THE CATHOLIC UNIVERSITY OF EASTERN AFRICA

CUEA CLS 102

CONSTITUTIONAL THEORY

LECTURE NOTES

BY CHARLES B G OUMA

LLB MLB

LECTURER FACULTY OF LAW CUEA

TOPIC 9 HUMAN RIGHTS IN THE CONSTITUTION OF KENYA 2010

BY NAIROBI LAW TUTORS

3RD FLOOR, RAMSHAB APARTMENTS
NGONG ROAD
SUITE B6
P OBOX 75821-00200
NAIROBI
+254 740 752 308 742 810 714
Email contact couma@[Link]

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Contents
1. What are Human Rights? .................................................................................................... 6

2. Generations of Human Rights............................................................................................. 6

2.1. First Generation .................................................................................................................. 6

2.2. Second Generation .............................................................................................................. 7

2.3. Third Generation ................................................................................................................. 7

2.4. Fourth Generation ............................................................................................................... 7

3. The Overarching Human Rights Principles ........................................................................ 7

3.1. Universality and Inalienability............................................................................................ 8

3.2. Indivisibility and Interdependence ...................................................................................... 8

3.3. Equality and Non-Discrimination ....................................................................................... 8

4. Other Principles .................................................................................................................. 8

4.1. Human Dignity and Autonomy ........................................................................................... 8

4.2. Accountability and Rule of Law ......................................................................................... 9

4.3. Participation and Inclusion ................................................................................................. 9

4.4. Non-Retrogression and Progressive Realization ................................................................ 9

4.5. Remedies and Access to Justice .......................................................................................... 9

4.6. International Cooperation and Solidarity ............................................................................ 9

5. Duty Bearers and Rights Holders in Human Rights ........................................................... 9

5.1. State Duty Bearers ............................................................................................................ 10

5.2. Non-State Duty Bearers .................................................................................................... 10

5.3. Rights Holders .................................................................................................................. 10

6. Responsibilities of Governments .......................................................................................11

6.1. Legal Framework ...............................................................................................................11

6.2. Respect and Non-Discrimination .......................................................................................11

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6.3. Freedom of Expression and Media ....................................................................................11

6.4. Protection of Vulnerable Groups....................................................................................... 12

6.5. International Human Rights Obligations .......................................................................... 12

6.6. Accountability and Remedies ........................................................................................... 12

6.7. Public Awareness and Education ...................................................................................... 12

6.8. International Cooperation ................................................................................................. 12

6.9. Civil and Political Rights .................................................................................................. 13

6.10. Economic, Social, and Cultural Rights ............................................................................. 13

6.11. Progressive and Immediate Realization ............................................................................ 13

7. Human Rights in the Constitution of Kenya 2010 ............................................................ 14

7.1. A Progressive Bill of Rights ............................................................................................ 14

7.1.1. Equality and Non-Discrimination (Article 27) ................................................................. 17

7.1.2. Right to Life 9Article 26) and Human Dignity(Article 28) .............................................. 17

7.1.3. Freedom of Expression (Article 33)and Media(Article 34) .............................................. 17

7.1.4. Right to Privacy(Article 31) and Personal Liberty(Article 36) ........................................ 17

7.1.5. Socio-Economic Rights(Article 43) .................................................................................. 18

7.1.6. Rights of Women, Children(Article 53), and Persons with Disabilities(Article 54) ........ 18

7.1.7. Indigenous and Minority Rights(Article 56)..................................................................... 18

7.2. Constitutional Commissions and Independent Offices(Chapter 15)................................. 18

7.3. Vertical and Horizontal application of the Bill of Rights in the Constitution of Kenya 2010
18

7.3.1. Vertical Application .......................................................................................................... 19

7.3.2. Horizontal Application ...................................................................................................... 19

8. Enforcement of Fundamental Rights and Freedoms under the Constitution of Kenya 2010
19

8.1. Bill of Rights ..................................................................................................................... 20

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8.2. Judicial Enforcement ........................................................................................................ 20

