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January 22, 2019

Racial discrimination claims: China's clean hands doctrine

Police officers are seen manning the entrance of the first class couch of the SGR train at the SGR Mombasa Terminus. Photo/Monicah Mwangi
Police officers are seen manning the entrance of the first class couch of the SGR train at the SGR Mombasa Terminus. Photo/Monicah Mwangi
In international law and under the legislation of many countries, including the US, there’s what’s known as the “clean hands doctrine”.

It essentially holds that, if someone sues you for harm they claim you’ve caused them, you can raise a defense and argue the person suing you is not entitled to a judgement in their favour because they have acted unethically, or in bad faith in connection with what they’re suing you for.

It seems to this writer, and many would agree, that the Chinese have this “clean hands” doctrine, as their perfect defense in connection with allegations they’re running SGR in a manner afoul of many local and international laws to the detriment and suffering of Kenyans, especially those working there.

More specifically, an investigation by the Standard alleged on Sunday the Chinese are subjecting Kenyans who work for the SGR to pay disparities on the basis of race, unfair treatment, long working hours, threats, and harassment. The investigation also revealed, among other things, that Chinese staff can never sit on the same table with Kenyans and locals are not expected to join their tables either.

All this sounds horrendous on first blush but ask any Kenyan from outside Mt Kenya region and some parts of the Rift Valley, and this is precisely what they would say they’re being treated as —less worthy.

If you don’t hail from those two regions, forget about ever getting a plum job in government. That was during the Mzee Jomo Kenyatta era and, more so, during the Daniel Moi era.

And even now, if you don’t hail from these two regions, forget about getting even a janitor position, let alone some menial or clerical job. If you do get one, then be thankful but a probe would reveal you got the job or position because you know people.

The Chinese running the SGR have been accused of treating Kenyan workers as second-class citizens, who should be thankful for the bones thrown their way.

Hearing about these allegations, the government’s initial reaction through spokesman Eric Kiraithe was that the workers were to blame for not appreciating the bone the Chinese have thrown at them, while feasting on the prime ribs and other meaty stuff.

This was blaughable and unbelievable and someone realized as much because Labour CS Ukur Yattani was dispatched to announce the government has formed a team to investigate the allegations within seven days and submit a report. The CS said if the investigation reveals violations of any laws, “appropriate corrective action, including prosecution, will be taken against those found culpable."

Three things can be observed and predicted, at least going by our history:

First, like many other previous “reports”, this will simply be shelved and continue collecting dust in perpetuity.

Second, if there’s any prosecution, the files will be “lost” so many times, or some other shenanigan will occur to prevent the case or cases ever seeing the light of day.

Third, if one assumes DPP independence for a moment and further assumes a dogged determination to truly prosecute the culpable, then the first and effective defense such a defendant or defendants would raise in court is, “Remove first the log in your eye before complaining about the speck in mine”.  In other words, they will effectively invoke the clean hands doctrine defense and there’s a tone of evidence they can point to.

Moral of the story: Treating other Kenyans as second-class citizens is immoral, besides being unlawful.  So, let Jubilee lead by example by reexamining its practices to ensure its hiring policies and practices are consistent with, and reflect the diversity required under the law — not merely catering to tribalism, cronyism and nepotism.



Samuel Omwenga is a legal analyst and political commentator in the United States






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