Following the violence of 2007/8 in Kenya, a host of initiatives, purporting to address what is wrongfully termed ‘negative ethnicity’, came into being. Parliament proceeded to pass the Ethnic and Race Relations Act, which established the National Cohesion and Integration Commission. It also established a new select committee on equality, originally intended to address gender inequality, but which now also address inequality in terms of ethnicity. The executive established a ministry to address the long-standing underdevelopment of the north of Kenya. And the Law Reform Commission of Kenya is sitting on another proposed piece of legislation, referred back to it by Cabinet, on equality and equal opportunities.

Citizens too have a host of initiatives of their own. One of the most interesting is ‘Kikuyus for Change’, which seeks both to understand why the rest of Kenya ‘hates’ Gikuyus, using inter-ethnic dialogues, as well as why Gikuyus (or rather, the Gikuyu economic and political establishment) are so adamant about the need to hold onto power, using intra-ethnic dialogue.

It joins a previous initiative of the Kenyan south Asian community, Awaaz, which seeks to do the same two things through the production of a magazine on the history of Kenyan south Asians in the country. Meanwhile, the groundbreaking statistical and analytical work done by the Society for International Development (SID) on gender, income and regional inequalities continues to be followed through by the Ministry of Planning.

All of these initiatives are potentially useful and well meaning. All, however, fail to get to the heart of the problem. What is missing, I think, is a clear understanding of what equality and non-discrimination actually mean and how, from independence on, the equality provisions in our current constitution have failed to be realised by both the public and the private sectors.

What all of these initiatives do, with the possible exceptions of those by Awaaz and SID, is address so-called negative ethnicity from the perspective of whether or not we like each other. Not that that does not need to be done. Prejudices and stereotypes abound here: Gikuyus are greedy; Asians treat Africans like dirt and are, like the Gikuyus, too dominant in the economy; Luos are uncircumcised and thus unfit to rule; Luhyas are, as one Luhya politician infamously put it, ‘cooks and watchmen’; Masaais (and all pastoralists) need to get with the modernisation agenda and settle down; Somalis are uncivilised and violent; Europeans are racist and treat their pets better than their workers and so on.

All these are, of course, untrue generalizations. And any initiatives that could begin to unravel just how they have evolved into common and strongly held belief systems about each other, should be encouraged. Indeed, the Kenya Institute of Education should probably be ensuring that this is done nationally, through an expansion of the existing human-rights education component of the national curriculum.

But addressing prejudice and stereotypes will not resolve the problem. We simply cannot regulate how people feel about other people. What we can do, however, is regulate whether and how those feelings translate into actions; into discrimination in the public and private sectors on the basis of those prejudices and stereotypes. And Kenyans discriminate, daily and routinely as a matter of course, in the public and private sectors. Although we, of course, don’t call preferential treatment of our families, our community members discrimination.

How do we advertise? Who do we hire, then train and promote? Who do we contract from? Who do we want living in our properties? Who do we ‘facilitate’ when it comes to access to public services or performance of public functions? And so on. Whether consciously or not, this is discrimination. Whether we accept it or not, the long-term consequence of this is inequality – both in opportunities as well as results.

The problem is that this sort of discrimination is so absolutely normalised that it doesn’t even occur to most of those who experience it to challenge it and seek legal redress. And, even if they did, the legal remedies that exist are weak. Not for a lack of laws – apart from our constitution’s equality rights section, we have a plethora of legislation dealing with different grounds on which discrimination can occur (from gender to HIV status), as well as the different areas in which it does (from education to employment) – but because we’re not aware of either the laws or of how to invoke them in a manner that expeditiously resolves the immediate situation at hand.

What this means is two things. First, our daily, routine experiences of discrimination become bitter, individual anecdotes, shared usually within our families and broader communities. And second, as soon as we get the chance, we repeat the same behaviour, but this time in favour of our ‘own’. We are, after all, only informally remedying what we should have been able to remedy formally. Our expectation of being treated badly by others translates into our doing exactly the same thing. Whether we accept it or not, it is this that has led to the tensions that exist within the country and not whether we like one another or not.

What we need – apart from the strengthened equality and non-discrimination provisions that we expect in our new constitution – is comprehensive legislation that doesn’t just harmonise what already exists, but that goes far farther to establish a workable complaints body with the power to effect real remedies for aggrieved individuals and groups, including systemic remedies. Will the bill pending at the Law Reform Commission of Kenya do this for us? We need to make sure that it will.

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* L. Muthoni Wanyeki is executive director of the Kenya Human Rights Commission (KHRC).
*This article was first published in the East African on 31 January 2010.
* Please send comments to [email protected] or comment online at Pambazuka News.