statement and apparent proclamation is therefore erroneous because it has opened up doors that point towards the condoning of racist and tribal pre terences by the state. This proclamation is said to have more than one constitutional basis, and for the purposes of this paper. Articles 11 and 44 are of particular relevance. Article 11 of the Kenyan constitution deals with culture and states that: ··oJ This Constitlllion recognizes culture as the foundation ofthe nation and as the cumulative civilization oft he Kenyan people and nation. ''1 Enslu·ined in this provision, is the fact that Kenya, as a nation. is comprised of many different cultures. otherwise known as tribes and etlmicitjes. This includes the Kenyans of Asian origin. Article 44 of the constitution talks about language and culture. lt states that every person has the right to enjoy the use of any language and practice any person's culture, provided it is not against their will. In an anicle published in Awaa= magazine3~ Zarina Patel and Jill Ghai make an 1 Cited in Patel Z and Ghai J, 'A tribe, a nation. a people- or just Kenyans?' Awaa: Maga:ine (20 17). 2 Article 11(1). Constttwion qj'Ke11ya, 2010. J Patel Z and Ghai J. ·A rribe. a naLion. a people- or just Kenyans?' Awaa: i\1/aga=ine (20 17). 7 interesting observation. They say that the most imp01tant aspect of the inclusion of Kenyan-Asians it~ Kenya as tbr ,.w:h tj·ibe has been based on cuiture llild net about involvement in public life or even about equality.4 Ordinarily, a Kenyan-Asian is anyone who is descended fi·om the Asian-subcontinent, namely from present-day India, Pakistan, or Bangladesh. The Kenyan-Asian community in Kenya, now a tribe. is comprised of several denominations and sub-communities, namely the Shia lsmaili K.hoja Conummity (Aga Khan Foundation), the Jain Community (Visa Oshwal Community). the Patel community, the Bohra conummity. the Sikh conuuunity (Guru Nanak Foundation), the Shia Ithna Slu·i community. Lohana conununily, Sthanakvasi community (a branch of the Jain community), Datji community (tailors), Dhobi community (launderers), Varan community (barbers) and Brahman conmmnity (priests), to name a few.5 They brought in with them food. culture and lexicon that fused with that of the land.6 Kenyan- Asians have played a major roJe in creation of Kenya as a nation, yet feel removed from its politics todayJ ln fact, very little is recognised about the massive influence Kenyan-Asians have had in Kenya. A Jot of this information has been suppressed, or otherwise disregarded in the country and continents' history. Kenyan-Asians are looked at in the same way as the white-settlers. when in t:act, the migrants had very little choice in the matter. x 1.2 Background of the Kenyan-Asian: It is essential to address the question of the representation of minorities in elective and public offices in Kenya. The colonial govemment, in the period between 1915 and 1920, passed discriminatory laws against the Kenyan-Asian.9 In addition to this, legal segregation in towns was instituted in 1918, and elective representation to Legislative and Municipal Councils was denied to the Kenyan-Asian community in t919.w The Kenyan-Asians were further discriminated in the 4 Patel Z and Ghai J, 'A tribe, a nation. a people- or just Kenyans?'. 5 Hindu Council of Kenya, log books. 06.09.2017. 6 Drabu 0, 'The 441h tribe: How Kenya's Asians are navigating the upcoming election', llrflfingfon Post (20 17). 7 Drabu 0, 'The 44'11 tribe: How Kenya's Asians are navigating the upcoming election' . Iii Nelson D, ·'Problems of power in a plural society: Asians in Kenya'', 28-3, Sowhwestem Journal of Anthropology ( 1972) 255-264. 9 Arieno-Odhiambo E S. ''The political economy of the Asian problem in Kenya" 4-1 Transa(rican.!oumal q( Histo1:v 1888-1939, ( 1974) 135-149. 10 Atieno-Odhiambo E S. "Tile political economy of the Asian problem in Kenya'', 135-149. 8 Public Service and this was by having policies in place which allowed for favoritism of the colonialists. and denial or acknowledgement of the role of the Kenyan-Asians. There was an extraordinary outburst or nationalist activity in India in 1907, 11 which then further ignited the consciousness oft he Kenyan-Asians in Kenya. as members of the British colonies. In 1908, Lord Elgin decided that the HighJands would onJy be occupied by the white settlers, 12 this action infuriated the Kenyan-Asians and caused them to revolt, albeit on a minor scale. This decision was affinned by Lord Jvfillner in May 1920. and was later confirmed by Winston Churchill at an East African dinner in 1922. 13 ln 1938. a policy of cooperation came into existence for the elected representatives of the [ndian commtmity in the legislative, executive councils and in other public bodies, it changed the system of making the views of tbe East African Indian National Congress 14 known and felt entirely. The policy made elected members. instead of Congress, the executive mouthpiece of the Kenyan-Asian conu11unity for all practical purposes. This l)rovided the Kenyan-Asian community. at the time. with an avenue and a platform to make their views heard by the government and other communities in Kenya. 15 However, tbe independence pruty. Kenya African National Union (KANU), formed in 1960. refused to enroll non-African members16• This was one of the first clear exrunples of discrimination towards the Kenyru1-Asians after independence. 1.3 The question of citizenship India. as a state had not taken any adverse actions towards Kenya 17• In fact. [ndia gave strong support to Kenya at the time the latter attained independence.18 It offered training facilities. urged the Kenyan-Asians to take out local citizenship and, to show its good faith, refused the lndian- 11 Aiyar S, ·Empire, race and the Indians in colonial Kenya's contested public political sphere 19 19-1923' 81-1 Print Cultures. Nationalism and Publics qj'the Indian Ocean (2011 ), 132-154. u RiceS, ··111e Indian question in Kenya" 2 Foreil(n Affairs (1923) 258-269. 13 Atieno-Odhiambo E S, "The political economy of the Asian problem in Kenya•·. 135-149. 14 East African lndian National Congress, the National Archives Catalogue, VK, ( 1939), Reference Number- CO 533/504/7. 15 Interview with Khan A. who is a Member of County Assembly for Kisumu County on the 10 of October 20 17. During this interview he pointed out that initially it was extremely dillicult for Asians to secure positions in political parties, or even to be nominated. 16 Interview with Khan A on I 0 October 20 17. 17 Nayak P, ·' Kenya Asians: apportioning the blame'' 6-18 Economic and Political Weekly ( 1971) 923-926. 18 Jmerview with Khan A on I 0 October 2017. 9 bomKenycu1-Asian the kind of security that the British government gave the British-born Kenyan- Asian by the 1964 British Nationality Act 19. This Act20 not only enabled the British-born residents of Kenya to acquire Kenyan citizenship, but also allowed them to renounce it at any time or their choosing and to revert to being British it" they wished to return home to Britain21 • No such security was given to the lndian-bom Kenyan-Asian in Kenya. The Indian govenunent could have passed comparable legislation applicable to the Indian-born Kenyan-Asians in Kenya but it did not. Jn 1962. the conservatives in the British Parliament passed the Commonwealth Immigrants Act22 which stipulated that although the colonial passport holders were technically citizens, they no longer had an unrettered right to enter Britain.23 When Kenya became independent in 1963, British passports were no longer issued by the Kenyan authorities. The Kenya fndependence Act (UK?4 created a new kind of British citizen: non-Indians and non-Kenyans who remained British by defauit.25 This was outlined in Section 2 of the said Act, which stated as follows; "a person shall not cease to be a citize11 ofthe Unjted Kingdom and Colonies under section2(2) ofthis Act if he. his father or bis father's father (a) was born in the United Kingdom or in a colony; or (b) is or was a person naturalised in the United J(jngdom and Colonies; or (c) was registered as a citizen oftl1e United Kingdom and Colonies; or (d) became a British subject by reason of the a1mexation of any territory included in a colonf'.26 Section 3 ofthe same Act fi.uthcr stipulates that; ''A person shall not cease to be a citizen of the United Kingdom and Colonies under section 2(2) or this Act if he was born in a protectorate or protected state, or iJ his father or his father's father was so born and is or at any time was a B1itish subjecf'.27 Th is created a dilenuna for the Kenyan-Asian and led to discussions about nationality and citizenship. 19 Nayak P. "Kenya Asians: apponioning the blame", 923-926. 20 British Nationality Act, Cap 22, 1964. 21 Nayak P. ··Kenya Asians: apportioning the blame .. , 923-926. u Commonwealth Immigrants Act. 1962 (now repeaied). 23 Hansard discussions of the Commonwealth Immigrations Act, 1962, available at lmps://api.parliament.uk/historic-hansard/acts/commonwcnlth-immi!.mmts-acl-1962, accessed on 05 April 2018. 