Theme: Advancing Equality and Justice through Constitutional Interpretation: The Rights of Marginalized Communities in a Democratic Society.

  RESEARCH QUESTION

To what extent does the right to health under article 43 of the Constitution of Kenya encompass autonomous decisions concerning one’s body and identity and how has domestic jurisprudence and international human rights standards shaped this right?

TOPIC: CONSTITUTIONAL INTERPRETATION ON THE RIGHT TO

               EQUALITY

The right to equality is a cornerstone of modern constitutional law, and its interpretation is a complex and evolving process. Constitutions, including Kenya’s, often guarantee this right, but its application in specific cases requires careful analysis of the text, historical context, and judicial precedent. The right to equality is not an absolute right; it is subject to limitations and is often balanced against other rights and state interests.

1. THE CONSTITUTIONAL FOUNDATION

The right to equality is enshrined in Article 27 of the Constitution of Kenya, 2010. This provision is comprehensive and multi-faceted.

Article 27(1): “Every person is equal before the law and has the right to equal protection and equal benefit of the law.” This is the foundational principle of formal equality, where the law must be applied without discrimination^[1].

No person or group within the Jurisdiction of Kenya is above the law all are subject to the same legal standards. These laws protects and safeguards all people and rights without bias therefore every citizen must be able to access these rights and privileges that our laws confers. Mohamed Fugicha Vs Methodist Church in Kenya & 3 others [2019] eKLR^[2] (Supreme Court) – The Court emphasized substantive equality, holding that the right to equality includes accommodating diversity.

Article 27(2): “Equality includes the full and equal enjoyment of all rights and fundamental freedoms.^[3]” This provision goes beyond formal equality and emphasizes substantive equality, which recognizes that simply treating everyone the same may not address historical disadvantages.

This ensures real and practical fairness.

Article 27(3): Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres^[4]. This provision emphasizes on the Non-discrimination framework especially on Gender equality, that men and women should be treated equally. This means that men and women should have equal opportunities in political, economic, cultural and social spaces. In Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General [2011] eKLR^[5] The Court affirmed the importance of gender equality and that women’s rights are human rights. Yash Pal Ghai in his book emphasized on the equality clause by ensuring women are guaranteed equal opportunities, addressing the “historical disadvantage of women in political, economic, cultural and social arenas.”^[6]

Article 27(4): The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth^[7], this provision specifies that discrimination occurs when “any person is treated in a different manner from other persons who are similarly situated.”

Article 27(5): A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4)^[8].This subsection prohibits discrimination by the state or any person. This is crucial as it imposes a positive duty on the state to prevent discrimination by both state and non-state actors.

2. PRINCIPLES OF INTERPRETATION

Constitutional interpretation on equality must be guided by several key principles:

Harmonious and Holistic Interpretation: The right to equality cannot be read in isolation. It must be interpreted in harmony with other constitutional provisions, such as the national values in Article 10, which include human dignity, equity, social justice, and inclusiveness. Article 259(a) requires the courts to see beyond the rules provided and focus on the purposes values and principles, further in (b) and (c) the manner in which the rules are interpreted should give room for advancement especially in Human Rights since it is a Human Rights based charter. Therefore the Constitution needs an interpretation that endorses good governance that emphasizes on the National values as enshrined in Article 10.

 Living Tree Doctrine: The Constitution is a living document that must be interpreted in light of present-day realities and evolving social norms. In Timothy M. Njoya & Others Vs Attorney General &3 others [2004]Eklr^[9], Justice Ringera clearly state that the Constitution of Kenya 2010 is a living Instrument with a soul and a conscience, it embodies certain fundamental values and principles that are outlined in Article 10 and thus must be construed broadly to give effect to those values thus should evolve with the occurrences of the society, it ought to cure the ailment at the moment.

