EQUALITY BEFORE THE LAW AND EQUAL PROTECTION BEFORE THE LAW

Anne Mwangi │ Ivy Kinyanjui │ Irene Otieno │ Vanessa Mungai │

Raphael Ng’etich

INTRODUCTION•Right of equality took place almost a

century before the law really "found the notion of equality.”

•Only in the 1950s that the courts began to seriously enforce the equality principle.

•Today, the principle finds utterance in the preambles to the written constitutions of various countries.

• Equality before the law is a principle at the heart of the rule of law and the administration of justice.

• It has found expression in different aphorisms for example, "all men are born free and equal," "all men are equal before the law," "the law is no respecter of persons.”

• However, one ought to take these expressions with caution.

• It is one thing to say that all men are equal before the law, but it is quite another, even harder, to ensure that the same is reflected in practice

JURIDICIAL EQUALITYJuridical equality has three key components:

presumptive identity component.uniformity component.the limited-avoidability aspect.

These components reinforce each other; i.e. the uniform application of the law is enhanced by the requirement that the law first deems individuals as being equal.

FORMAL AND SUBSTANTIAL EQUALITY•Formal equality; impartiality of treatment

to all individuals. All persons are equal bearers of rights.

•Substantial equality; provides that the law ought to ensure equality of outcome and can employ disparity of treatment to get to this end. It looks to the actual effects of law as opposed to its mere form.

Formal equality •Formal equality sees equality as a matter

of gender neutral treatment. • It requires simply that women and men be

treated exactly the same in all circumstances denying that there are any important immutable differences between men and women.

Substantial Equality•Substantial equality recognises that men

and women do not have the same experiences.

• It proposes that men and women should not be treated identically in all circumstances and particularly those women’s differences ought to be given particular recognition

•The last is the subordination approach which identifies injustice arising out of the unequal distribution of power between men and women.

The decisions of the courts regarding these approaches.•Decisions are made in favour of substantive

equality.

• This is on the premise that a purely formal approach will not serve to give life to the fundamental values and the spirit of constitutions.

•Example: The Constitutional Court of South Africa

National, Regional and International Perspective

The principle of equality is recognised and protected nationally, regionally and internationally

NATIONAL PERSPECTIVE•In Kenya, the Constitution at Article 27

guarantees equality and freedom from discrimination.

•The constitution states that all persons are equal before the law and has the right to equal protection and equal benefit of the law.

•Article 27(6) of the Constitution of Kenya on equality and freedom from discrimination provides that:

•To give full effect to the realisation of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.

•This provision is the basis upon which affirmative action programmes are undertaken.

•It is important to note that this does not contravene the right to equality:

“Differentiation...will not amount to discrimination if it is intended to redress imbalances in society and if it does not result in the violation of the right to equality and other associated rights.”

PRECEDENT • John Kabui Mwai & 3 others V Kenya National

Examination Council & 2 others, the court was called upon to determine the whether the policy by the ministry of education relating to admission into national secondary schools discriminated against the candidates from privates schools. The court, in declaring that the adoption of the policy did not amount to discrimination, stated that “...not all distinctions resulting in differential treatment can properly be said to violate equality rights as envisaged under the Constitution.” [2011] eKLR

REGIONAL PERSPECTIVE•In Uganda Article 4 of the Constitution

while ensuring equal protection the law does give a proviso granting the legislature the power to enact laws for various purposes, without any impediment from the provisions of Article 21.

•This gives the legislature a bit of freedom in enacting necessary laws protecting certain groups in the country for legitimate aims. 

INTERNATIONAL PERSPECTIVE• The United States' Constitution's Fourteenth

Amendment has been interpreted by the supreme court in Romer v Evans to give some leeway for some legitimate discrimination, for the law always relies on some form of classification and in many instances, the law would serve the people better if it applied to certain people and not others.

• However, equal protection of the law restricts the law from targeting vulnerable classes of individuals while helping others.

THE EUROPEAN UNION•In the European Union, the right to equality

enshrined in Article 14 of the European Convention on Human Rights which states:

• ‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’

•It is worth noting that this Article had been referred to as the Cinderella provision due to what had been regarded as the European Court of Human Rights’ failure to give it a significant “bite”. The approach by the Court was seen as being “less than satisfactory”

Interpretation of Cinderella Provision• The European Court of Human Rights has interpreted Article 14 of

the European Convention on Human Rights, on prohibition of discrimination, to the effect that it allows for differential treatment.

• Willis v The United Kingdom and Okpisz v Germany stated that ‘Article 14 (non-discrimination) of the European Convention on Human Rights does not prohibit a member state from treating groups differently in order to correct “factual inequalities” between them; the Court has recognized that indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of Article 14.’

• Courts interpretation: Article requires that there be a violation of another substantive article. A claimant has to specify the aspect or matter in which they have been discriminated even where non-discrimination is at the core of the case.

•The interpretation of the Court has gone through huge steps. The Cinderella provision is now said to have gone for the ball.

•Today: Convention equality law is now focused

not merely on the rationale behind formal distinctions, but has the. potential to tackle the discrimination, disadvantage and oppression faced by vulnerable and disadvantaged groups

THE INTER-AMERICAN COURT ON HUMAN RIGHTS• In its 18th Advisory Opinion on Juridical Condition and Rights

of Undocumented Migrants, the Court stated that states are under an obligation to respect and ensure respect of human rights according to the principle of equality and non-discrimination.

• In the Court’s opinion, the fundamental principle of equality and non-discrimination has attained the status of jus cogens.

• The decision of the Court made it clear that states cannot subordinate or condition the observance of the principle of equality before the law and non-discrimination to the aims of their migratory or other policies.