24 Kenya Independence Acl (UK) Cap 54, 1963. 25 Nayak P, ·'Kenya Asians: Apportioning the 131ame"'. 923-926. 26 Kenya lndependeJice AcL (UK) Cap 54, 1963. 27 Kenya Independence Acl. (UK) Cap 54. 1963. 10 1.4 Literature review The passing of the 1968 lmrnigration Act by the United Kingdon1 certainly resulted in adding a new dimension to Kenyan-Asian attitudes. Before lbe Act. me relationship of India with the Kcnyan-Asiuns in Kenya and else,.vhere was more ambiguous. Duncan Sandys wrote in The Spectator (London) in March 1968 that the immigration Act was never intended to admit the Kenyan-Asians !l·eely into Bntain.23 The onJy intention was to provide an escape clause for those who were British and wished to opt out or taking Kenyan citizenship29• The measure. whkb was originally designed to enable a few thousand Europeans to opt out or Kenyan citizenship when the going became rough, instead resulted in over 120,000 Asians finding themselves continuing as B1itish citizensJ0. The main objection to the Commonwealth immigrants Act (UK) 1968 was that it left the British Asians in Kenya vi rtual ly stateless.31 Kenya was not willing to let the British Asians stay on indefinitely. Oflicially, however, they were not acceptable anywhere else either, unless Britain accepted ultimate responsibility for them, which was c!enied by the Act.32 Some, among the sensitive ci rcles, however, resent the materialism, the arrogance. the wealth and the political fence-sitting of the Kenyan-Asians33 . This is mainly because precious little is known about U1eir past and the circumstances that led to the community adopting a defensive posture. What added to these tensions was the stance that the independence party took against allowing even those Kenyan Asians \Vho had voluntarily taken up citizenship to be al lowed to be members and represent the individual interests of their community34 • 28 Sandys D. ·A shameful and unnecessary act' The Specltttor (UK), March 1968. IIIJJl.:llorcf!l_,:e .. mf:t.f'(arar m .llkl i.,sue, f.J.L-.J.Ll.Y.lTIJ:.L!?O..'Y on 29 September 2017. 29Sandys D: A shameful and unnecessary act The Spectator (UK), March 1968 hllu:.t.'archire .. \'(].ttt.:lttlor co.ul .. issucllsl-marcll-1 968 on 29 September 20 17. 30 Nayak P. ·'Kenya Asians: App01tioning the Blame". 923-926. 31 Article 2. UN Convention on Statelessness. 1954, Treaty Series. vol. 360. Estnblishcd the legal definition of a stateless person as ·'someone who is not recognized as a national by any state under the operation of its law. Simpl)• put a stateless person is one who does not have the nationnlity of any coumry. 32 Commonwealth Immigrants Act (UK) Cap 9. 1968. 33 Nayak P, "Kenya Asians: appottioning the blame··, 923-926. 34 Interview with Khan A on l 0 October 2017. 11 1.4.1 Are Kenyan-Asians a tribe? The Cambridge English dictionary defines a tribe as the fol lowing: ·· a group or people, often related families, who !ive together, sharing the same language, culture. Hnd history, especially those who do not live in towns or cities: for example. a tribe of Amazonian indians. the Maasai tTibe.'"35 r f we are to look at the dctinition of a tribe, and Lhen reflect on the few subdivisions oft he Kenyan- Asian community mentioned earlier, we can reasonably assess, that by delinition, the K.enyan- Asians cannot constitute one tribe, but are in tact. a collection of tribes. The proclamation therefore, is inaccurate. According to the 2009 Kenya Census, the results recorded 46,782 'Kenyan-Asians' and 35,009 'Asians'36. The distinction was made on a basis of nationality, "vhere Kenyan-Asians held Kenyan Citizenship. and Asians could include anyone from the Asian subcontinent who was not a Kenyan citizen. The word (l·;be is mentioned eighteen times in Kenyan legislation and is usually with regards to non-discrimination; where one should not be discriminated against on the basis of tribal affiliations.37 lssa Shivji in his letter-to-the-editor of Awaa; Maga::ine38 said that "'In this day and age, and in the concrete conditions of Kenya, nothjng could be more dangerous than tribal flag-waving.•·39 1.4.2 Discrimination ofwomen in Kenyan politics Since Kenya attained formal independence in 1963, women have been seeking to effectively pmticipate alongside men. in governm1ce and decision-making in all aspects of public life. But for 35 Cambridge English Dictiona1y- Definition of a tribe. hllps:t/clictionnrv.cambrid!!c.orgldictionaryleng,lishitribt.! on 2 January 20 18. 36 Patel Z and Ghai J ... A tribe. a nation, a people- or just Kenyans?". 37 'Iss a Shivj i: Letters to the Ediwr' , Awaa: Maga:ine, 27 October 20 17, /.!ll.JJ.I':Ilal1'aa:moga::ine.conuvo!tum.l-l-/- i.,·sue-2:olhtJr-artidtl.'i/in•m' 9/I-IelftJr.\'-lo-tlw-ediwr-issa-sliivji-t:omm .. mt~ on 23 December 2017. 38 'lssa Shivji: Lcuers to the Editor·, Awcw: Maga:ine, 27 October 10 17, lums:ltma·ua:magu:ine.coml mhmw-1-l- issue-2il)ther-w ·Jirleslilt!tlll2fl-lllllers-ru·lhe-editor-is.\·a-.~lli~·ji-commeiiiS on 23 December 20 17. 39 'rssa Shivj i: Letters to the Ediror'. Awaa: Nfttga::ille, 27 October 20 17. hllps://(lll'lla:magu=iii(!.('CJ/1/.I'rJIIIIlll!-1-l- issue-:! .. nher-m tide, itt!m·IJ 11-fellers-w-lh. Men·iam Webs!•.!:· Dictioreary. ltttps:l/www.merriwn- •rC"b.;ter.cmn'diuionanf id..:ntitJr'J-()}.(Jpolitlc::.. accegsed on 05 April20 18. ------- 17 The c!Jlon!nl state deliberately fostered raciai segregation, because it offered the Kenyan-Asian better economic opportunities than the African. Thus il became common belief that the Kenyan- Asian was exploiting the African. this being the basis of the Kenyan-Asian dilemma in political representation.<~4 As a direct result or this beliel~ KANU refused to admit any non-Africans to the party, thereby claiming to endeavour to preserve the culture and the integrity of the African Kenyan people. Onaiza Drabu. Jill Ghai·15, and Zarina PateJ·16, all noted that it was the members of the Kenyan- Asian conununity that had begw1 to agitate for recognition as a tribe in Kenya. One of the reasons for this may have been to attain more prominence in poljtics and other leadership positions in the country. Shivji goes on to state that '·on the part of the leaders of the petitioners. i11 my view. it was politically opporttmist to adopt a tribal tlg-leafto defend their prope1ty while offering security to their community- "tTibalism·' does neither."47 He further goes on to state the tribalism provides neither a sense of solidarity or security to the members of the Kenyan-Asian conununity in Kenya. but rather opens them up to more discrimination and scrutiny.48 Zahid Rajan has also criticised this move as a political ploy by saying that "The delegation, while being composed of some members of the Asian community in Kenya, has no right or authority to speak on behalf of the entire community. a11d, worse still. commit to a certain line of action. The fundamental tenet of free and fair elections is that every citizen has a right to vote. And that every citizen is fi·ee to cast that vote how-so-ever he/she wishes to and in con1plete confidentiality. To make this a group exercise is not onJy unconstitutional and unjust but also undermines the whole ethos of 'election· .''-~9 Patel and Ghai have also added that "Any right thinl<.ing Kenyan should be advocating for the purging of tribalism so that we can begin to assess our politics on the basis of vision, competence. and actual perfonnance and not the ·tribe· of the proposed leaders.''50 ~a Atieno-Odhiambo E S, ·'The political economy of the Asian problem in Kenya•·, 135-149. 45 Patel Z and Ghai .1. ··A tribe, a nation. a people- orjust Kenyans?" Awaa.= Mag(dne, (20 17). 46 Patel Z and Ghai J. ··A tribe. a nation. n people- or just Kenyans?'" Awaa: Maga:ine, (20 17). 47 Shivji I. Letters to the Editor. Awacc: Maga:ine, 27 October 2017. 48 Shi~ji I, Letters to the Editor, Awcw: Maga:ine, 27 October 20 17. Jg Raj an Z. ''Asians don "t seek to be 441" tribe'·. The Star Newspaper. (20 17). 50 Patel Z and Ghai J, ·• A tribe, a nation, a people- or just Kenyans?'" Awaa: t\llaga:ine, (20 17). 18 Upon further analysis, Drabu bas noted that ·'Theirs (the Kenyan-Asians) is a diaspora of no retum and of no cmmections to their homeland. Kenya, for them, is home.''51 Raj an wrote that ·The Kenyan-Asian community is different fi·om the Makonde community which was recently recognised as the torty-third tribe of Kenya. The Makonde are a group of people at the Coast who have been marginalised and discriminated against for more rhan fifty years. They have had very little (if any) economic or political influence. They had not been able to register as voters and did not even have access to basic healthcare through NHIF (National Health Insurance Fund). They have tlnally been given identity documents and made part of the new devolution structure in the 2010 Constitution."52 This is different from the privilege that has been experienced by the Kenyan-Asians. They were accorded identitication and given a nationality. Kenya is known for its notoriety in participating in and not divulging from identity politics.53 Questions about ethnicity. nationality and citizenship have had an important role to play when developing legislation for nomination of women to different political parties, as well as vvhen appointing members or elective and 1egislati ve bodies. 