8.3. Jurisdiction of the Courts .................................................................................................. 20

8.4. Right to Petition ................................................................................................................ 20

8.5. Constitutional Commissions and Independent Offices ..................................................... 20

8.6. Alternative Dispute Resolution ......................................................................................... 21

8.7. Public Interest Litigation................................................................................................... 21

8.8. Remedies and Compensation ............................................................................................ 21

9. Challenges to the Enforcement of Fundamental Rights and Freedoms under the

Constitution of Kenya 2010 .......................................................................................................... 21

9.1. Lack of Awareness and Information ................................................................................. 21

9.2. Weak Institutional Capacity .............................................................................................. 22

9.3. Judicial Backlog and Delays ............................................................................................. 22

9.4. Limited Access to Justice ................................................................................................. 22

9.5. Lack of Implementation and Compliance ......................................................................... 22

9.6. Corruption and Impunity................................................................................................... 22

9.7. Socio-Cultural Factors ...................................................................................................... 22

9.8. Insufficient Awareness and Capacity of Law Enforcement Agencies .............................. 22

9.9. Political Interference ......................................................................................................... 23

10. Gains Made in the Enforcement of Fundamental Rights and Freedoms under the
Constitution of Kenya 2010 .......................................................................................................... 23

10.1. Expanded Bill of Rights .................................................................................................... 23

10.2. Judicial Independence and Activism ................................................................................. 23

10.3. Right to Access to Justice ................................................................................................. 23

10.4. Promotion of Gender Equality and Women's Rights ........................................................ 24

10.5. Protection of Minority and Vulnerable Groups................................................................. 24

10.6. Right to Public Participation ............................................................................................. 24

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10.7. Strengthened Independent Commissions .......................................................................... 24

10.8. Landmark Court Decisions ............................................................................................... 24

10.9. Increased Public Awareness and Advocacy ...................................................................... 25

11. Procedures for the Enforcement of Fundamental Rights and Freedoms under the Mutunga
Rules in the Constitution of Kenya 2010 ...................................................................................... 25

11.1. Petition for Enforcement of Fundamental Rights ............................................................. 25

11.2. Jurisdiction and Venue ...................................................................................................... 25

11.3. Service of Petition ............................................................................................................. 26

11.4. Interim Orders and Injunctions ......................................................................................... 26

11.5. Hearing and Evidence ....................................................................................................... 26

11.6. Public Interest Litigation................................................................................................... 26

11.7. Remedies and Relief ......................................................................................................... 26

11.8. Appeals ............................................................................................................................. 26

11.9. Implementation and Compliance ...................................................................................... 27

12. Kenya's Commitments to the Enforcement of Human Rights .......................................... 27

12.1. International Human Rights Instruments Ratified by Kenya ............................................ 27

12.2. Constitutional Provisions on Human Rights ..................................................................... 28

12.3. Institutional Framework for Human Rights Enforcement ................................................ 28

12.4. Efforts to Address Specific Human Rights Issues ............................................................ 28

13. Required Interventions ...................................................................................................... 29

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1. What are Human Rights?
Human rights are universal fundamental entitlements and freedoms that are inherently possessed
by every individual, regardless of their nationality, race, gender, religion, or other characteristic1.
Human rights encompass a wide range of civil, political, economic, social, and cultural rights.
Civil and political rights include the right to life, liberty, and security of person; freedom of speech,
expression, and assembly; equality before the law; and the right to participate in the political
process. Economic, social, and cultural rights include the right to work, education, healthcare,
housing, and a standard of living adequate for one's well-being. These rights are enshrined in
various international human rights instruments and legal frameworks. The three principle
international human rights instruments are the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights, and the International Covenant on Economic,
Social and Cultural Rights. Together the three instruments constitute the ‘International Bill of
Rights’.2

