Ethnic discrimination

(1) For purposes of this Act, a person discriminates against another person if-

• on ethnic grounds he treats that other person less favorably than he treats or would treat other persons; or
• he applies to that other person a requirement or condition which he applies or would apply equally to persons not of the same ethnic group as that other person but-
  • which is such that the proportion of persons of the same ethnic group as that other person who can comply with it is considerably smaller than the proportion of persons not of that ethnic group who can comply with it; and
  • which he cannot show to be justifiable irrespective of the colour , race, nationality or ethnic or national origins of the person to whom it applied; and
  • which is to the detriment of that other person because he cannot comply with it.

(2) A person also discriminates against another person if, in any circumstances relevant for the purposes of any provision referred to in subsection (1) (b), he applies to that other person a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but-

• which put or would put persons of the same race or ethnic or national origins as that other person at a particular disadvantage when compared with other persons,
• which puts that other person at that disadvantage; and
• which he cannot show to be a proportionate means of achieving a legitimate aim.

(3) For the purposes of this Act, segregating a person from other persons on ethnic grounds is treating him less favourably than they are treated.

(4) Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if it is proven in a court of law that the allegation was false and not made in good faith.

Discrimination by way of victimization

4. A person discriminates against another person by way of victimization in any circumstances relevant for the purposes of this Act, if he does any act that is injurious to the well-being and esteem of the person by treating the person victimized less favourably than, in those circumstances, he treats or would treat other persons, and does so by reason that the person
victimized has-

• brought proceedings against the discriminator or any other person under this Act;
  
• otherwise done anything under or by reference to this Act in relation to the discriminator or any other person;
  
• given evidence or information in connection with proceedings brought by any person Comparison of persons of different ethnic groups against the discriminator or any other person under this Act; or
• alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act, or by reason that the discriminator knows that the person victimized intends to do any of those things, or suspects that the person victimized has done, or intends to do, any of them.

Comparison of persons of different ethnic groups.

5. A comparison of the case of a person of a particular ethnic group with that of a person not of that group under sections 3 and 4 shall be such that the relevant circumstances in the one case are the same, or not materially different, in another.

Harassment on the basis of ethnicity

6. (1) A person subjects another to harassment on the basis of ethnicity for the purposes of any provision referred to in section 4 (d) where, on ethnic grounds, he engages in unwanted conduct which has the purpose or effect of-

• violating that other person’s dignity, or
• creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

(2) Conduct shall be regarded as having the effect specified in subsection (1) (a) or (b) only if, having regard to all the circumstances, including in particular the perception of that other person, it should reasonably be considered as having that effect.

Discrimination in employment

7.(1) All public establishments shall seek to represent the diversity of the people of Kenya in the employment of staff.

(2) No public establishment shall have more than one third of its staff from the same ethnic community.

(3) It is unlawful for a person, his representatives or assigns, in relation to employment by him at an establishment, to discriminate against another-

• in the arrangements he makes for the purpose of determining who should be offered that employment;
• in the terms he offers him that employment; or
• by refusing or deliberately omitting to offer him that employment.

(4) It is unlawful for a person, in the case of a person employed by him at an establishment to discriminate against that employee-

• in the terms of employment in which he affords him;
• in the way he affords him access to opportunities for promotion, transfer or training or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or
• by dismissing him, or subjecting him to any other detriment.

(5) It is unlawful for an employer, his representatives or assigns, in relation to employment by him at an establishment, to subject to harassment a person whom he employs or who has applied to him for employment.

(6) Except in relation to discrimination falling within section 4 or discrimination on ethnic grounds, subsections (4) and (5) do not apply to employment for the purposes of a private enterprise.

(7) In this section reference to the dismissal of a person from employment includes, where the discrimination is on ethnic grounds, reference to-

• the termination of that person’s employment by the expiration of any period (including a period expiring by reference to an event or circumstances), not being a termination immediately after which the employment is renewed on the same terms; and
• the termination of that person’s employment by an act of his (including the giving of notice) in circumstances such that he is entitled to terminate it without notice by reason of the conduct of the employer.

