Korir Sing’Oei-Legal Advisor, ODP

The Kiambu County Assembly adoption of a motion requiring companies conducting business in the county to allocate locals 70% of employment opportunities has been greeted with some measure of criticism. An extreme view of this criticism has even suggested that Kiambu Assembly’s decision is a form of “functional secession” as it privileges locals over other Kenyans and punctures Kenyans’ identity into ‘indigenes’ and ‘others.’

In all fairness, it is important to appreciate that the motivation for this Bill is quite sound. It is premised on the need to ensure that employers are sensitive to local needs. It is inarguable that jobs are a scarce and highly sought after resource. With our education institutions churning out graduates every year, estimated at over 700,000 annually, the unemployment challenge facing the country and counties cannot be underestimated. At the continental level, between 10 and 12 million people join the African work force each year, yet the continent creates only 3.7 million jobs annually.

The situation is desperate, especially for our energetic and youthful demographic. Hence, when a county that hosts many manufacturing and service industries seeks to press its advantage in favour of employment for local youth, this alone cannot be a basis for their reprimand.

Further, there is an increasing acceptance of the concept of local content as a means of supporting local economies and providing jobs; Kiambu’s employment quota rule can be viewed from this perspective. However, the focus on jobs as the only way by which to ensure local content, is inappropriate. As a matter of fact, procurement rules that favour the use of local vendors and suppliers can have a more catalytic role on the economy of a county. Maximisation of local procurement and preferences given to sourcing from local companies, is an opportunity to localise supply chains where varying technologies and inputs are needed and used. If competitive, this may have considerable impact on reducing companies’ operating costs while at the same time increasing the value that can be captured by local businesses.

Kiambu therefore needs to reconsider the utility of its Assembly’s proposal and anchor it within the realm of nation building as governed by the constitution and guided by economic realism.

The policy or proposed rule dichotomizes the workforce in the country. It invites employers to assess potential employees from the perspective of whether or not they come from the home county or whether they are outsiders. In this weighting and balancing process, belonging becomes material in the determination of whether or not an employment opportunity will be availed. This approach will no doubt assault the notion of meritocracy in the determination of choice, of qualifying employees. In the long term, such a policy will negatively impact on sectoral productivity and eventually weaken economic performance.

By mandating quotas in favour of employees from the home county, the proposed law seeks to entrench reverse affirmative action. Ordinarily, affirmative action is designed to empower the weak to enable them compete on a more equitable footing with the dominant. Affirmative action is never a device for deepening dominance. The dangers of legislating in favour of the dominant is that there is no place for the “other” who is accordingly ousted as a viable participant in the job market. The application of reverse affirmative action will no doubt dissolve the notion of our diversity and multiculturalism in the workspace.

On the face of it, the proposed legislation is discriminatory and therefore lacking constitutional propriety. If one’s access to employment opportunity is pegged upon a person’s place of origin, such a rule may run afoul of the non-discrimination clause in article 27. A facially discriminatory law or policy can only be legally allowable, if the discrimination serves to correct a historically entrenched barrier to the present enjoyment of equal opportunity by a discrete group on account of their gender, race, religion or ethnic belonging. Such an apparent discrimatory law, becomes a device for attaining substantive equality. Such is the nature for instance, of the current regulation under the Access to Government Procurement (AGPO) which earmarks 30% of all government procurements for youth and women. Absent this equalizing effect, laws such as the Kiambu quota proposal creates hierarchies of citizenship, a truly unconstitutional effect.

Whilst policies to mandate highly prescriptive local content requirements may seem politically tempting, the risk of unintended consequences is high. One must consider the indirect impact on the county’s economy as a result of ‘weeding out outsiders’ on for instance, the local housing market or even the retail business that benefit from the so called ‘outsiders’ who live and patronise local businesses on account of convenience. These individuals no doubt contribute to the local economy that provides employment to locals and others, at worst in equal measure.

An alternative approach for Kiambu and other counties is to focus on creating an enabling environment – institutional, regulatory and attitudinal – that will attract more investment into the county, and create more job opportunities and value for both locals and non-locals.

(Dr. Korir Sing’Oei is an Advocate of the High Court of Kenya and a Legal Advisor, Executive office of the Deputy President.)