2. Generations of Human Rights

The concept of human rights has evolved over time. The concept of "generations" of human rights
refers to the categorization of human rights into different groupings based on historical
development and the nature of the rights involved. This categorization helps to understand the
evolution of human rights over time and the way they are conceptualized and addressed. The three
generations of human rights are generally classified as first, second and third generation rights. It
must be noted however, that the categorization of human rights into generations is not universally
agreed upon, and there may be variations or alternative frameworks proposed by different scholars
and organizations

2.1. First Generation

Civil and Political Rights First-generation human rights are often referred to as civil and political
rights. They emerged during the 17th, 18th, and 19th centuries, particularly in the context of the
Enlightenment and the French and American revolutions. These rights focus on individual
freedoms and protection from state interference. Some examples of first-generation rights include
the right to life, liberty, security, freedom of speech, religion, and political participation. They are

1
[Link]
2
[Link]

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often seen as negative rights, which means they require the government to refrain from interfering
with individuals' exercise of these rights.

2.2. Second Generation

Economic, Social, and Cultural Rights Second-generation human rights emerged in the late 19th
and early 20th centuries, influenced by socialist and labor movements. These rights emphasize
socio-economic well-being and are often associated with issues of social justice and equality.
Second-generation rights include the right to education, healthcare, adequate standard of living,
housing, and social security. They are often seen as positive rights, which means they require the
government to take proactive measures to ensure their fulfillment.

2.3. Third Generation

Third-generation human rights, also known as solidarity rights, emerged in the mid-20th century
and focus on collective rights and global concerns. They address issues such as environmental
protection, self-determination of peoples, peace, and development. Third-generation rights
emphasize the interconnectedness of human rights and the need for international cooperation to
address global challenges. These rights are often seen as collective rights that require collaboration
among nations and international organizations.

2.4. Fourth Generation

In addition to these three generations, some scholars have proposed the concept of fourth-
generation human rights, which goes beyond the traditional framework. Fourth-generation rights
include areas such as the right to a clean and healthy environment, the right to access and control
information, and the right to peace. These rights often arise from contemporary concerns and
challenges, and their recognition and implementation are still evolving.

3. The Overarching Human Rights Principles

Human rights principles are principles that guide the understanding and implementation of human
rights. They guide the understanding, promotion, and protection of human rights. The principles
speak to the universality, and inalienability and inherent nature of human rights. The overarching
human rights principles are; universal and inalienable, interdependent and indivisible, equal and
non-discriminatory. These principles form the foundation of human rights law and international
human rights standards

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3.1. Universality and Inalienability
Human rights are universal, meaning they apply to all people, everywhere, without discrimination.
They are based on the inherent dignity and worth of every human being. Inalienability implies that
cannot not be taken away, except in specific situations and even then, only in accordance with
due process. Accordingly human rights cannot be taken away or transferred or surrendered even
by the rights holders themselves. Article 19(3) (a),(b) and (c) of the CoK 2010 provide for the
principle of universality and inalienability.

3.2. Indivisibility and Interdependence

Human rights are interrelated, interdependent, and indivisible. Civil, political, economic, social,
and cultural rights are interconnected and mutually reinforcing. Neglecting one set of rights can
undermine the realization of others.

3.3. Equality and Non-Discrimination

Every person is entitled to enjoy human rights on an equal basis, without discrimination. Human
rights must be applied without distinction based on race, color, sex, language, religion, political or
other opinion, national or social origin, property, birth, or other status. States have an obligation to
protect individuals from discrimination and promote equal treatment. Articles 20(40(a) and 27 of
the CoK 2010 provides for the principle of equality and non-discrimination.

4. Other Principles
The other principles are human dignity and autonomy, accountability and rule of law, participation
and inclusion, non-retrogression and progressive realization, remedies and access to justice and
international cooperation and solidarity

4.1. Human Dignity and Autonomy

Human rights are grounded in the inherent dignity and worth of every person. Individuals possess
autonomy and have the right to make decisions about their lives. States must respect and protect
the dignity and autonomy of individuals. Article 28 of the CoK 2010 provides for the principle of
human dignity and autonomy of the individual. So do Articles 19(2) and 20(4)(a)

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4.2. Accountability and Rule of Law
Governments and institutions are accountable for upholding and promoting human rights. Human
rights principles are enshrined in national and international legal frameworks. The rule of law
ensures that human rights are protected, and violations are addressed. Accountability and rule of
law are provided for in Aricle10 of the CoK 2010.

