It is illegal to discriminate aspirants on basis of age

By Okiya Omtatah

Identity based discrimination has been and continues to be a major cause of conflict and political animosity in Kenya.

 The colonial State favoured whites over blacks. Those who captured the State at independence favoured and continue to favour elites from their communities and regions. And within this rogue post-colonial State it has become impossible to elect leaders of integrity.

 Instead of holding issue-based democratic elections every five years, we engage in an existential orgy where elites mobilise their ethnic communities to help them capture the State as their only insurance against discrimination by elites from other groups. Within the resultant state of siege there is no room to discuss the integrity of leaders; all that matters is that the leader must be one of them.

 Those politicians who are flaunting their relatively youthful age, seeking to persuade the electorate to reject their older peers, purely on the basis of their age, are perpetuating the same identity based discrimination.

They seek to cunningly identify with and benefit from the youth who constitute the largest voting bloc. But since identity based discrimination is in violation of the supreme law, the Independent Electoral Boundaries Commission should not allow them to continue flaunting their age since Article 3(2) is categorical that any attempt to establish a Government otherwise than in compliance with the Constitution is unlawful.

The Constitution of Kenya, 2010, outlaws all forms of discrimination based on one’s identity. In sub-articles 27(4) and (5), on equality and freedom from discrimination, the Constitution forbids the State and individuals from discriminating directly or indirectly against any person on any ground, including age.

Further, the Bill of Rights is an integral part of Kenya’s democratic state. The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and to promote social justice and the realisation of the potential of all human beings (Article 19).

Article 28, decrees that every person has inherent dignity and the right to have that dignity respected and protected. And in the Preamble, the Constitution recognises the aspirations of all Kenyans for a Government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law.

The national values and principles of governance that bind all State organs, State officers, public officers and all persons include the rule of law, democracy and participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised, good governance, integrity, transparency and accountability (Article 10).

However, by demanding high personal integrity, the Constitution allows discrimination based on character against those who wish to serve the public.

In Article 73, on responsibilities of leadership, State officers must be trustworthy, respectful, bring honour and dignity to the nation and to their office, and promote public confidence in the integrity of their office.

Hence, if politicians wish to go personal, they should flaunt the integrity and abilities they have demonstrated in public service and not their irrelevant birthdays towards which they contributed nothing.

Let them demonstrate how their character and history resonate with the requirements of Chapter Six on leadership and integrity, the national values enshrined in Article 10, and provide proof from their history that they can deliver on their promise.

Further, it’s nonsensical to talk of a generational change when you have been part and parcel of the old order, and you have not atoned for your sins against the public or returned the public property you got from the sins of others.

The generational change we crave is not replacing old hyenas with younger ones. We seek a new generation of leaders of unquestionable integrity who, irrespective of their age, won’t capture the State but will work with all to transform Kenya into a thriving modern republic. We are craving a total break with the past; a total rejection of the legitimacy of being governed by all manner of vile characters.

The writer is a human rights activist