Purposive Interpretation: The court must interpret the right to equality in a manner that gives effect to its purpose, In the matter of the interim Independent Electoral Commission [2011] KESC 3(KLR)^[10] Dr. Willy Mutunga who was then the President of the Supreme Court stated that the rules of the Constitution do not favor formalistic or positivistic approaches and has incorporated non legal considerations which we must take into account when exercising our Jurisdiction. This means that by sticking to formalistic approaches would limit the country’s history and societal values which is to create a just, equitable, and non-discriminatory society, further he continues to emphasize the Kenyan Courts should build an indigenous constitutional jurisprudence that reflects societal changes in Kenya not just enforce rules because they exist.

3. APPLICATION OF THE RIGHT TO EQUALITY

The interpretation of the right to equality often involves a two-stage process:

Stage 1: Establishing a prima facie case of discrimination. The claimant must demonstrate that they have been treated differently from other similarly situated persons based on a prohibited ground.

Stage 2: Justification. If discrimination is established, the state must justify the differential treatment. The justification test is often a stringent one, requiring the state to show that the discrimination is a reasonable and justifiable limitation on the right to equality, considering factors such as the nature of the right, the purpose of the limitation, and whether the measure is the least restrictive means to achieve the purpose.

4. COMPARATIVE ANALYSIS ON THE RIGHT TO EQUALITY

BETWEEN KENYA AND OTHER STATES

In Kenya, Article 27 provides both formal and substantial equality that prohibits direct and indirect discrimination on a wide number of an individual’s state, Kenya is also keen on the Implementation of the 2/3 gender rule that is held as a positive duty to implement equality through legislation and laws, Similarly in Canada, Section 15 of the charter of rights and freedoms the state ensures equality is upheld before the law without discrimination. Through the Oakes test in R vs Oakes[1986] the state justifies the limitation of that right only if it pursues a pressing and an important goal proportionately. According to Article 14 the constitution of India, the state guarantees social justice and equal protection before the law. The state has made reservations for disadvantaged groups as very vital for substantive equality. Whereas in South Africa section 9 of the Constitution is keen on protecting the sexual orientation where it allows affirmative action as a solution for their past disadvantages as outlined in President Vs Hugo [1997], Van Heerden [2004])   

5. CASE LAW ON THE RIGHT TO EQUALITY

Federation of Women Lawyers (FIDA) Kenya v. Attorney General & Another [2018] eKLR^[11] This case dealt with the two-thirds gender rule. The court held that the State has a positive obligation to take proactive steps to ensure gender equality. The failure to enact legislation to implement the rule was a violation of the right to equality and non-discrimination. The Courts conclusions reaffirmed Article 27(3) of the Constitution that it is not merely aspirational but imposes a positive and legal duty on the State to actualize gender equality. The court’s finding that the failure of the state to enact legislation for the two-thirds gender rule amounts to a violation which underscores that equality and non-discrimination requires substantial legislation and policy measures, and not just mere perceptions.

Isabelle Lakandiny & Another v. The Attorney General & 2 Others [2012] eKLR^[12]: The court held that a policy requiring a mandatory HIV test for a foreign national was discriminatory. The court applied the “reasonableness and proportionality” test to determine if the discrimination was justified. Further this decision reinforced that Article 27(3) clause protects individuals from discriminatory policies that unfairly target vulnerable groups. By applying the reasonableness and proportionality test, the court emphasized that even when the State pursues legitimate objectives, such measures must not unjustifiably violate the right to equality and human dignity.

E.G. v. Attorney General [2016] eKLR^[13]: The High Court affirmed that the right to association is a fundamental right. While the case did not decriminalize same-sex relations, it affirmed the right of a minority group to associate, thus demonstrating a nuanced interpretation of equality that protects the right to association for all, even if their conduct is criminalized by other laws.