4.3. Participation and Inclusion

Individuals and communities have the right to participate in decision-making processes that affect
their lives. Inclusive and participatory societies foster the realization of human rights. The voices
of marginalized and vulnerable groups must be heard and considered. Participation and inclusion
are provided for in Article 10 of the CoK 2010.

4.4. Non-Retrogression and Progressive Realization

States have a duty to progressively realize human rights. They should continuously work towards
improving the enjoyment of human rights. Backward steps or regression in the protection of human
rights should be avoided.

4.5. Remedies and Access to Justice

Victims of human rights violations have the right to seek remedies and access to justice. States
should provide effective and accessible mechanisms for seeking redress. Impunity for human
rights abuses should be eliminated. Article 22, 48 and 50 of the CoK 2010 provides for the right
of access to justice .Article 23 provides for remedies for violations of human rights.

4.6. International Cooperation and Solidarity

International cooperation is vital for promoting and protecting human rights. States should
collaborate to address global challenges and promote human rights worldwide. Solidarity among
nations is crucial for the realization of human rights.

5. Duty Bearers and Rights Holders in Human Rights

In the context of human rights, duty bearers and rights holders refer to the different roles and
responsibilities of individuals, groups, and institutions involved in the promotion, protection, and
realization of human rights.

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Duty bearers are individuals, organizations, or governments that have an obligation or duty to
respect, protect, and fulfill human rights. They are responsible for upholding and implementing
human rights standards, laws, and policies. Duty bearers can include government officials, law
enforcement agencies, policymakers, public institutions, corporations, individuals and other
entities with the authority and capacity to affect human rights. Because of the horizontal
application of human rights, duty bearers include both state and non-state actors.

5.1. State Duty Bearers

Governments are primary duty bearers in human rights. They have a legal obligation to respect,
protect, and fulfill the human rights of individuals within their jurisdiction. States are expected to
establish and enforce laws, policies, and institutions that safeguard human rights, provide remedies
for violations, and promote equality and non-discrimination.

5.2. Non-State Duty Bearers

Non-state actors, such as private companies, international organizations, armed groups, or
individuals, may also have human rights responsibilities in certain contexts. For example,
businesses are increasingly recognized as duty bearers with regard to their impact on human rights,
particularly through their operations, supply chains, and interactions with local communities.

5.3. Rights Holders

Rights holders are individuals or groups of people who possess human rights by virtue of their
inherent dignity and membership in the human family. They are entitled to the enjoyment and
exercise of these rights without discrimination or interference. Human rights apply to all
individuals, irrespective of their nationality, race, gender, religion, or any other characteristic.
Rights holders can include individuals, vulnerable groups (such as women, children, persons with
disabilities, indigenous peoples, refugees, and migrants), and communities. They have the right to
claim and demand the fulfillment of their human rights from duty bearers.
The relationship between duty bearers and rights holders is crucial for the effective realization of
human rights. Duty bearers are responsible for ensuring that the rights of individuals and groups
are respected, protected, and fulfilled, while rights holders have the right to hold duty bearers
accountable for any violations or failures to meet their obligations. This dynamic forms the basis
for advocacy, legal action, and collective efforts to promote and protect human rights

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6. Responsibilities of Governments
Governments have a crucial role in protecting and promoting human rights. While the specific
responsibilities can vary depending on the country and its legal framework the general principle is
that governments have a responsibility to protect, respect, and fulfill these rights, and
individuals have a right to seek remedies and redress when their human rights are violated.
Article 21 of the CoK 2010 provides for the responsibilities of the government. It is a
“fundamental duty of the State and every State organ to observe, respect, protect, promote and
fulfil the rights and fundamental freedoms in the Bill of Rights” .3
The specific responsibilities are as below.