2.3 African Feminism and the Kenyan-Asian Kenya attained independence in 1963, and since then women have suffered through different types of discrimination. Structural obstacles such as: deeply embedded patriarchal socio-cultural values; undemocratic institutions, buttressed by equally undemocratic and gender blind legal and policy tl:ameworks and low levels of civic and gender awareness have led to women being under- represented in public and elective oftices.54 Under this institutional and socio-cultural environment, it is hardly surprising that despite the active and efiective role women played in tbe colonial liberation struggles, the first post-independence govenunent under the late President 51 Drabu 0. ··The 44111 tribe: How Kenya's Asians are navigating the upcoming election'· (20 17). 52 Raj an Z. ·'Asians don't seek to be 44'11 tribe'·. The Star Newspaper, (20 17). 53 Lynch 0, ·'Negotiating Ethnicity: Identity Politics in Contemporary Kenya,'' Review of African Political Economy, 33-1 7 (2006). '·' Nzomo M. ·'Impacts or women in political leadership in Kenya: Struggle for participation in govemance through Affim1ative Action:· I. 19 Kenyatta did not have a single woman member of Parliament. 55 When leaders or the only national_ women's orgnni?.ation at the time sought lo engage the State over this exclusion. the male political gatekeepers argued that there were no qualified women. 56 In most countries. women pruticipate only marginally at the highest levels of decision-makingY The gendercd and patriarchal nature of power relations between men and women bave been best manifested in the persisting marginality of women in fonnal politics and key power centers in many countries around the world. including Kenya. 58 In reality, democracy in Kenya remained elusive i11 a context of tmdemocratic legal framework and political culture.59 There was however adequate political space for political mobilization; articulation of demands. and some space for engaging the intransigent State. This inspired the emergence of a progressive feminist led women' s movement that bas since engaged in gender activism, gender sensitization, mobilization, capacity-building of women political leaders; socio- economic progmn"ls for poor women and lobbying for constitutional reform. 60 This feminist movement led by a cross-section of well educated women spearheaded the 1990's women·s movement; dubbed: the Second Liberation Struggle.61 The attainment of a 30%numerical presence of women in parl iament has since been a major part of this feminist struggle, based on the deep conviction that there was a direct positive relationship between gender equity, development and good governance.62 Fmthermore these feminjst activists argued that a critical mass of women in 55 Nzomo M, ·'Impacts of women in political leadership in Kenya: Struggle for participation in governance through Affi rmative Action." I. 56 Nzorno M. ·'Impacts of women in political leadership in Kenya: Struggle for participation in governance through Affinnative Action," I. 57 Nzomo M, ' Representational politics in Kenya: the gender quota and beyond.' Institute of Diplomacy and lmemational Studies. (20 12), 2. so Nzomo M. ·Representational politics in Kenya: the gender quota and beyond.' Institute of Diplomat)' and lntemationol Studies. 2. 59 Nzomo M. ·'Impacts of women in political leadership in Kenya: Struggle for participation in governance through Affinnative Action:· 2. 60 Nzomo M, " Impacts of women in political leadershi p in Kenya: Struggle for participation in governance through Arltnnative Action." 2. 61 The first liberation was from colonial oppression. The second liberation was a struggle for substantive structural and transformative change for democrat ic governance, sustainable development. equity and social justice. Some of the political and socio-economic activities the Kenyan feminist activists engaged in especially in the 1990s are well documented in: Nzomo M and Kibwana K. "Women's Initiatives in Kenya's Democratization;· (1993). 62 Nzomo M. ·'Impacts of women in poli£ical leadership in Kenya: Struggle ~or participation in governance through Atlinnative Action;· 2. 20 parliament would not only advan~e the gender agenda, but could also positively transform the patriarchal political culture.63 Affirmative action describes laws, policies, and programs that provide to take into account historic wrongs and seek to remedy practices that even if they do not intentionally discriminate, have a disparate or adverse impact on ce1tain groups, such as women and minorities.64 1n politics, affirmative action seeks to enhance the representation of disadvantaged groups and persons of special interest. 65 However, there has been dismal performance in increasing women's numerical strength in all public decision-making bodies, but most notably in Parliament and local government. In 2011 , the Kenyan parliament had only 9.8% women representation; trailing far behind the global average of 18.8% women representation in world parliaments.66 Over the past decade, some African countries have attained and even surpassed the critical mass tlu·eshold of 30% women representation in decision-making.67 All the coLmtries in the East African region have overtaken Kenya on al l measures of gender equality indices and as in the case of Rwanda, standing at 56% women parliamentary representation by January 2011, was ranked first globally, followed closely by South Africa at the third position, while Kenya stood at position 101 ,68 in global the ranking of women's presence in parliament. 69 Kenya has the opportunity to learn from and adapt the best practices from the African countries that have already attained the minimum gender gap tlu·eshold. 70 This would ensure that the gender 63 Nzomo M, "Impacts of women in political leadership in Kenya: Sh·uggle for patticipation in governance through Aftirmative Action," 2. 6·1 Nzomo M, 'Representational politics in Kenya: the gender quota and beyond.' Institute q/ Diplomacy and International Studies, 2. 65 Nzomo M, 'Representational politics in Kenya: the gender quota and beyond.' Institute q/ Diplomacy and International Studies. 2. 66 Nzomo M, "Impacts of women in political leadership in Kenya: Struggle for patticipation in governance through Affirmative Action," 2. 67 Akwei l, "Rwanda has been ranked highest country in the world with most women in Parliament, as of January 20 IT', H"ll'll'.a[ricalltJWs.com. accessed on l 0 February 2018. 68 These figures are derived fi·om data compiled by the lnter-Parliamentat)' Union on the basis of information provided by National Parliaments by 31 January 20 I I, for 188 countries. See also, http://www .igu.org/wmne/classif.htm, accessed on I 0 February 20 18. 69 Nzomo M, "Impacts of women in political leadership in Kenya: Struggle for pat1icipation in governance through Affirmative Action,•· 2. 70 Nzomo M, ' Representational politics in Kenya: the gender quota and beyond. ' lnstitwe q/Diplomacy and Internal ion a/ Studies, 2. 21 equitable representation goes beyond formal or descriptive representation, to substantive representation. 71 The poor performance of Kenya with regards to women· s representation in political leadership, despite having pioneered and provided leadership to the post-1990 multi-party women empowerment programs 1n the East African region, continues to raise concern both at the level of theory and praxis72 This struggle for aftinnative action led by the combined force of feminist led activists, 111 collaboration with other gender responsive gToups and individuals, intellectuals, and women parliamentarians, was tinally rewarded in August 2010, when the 20 years of struggle for a new Constitution, yielded a very progressive legal and pol itical instrument, that not only provides for affirmative action but guarantees both women and men, equality of rights and duties in equal measure; and removes all forms of discrimination in both legal and social practice. Top on the list of the key gains that women feel they have harvested from this new constitution, is the inclusion in the Bi ll of Rights, with a legally binding principle of affirmative action, backed by additional protocols that guarantee the implementation of affirmative action tlu·ough quotas and reserved seats, in all appointive and electoral processes. The affun1ative action provisions, binds the State to ensure gender equity in access and measures to correct historic imbalances suffered by all minorities and disadvantaged groups. 