By Ben Nyabira
The preamble of the Kenya’s constitution recognizes its commitment to nurture and protect the well being of the individual, family, communities, and the nation. It also recognizes the aspirations of all Kenyans for a government based on the essential values including human rights, equality, freedom, and social justice.
Article 21(2) states that “the State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realization of the rights guaranteed under article 43.”
Article 43 provides that, every person has the right to:
- The highest attainable standard of health, health care services and reproductive health care;
- Accessible and adequate housing, and to reasonable standards of sanitation;
- Freedom from hunger, and to have adequate food of acceptable quality;
- Clean and safe water in adequate quantities;
- Social security;
- Education;
- Emergency medical treatment;
- Appropriate social security to persons who are unable to support themselves and their dependents.
Article 20(5), states that in applying any right under article 43, if the State claims that it does not have the resources to implement the right, a court, tribunal or other authority shall be guided by the following principles:
- It is the responsibility of the State to show that the resources are not available;
- In allocating resources, the State shall give priority to ensuring the widest possible enjoyment of the right or fundamental freedom having regard to prevailing circumstances, including the vulnerability of particular groups or individuals;
- The court, tribunal, or other authority may not interfere with a decision by a State organ concerning the allocation of available resources on the basis that it would have reached a different conclusion.
The Constitution therefore, provides for a mechanism for seeking redress through courts if any of the rights in article 43 have been denied, violated, infringed, or threatened. What does this mean in Kenya and how has this provision been useful in ensuring realization of the rights guaranteed under article 43?
Applying human rights
Human rights are basic standards/principles/norms that human beings are entitled to simply because they exist as human beings and which would enable them to lead a dignified life and be treated equally. However, they are not just principles or values, but moral claims for humans and set out in law. Anchoring them in law means that they are not optional even in difficult times or situations. For example, in majoritarian societies, human rights guarantee the existence and protect the dignity of the minorities.
Human rights are applied in human interactions by setting out pre-determined roles known as rights and duties that guides the interaction. These roles are a creation of more recent societies under which traditional approaches became exposed as communities became increasingly alienated and isolated. In traditional societies, peoples’ rights were protected based on reciprocity of expectations for which non-conformity carried risk of exclusion or even expulsion from the community.
Viljoen in International Human Rights Law argues that the modern State, therefore, set up a legal system defined in the Constitution to mediate rights-based claims. Under the law, States have obligations and duties to respect, protect, fulfill, and promote human rights. Also to avoid interfering with people’s rights; to prevent violation of people’s rights; to remedy human rights abuses; and advance awareness and acceptance of human rights. Besides the State, individuals should also respect and stand up for the rights of others.
Human rights have habitually been categorised as freedoms (civil and political rights), equality, (socio-economic) and solidarity (collective) rights. This categorisation led to the constitutionalization of freedoms. However, the other two were categorised as second and third generation rights. Arguably, the non-constitutionalization of those rights has contributed to delays in their fulfilment.
The second-generation rights are further classified into several clusters. These are the universal public services such as health and education; rights supportive of decent living conditions such as food, water, and unemployment benefits; rights of workers such as protection against arbitrary dismissal and protection of workers’ health and safety. Others are rights of particular social groups such as reproductive rights of women; rights to natural resources such as traditional land rights, and property rights.
In general, Langford in Social Rights Jurisprudence: Emerging Trends in International and Comparative Law cited the Committee on Economic Social and Cultural Rights which argued that each socio-economic right carries sets of claims relating to accessibility, availability, and some level of adequacy, quality, or cultural appropriateness.
Justiciability of social economic rights in Kenya
Justiciability, types of matters that a court can adjudicate, of social economic rights renders litigation or taking legal action possible. Arguably, justiciability also enhances the bargaining and lobbying power of minority groups to influence the decisions of the policy makers through local and international channels.
Justiciability of socio-economic rights was traditionally said to be inappropriate and not feasible as they can be fulfilled in more than one way, of which the courts ‘lack the expertise and the accountability which would qualify them to choose among the alternatives.’
In the recent decades, however, consensus has greatly grown on their justiciability. For example, The Committee on International Covenant on Economic Social and Cultural Rights in its General Comment 9 (1998) on the domestic application of the covenant stated that, ‘there is no covenant right which could not, in the great majority of systems, be considered to possess at least some significant justiciable dimensions’.