6.1. Legal Framework

Governments are responsible for establishing a legal framework that guarantees and protects
human rights. This includes enacting laws, constitutions, and international agreements that
recognize and safeguard human rights. Article 21(2) mandates the state to take legislative, policy
and other measures, including the setting of standards, to achieve the progressive realisation of the
rights guaranteed under Article 43. Article 27(6) the state is mandated to “take legislative and other
measures, including affirmative action programmes and policies designed to
redress any disadvantage suffered by individuals or groups because of past discrimination” so as
to “give full effect to the realisation of the rights guaranteed under this Article”.

6.2. Respect and Non-Discrimination

Governments should respect and uphold the principles of human rights, treating all individuals
within their jurisdiction equally and without discrimination based on race, ethnicity, gender,
religion, sexual orientation, or any other characteristic. This principle is provided for in Article 27

6.3. Freedom of Expression and Media

Governments should protect freedom of expression, including freedom of the press and media,
allowing individuals to express their opinions, access information, and participate in public
discourse without censorship or undue restrictions. This principle is provided for in Article 22 and
27.

3
Article 21(1) CoK 2010

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6.4. Protection of Vulnerable Groups
Governments should pay special attention to the protection of vulnerable groups, including
women, children, minorities, refugees, migrants, persons with disabilities, and indigenous peoples.
They should take measures to prevent discrimination, violence, and exploitation against these
groups and provide support and assistance when needed. The protection of vulnerable groups and
minorities is provided for in Articles 27,53,54,55,56 and 57 of the CoK 2010.

6.5. International Human Rights Obligations

Governments have a responsibility to fulfill their international human rights obligations by
ratifying and implementing international treaties and agreements related to human rights. They
should cooperate with international organizations and mechanisms to promote and protect human
rights globally. This principle is provided for in Articles 2(5), 2(6) 51(2) 58(6)(a)(ii) and more
specifically in articles 21(1)(4), 132(1)(c)(iii) and (5).

6.6. Accountability and Remedies

Governments should establish effective mechanisms for accountability and redress in cases of
human rights violations. This includes providing victims with access to justice, conducting
impartial investigations, prosecuting perpetrators, and ensuring reparations for victims. This
principle is provided for in articles 22 23 47 48 and 50 CoK 2010

6.7. Public Awareness and Education

Governments should promote public awareness and education about human rights to foster a
culture of respect and understanding. This can include integrating human rights education in
schools, promoting public campaigns, and engaging civil society organizations. The responsibility
of the state under article 21 to observe, respect, protect, promote and fulfil the rights and
fundamental freedoms in the Bill of Rights implies an obligation to undertake public education
and awareness on human rights.

6.8. International Cooperation

Governments should engage in international cooperation to address human rights challenges
globally. This involves collaborating with other countries, international organizations, and civil
society to develop policies, share best practices, and coordinate efforts to protect and promote

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human rights. This obligation is captured under Articles 2(5), 2(6) 51(2) 58(6)(a)(ii) 21(1)(4),
132(1)(c)(iii) and (5).

6.9. Civil and Political Rights

Governments must ensure that individuals enjoy civil and political rights, such as the right to life,
liberty, and security of person, freedom of speech, expression, assembly, and association. They
should protect individuals from unlawful arrests, detentions, and torture, and ensure fair and
impartial access to justice. The entire panoply of Civic and political rights are specifically
provided for in the bill of rights as read with article 2(5) and 2(6).