73 This thereby includes the Kenyan-Asian tribe, as well as the representation of the Kenyan-Asian woman as a minority i11 Kenya. 7 1 Nzomo M, ' Representational politics in Kenya: the gender quota and beyond. ' lnslifule of Diplomacy and lnrernar ional Studies, 2. 72 Some have argued that Patriarchal values that pervade all political institutions of governance: political pat1ies, parliament, local councils and government bureaucracies, coupled with (unti I August 20 I 0) an undemocratic legal fi·amework, have been viewed as major obstacles to women's presence in pol itical governance. Others have heaped blame on the women 's movement and organizations for their alleged fai lure to provide concerted and sustained support to women in politics. Still others have blamed the women politicians themselves for poor political strategies and unwillingness to make politics a full time profession. with all the sacrifices it entails. See also Nzomo M, "Women in Politics: Challenges of Democratic Transition in Kenya," Heinrich Bol l Foundation, (2003). 73 Nzomo M, " Impacts of women in political leadership in Kenya: Struggle for participation in governance through Affirmative Action," 3. 22 2.4 Triple Heritage T heor1' \\irittcm by Prof. A!i Mazrui74, the Triple Heritage Theory of Africa re:l:ers to the three main cultmal i•, fl uenccs in Africa and hmv they have had an impact in the development of states and Ati-ica as a continent. Tbis theory conceives that today's Africa is em amalgam of 3 major civilisations: indigenous Africauity, Islam and westernisation.75 The triple heritage theory visualizes Africa <:sa cul tural bazaar where a variety of ideas and values, dra-wn from difterent civilisations, compete fo r attention of potential 1\frican buyers. This marketing of cultures in All:ica has been going on for cenmries but a pruticularly impmtant impact has come from the 'Semites' and the ' Caucasaians'. 76 The triple heritage lenses are, therefore, useful in explaining Africa's past and present developments. It is essential in explaining the colonial period, during which indigenous African values had significant foreign input Professor Mazrui 's theory also helps explain Africa's post- colonial developments in the light of the latter day cultural paradigms. In the tive decades of independence, African states have undergone a process of internal reflection with the result that they have reasserted, modified or annulled the values learned in the course of past cross-cultural interactions, including specifically, the colonial epoch.77 The fifth program in Prof. Mazrui 's series dealt with the confrontations which exemplified Af]:ica's mix of indigenous, Arab, and western forces. In Kenya, white settlers reserved about 30% of Kenya's most fertile lands. The Mau-Mau's, also in Kenya, fused religion with patriotism.78 This then led to a fusion of cultures from the east and west, thereby cementing the iJ1fluence of the Kenyan-Asians in Kenyan history, as well as in the East African region. T he Kenyan-Asians had, with considerable fortitude and perseverance, pioneered the establishment of clukas, of local training centers and bazaars in different districts; and by introducing the rupee cunency, they 74 Mazrui A, ·The African: A triple Heritage' , You Tube series, https:/lwww. voutube.cvml watch?v=8-pksToXSL4 accessed on 05 April 2018. 75 Ambani J 0 , 'The second wave of criminal ising homosexuality in Kenya, Nigeria and Uganda', Universily of Preloria, (20 16), 14. 76 Am bani J 0, 'The second wave of criminal ising homosexuality in Kenya, Nigeria and Uganda' , Universily o.f Pretoria, 15. 77 Ambani J 0 , 'The second wave of criminal ising homosexuality in Kenya. Nigeria and Uganda', Universily o.f Pretoria, 16. 70 Mazrui A, "Su111mary ofthe Ati·icans: A Triple Heritnge•;· https:!IH'II'll'facebook.com/notes/professor-o/i- mccrui/summ£trv-u[:t!ze-u(ikans-a-trip!e-herilMel30550750 14 5; accessed on 12 March 2018. 23 pro-vided nn incentive to greater local productio11 as well as the transition from baner to a money- basco economy.79 The Kenyan-Asian must be vievved as the pioneer businessman in the region, who helped to open up the interior of east Africa and facilitate further ease of access to the African continent. 80 Kenyan-Asian politics revolved around opportunity structures. but often an appeal was made to universal ideologies, such as .. one man, one vote··. "Equal opportunity for the members of one Empire". among others. were comnmn and the typical rallying cries.81 The specific interests of the Kenyan-Asian were to rally on the issues surrounding Indian immigration and the abolition of discrimination in all walks of life, this was to alford the Kenyan-Asian equal opp01tunity in the public and private sphere.82 For their part, the Africans were actually inspired by the measures that the Kenyan-Asians were putting in place to advance the independence agenda. While the ri valry between the entrenched Kenyan-Asian shop-keeper and emerging African traders created resentment between the two conummities in rural reserves83, which was ultimately never quite resolved, as is the case in point within this paper. 'n·te Kenyan-Asian has had a massive inf1uence on Kenyan culture and perceptions over the last two decades.s" This. has. however, not impacted the way in which the Kenyan-Asian is viewed when it comes to matters of political representation and appointment of officials in govemment offices. There have been exan1ples of clear discrimination and this has made it even more difficult for Kenyan-Asian women to enter the political sphere. lndeed. Prof. Mazrui demonstrated that the triple heritage theory can anchor a full discussion on African sexism. ln 'The black woman and the problem of gender: An African perspective 's5, Mazmi identi tied three levels of African sexism. namely; benevolent, benign, and malignant. He 7 " Atieno-Odhiambo E S. ·'111e Political Economy of the Asian Problem in Kenya", 135-149. 80 Mazrui A, ·'The African: A triple Heritage•·, You Tube scrics.lulps:IIH'WW.rmrtnlu:.cvm/w(ltcll?t·=li-ph ToXSL-1 accessed on 05 Apri l1018. HI Atieno-Odhiambo E S, "The Political Economy of the Asian Problem in Kenya", 135-1 49. Nl Atieno-Odhiambo E S, ·'The Political Economy of the Asian Problem in Kenya''. 135-149. 81 Aiyar S, ·'Anti-Colonial Homelands across the Indian Ocean: The Politics of the Indian Diaspora in Kenya. ca. 1930-1950 ... 8~ Interview with Khan A on I 0 October 2017. as Mazruj A, ·The black woman and the problem of gender: an African perspective·, African Slurlies Association. 1992. 24 defined bene-volent sexism as a form of discrimination which is protective or generous towards the ntberwise underprivileged gender.86 Benign sexism, he said, is sexism that acknowledges gender ditJerences without bestowing sexual advantages or inflicting a gender cost.37 Malignant sexism, on the other hand has been detined as sexism that subjects women to economic manipulation, sexual exploitation ~mel political marginalisation.ll8 Ail these sexisms have been influenced by and have suffered the impacts of Africa's triple heritage. 2.5 Conclusion The theory of identity politics is one that can help to ascertain whether or not the Kenyan-Asians constitute a tribe in Kenya or whether or not it is a collection of minority groups. Furthermore, since it was the Kenyan-Asian conununity that started to agitate for recognition, one may argue that the theory of identity politics is one of substantial value, mostly because of the previous experiences of the Kenyan-Asians with the British post-colonial government which exercised inherent discrimination towards the Kenyan-Asian by not giving them official status as citizens. This has obviously impacted the way in which the Kenyan-Asian behaves in the public space in Kenya. Moreover, the Kenyan-Asians were also rejected by the independence government of Kenya, thereby fi.1rther ignited their plight or non-recognition. African femirusm on the other hand has been accused of being racially exclusive to those of African descent. The Kenyan-Asian woman is one of African descent, yet faces imminent discrimination because of race and economic footing. The Kenyan-Asian community rarely encourages women to participate in politics or in attaining any appointive offices, which is of course. to the detriment of women who are members of this minority group. The triple heritage theory of Africa has been used in this context to explain the reasons for the identity politics and African feminism failures which have not accmmted for the participation, sensitization and empowerment of Kenyan-Asian women. a6 Mazrui A, 'The black woman and the problem of gender: an African perspective' . a1 Mazrui A, 'The black woman and the problem of gender: an African perspective' . flo Mazrui A, 'The black woman and the problem of gender: an Afhcan perspective' . 