The Bill of Rights in the Constitution of Kenya recognises the right to equality and freedom from discrimination and provides that no person including the State shall 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, dress or birth.

After the promulgation of the constitution in 2010, it did not take long before the effect of this provision was tested in the Kenyan Courts. Two notable cases provide scenarios that will inform the discussion on the difference between equality and equity.

Scenario 1: Dreadlocks in school

This case involved a pupil who would not be allowed to have dreadlocks in school. The parent sought a declaration that this was discriminatory. The school’s defence was that the school rules on uniform and grooming applied equally to all pupils, were therefore not discriminatory and there was no reason for this pupil to be excluded from the application of the rules. The court found that there was no discrimination for reasons that shall be discussed later on in this article.

Scenario 2: Hijab in school

Female students in a mixed high school sponsored by a Kenyan church requested the school administration to allow them to wear a hijab (religious headscarf) and also to wear trousers under their skirts so as to cover their legs. This was in observance of religious principles.

The school administration granted this request and the sponsor-church went to court to seek a principle declaration that the wearing of the hijab and trousers accorded preferential treatment to the female muslim students by allowing them to go against the school uniform rules on account of their religion and that this was discriminatory of the other non-muslim students.

The muslim students joined in the case and cross-sued for a declaration that the school uniform rules were indirectly discriminatory of the female non-muslim students. The High Court, going in line with the finding on the “Dreadlocks case” found that the school uniform rules applied to all students equally and were not discriminatory, dismissed the student’s cross-petition, found in favour of the sponsor-church and reversed the school administration’s decision to allow the muslim student’s request.

The muslim students appealed to the Kenyan Court of Appeal and in a landmark decision,  the Court found that the school uniform rules were discriminatory. The appeal judges agreed with the decision in the Dreadlocks case but disagreed with the decision in the Hijab case.

The reason why the Court of Appeal would agree and disagree with the High Court in to two seemingly similar set of facts provides insight on the concept of direct vs indirect discrimination and why the inclusion of these two words in the Constitution was not accidental

Quote: “To treat different matters equally in a mechanical way would be just as unjust as to treat equal matters differently”.

ICJ Judge Kōtarō Tanaka (1890 – 1974).

The role of the mediator becomes clear – to bring to light these hidden footholds, facilitate the exchange of communication otherwise suppressed by egos and emotions and empower both parties to shift positions so as to bring the dispute to a mutually beneficial settlement.

Enforcement is rarely necessary

Because of the mutual nature of the settlement reached, there is a lot of goodwill involved and parties would rarely have to turn to the Courts to enforce the terms of a binding settlement agreement.

Parties would rarely commit to settlements which they cannot afford to deliver on and most settlement agreements are voluntarily honoured. Due to the goodwill and intact relations after mediation, settlement agreements can be mutually varied to suit unforeseen circumstances.

A settlement agreement is binding upon the parties and will not be set aside by the Court lightly. The threshold for setting aside a settlement agreement is very high as the applicant will have to prove fraud and/or legal incapacity to enter the settlement agreement.

No room for continuous litigation

As the dispute will have been settled fully, and as the mediator does not determine the dispute, there is would be no room for appeal or review, features common to litigation and other forms of ADR such as arbitration which can keep continued litigation going on for months or even years.

USEFUL TIPS

• ¨ Seek an opinion from your legal advisor as to whether mediation is a viable option. The nature of your dispute may not be suitable for mediation
• ¨ Read carefully and understand any draft mediation agreement before approving the same
• ¨ Understand the basis of the mediator’s charges and other additional costs such as venue, negotiate a deposit and understand when further payment will be expected
•  ¨ Confirm that the proposed mediator(s) is/are qualified to conduct the mediation
•  ¨ Never propose mediation without consulting a legal advisor as you could unknowingly make admissions that can be used against you if the mediation fails.

Disclaimer: Wanjiku Mohamed Advocates publishes this article for our clients, friends and other interested persons for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of the firm or any of its advocates or clients. The article provides general information, which may or may not be correct, complete or current at the time of reading. The content is not intended to be used as a substitute for specific legal advice or opinions. No recipients of content from this article should act or refrain from acting on the basis of the contents of the article without seeking appropriate legal advice . Wanjiku Mohamed Advocates expressly disclaims all liability relating to actions taken or not taken based on any or all contents of the article.