6.10. Economic, Social, and Cultural Rights

Governments have a responsibility to promote and protect economic, social, and cultural rights,
such as the right to education, healthcare, housing, food, and a decent standard of living. They
should take measures to eliminate poverty, inequality, and discrimination, and ensure access to
essential services and social welfare’s economic rights are provided for in Article3 43.46, 53 and
57

6.11. Progressive and Immediate Realization

The concept of the progressive and immediate realization of human rights is an important principle
in international human rights law. It refers to the understanding that states should strive to fulfill
and protect human rights both in the short term and over time, taking into account their
available resources and capacities. The progressive and immediate realization of human rights
recognizes that certain rights must be respected and protected immediately, while other rights may
require a gradual and sustained effort to achieve their full realization. It emphasizes the
responsibility of states to take concrete actions to move towards the full realization of human rights
for all individuals, with the aim of ensuring dignity, equality, and justice for everyone
Progressive realization means that states recognize human rights as a goal to work towards
gradually. They are expected to take deliberate and effective steps to move towards the full
realization of human rights, even if they cannot fully achieve them immediately. This
acknowledges that some human rights, especially socioeconomic rights like access to healthcare,
education, and housing, may require significant resources and time to be fully realized.

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On the other hand, immediate realization means that certain human rights, must be
respected and upheld without any delay. These rights are considered essential and fundamental
to human dignity, and they include rights such as the right to life, freedom from torture and slavery,
and freedom of thought, conscience, and religion. They are non-negotiable and cannot be restricted
under any circumstances.
The principle of progressive and immediate realization is enshrined in various international
human rights instruments, such as the Universal Declaration of Human Rights (UDHR) and the
International Covenant on Economic, Social, and Cultural Rights (ICESCR). These documents
emphasize the obligation of states to take steps, both individually and through international
cooperation, to achieve the full realization of human rights for all individuals.
States are required to use the maximum of their available resources to gradually advance
towards full realization, with the understanding that the pace of progress may vary depending on
the level of development and available resources in each country. Nonetheless, they should always
respect and protect non-derogable rights immediately, without any exceptions.
Progressive and immediate realization is provided for in Article 20

7. Human Rights in the Constitution of Kenya 2010

The Constitution of Kenya 2010 reflects a strong commitment to human rights, ensuring the
protection and promotion of fundamental freedoms and the dignity of all individuals. The
constitution creates a framework for the realization of social justice, equality, and inclusive
development in Kenya.

7.1. A Progressive Bill of Rights

The Constitution of Kenya 2010 includes an extensive Bill of Rights, which enshrines various
civil, political, economic, social, and cultural rights. The Bill of Rights applies to all individuals
and provides a foundation for the protection and promotion of human rights in [Link] Bill of
rights is in Chapter IV of the constitution.
Article 19(1) provides that ‘the Bill of Rights is an integral part of Kenya’s democratic state and
is the framework for social, economic and cultural policies. The expressed purpose of the bill of

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Rights is to is to ‘preserve the dignity of individuals and communities and to promote social justice
and the realisation of the potential of all human beings’4.
Article 19(3)(a) recognises that human rights are inherent and not granted by the state. Article
19(3)(b) provides that the Bill of Rights is ‘inclusive, not exclusive. Accordingly, the constitution
recognises other ‘rights recognised or conferred by law, except to the extent that they are
inconsistent’ with Chapter IV. Article 295) and 2(6) import international law into the Kenyan legal
system. Accordingly, this provision must be understood to mean that rights recognised by
international law form part of our Bill of Rights notwithstanding that such rights may not be
specifically mentioned in the Bill of Rights. A case in point would be the rights of the LGBTQ
community.
Article 20(30(a)&(b) mandates a liberal reading of the Bill of rights. In interpreting the bill of
rights, the court is mandated to ‘develop the law to the extent that it does not give effect to a right
or fundamental freedom and ‘adopt the interpretation that most favours the enforcement of a right
or fundamental freedom.’. This gives the courts a broad mandate to read into the constitution rights
which, though not specifically mentioned in the Bill of Rights, are recognised by international law
as human rights. It also means that hen a provision of the constitution is capable of two meaning,
one giving effect to a fundamental right and the other one defeating the right, the court must adopt
the interpretation that gives effect to the right. This is a common law principle of statutory
interpretation now given constitutional imprimatur.
According to Article 20(4) (4) In interpreting the Bill of Rights, a court, tribunal or other authority
shall promote the values that underlie an open and democratic society based on human dignity,
equality, equity and freedom and the spirit, purport and objects of the Bill of Rights.
Article 20(5) provides for the principles governing the progressive realization of human rights.
The burden is placed on the state to prove lack of resources necessary for the progressive
realization of socio-economic rights
Article 21 makes it the emphatic duty of the state and every state organ to fundamental duty of the
State and every State organ to observe, respect, protect, promote and fulfil the rights and
fundamental freedoms in the Bill of Rights
Article 21 further requires the state to take legislative, policy and other measures, including the
setting of standards, to achieve the progressive realisation of the rights guaranteed under Article

