Article 20 (2) of the Constitution states that every person shall enjoy the rights and the fundamental freedoms contained in the bill of rights to the greatest extent consistent with the nature of the right and fundamental freedoms. Both natural and juristic persons are entitled to the enjoyment of fundamental rights and freedoms. Further, the Courts in Kenya have a constitutional obligation to adopt the interpretation of the law which favors the enforcement of fundamental rights and freedoms.
Michael Weare & Anor v Jooel Sibusiso Naebel N. O. & 4 Others, High Court at Natal Case No.8337/06
“In deciding whether or not a particular right may be claimed by a juristic person, one should also not lose sight of the fact that although a juristic person has a separate existence from the persons involved in it, whether they be members, directors or employees, the fact remains that all juristic persons have natural persons who have an interest in them and can only operate through natural persons. This means that the denial of a right to a juristic person can have a direct effect on natural persons.”
The court held that a juristic person operates through natural persons who have an interest in them and it can only operate through natural persons. The import of this ruling is that denial of a right to equal treatment as provided under the South African law would affect its natural persons.
Justice Moosa in Manong & Associates (Pty) Ltd v City Manager, City of Cape Town & Anor [2009] JOL 22914(c)
Held that;
“The racial profile of the company was determined by the racial profile of the shareholders controlling the company and the company, despite its separate corporate personality, suffered the same fate and racial discrimination as its controlling shareholders. I therefore see no reason why in principle on the basis of public policy, such companies cannot benefit from the constitutional measures designed to protect or advance persons (including juristic persons) or categories of persons (including juristic persons) disadvantaged by unfair discrimination. I am of the view that the racial profile of the company can be determined by the racial profile of its controlling shareholders.”
The courts in determining whether a company has suffered racial discrimination or any other form of unfair discrimination, the company will be looking at the racial profile of the controlling shareholders.
From this ruling, it is therefore clear that a juristic person can suffer racial discrimination just like a natural person.
The question of whether a juristic person can face racial discrimination was canvassed in Petition No. 317 of 2014: Al Yusra Restaurant Ltd v Kenya Conference of Catholic Bishops and Knight Frank Kenya Limited.
Brief Facts of case
Al Yusra Restaurant (“the Petitioner” ) was carrying out the business of a restaurant and catering within Nairobi. Knight Frank Kenya Limited “ the Second Respondent” offered the Petitioner rental space for a period of six (6) years at Waumini House. The Petitioner accepted the offer and began making renovations in the rental space with the intent of setting up a restaurant business. The 1st Respondent in terminating the lease indicated that it was uncomfortable having Somali Muslims at its headquarters since it was clear that the restaurant would be patronized by Muslims. Thereafter, the 1st Respondent terminated the lease and locked out the petitioner from the property. The 1st Respondent denied all claims of discrimination and indicated that it had leased part of Waumini House to other persons who profess the Muslim faith and as such the claims were unwarranted. The 1st Respondent submitted that Petitioner cannot claim discrimination since it is a corporation and its further position is that fundamental rights and freedoms such as human dignity, freedom from torture and freedom of conscience and religion can only be enjoyed by individual persons. Further, the Petitioner lacks ethnicity or religion and as such cannot enjoy such rights.
Judgement
The Constitutional Court of South Africa in Case CCT 15/08 [2008] ZACC 20 stated thus per Van Der Westhuizan J;
“Can a juristic person be the bearer of the right to equality before the law”
Two of the three kinds of differentiation relied upon affect juristic persons. The argument that these form of differentiation violate Section 9(1) requires it to be shown that juristic persons can be bearers of the Section 9(1) right, under Section 8(4) of the Constitution. The High Court found that juristic persons were entitled to rely on the Section9 (1) right. In view of the conclusion I reach on the applicants’ Section 9(1) challenge, it is not necessary to consider to correctness of the High Court’s interpretation of Sections 8(4) and 9(1). For purposes of this judgment, I assume in favour of the applicants that a juristic person could indeed be the bearer of the right guaranteed in Section 9(1).”
I am in complete agreement with the reasoning expressed above and in a nutshell, subject only to the limitation implicit in Article 20 above and the general limitations expressed in Articles 24 and 25 of the Constitution, it is my finding that a juristic person through the natural persons that form it can enjoy the right to equality before the law and is also capable of being discriminated against including on grounds of ethnicity and religion.
The court held that the term “person” defined under article 260 of the Constitution of Kenya included a company, association, or other body of persons. The court held that the 1st Respondent terminated its lease on the basis of the religion and ethnicity of the petitioner’s directors. The court awarded Kshs. 3,000,000/= to the petitioner as compensation for unlawful discrimination.
In a nutshell, the racial profile of a company is determined by the racial profile of its controlling shareholders. A company, although not a natural person, can experience racial discrimination which will ultimately affect its controlling shareholders. Consequently, a company can pursue a claim for unlawful discrimination based on race or other prohibited grounds.
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