The Role of Kenyan Courts in Tackling Persistent Inequalities: Navigating Deference and Accountability

Abstract

Kenya’s 2010 Constitution represents a landmark shift towards equality, incorporating diverse conceptions through provisions such as Article 27 on non-discrimination, Article 43 on socio-economic rights, and Article 56 on cultural and religious diversity. This progressive framework seeks to address historical inequalities that marginalized groups—such as women, persons with disabilities, and minorities—have faced in accessing resources, services, and political participation. However, implementation remains the critical determinant of whether these constitutional ideals translate into tangible societal change. This Article examines the role of the judiciary as a constitutional guardian in ensuring the realization of equality-related rights in Kenya’s hybrid democracy, characterized by democratic aspirations alongside authoritarian tendencies. It highlights the judiciary’s dual responsibility to balance deference to State organs with holding them accountable to constitutional mandates. By analyzing key cases, it identifies how courts have navigated tensions between promoting substantive equality and respecting the separation of powers, especially in the context of socio-economic rights and governance challenges. The Article advocates for an equality-sensitive approach to judicial review that integrates both strong-form and soft-form oversight, depending on the case’s circumstances. It emphasizes the application of a contextual and multi-dimensional equality framework—addressing redistribution, recognition, participation, and transformation—to ensure that vulnerable groups are protected. In addition, it proposes a mixed standard of review in socio-economic rights cases, balancing reasonableness with prioritization of the needs of vulnerable groups, and the use of structural interdicts to enforce compliance. Finally, this Article emphasizes the judiciary’s pivotal role in fostering constitutionalism and mitigating systemic inequalities. It calls for continued judicial vigilance, collaborative constitutionalism, and active civil society engagement to uphold the transformative promise of the 2010 Constitution, particularly in Kenya’s complex hybrid democracy.