NCIC Chairman Samuel Kobia (left), Marsabit Governor Mohamud Ali and Tharaka Nithi Senator Mwenda Gataya launch the Ethnic and Diversity Audit of the County Public Service at Villa Rosa Kempinski, Nairobi on Friday, November 17, 2023.
A new Bill seeking a lasting solution to ethnic discrimination in public service employment proposes a reduced quota for the dominant community and imposes punitive sanctions to discourage violations that have seen a few tribes dominate jobs in State agencies.
Public entities will not be allowed to employ more than a fifth or 20 per cent of their employees from one ethnic community if Parliament approves a new Bill that seeks to end discrimination in employment.
The National Cohesion and Integration Bill, 2023 seeks to reduce the threshold of staff that a public entity can employ or have in its total staff establishment from one-third or 30 percent to a fifth (20 per cent).
The State-backed Bill seeks to repeal the National Cohesion and Integration Act (NCIC), 2008, which requires public entities to ensure not more than one-third of its staff are from the same ethnic community.
The current Act has been blamed for allowing more latitude for those in power and positions of authority to employ and promote their tribesmen to public offices.
“A public entity shall not recruit or have in its employment more than one fifth of its staff from the same ethnic community,” the Bill states.
If enacted, to ensure compliance with the law and avoid punitive sanctions, State agencies might be forced to restructure, a process that could lead to job losses as institutions strive to strike a balance at a time public employment is frozen because of financial constraints.
“A public entity shall ensure representation of the diversity of the people of Kenya in the employment of staff and shall afford adequate and equal opportunities for appointment, training and promotions at all levels of public service to members of all ethnic groups.”
The Bill prohibits an employer or potential employer or their representatives against discrimination. Those who contravene the law face a fine not exceeding Sh5 million or imprisonment for a term not exceeding three years, or to both.
The Bill, sponsored by Adan Haji, who chairs the National Assembly’s committee on National Cohesion and Equal Opportunity, seeks to align the 2008 law to the provisions of the 2010 Constitution.
The Constitution and the National Cohesion and Integration Act of 2008 requires that all public entities seek to represent the diversity of the people of Kenya in hiring staff and that no public establishment shall have more than one-third of its staff from the same ethnic community.
Section 7 of the NCIC Act (2008) stipulates that all public establishments shall seek to represent the diversity of the people of Kenya in the employment of staff.
The Constitution introduced the ethnic representation requirements to check a historical trend where the tribesmen of those in power were favoured during recruitment.
Under the diversity policy for State Ministries, Departments, and Agencies (MDAs) released in December 2015 by the Public Service Commission (PSC), ethnic groups whose job representation surpasses their corresponding national population proportion are considered to be over-represented.
Source: Public Service Commission Report 2022/23
The latest report on the Status of Compliance with Values and Principles of Articles 10 and 232 of the Constitution for the year 2022/23 shows that the Kikuyu, Kalenjin, Kisii and Luo were grossly over represented in the public service.
On the other hand, Luhya, Maasai, Mijikenda, Turkana and Kenyan Somali were grossly under represented.
The report tabled in Parliament, shows that out of the 253,318 jobs in the public service, the Kikuyu community accounts for 51,994 or 20.53 per cent followed by Kalenjins with 43,953 (17.36 per cent), Luo with 29,594 (11.63 per cent) and Kisii 18,552 or 7.32 per cent.
The Kikuyu, Kalenjin and Luo are grossly overrepresented by 3.39 per cent, 4 per cent and 1.03 per cent while the Kisii is overrepresented by 1.46 per cent.
The Luhya, who hold 29,906 or 11.68 per cent jobs are underrepresented by negative (-2.54 per cent). They are followed by Mijikenda with 8,437 or 3.33 per cent, Kenyan Somali which has 7,195 or 2.84 per cent, Maasai with 4,705 or 1.86 per cent and Turkana with 2015 or 0.8 per cent) jobs.
A separate report released by the NCIC in November revealed that the Kikuyu and Kalenjins dominate county public service jobs.
The Ethnic and Diversity Audit Report 2023 in county government revealed that employment is not only imbalanced but skewed towards the dominant ethnic communities.
The NCIC is yet to release the latest audit on the composition of ethnicity in the national government and State parastatals.
In the report released in November, 2023 the Kalenjin community had the highest share of jobs-per-ethnic tribe accounting for 15.83 per cent, followed by the Kikuyu (15.77 per cent) of all jobs in the 47 county governments.
The NCIC report shows 89.55 per cent of all county jobs were taken by 10 tribes; 11.06 per cent went to the Luhya, Kamba (8.88 per cent), Kisii (7.68 per cent), Meru (4.88 per cent), Mijikenda (4.60 per cent), Somali (4.42 per cent), Maasai (4.11 per cent) and non-Kenya (0.01 per cent).
Recent reports by the Auditor-General show the Kikuyu, Kalenjin, Kamba, Luhya, and Luo dominate jobs in top State corporations.
A report by the Auditor-General last year exposed how public universities had been turned into tribal enclaves. It flagged institutions employing close to 80 per cent of staff from one community with 18 universities —mainly in counties — being the biggest culprits.
In 2019/20 financial year, the Auditor General said one public university had hired 77 per cent of its staff from the dominant ethnic community in the county.
Some popular universities were also in the list of shame for employing between 40 and 77 per cent of staff from a single community.
One of the oldest institutions of higher learning was indicted by the Auditor-General for hiring 1, 622 of its 2,661 staff from the local dominant community.
