The CKRC final report says, “There is a need for a general recognition of the rights of the older persons including a special mention of the rights to participate, to pursue personal development, to work, to be free from all forms of exploitation and abuse, to live with dignity and respect and to retain autonomy and to reasonable care and assistance of family and state. There is also the need of a special plan for their retirement, to share their knowledge and skills with others, and remain active in society.”
The first of these sentences is reflected in Article 57. The second, I suggest, reflects a sense that retirement is inevitable. Yet there is another, arguably relevant, provision in the constitution: “(4) The state shall not discriminate directly or indirectly against any person on any ground, including… age.” Isn’t working part of participation in the affairs of society?
My basic argument here is that compulsory retirement at a certain age is, on the face of it, discrimination. In some work contexts, at the age of 59 you can work; at the age of 60 you cannot.
The constitution itself institutes one example of age discrimination when it gives judges the retiring age of 70. It does not impose a retiring age on political post holders – it might be difficult to introduce a retirement age for elected posts because of everyone’s right to stand for office and, if elected, to hold office.
Age International says, “There is nothing magical that happens at the age of 60 or 65 that explains differential treatment on the basis of age. Only discrimination does.”
Kenyan law
Prompted by the move to reduce academics’ retirement ages from (in some cases) 74 to 70, 65 or 60 depending on rank, I looked into the issue of court cases on retirement ages in Kenya.
Makau Mutua wrote on Facebook last year when the issue came up: “It’s ridiculous for [any Kenyan institution or the law], to set a mandatory retirement age for professors. There’s no retirement age for professors in the most academically advanced countries, including the United States.”
He’s quite wrong about “most countries”. And he does not explain the basis for the US situation. That is clear from the name of the Act that established the existing law: the Age Discrimination in Employment Act.
Gitau v Attorney General
Cases have been brought about retirement, but I focus on this one decided last year. The petitioner complained that retirement age rules discriminate between various groups (mentioning particularly politicians and judges and academics). He also complained that mandatory retirement is itself discriminatory, referring to “the narrative that old age equals to unproductiveness”. He particularly complained about the Federation of Employers adopting the Public Service Commission rules, which set the general rule in the public service: 60, or 65 for persons with disability.
The case was unsatisfying, and also prompted reflection on the process of identifying discrimination and deciding when a limit on rights is constitutionally justified. Basically Justice Mugambi did not really accept that a retirement age is by definition discriminatory on the basis of age.
Interestingly, in South Africa there seems to be an acceptance that the usual retiring age is by definition “fair” (and their constitution says only “unfair discrimination” is unconstitutional, but ours does not). Courts seem to shy away from holding that by definition something that affects your entitlements on the basis of your age is discriminatory – except when the claim involves discrimination on the basis of youth.
The judge then said that the petitioner should have “demonstrated that there is no rational basis for the application of the different age thresholds,” which he must do because “every law is presumed constitutional until the contrary is proved.” But this is not true in this context: once there is shown to be discrimination it is for those arguing that this is justified (under Article 24) not for a petitioner to prove it is unjustified.
He held that the constitution gives to the Public Service Commission (PSC) the power to fix terms of service. But Article 234 gives the PSC power to advise government not to fix terms. More importantly, it should not fix or advise anything that is contrary to the constitution - including to human rights provisions.
The judge drew, in my view, an unjustified distinction between the current case and one from 2024 in which the High Court held a maximum age of 35 for employment was discriminatory.
Article 24
The way to decide under our constitution whether discrimination is justified is by using the Article 24 framework for deciding if a right has been legitimately limited.
First: was it done by law? Here yes: the 2020 Public Service Commission Regulations. Then: what is the objective of the limitation of right (that is of discrimination against people of a certain age)? And how important is that purpose?
The main point argued on this seems to be the one that everyone mentions in this sort of context: the need to get jobs for the youth, including the obligation to use measures including affirmative action, to ensure them access to employment.
But – even in such a case, I would argue the rest of Article 24 must be considered, including whether the measure (compulsory retirement) was necessary – in fact whether other people’s rights could be less affected by a different approach to achieving the purpose. I also suggest that it is necessary for a court to decide, if possible, whether the reasons asserted for limiting a right are genuine. In the case of the university teachers is the aim really to create employment for the youth or to save money by getting rid of more expensive senior staff?
Or - even if a belief that earlier retirement for the elderly means more jobs for the young is genuine - is it in fact valid? In some countries research suggests that it is not. In countries with very high proportions of youth unemployment maybe things are different. But mere assertion of the purpose of law ought not to satisfy Article 24 without in-depth analysis.
Another point is that if law restricting rights was passed since the constitution it is not effective to do so unless it specifies that there was an intention to limits rights. The PSC regulations that now deal with retirement ages in the public service were made in 2020, but do not satisfy that rule of Article 24.
A legitimate reason for retirement may be because of concerns about staff competence– who wants a surgeon who cannot accurately wield a scalpel, a pilot who can no longer fly a plane? But does this mean that blanket retirement rules have to be applied to all professions?
The one thing the judge did discuss briefly was the fact that the regulations allow for extension of service in special circumstances: because of “rare knowledge, skills and competencies” which means “knowledge, skills and competencies that are scarce, unique and not readily available in the job market.” But this is not about the rights of the individuals so is not really mitigating the effects.
Basically the public service, lawyers and courts have not fully grasped that we are looking at age discrimination – or perhaps ageism. They have shied away from the issues.
Such issues are not easy for courts to deal with – and ideally need a serious, evidence-based discussion at a policy level analysing whether ever, or in what circumstances, people should retire at a fixed age.
Jill is a retired law teacher and member of the Katiba Institute Board. The author writes in her personal capacity