4
Article 19(2)

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43. Accordingly, even where resources are inadequate, the state is obliged to enact laws and adopt
policies on the progressive realization of article 43 rights
Article 21(3) requires all State organs and all public officers to address the needs of vulnerable
groups within society, including women, older members of society, persons with disabilities,
children, youth, members of minority or marginalised communities, and members of particular
ethnic, religious or cultural communities.
Article 21(40 obliges the state to enact and implement legislation to fulfil its international
obligations in respect of human rights and fundamental freedoms.
Article 22 provides for the enforcement of the Bill of rights. Article 22 expands the locus Standii
and permits representative action on behalf of those that are unable to bring n action by themselves.
It also encourages public interest litigation. To encourage access to justice, no fees is payable on
instituting enforcement proceedings in court. Article 22 requires that procedural technicalities in
enforcement proceedings must be kept to a minimum and be subordinated to substantive justice.
Article 23 provides for the authority of the court to enforce fundamental rights. To increase access
to justice parliament is required to legislate to extend enforcement jurisdiction to subordinate
courts. Article 24 gives the court a broad range of remedies to chose from in enforcing the Bill of
rights. The available remedies are (a) a declaration of rights; (b) an injunction; (c) a conservatory
order; (d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right
or fundamental freedom in the Bill of Rights and is not justified under Article 24; (e) an order for
compensation; and (f) an order of judicial review.
Article 24 provides for limitation of rights. Rights can only be limited by an express provision of
the law and even then, only to the extent that the limitation is reasonable and justifiable in an open
and democratic society based on human dignity, equality and freedom.
Article 25 provides for non-derogable rights, rights which are absolute and cannot be limited by
statute. The non derogable rights are (a) freedom from torture and cruel, inhuman or degrading
treatment or punishment; (b) freedom from slavery or servitude; (c) the right to a fair trial; and(d)
the right to an order of habeas corpus.
Articles 26 to57 provide for specific rights. They include the right to life(Article 26) freedom from
discrimination (Article 27) human dignity(Article 28) , freedom and security of the person(Article
29) freedom from slavery, servitude and forced labour(Article 30), right to privacy (Article 31),
freedom of conscience, belief and religion(Article 32, freedom of expression(Article 33) freedom

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of the media (Article 34) right to information(Article 35), freedom of association(Article 36), the
right to assemble, to demonstrate, to picket, and to present petitions to public authorities, the right
to make political choices(Article 38) freedom of movement(Article 39) protection of
property(Article 40), right to fair labour practices (Article 41) right to clean and healthy
environment(Article 42) economic and social rights(Article 43) right to language and
culture(Article 44) right to found a family(Article 45) consumer rights(Article 46) right to fair
administrative action(Article 47) access to justice,(Article 48) Rights of an arrested person(Article
49) right to a fair hearing(Article 50) Rights of a person detained Rights of persons detained, held
in custody or imprisoned.(Article 51) Rights of the child (Article 53) rights of persons with
disability (Article 54) affirmative action for the youth,(Article 55) minorities and marginalised
groups(Article 56) and older members of society(Article 57).

7.1.1. Equality and Non-Discrimination (Article 27)

The Constitution guarantees the right to equality and freedom from discrimination. It prohibits
discrimination based on various grounds, including race, sex, pregnancy, marital status, ethnic or
social origin, color, age, disability, religion, conscience, belief, culture, language, and birth. The
state is obligated to take measures to promote equality and protect marginalized groups.