25 3.0 Kcnyan-Ashms, representation of a mino•·itv 3.1 Introduction Adopted by consensus in !992. the United Nations Minorities Declaration in its Article 1 refers to minorities as based on national or ethnic, culturaL religious and linguistic identity. and provides Lhat stares should protect their existence. R9 It is often stressed that the existence of a minority is a question of fact and that any definition must include both objective factors (such as the existence of a shared ethnicity, language or religion) and subjective factors (including that individuals must identify themselves as members of a minority).90 According to a definition offered 111 1977 by Francesco Capotorti,91 , a minority is ··A group numerically inferior to the rest of the population of a state, in a non-dominant position, whose members- being nationals orthe state possess ethnic. religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity. directed towards preserving their culture, traditions, religion or language."92 While the nationality criterion included in the above definition has often been challenged, the reqLtirement to be in a non-dominant position remains impmtant.93 fn most instances, a minority group will be a numerical minority, but in others a numerical majority may also find itself in a minority like or non-dominant position94. A perfect example of this is in Kenya where women comptise of majority of the population95 (50.2%), men sti II hold the majority of positions in public and elective offices. This has led to Lmequal representation and inequality between the genders. As 89 The Office of the United Nations High Commission for Human Rights (OHCHR), ·'Who are Minorities under International Law". m,,,.._ ohc!lr. org;'t:Nlls.W!!/MinoriliE·sll'w:eslillft•mt~f io11uf/nw. us()x accesslld on 27 September 20 17. 90 OHCH R, " Who are Minorities under International Law". 91 Capoto1ti F, Special Rapporteur of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities. 92 Capot01ti F. Special Rappo1teur of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities. 93 OHCHR., .. Who are Minorities under lntemational Law''. ~ lmerview held with Aslam Khan on 10 0ctOber2017. gs Trading Economics, Kenyan Demogruph ics htt(ls;l'f rc ltlillg(!<.'( 1//tl/lliL'S.<.:OIII.Ikel/\-ct/ (JO{)II/athm·/c!IIICI!t·-m•rcent-ot: /oiu/-wh-dma.luml accessed on 12 October 20 1'7 26 a consequence of U1e realisation or this, the Kenyan Constitution stipulated in its Bill of Rights, under Article 21 (3) that ·'All slate organs and aU public officers have the duty to address the needs of vulnerable groups within society. including women. older members of society, persons with disabi I ities, children. youth. members of minority or marginalized communities, and members of particular ethnic. religious or cultural cornmun.ities:.<>i! 3.2 Discrimination of minorities Although a great variety or m]nority situations exist, common to all is the fact that, too often. minorities race multiple forms of discrimination, resulting in marginalisation and exclusion.97 The United Nations Minorities Declaration is devoted to national, ethnic, religious and linguistic minorities. it is also important to combat multiple discrimination and to address a situation where a person belonging to a national or ethnic, religious and linguistic minority is also discriminated against on other grounds such as gender, disability or sexual orientation.98 Achieving etTective participation of minorities and ending their exclusion required that we embrace diversity through the promotion and implementation of human rights standards. ll1e Constitution of Kenya stipulates, under Article 2(5) that the general rules of international law shall form part of the laws of Kenya and that (6) any n·eaty or convention ratitied by Kenya shall form pmt oft he law of Kenya.99 All states have one or more minority groups within their national territories, characterized by their own national, ethnic. linguistic or religious identity. which differs from that of the majority population. 100 The fundamental pillars of human rights and mjnority rights protection are the principles of nondiscrintination and equality which constitute the basis of all core human rights treaties. 101 The Constitution of Kenya. under Article 10 stipulates the national principles of govemance and integrity and they apply to everyone in relation to all human rights and freedoms and prohibit 9& Article 21 (3), Implementation of Rights and Fundamenta I Freedoms, Constitution of Kenya. 20 I 0. 97 Minority Rights: lmcrnational Standards and Guidance for Implementation (HRJPU B/ l 0/3). 98 OHCIIR. ··who are Minorities under International Law 99 Article 2 (5) and (6), Constitution of Kenya, 20 I 0. 100 Minority Rights: International Standards and Guidance for Implementation (HRJPUB/1 0/3). 101 Minority Rights: International Standards and Guidance fer Implementation (HR!PUB/10/3). 27 discrimination on the basis of non-exhaustive categories such as race. colour, religion. language. natiom1lity and ethnicity. 102 Through respect for these principles, the enjoyment of many human rights can be secured. including the right to eaective participation in decision-making by minorities, and in pariicular women in these minority groups. 3.3 Historical (economic and cu ltural) intlueuce of Kenyan-Asians in Kenya South-Asian migration to Kenya began in the early 1800s103 . Many South-Asians living in the, white dominated urban centers in what is present-day India, wanted to cross the seas to look lor greener pastures. The migration was most noticeable from l896-1901 10<1, due to lhe establishment of the lmpetial British East Africa Company, which was engaged by the British government to construct the Kenya-Uganda railway. 105. In 1896 the British Govemment began to build the Uganda railway with a view to opening up the interior of east Alhca, and for this ptrrpose they imported large numbers of South-Asians, at first mainly unskilled labourers. then. as the railway progressed. clerks, since the enonnous cost put Europe..m labour out of cotnt (that is, it was too expensive) and the African was thought to be too primitive to undertake the work. 106 Soon after this, and because of the growing influence that the South-Asians had begun having on Lhe Africans. there were strict measures put in place by the British govemmcnt barring South- Asians from the upland, that is, highland areas within the Protectorate. 107 These highland areas were reserved for the White-European Settlers only, and the Asians were confmed to lowland areas, from which they were to continue trading. This declaration was made by the then Colonial Secretary, Lord Elgin, in 1908.108 This was only the beginning of the discrimination that the Kenyan- Asian community has since faced. One of the reasons for the sudden need tor resn·ictions against the Kenyan-Asians was because of the revoil and democratic movement that was on-going 102 Minority Rights: International Standards and Guidance tor Implementation (HR/PUB/ 10/3). 10 ' UNESCO General History of Africa, Volume VIII. 10 · 1 ·'A Kenyan Indian is treated like an outsider yet some have deeper roots in our indigenous cultures'' /utns:.t:·'ttwu·. l't>lll ubc. com ;,mtcll:' "=!? 1'5c..t £3 c60& r- 69 accessed on 26 September 20 17. 105 Nayak P. ·'KenyH Asians: Appo11ioning the Blame'', 6-18, Economic and Political Weekly ( 1971) 923-926 IO(• RiceS. "The lndian Question in Kenya·•. 2-2, Foreign Affairs. Council on Foreign Relations (1923). 258-269. 107 Nayak P, ''Kenya As1ans: Apportioning the Blame'·. 6-18. Economic and Political Weekly ( 1971} 923-926 108 RiceS, ·'The Indian Quel>tion in Kenya'". 2-2. Foreign Affairs, Council on Foreign Relations ( 1923), 258-269. 28 in present-day India at the time, as the Indians made a play tor independence from Colonial Britain. 109 On the very first page of the very first ·'nationalist'' history of Kenya. published in 1966, Carl Rosberg and John Nottingham110 proclaimed rhat the .. largely middle class oriented and religiously fragmented Indian population played only a tr.ctrginal role in the expanding conflict berween the whtte power elite and dominated Afric~m population. 111 As has been previously discussed. there w aft a :-:trong connection between the political tli1~1ate or the Asian subcontinent and the diaspora in and around the Indian Ocean dlU'ing this time. There was the development of the conceptualization ofDiasporas emerging as the embodiment of transnational history. Interestingly, this has been mulled over the years. and the historiographies of both nations, Kenya and India, have only brushed over the imme11se influence that the fndians of the diaspora had on the independence of both states. It is in this purview that Sana Aiyar states that they (historians) argue that idealization of the homeland left behind by the immigrants' leads to the reproduction of religious, regional, and cultural ident ifiers in the new hostland. 3.4 Presence of the Kenyan-Asian In a country where politics is polarized by tribes, tl1e Kenyan-Asians. as they are referred to. are less than one percent of the population. but their presence is conspicuous. 