Hate the Sin and Not the Sinner: Addressing Unfair Discrimination Against Ex-Convict Job Applicants in Kenya and Insights From International Law

Abstract

The Kenyan criminal justice system is founded on the principle of restorative justice, which serves as an instrument for societal transformation aimed at fostering positive change in individuals. In this context, the primary goal of incarceration is to facilitate the rehabilitation process of individuals, thus improving and enabling them to reintegrate into society in a morally acceptable manner. However, securing work after reintegration remains a significant challenge for ex-convicts, given the criminal record tagged on them. In most cases, employers are under the impression that individuals with criminal histories are not trustworthy and so employing them would create a hazardous work environment. While several efforts have been made to improve workplace equality in Kenya, various forms of discrimination are becoming increasingly common and widespread. The mandatory requirement for all job applicants to submit a Certificate of Good Conduct (CGC) from the Directorate of Criminal Investigations (DCI) before consideration for employment is an example of ongoing discrimination in Kenyan workplaces. The consequence is that this practice selectively singles out only job applicants who have been previously convicted and subjects them to differential treatment on grounds linked to their CGC, even though these applicants have arguably been rehabilitated through successfully serving a prison sentence and reintegration into the labour market. Kenyan employers need to ensure that they promote equal opportunities for all job applicants as stipulated in the Employment Act. This would ensure effective competition and inclusion for all members of society, provided they possess the requisite qualifications. One way to do so is by protecting them against indirect discriminatory practices perpetuated by employers during the recruitment process, particularly the mandatory requirement that all job applicants must submit a CGC from the DCI before employment. The article concludes by highlighting that Kenya should follow the approach of South African legislation and the International Labour Organization Convention, where the deciding criterion for employment hinges on the inherent requirement of the job.