L. Muthoni Wanyeki
12 May 2008
column
Nairobi — The National Ethnic and Race Relations Bill, 2008 demonstrates the extreme limitations of thinking within the Ministry of Justice, National Cohesion and Constitutional Affairs about ethnicity. It also utterly fails to draw upon existing analysis and work with respect to equality and non-discrimination both in Kenya and elsewhere, where many legislative and policy models now exist.
The Bill purports to address "racial, religious, tribal and cultural relations" through the establishment of a commission of 10 members - seven nominated by parliament and three by the national human-rights machineries that already exist:
The Kenya National Commission on Human Rights, the National Commission on Gender and Development and the Ombudsperson. The commission is to work towards the elimination of discrimination on the basis of ethnicity and equal access to public and other services through complaints investigation for legal referrals or non-legal dispute resolution; legal and policy research and reform advice; and education and training. And it is to report to parliament on its mandate.
All of which sounds fairly innocuous, it is true. But innocuous can mean inane. And it is clear that the commission, as proposed, will be unable to add an iota of value to the improvement of "ethnic relations."
For the Bill utterly fails to name and define the true problem with "ethnic relations" - while eliminating discrimination on the basis of ethnicity is its object, discrimination is not even defined by the Bill!
Neither is reference made to any of the international or regional instruments that exist that do define discrimination - the Convention on the Elimination of Racial Discrimination comes immediately to mind.
Reference is not even made to what should be the primary source of legal legitimacy for this Bill - the equality provisions that already exist within our own Constitution and the need for legal, policy and institutional mechanisms to ensure respect for them.
THE TRUE PROBLEM IS NOT, AS IS TOO often bandied about, so-called negative ethnicity. While ethnic prejudices and stereotypes abound, the real problem is people's experiences of direct and systemic discrimination, which have over time, led to real material and objective differences in terms of all development outcomes.
A related problem is that discrimination can occur on the basis of many different protected grounds simultaneously. Discrimination can be compound, and this needs to be approached from the perspective of "intersectionality" - a concept well expounded on by the global women's movement during the World Conference Against Racism and Xenophobia.
To simplify: We don't live, to use my own example, as a middle-class person in one life, a Gikuyu in another, an agnostic in yet another and a woman in yet another and so on. We are all of those things at the same time. And while some of those markers lend themselves to privilege, others do not. And there is absolutely no point in addressing discrimination on one protected ground if discrimination on other protected grounds continues.
FINALLY, THE BILL CURRENTLY ASsumes a fuzzy jurisdiction over both the public and private sectors without spelling out where it derives authority over the latter. And the complaints procedure is completely undefined - obviously, given that it fails to even define discrimination - which will, inevitably lead to problems about enforcement of its findings.
Honestly, we would be best served if this Bill were withdrawn. Which is not to deny that we need to address direct and systemic discrimination on the basis of ethnicity.
We do. But we need to do so within a framework that respects our international, regional and constitutional obligations.
The problem with ethnicity in this country is not about us learning to love our neighbours. It is about ensuring, whether we love them or not, that all human beings are treated as though they were worthy of respect.
L. Muthoni Wanyeki is executive director of the Kenya Human Rights Commission
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the ethnic relations bil as it stands doest help in the elimination of ethnic prejudice in kenya. ethnic bias can only be removed from within (the heart). when you create a law, people will be yearning to break it and this will only cause more divisions than healing.