112 Onaiza Drabulooks at how the concept of having more privilege and leverage has resulted in the Kenyan Asian, during every impOI1ant political moment in Kenya's history, feeling targeted and marginalized. However. Zarina Patel has also discussed this particular concept and states that she does not believe that the Kenyan-Asians were targeted racially. rather their shops and homes have money, jewelry and 109 Aiyar S. ·'Empire. Race and the lndian5 in Colonial Kenya's contested public political 5phere 1919-1923'", 81-1, Cambridge University Press (20 II). 132-154. 110 Rosberg CG and Nottingham .1. ·'The Myth of·'Mau Mau" Nationalism in Kenya", New York, 1966. 111 Aiyar S, ·'Anti-Colonial Homelands across the Indian Ocean: The Politics of the Indian Diaspora in Kenya, ca. 1930-1950''. The Amerh·cm flistorical Review. Vol 116. No. 4, October 20 II , pp 987- 1013. 112 Dr-abu 0 . .. 111e 44111 Tribe: How Kenya·s Asians are Navigating rhe Upcommg Election". published in the Huflington Post II \I'll' lll!,{jillill_mlJlPM.in 201- ·os. (lj /JIJE.:..f./lh-Jrif!.e-h(l" -ki-!IJJ'u;<~-aswns-ur''-ll«t'il!alin~tllf­ utJ(.'I)IIIin,;-..: a ' Jft62./S8. accessed on 22 November 2017. 29 things worth targeting. 113 Patel talks about how it is a diaspora of no return and of no connections to the so called homeland. Kenya, she believes. for them is home. 11" When looking at th~ concept of how Kenyan-Asians have influenced the development of Kenyan politics and culture. it is important to note that the tirst attempt at political organization in Kenya vvas the formation of the East African Indian National Congress in 1914115• Political aspiTants from tl1c Kenyan-.t\ ::;ian community were usually members of the upper echelons of society and descended from the L1pper castes. Tn 1924, the East Afi·ican lndinn National Congress representing all Kenyan-1\sians in Kenya, was launched in Mombasa, with T.M. Jeevanjee, the brother of the erstwhile politician, A.M. Jeevanjee, as president. 11 6 rt is important to note that the years between 1919 and 1922 were exu·emely active ones for the Kenyan-Asian politicians. Throughout the period 1932-1939, the Kenya National Congress received its major inspiration from the Indian National Congress, as there was a rise of power in India and this was a matter of growing concern for tJ1e British colonialists. An interesting thing to note. is that in both, Kenya and India, the white settlers were members of the minority population with majority rule. During this time. there also ensued various practices of sending delegates from the India National Congress to the annual meetings of the East Afdcan Indian National Congress. 11 7 The first Kenyan trade unionist, Makhan Singh, 118 was born in Put~ab and moved to Kenya in his teenage. 119 During the same period, Kenya's first martyr. Pio Gama Pinto. was of Goan descent Furthermore, Aleya Kassam 12o wrote about bow the removal oflndians n·om Kenyan politics was 113 Drabu 0. "The 44'11 Tribe: How Kenya's Asiai1s are Navigating the Upcoming Election'', published in the Hu nington Post, 11' 11'11 ', lwUillgtmJru)sf. i11 ·~o 17/08/03/ tllt'--1-/1 h-1 r ibt·-ltow-/(!!1/!'(t.l'-•tsiw/.\ .,11'<:-lltt liigat mg-1 !Je- up> 30 One way to address this i3sue has been through the use of affirmative action policies which have :10w been incorporated into the Kenyan Constitution and provides for the protection of minorities, including women, and their subsequent representation. The case for affirmat.i.ve action in India and the USA can be made on the grounds of historical deprivation as well as on account of persistent disparity and continuing discrimination. Affirmative action can be, and is viewed as a program of compensation for historical injustices and very few would argue with the contention that historically, DcElits and blacks suffered deep injustices, disparity, deprivation and discrimination. The continued presence of social and economtc discrimination aggravates these disparities. 157 Learning from the example set by these states, Kenya can implement policies that look towards empowering minority groups, as well as disadvantaged women who are members of these groups. As part of my recommendations, I think the state should take a more active role in encouraging the representation and pruticipation of Kenyan-Asian women by protracting programs that sensi tize women on their economic, social, cultural , civil and political rights. This would create an environment that is more receptive and thus would allow more women to feel more comfortable in the public space. 157 Deshpande A, ·Affirmative action in India and the United Statt:s·, Equity and Devefvpmem. World Development Report, 2006. 41 BIBLIOGRAPHY Academic papers Ambani J 0. 'The second wave of criminalising homosexuality in Kenya. Nigeria and Uganda'. Untversi(V ofPreroria. LLD Thesis (20 16) Mar.rui A. ·The black woman and the problem of gender: an African perspective' , Aji-ican Studies Association. 1992. Nzomo M, "Impacts of women in pol itical leadership in Kenya: Struggle for participation in governance through Af11rmative Action." Institute of Diplomacy & International Studies. University of Nairobi (20 11 ) Nzomo M. ' Representational politics iLl Kenya: the gender quota and beyond. ' institute of Diplomacy and Imernational Studies. Uni versity of Nairobi (20 12). Nzomo M and Kibwana K, "Women's Initiatives in Kenya's Democratization," (1993). Nzomo M. '·Women in Polilics: Challenges of Democratic Transition in Kenya," Heinrich Boll Foundation, (2003). Pitkin H. ·The concept of representation', 14-l , available on hup://www. jstor.org/stable/2214898. accessed on 05 Apri I 10 1 8. Boolpearing i;1 local politics and thus stuck to their professions and businesses, thereby returning inward to their social structures and culture. rather than making a mark in post-colonial Kenyan politics. 3.5 Represcnhltion of women Feminist scholars have concu1Ted that a lot of women's status and capacity tor meaningful political representation largely depends on I. The kind of access women have to political structures. for example. parliaments. political parties; 2. The specific socio-cultural contexts that mitigate women leaders capacity to intluence policy and in t'ttm fulfill a transformative gender and remain accountable to the constituent group(s) they represent: 3. 1l1e size of the numetical presence/ physical numbers of women in political oftke and: 4. The nature of the institutional nonm and practices pertaining m governance institutions. 112 As there are many forms of feminism, the feminist perspective employed m this paper is the eclectic one that coalesces around the common denominator among feminisms: namely the perspective that recognizes and values women's multiple identities and their diverse and unique experiences and hence takes seriously their interests in and their capacities for bringing about social and political change.123 121 Shiraz Dun·ani is a British-Kenyan libra1y science professional noted for his extensive writings on the social and political dimensions of information and librarianship. IZl Nzomo M. ' Representational politics in Kenya: the gender quota and beyond.· Institute qf Diplomacy wrd lnterncll ional Studies, 6. 121 Nzomo M, ·Representational politics in Kenya: the gender quota and beyond.' lnslltul~t of Diplonwcy and lntemational Studies. 6. 31 From a feminist standpoint, democratic governance must also be gender responsive and inclusive by actively seeking to promote equitable representation of both genders, by conecting social , ecc nomic a;:Jd cultural gender imbalances; as well as promotingjustice and well-being for al l. 124 Representation is the instnunent through which the majority of both men and women who do not panicipate directly in day to day management of public affairs and attend governance activities End voice and an eJ:Iective vehicle for addressing their welfare; channeling their grievances 1:md other matters of concern to them. 125 Pitkin identifies four different types of representation; namely: formalistic representation, descriptive representation, symbolic representation and substantive representation. 126 Formalistic representation is the formal authorization to represent, obtained for example, tlu-ough elections and expectations of accountability but with no defined standards of evaluating performance or mechanism for constituents to punish their representatives for failing to act in accordance with their wishes. Descriptive representation is whereby a representative resembles those being represented and is assumed to have conm1on interest with the represented. Symbolic representation on the other hand, she defines to be, the ways that a representative stands for the represented and the meaning (symbolic) that a representative has tor those being represented, regardless of what he/she has done or not done for them. 127 Lastly, substantive representation is that which entails the actions taken on behalf of and in the interests ot: and as a substitute for tbe represented. 