December 10 will mark the 70th anniversary of the Universal Declaration of Human Rights (an undertaking by the international community on peaceful co-existence and respect for the human beings).
The UDHR gave an impetus to the freeing of colonies, for the subjugation by one state of another people was completely inconsistent with human rights. Once Asian and African colonies became independent on the basis of UDHR, their citizens began to demand human rights of their own governments. Many more specific agreements, global as well as regional, followed, reaffirming the commitment of all regions and states to respect the rights and dignity of all human beings.
Today most countries’ constitutions have a Bill of Rights, whether respected or not by the government. The scope of human rights itself has expanded, particularly by addressing the problems of marginalised communities. A great deal of litigation, nationally as well as internationally, concerns some form of human rights. African states have agreed on a number of treaties binding their governments, enforceable through Africa-wide judiciary and other mechanisms.
Our aim today is to see how far mechanisms for human rights in our own country have protected the people. Some groups have indeed sought the assistance of African institutions—and we should continue to seek their assistance when appropriate. A major problem is that even if a group wins, it is not easy to get our government (and not only ours) to respect the ruling, though it good to see that the government has set up a task force to implement the African Court decision on the Ogiek. But all too often task forces are ways of not doing anything.
KENYA’S DOMESTIC PROTECTION OF RIGHTS
The 2010 Constitution is fundamental to the Kenyan scheme for the protection of human rights, replacing the weak and inefficient norms and machinery under the old constitution. Human rights is the central theme of the Constitution.
The Preamble recognises “the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law”. Among the values and principle underlying the Constitution are democracy, participation of the people, human dignity, equity, social justice, equality, human rights, non-discrimination, and protection of the marginalised (Art. 10). The longest chapter is devoted to the Chapter Four — “Bill of Rights”— setting out both the norms of rights and the rules and mechanisms for their fulfilment—but rights appear in several chapters. The reasons for the recognition of rights are given as to preserve the dignity of individuals and communities, to promote social justice and the realization of the potential of all human beings.
RIGHTS AND FREEDOMS
The rights guaranteed go well beyond those previously recognised in Kenya’s instruments. Apart from the familiar rights such as equality, expression and fair trial, the Constitution security of the person, human dignity, privacy, freedom of media, labour relations, freedom of residence, environment, consumer rights, rights of person with disabilities, and older and younger members. Rights to food and water, education and health are also protected. People are granted various rights in state policy making and implementation. The role of the police is tailored as service to the people, not their harassment or violence. The people play a key role in the amendment of the Constitution—many key provisions can only be amended or deleted with their consent—in a referendum.
IMPLEMENTING PEOPLE’S RIGHTS, FREEDOM
Rules alone are not enough. The Constitution creates a series of devices to protect rights. The independent Kenya National Human Rights and Equality Commission role is to promote, in several ways, respect for, and develop a culture of, human rights, in not only public, but also private, institutions. It must ensure Kenya complies with human rights treaties. It must investigate whether public and private institutions observe human rights. People must be free to complain to it about violations. It must take remedial measures when violations occur. This is an important link between the private and public—putting the Commission under considerable pressure. The commission also publishes reports on the state of human rights, in different contexts. The commission has been divided into two, one focussing largely on women issues—a regrettable decision taken under pressure from some women.
The state itself has a major role in ensuring compliance with human rights. Its task has three aspects: First not to violate rights itself. Second, it must (by laws and institutions) protect our rights from violation by others. And it must sometimes positively fulfil our rights. Special regard is paid to the fulfilment of socio-economic rights by the State (Aricle 21(2). Economic and social rights (highest standards of health and health care, and emergency medical treatment; accessible and adequate housing with reasonable standards of sanitation; adequate food of acceptable quality; clean and safe water in adequate quality; clean and safe water in adequate quantity; social security; and education (Article 43).
The Judiciary also plays an important role. Those seeking the protection of their own rights or those of others who cannot themselves go to court, or in the public interest, have the right to institute court proceedings. The courts are instructed to follow the rule of interpretation in Article 259: “in a manner that promotes [the Constitution’s] purposes, values and principles…and advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights”.
WHERE ARE THE RIGHTS NOW?
Nearly eight years after the enactment of the Constitution, what is the fate of human rights? How are things different from before 2010?
The Constitution establishes an extensive network of rights binding on the government (and on the rest of us). A number of laws have been passed to implement the rights, at least in their language. Examples are the Health Act, the Water Act, the Basic Education Act, the Persons Deprived of Liberty Act and the Right to Information Act.
Many judges have done much to enforce people’s rights. Some decisions have been inspiring. Civil society has also made use of the system for the promotion and protection of human rights. Individuals and organisations are becoming aware of their rights and beginning to take action to protect them.
The government at both national and county levels could have done more. Civil society, schools, universities, trade unions, etc. should promote knowledge of human rights and how they can be enforced.
Despite the laws, government has on the whole failed us. It is disappointing to see government itself sponsor laws that limit our rights unnecessarily –especially freedom of expression. Against this our courts have been valuable allies. Worse is the fact that arms of the state are choosing to use their powers in a way that violates rights: to life, to security, and expression particularly. Particularly outrageous is the way government has protected the police against its terrible atrocities –indeed has encouraged them.
Despite a lot of rhetoric about marginalisation, the constitutional ideal of equality — a most fundamental right — is most markedly ignored or even actively trampled on, including by state officers for whom personal wealth and aggrandisement are dominant concerns. Kenya is a most unequal country. A year ago Oxfam said, “The rich are capturing the lion’s share of the benefits, while millions of people at the bottom are being left behind. If inequality remains at the same level for the following five years, 2.9 million more people could be living in extreme poverty.”
Perhaps the greatest achievement has been that the people themselves have taken rights seriously. Amnesty International Kenya has just reported a survey showing that 70 per cent of Kenyans believe human rights have improved since the Constitution. Fifty percent have stood up for their own rights and 30 per cent for the rights of others.
People are aware of their rights. They know that Kenyans are not equal before the law – and that they ought to be. The salvation of our Constitution will lie with the people.
By YASH GHAI and JILL COTTRELL GHAI