Viljoen argues that justiciability elevates the socio-economic rights to entitlements or authoritative sources of claims ‘able to afford redress’ in a court of law or similar bodies and hold violator-states accountable. Litigation is largely about the review of policy choices and not so much about their formulation.
Kenya has included in its constitution not just the civil liberties and due process rights but socio-economic rights. The socio-economic rights in various constitutions are either legally enforceable or aspirational statements. The constitutionalization and justiciability of the socio-economic rights (SERs) in Kenya can be attributed largely to Kenya’s historical legacies including past political conflicts.
In some other jurisdictions, such rights are recognized through legislation. In Kenya, Article 20(5) is explicit that the socio-economic rights in the Constitution are justiciable. In addition, Kenya is a State party to various international instruments, which contain socio-economic rights provisions. The 1966, International Covenant on Economic, Social and Cultural Rights (ICESCRs) is one such international instrument.
Article 19(2) states that “the purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings.”
Practicality and progressive realization of social economic rights
However, arguably, fulfilment of social economic rights requires more resources than the fulfillment of the civic and political rights, a factor that has been a major hindrance to their realization. In recognition of this impediment, the Constitution of Kenya in relation to socio-economic rights places the burden of proof on the State to demonstrate or justify why it may not deliver a guaranteed right.
The constitution also mandates the State to “take legislative, policy and other measures, including the setting of standards, to achieve the progressive realization” of the SERs. Such is the requirement in other countries with similar provisions. In South Africa for example, its Constitution requires the State to take reasonable measures, within its available resources, to achieve the progressive realization of SERs.
The principle of progressive realization is also embodied in the International Covenant on Economic Social and Cultural Rights (ICESCRs). The same covenant has the principle of ‘minimum core’, which places a duty on the State to give special attention to persons whose minimal needs are not being met. Another principle is non-regression, which requires the State not to go backwards in realization of SERs.
Besides lack of resources, courts have also been cautious not to interfere with the separation of power principle. Several cases have been decided in Kenya in relation to violation of SERs. The cases range from violation of the right to housing, health, clean water, and education, among others.
In defending the procedural violation of rights such as lack of adequate notice to justify evictions, in many cases, the State has cited lack of resources and the progressive realization nature of SERs for failing to ensure realization of the rights.
However, the Committee of Economic Social and Cultural Rights has expounded on the principle of progressive realization by dividing it into four parts: the duty to take steps, the use of maximum available resources, the prohibition of retrogressive measures, and the duty of international cooperation and assistance.
The duty to take steps means taking immediate steps. The requirement for use of maximum available resources means that the State should maximize the allocation of resources on the realization of SERs and that it should further prioritise vulnerable and marginalized groups. The prohibition of retrogressive measures means actions taken should be only those intended to enhance realization of SERs. Lastly, the duty of international cooperation and assistance is intended to complement the resources of the State should it lack necessary resources.
In addition to the duty to take steps, the State also has an immediate obligation in ensuring non-discrimination, minimum core content in realization of SERs, fair wages, among others.
In one of the cases brought before Kenyan courts, Mitu-Bell Welfare Society v Attorney General & 2 others and Okwanda v The Minister of Health and Medical Services & 3 Others as follows, the court observed as follows:
Article 21 and 43 require that there should be ‘progressive realisation’ of economic and social rights, implying that the state must begin to take steps, and I might add be seen to take steps, towards realisation of these rights… Its obligation requires that it assists the court by showing if, and how, it is addressing or intends to address the rights of citizens to the attainment of the economic and social rights, and what policies, if any, it has put in place to ensure that the rights are realised progressively, and how the petitioners in this case fit into its policies and plans.
The above statement by the court gives an indication on the state of realization of socio-economic rights in Kenya and the State’s attitude/understanding of its obligation to ensure realization of the socio-economic rights.
Enforcing the SERs in Kenya
To realise the aspirations of Kenyans in relation to creating an equal society, there is need for the State through its organs and public officers, and other applicable private actors leverage on the constitutionalisation and justiciability of human rights in Kenya to fully understand their obligations under Article 43 of the Constitution. This should be one of the State’s fundamental operational policy.
Further, the State should also entrench a general progressive socio-economic vision of promoting equality and peace. The Judiciary too should avoid regressive judicial activism. Enforceability of human rights assures people that they have a mechanism for addressing violations of their rights, instead using violent means.
Ben Nyabira is a Programmes Manager at Katiba Institute
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