128 3.6 Conclusion From the above analysis it is clear that the Kenyan-Asian is a minority group in Kenya. However, the Kenyan-Asian tribe, as it is now ref~ned to, comprises of several other denominations and sub- communities, all of which do not have substantive representation in the country. Moreover, Kenya is still facing challenges with enabling the representation of women in parlian1ent in elective and 12'1 Nzomo M, ' Representational politics in Kenya: the gender quota and beyond.' Institute q/Diplomacy and Internal ional Studies. 7. 125 Nzomo M, ·Representational poli tics in Kenya: the gender quota and beyond.' Institute of Diplomacy and International Studies, 7. 126 Pitkin 1-1 , ;The concept of representation' . 14-1. available on ht1p: //www.jstor.org/stablc/2214898. accessed on 05 April 2018. 127 Pitkin 1-1, 'The concept of representation ' , 14-1 , avai lable on http://www.jstor.org/stable/2214898. accessed on 05 April 2018. tzo Nzomo M, ·Representational pol irics in Kenya: the gender quota and beyond.' lnsLitllle q( Diplomacy and International Studies, l 0. 32 !Jttbiic ot1it:cs. One way to address this issue has been through the use of affi1mative action policies w·ilich have now been incorporated into the Kenyan Constitution and provides for the protection of minorities. including women. and the1r subsequent representation. 33 4.0 Comparative Analysis ofKenvan women participation and representation 4.1 Introduction Kenyan women have pedonned better in the 2017 elections, compared with 2013. but the numbers still fall short of the constitutional two-thirds gender requirement.t29 At least 23 women have been elected to the National Assembly. up fi:om the 16 elected in the last elections. This, added to the 47 women-only seats and half of the 12 nominees by political parties, wi II bring the women in the National Assembly to 76, still short by 41 seats to make 117 or one- third of the 349 MPs- 290 elected. 47 woman representatives and 12 nominated members.t 30 4.2 Efforts made by Kenyans The Kenyan National Gender Equality Commission Act, 20 11t31, which established the National Gender and Equality Commission132, was mandated to promote national values as per Article 10 of the Constitution. and Al1icle 27 which sets out the principle of equality and freedom from discrimination by stating that every person is equal betore the law and has a tight to equal protection and benefit of the law. This includes especially the freedom from discrimination of minorities, particularly women. t3J Kenya is a signatory to the Convention on the Elimination of All Forms of Discrimination against Women (CEDA W). 134 ln November 2017, the Committee on the Elimination of Discrimination against Wom.en stated that it welcomed the progress achieved since the consideration in 2011 of the State party's seventh periodic rep01tt 35 in undertaking legislative reforms, in pmticular the adoption and the establishment of the following; National Gender Equality Commission Act, 201 1, National Action Plan on Women, Peace and Security, 2016, State Department of Gender Affairs (established in 2015), and the National Gender Policy, to name a few.t 36 tZ9 Oluoch F. ·More women elected in Kenya. bur the numbers still fall sh01t'. The East A.fricnn, 12 August 2017. JJo Oluoch F. ·More women elected in Kenya. but U1e numbers still fall short'. The East African, 12 August 20 17. 131 NationaJ Gender and Equality Commission Act. 20 II. 132 Section 3. National Gender and Equality Commission Act. 20 II. m Article 27. Constitution of Kenya, 20 I 0. ~~-'Convention on the Eliminmion of All Fonns of Discrimination against Women (CEDA W). 13; Commiuec on the Elimination of Discrimination Against Women, Seventh Periodic Rep011, Published on 22 November 20 17. m Com mince on the El imination of Discrimination Against Women, Seventh Periodic Repon, Published on 22 November 20 17. 34 Although Kenya is yet to achieve the two-thirds gender rule constitutional requirement that ensures not more I han two-thirds of the members of elective public bodies are of the same gender, deliberate efforls by civil society, poiltic~1l parties as well as development partners geared towards an egalitarian society are slo"' ly beginning to bear rruit. 137 AJI evidence over the last two decades, points to concerted and consistent efto1ts by Kenyan women to gain access to centers of power. Furthermore, women groups in civil society have continued to engage in gender sensitization, mobilization and lobbying for a gender responsive constitution that would restore women's rights and provide for affirmative action; while a 1:ew leading women politicians have diversified their political strategies in party politics by seeking and obtainjng the position of chajrperson or ·owner/ founder· of some of the smaller political parties, in a bid to expand their negotiating power base withm the male dominated political patty fiamework. 138 4.3 Affirmative action in Kenya The struggle for affirmati ve action m Kenya can be traced to the early 1990s. but became politically visible io 1996. when Hon. Charity Ngilu moved the motion for implementation by Parliament, of the Beijing Platform for Action (which provided for aflinnative action). but the motion did not pass. In 1997, Hon. Phoebe Asiyo tabled the first Kenya specific affiJmative action bill in parliament but it also flopped due again, to lack of support from a male dominated parliament. 139 Three years later. on 20 April 2000. MP Beth Mugo sponsored through her Social Democratic Patty, an affirmative action draft Bill that sought to increase representation of not just women. but other mat·ginaJized groups in decision-making orgat1s, but primarily ill political instimtions.140 m AliN. ·women strongly emerge as political leaders in Kenya· . UNDP Kenya, l4 Scptember20 17. accessed on ht I p://11'11'11'. ke. w tdp. orgkonta111l ken 1 ·alen/homelbf og/2 0 17/IJ/ I-ll Ken vw 1-1 vomeJJ-emerge-in-pol i 1 ic:u/-1 eadership-and- gm•erncmce.hlml. 05 Apri I 20 18. ~~~~ Nzomo M. ··lmpa~ctS or women in political leadership in Kenya: Struggle for participation in governance through Atlim1ative Action:· 2. 1:1• Nzomo M, ·'Impacts of women in political leadership i.1 Kenya: Struggle for panicipation in go vema nee through Affinnative Action:·~. t4u Nzcmo M. ··Impacts of women in political leadership in Kenya: Struggle for participation in govemance through Affirmative Action,·• 4. 35 This then brings llS to the discussion of whether or not the inclusion of women in Kenyan politics has been based ptu·ely on gender. or if there are other considerations that come into play, namely one's tribe. ethnicity or nationality. Historically, women such as Charity Ngilu, Phoebe Asiyo and Wangari Maathai have had a cotuiderable impact on the way the policies and legal framework have been developed. As part of the cope of minority rights proteclion~. the Kenyan-Asians have been in the country si nce before independence, therefore, their treatment is to be rooted in the customary international principle of nondiscrimination. which is fundamental in intemational law and is reflected in all human rights instruments and documents. 14 1 The scope of minority rights protection 'vvhich wan-ants for the use of affirmative action policies is as follows; t. survival and existence of the minority; 11 . promotion and protection of the identity of minorities; 111. equality and non-discrimination; and tv. etlective and meaningful participation. 142 Positive action is required to respect cultmal. religious and linguistic diversity. and acknowledge that minorities enrich society through this diversity. Aftirmative action is a form of positive action that may be taken to protect the rights of a minority. 143 4.4 Representation of Kcnyan-Asian men When analysing the representation of minority groups and the use of affirmative action policies in order to promote thei r participation in local politics. it is imp01tant to look at whether or not men have received the same treatment in the political sphere in Kenya. Abdul Rahim Dawood made history on 4 March 2013 when he became the first non-indigenous person to be elected to Parliament in the Meru region as the Member of Parliament for North 1 ~ 1 Minority rights. Geneva 20 I 0. ' lntemational standards and guidance for implementation·, UN Publication. HR/PUB/ 10/3. 11z Minority rights. Geneva ::!0 I 0, ·International standards and guidance for implementation'. UN Publication. HR/ PUB/10/3. 1 ~) Minority rights, Geneva 20 I 0. · lnrcmational standards and guidance for implemenuuion·. UN Publication. I-IR/ PUB/ J 0/3. 36 lmcnti. 144 Another candidate who ran on an independcm ticket, Shakeel Shabir Ahrned, who was also the former mayor of lGsumu muoicipality won the Member of Parliament seat for Kisumu Easl. His campaign circled issues concerning education, economic and social empowerment, infrastructure development and security. 