Discrimination in membership of organizations.

9. (1) It is unlawful for an organization to which this section applies, in case of a person who is not a member of the organization, to discriminate against him-

• in the terms in which it is prepared to admit him to membership; or
• by refusing or deliberately omitting to accept his application for membership.

(2) It is unlawful for an organization to which this section applies, in the case of a person who is a member of the organization, to discriminate against him-

• in the way it affords him access to any benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or
• by depriving him of membership, or varying the terms on which he is a member; or
• by subjecting him to any other detriment.

(3) It is unlawful for an organization to which this section applies, in relation to a person’s membership or application for membership of that organization, to subject him to harassment. (4) Subsection (1) shall not apply to cases where membership is limited to a given religious persuasion or profession.

Discrimination by other agencies

10. (1) Unless as provided under subsection (2), it is unlawful for a qualifying body, licensing authority, planning authority, public authority, employment agency, educational establishment or body offering training, to discriminate against prospective and current clients in the provision of services.

(2) Subsection (1) shall not apply-

• where it is proven that the alleged discriminatory act is a necessary requirement in the nature of business transaction and there is no alternative way of realizing this goal;
• in the case of public authorities-
  • in relation to any judicial act (whether done by a court of law, tribunal or other person); or
  • any act done on the instructions, or on behalf, of a person acting in a judicial capacity; or
  • an action undertaken by the Minister for Immigration, under the Immigration Act, in relation to cases relating to immigration and nationality.

Discrimination in access to and distribution of public resources

11. (1) Public resources shall be distributed equitably as far as is practicable geographically to take into account Kenya’s diversity population and poverty index.

(2) It shall be unlawful for any public officer, while in charge of public resources and without justification, to distribute resources in an ethnically inequitable manner.

(3) Resources shall be deemed to have been distributed in an ethnically inequitable manner when-

• the officer fails to use the criteria established under this Act or any other law in allocating resources by regions;
• specific regions consistently receive more resources than other regions and there is no clear justification for it; or
• more resources are allocated to regions that require remedial resources than to areas that require start up resources.

Discrimination in property ownership, management and disposal

12. (1) It is unlawful for a person, in relation to public property, or property wholly meant for the public in Kenya or which he has power to manage, lease, let or dispose, to discriminate against another person-

• in the terms in which he offers, lets, manages or disposes to him the property;
• by unjustifiably refusing his proposal for sale or engagement in the person’s business, where the same conditions do not apply to others who are not of the same ethnic group as the person;
• in his treatment of him in relation to any list of person in need of property of that description.

(2) It is unlawful for a person, in relation to public property, or property wholly meant for the public managed by him to discriminate against a person occupying premises-

• in the way he affords him access to any benefits of facilities, or by refusing or deliberately omitting to afford him access to them; or
• by evicting him or subjecting him to any other detriment.

(3) It is unlawful for a person, in relation to such premises as are referred to subsection (1) or (2), to subject a person who applies for, or as the case may be, occupies such premises, to harassment.

Hate speech

(1) A person who

• uses threatening, abusive or insulting words or behaviour, or displays any written material;
• publishes or distributes written material;
• presents or directs the performance the public performance of a play;
• distributes, shows or plays, a recording of visual images; or
• provides, produces or directs a programme;

which is threatening, abusive or insulting or involves the use of threatening, abusive or insulting words or behavior commits an offence if such person intends thereby to stir up ethnic hatred, or having regard to all the circumstances, ethnic hatred is likely to be stirred up.

(2) Any person who commits an offence under this section shall be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years or to both.

(3) In this section, “ethnic hatred” means hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.

Offence of ethnic or racial contempt

62. (1) Any person who utters words intended to incite feelings of contempt, hatred, hostility, violence or discrimination against any person, group or community on the basis of ethnicity or race, commits an offence and shall be liable on conviction to a fine not exceeding one million shillings, or to imprisonment for a term not exceeding five years, or both.

(2) A newspaper, radio station or media enterprise that publishes the utterances referred to in subsection (1) commits an offence and shall be liable on conviction to a fine not exceeding one million shillings.