3. 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.

4. • 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

5. JURIDICIAL EQUALITY
Juridical 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.

6. 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.

7. 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.

8. 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.

9. 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

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

11. 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.

12. • 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.

13. • 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.”

14. 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

15. 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.

16. 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.

17. 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’

18. • 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”

19. 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.

20. • 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

21. 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.