145 Dr. Swarup (Kiprop) Mishra was also elected as the Member ofParliament for Kesses constituency, Eldoret on a Jubilee Party ticket. 1" 6 Also, .layendra P Malde. who is the Member or County Assembly for Park lands in Nairobi vied for the position on a Jubilee Party ticket and his campaign addressed issues of employmet1t, infrastructure development and economic growth in the area. Part of Ius slogan was unity and he used this to create a niche for himself in local po li tics. As much as this is encouraging, on the ilip side. there were women who lost. namely; Sonia Birdi. who was running on a United Republican Party 147 nominated Member of Parliament in the last Parliament who was not nominated in 2017, and Sheela Maisuria (Menna Popula1~ who was an aspirant in 2017 tbr the Member of Cmmty Assembly. From the above it is important to note that the representation of the Kenyan-Asian has improved in the twelfth parliament. however. the representation ofKenyan-Asian women as a minority group is still lacking and very little has been done to encourage their substantive participation. 4.5 Affirmative action in India and the USA India's l950 Constitution enshrined the idea of discrimination as a means to help both ··scheduled" groups, namely the Adivasi and the DaLits (previously the untouchables). ft proposed there be limited quotas for jobs and education tbr the members of these disadvantaged groups. It stipulated a time period of ten years. but "vithout spelling out how to measure the progress of the policy and quotas. lt has been renewed without fuss every decade since. 148 In India. women have had a hand up in the political realm, whereby a third of all seats in local elected bodies are reserved for women. and this was after a 1993 constitutional amendment which applied the same rules to the [nclian 1·14 Awaaz Magazine. Cover story, ·South Asian aspirants' . Vol 14, Issue 2. 145 Awaaz Magazine. Cover story, ·south Asian aspirants·. Vol 14, Issue 2. 146 Awaaz Magazine, Cover story, ·south Asian aspirants·, Vol 14. Issue 2. 1~7 United Republican Party. 1 ' 18 Delhi A R. ·Indian reservalions', u·ww.e.convmi.w.cnmlhlo f!si lwm·altl20/ 3106tamrmatil·e-articm. Published on 29 .lune20l3. accessed on 18 March 20 16. 37 Parliament as well 1"9• This is a case in point because of the way in which the discrimination was structured. Not only were women victims oi non-political representation, but there was also discrimination based on castes and this hinges on the previously discussed concept of identity politics. The policy. hovvever. only applies to public jobs. let alone government ones. Thus the jobs policy only malrers to around two percent of the Indian workforce, and is essentially ineffective for a population of over one bil lion people. This was pointed out by Harsh Shrivaslava of the World Development Forum in2013. The policy has probably helped to make India's existing bureaucracy increasingly rotten. ll has led to an obsession with making the ranks of public servants/representatives and this bas made the Parliament dysfunctional on more than one occasion. 150 Affirmative action policies have helped propel more Dalits and other minority groups to study, as shown in steadily improving rates of literacy and higher qualifications achieved by the groups.151 Caste in India and race in the USA are often compared for their institutional similarities and also because these categories form the social basis on which the aftinnative action program in the two COlmtries is based. It needs to be emphasized that race is a social construct. in that, the presumed phenotypical similarities that unite members of a given ·race' are more imaginary than real.152 Native Americans were subjected to violent dispossession of their land as the settlers moved in and gained control over the natural resources of the marginalized groups. The sentiment "all men are created equal'' is contained in the Declaration of Independence but not in the United Stated Constitution. The first stirrings of equality came only with the civiJ 1ights movement in the late 1800s. which then extended citizenship rights to all persons in the United States of America. 153 The Civil Rights Act or 1866 made it a criminal offence to deprive any citizen oftbese rights Lmder w> Delhi A R, ' Indian reservations' . 11'111111. e.conomi.\'1. cvm/hlogs/h(I/JVm1120 13/06/cJ/Drllw(iva-qction. Pub I ished on 29 June 2013, accessed on 18 March 20 16. tso Delhi A R, · Jndian I'Cscrvations', www.economisl. com/hlogsl bam·an/20 13/ 0fJ/afflrmative-aclicm. Published on 29 June2013. accessed on 18 March 2016. tSl Delhi A R. ·Jnd ian reservations·, 11'\l'll'.economisl.convh/ogsl hwl!'an/1011106/offirmotire-aclion. Published on 29 June 2013. accessed on 18 March 2016. 152 Deshpandc A. · Affinnative action in India and the United States'. Equily and De1•e/opmem, World Development Report. 2006. 15a Deshpande A. ·Aflinnative action in india and the United States', Equi~vand Developmem. World Development Report, 2006. 38 the cover of any law.154 Under slavery, the blacks had no rights whatsoever, but the system that replaced slavery was only marginally better and also had several features similar to the Indian caste system, tor instance, segregation, denial of education, restrictions to low paid jobs, social and economic discrimination, negative stereotyping and violence. 155 4.6 Conclusion The case lor affirmative action in India and the USA can be made on the grounds of historical deprivation as well as on account of persistent disparity and continuing discrimination. Affhmative action can be, and is viewed as a program of compensation for historical injustices and very few would argue with the contention that historically, Dalits and blacks sutiered deep injustices, disparity, deprivation and discrimination. The continued presence of social and economic discrimination aggravates these disparities.156 Learning fron1 the example set by these states, Kenya can implement policies that look towards empowering minority groups, as well as disadvantaged women who are members of these groups. tS4 Deshpande A, 'Affirmative action in India and the United States', Equity and Development. World Development Report, 2006. tss Deshpande A, ·Affirmative action in Ind ia and the United States·, Equity and Developme111, World Development Report. 2006. t 5G Deshpande A,· Affirmative action in India and the United Stares', Equity and Development, World Development Report, 2006. 39 5.0 Conclusion and recommendations. The presidential proclamation stated that the Kenyan-Asian communities should constitute a ~onummity that 1s one of the tribes of Kenya. However, this statement is in fact inaccurate because of the various discrepancies in the definition of vvhat is a tribe and ethn:icity in Kenya. It raises questions about th~ identity of minority groups fi·om the Asian subcontinent and requi res an in depth underst.anding of the culture and heritage of the Kenyan-Asians, which was one of the aims of this paper. We have come to see that the Kenyan-Asian woman has been marginalized with little or no political presence. The theory of identity politics is one that can help to ascertain whether or not the Kenyan-Asians constitute a tribe in Kenya or whether or not it is a colJection of minority groups. FU1thermore. since it was the Kenyan-Asian community that sta1ted to agitate for recognition, one may argue that the theory of identity politics is one of substantial value, mostly because of the previous experiences of the Kenyan-Asians with the British post-colonial government which exercised inherent discrimination against the Kenyan-Asian by not giving them any official status.· This has obviously impacted the way in which the Kenyan-Asian behaves in the public space in Kenya. Moreover the Kenyan-Asians were also rejected by the independence govenm1ent of Kenya. thereby further ignjted their plight or non-recognition. African feminism on the other hand has been accused of being racially exclusive to those of African descent. The Kenyan-Asian woman is one of African descent yet faces inuninent discrimination because of race and economic footing. The Kenyan-Asian community rarely encourages women to participate in politics or in attaining any appointive offices, which is of course. to the detriment of women who are members ofthis minotity group. The triple heritage U1eory of Aftica has been used in this context to explain the reasons fo r the identity politics and Aliican feminism failmes which have not accmmted tor the participation. sensitization and empowennent ofKenyan-Asian women. lt is clear that the Kenyan-Asian is a minority group in Kenya. However, the Kenyan-Asian tribe. as it is now refen-ed to, comprises of several other denominations and sub-communities, all of which do not have substantive representation in lhe country. Moreover. Kenya is still facing challenges with enabling the represenration of women in parliament in elective and public offices. 40