Philosophical Analysis Of Gender Based Affirmative Action Policy In Kenya With Respect To Theory Of Justice

ABSTRACT

This is a multi-disciplinary research. It focuses on socio-political philosophy, with an aim of giving a philosophical analysis of gender based affirmative action policy in Kenya. It attempts to examine the nature of probabilistic moral dilemma and the inherent problems of gender based affirmative action policy that it occasions in the quest for justice. There are two kinds of affirmative action, weak and strong. This research has concentrated on the strong affirmative action (SAAP) based on uplifting the welfare of women and the girl child in the Kenyan society. SAAP is fully entrenched in the Constitution, for example, Articles 81 (b) and 27 (6). The concept of SAAP as relates to women in Kenya defeats the provision of justice as fairness, it seems to be prejudiced and unrealistic, since it is oblivious of the consequences of the policies; as they only favor women and injurious to men. Thus the concentration of SAAPs on the well being of women lapses into regressive vicious cycle by perpetuating the problem it is meant to arrest, that of discrimination. This does sacrifice meritocracy by severing reward from people of excellence, talents, and abilities to strong affirmative action, hence promoting reverse discrimination. The idea of SAAP has been therefore interrogated within fundamental philosophical issues of discrimination, justice, human rights, and stresses the principle of equal opportunity and placement. It has been informed by John Rawls‘ theory of justice as fairness. This research found that strong affirmative action is not the best way possible to solve gender discriminations which are prevalent in Kenya. Because preference creates burden, and it makes a stigma on the preferred women, showing that they need special favour and the mark is borne prominently by every one of its members. It also found that SAAPs programs often fail to achieve their objectives and the compensation given of jobs and schooling is often unrelated to any suffered offenses and therefore inappropriate as a remedy for the specifiable injuries of identifiable plaintiffs. This research therefore recommends that compensation should only be done to those individuals who are the main victims of discrimination. It proposes a need to use weak forms of affirmative action policy, and replace it with a principle which will create an institution of perfect equality, admitting no power or privilege on one gender. I humbly submit that this research has offered an alternative paradigm and a philosophical discussion of SAAPs in Kenya, which is a shift from a legal platform to a moral foundation, and hence discussion of strong affirmative action in a logical way.