The Constitutional Court of South Africa, in President of the Republic of South Africa and Another v. Hugo [1997] ZACC 4^[14], developed a comprehensive approach to interpreting the right to equality under its Constitution. The court held that the right to equality does not prevent the state from treating people differently if the differential treatment is based on a legitimate government purpose. The Court also considered whether the President’s decision to grant early release to certain prisoners specifically mothers of young children, but not fathers violated the right to equality. The Court held that equality does not mean identical treatment; rather, the State may differentiate between groups if the distinction is based on a legitimate governmental purpose and is not unfairly discriminatory. This case laid the foundation for a substantive understanding of equality, recognizing that context matters when assessing whether differential treatment is

justifiable.

In R. v. Oakes [1986] 1 SCR 103^[15], the Supreme Court of Canada established the “Oakes test” for justifying limitations on Charter rights. This test, which requires a pressing and substantial objective and proportionality, has been highly influential in interpreting the right to equality.

6. CONCLUSION

The constitutional interpretation of the right to equality is a dynamic process that goes beyond the mere words of the Constitution. It requires a deep understanding of the principles of substantive equality, a willingness to protect vulnerable and marginalized groups, and a careful balancing of rights with legitimate state interests. Courts play a crucial role in ensuring that the constitutional promise of equality is a reality for all citizens.

7. RECOMENDATIONS

a)Enactment of Comprehensive Equality Legislation

The policy makers should take the priority to enact clear and enforceable laws on Article 27 of the Constitution, especially the two-thirds gender rule and other affirmative action measures.

b)Strengthening Enforcement Mechanisms

Non-Governmental Organizations such as the National Gender and Equality Commission (NGEC) should be adequately resourced and empowered to monitor, investigate, and enforce compliance with equality obligations by the Non State and State actors.

c)Comparative Jurisprudence

Kenyan courts should continue to borrow from comparative jurisdictions (e.g., South Africa, India) when interpreting equality rights, ensuring a living, dynamic, and context-sensitive application of the Constitution.

d)Inclusion of Marginalized Voices

Policymaking and law reform processes should include meaningful and close public participation by marginalized communities to ensure that reforms respond to their realities. 

8. BIBLIOGRAPHY

1. Constitution of Kenya 2010
2. Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General [2011] eKLR
3. Federation of Women Lawyers (FIDA) Kenya v. Attorney General & Another [2018] eKLR
4. Isabelle Lakandiny & Another v. The Attorney General & 2 Others [2012] eKLR
5. G. v. Attorney General [2016] eKLR
6. President of the Republic of South Africa and Another v. Hugo [1997]ZACC 4
7. v. Oakes [1986] 1 SCR 103
8. Timothy M. Njoya & Others Vs Attorney General &3 others [2004]Eklr
9. In the matter of the interim Independent Electoral Commission [2011] KESC 3(KLR)
10. Yash Pal Ghai & Jill Cottrell Ghai, Kenya’s Constitution: An Instrument for Change (2011)

[1] Article 27(1) of the Constitution of Kenya 2010

[2] Mohamed Fugicha Vs Methodist Church in Kenya & 3 others [2019] eKLR

[3] Article 27(2) of the Constitution of Kenya 2010

[4] Article 27(3) of the Constitution of Kenya 2010

[5] Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General [2011] eKLR

[6] Yash Pal Ghai & Jill Cottrell Ghai, Kenya’s Constitution: An Instrument for Change (2011)

[7] Article 27(4) of the Constitution of Kenya 2010

[8] Article 27(5) of the Constitution of Kenya 2010

[9] Timothy M. Njoya & Others Vs Attorney General &3 others [2004]Eklr

[10] In the matter of the interim Independent Electoral Commission [2011] KESC 3(KLR)

[11] Federation of Women Lawyers (FIDA) Kenya v. Attorney General & Another [2018] eKLR

[12] Isabelle Lakandiny & Another v. The Attorney General & 2 Others [2012] eKLR:

[13] E.G. v. Attorney General [2016] eKLR

[14] President of the Republic of South Africa and Another v. Hugo [1997]ZACC 4

[15] R. v. Oakes [1986] 1 SCR 103