7.1.2. Right to Life 9Article 26) and Human Dignity(Article 28)

The Constitution recognizes the right to life as inviolable and prohibits the deprivation of life
except in specific circumstances permitted by law. It also upholds the right to human dignity,
prohibiting torture, cruel, inhuman, or degrading treatment or punishment.

7.1.3. Freedom of Expression (Article 33)and Media(Article 34)

The Constitution guarantees the freedom of expression, including the freedom to seek, receive,
and impart information and ideas. It protects freedom of the press, allowing for independent media
and journalists to operate without undue interference or censorship.

7.1.4. Right to Privacy(Article 31) and Personal Liberty(Article 36)

The Constitution protects the right to privacy, safeguarding individuals' personal information and
prohibiting unauthorized intrusion into private affairs. It upholds the right to personal liberty,
safeguarding against arbitrary arrest, detention, or deprivation of freedom.

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7.1.5. Socio-Economic Rights(Article 43)
The Constitution recognizes and protects various socio-economic rights, including the right to
accessible and adequate housing, healthcare services, education, and social security. It emphasizes
the importance of progressive realization and equitable distribution of resources to ensure the
fulfillment of these rights.

7.1.6. Rights of Women, Children(Article 53), and Persons with Disabilities(Article 54)
The Constitution includes provisions specifically aimed at protecting and promoting the rights of
women, children, and persons with disabilities. It prohibits discrimination based on gender and
provides for affirmative action to address historical imbalances. It protects children's rights,
including the right to parental care, education, and protection from abuse. It guarantees the rights
of persons with disabilities and promotes their inclusion in all aspects of society.

7.1.7. Indigenous and Minority Rights(Article 56)

The Constitution recognizes the rights of indigenous communities and promotes their participation
in matters affecting them. It protects the rights of minorities, ensuring their equal treatment and
participation in public life.

7.2. Constitutional Commissions and Independent Offices(Chapter 15)

The Constitution establishes various independent constitutional commissions and offices, such as
the Kenya National Commission on Human Rights, to promote and protect human rights. These
institutions have the mandate to investigate human rights violations, monitor compliance with
human rights standards, and provide redress for victims.

7.3. Vertical and Horizontal application of the Bill of Rights in the Constitution of Kenya
2010
The Bill of Rights in the Constitution of Kenya 2010 has both vertical and horizontal applications.
Vertically, it protects individuals from state infringement, while horizontally, it ensures that
individuals respect each other's rights and freedoms. This dual application of the Bill of Rights
aims to foster a society that upholds and respects the fundamental rights of all individuals.

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7.3.1. Vertical Application
The vertical application of the Bill of Rights refers to the relationship between the state and the
individuals. It establishes the rights and freedoms of individuals and imposes obligations on the
state and its agencies to respect, protect, promote, and fulfill those rights. The Bill of Rights acts
as a check on state power and ensures that the government does not infringe upon the fundamental
rights of the people.
Vertical application means that individuals can seek remedies and protection from the state if their
rights are violated. The Constitution empowers individuals to bring legal actions against the state
or any public official or body for violations of their rights. This can be done through the courts or
other appropriate mechanisms established to address human rights violations.

7.3.2. Horizontal Application

The horizontal application of the Bill of Rights refers to the relationship between private
individuals or entities. It ensures that individuals respect and do not violate each other's rights.
This means that individuals are not only protected from infringement by the state but also from
other individuals or private entities.
Under the horizontal application, individuals can bring legal actions against other private
individuals or entities if their rights are violated. For example, if someone's freedom of expression
is curtailed by a private organization or if a person's right to privacy is violated by another
individual, legal recourse can be sought.
It is important to note that the Constitution of Kenya 2010 emphasizes the transformative nature
of rights and seeks to promote a culture of human rights, equality, and non-discrimination. The
Bill of Rights provides a framework for social justice and aims to address historical injustices by
affirmatively promoting the rights of marginalized and vulnerable groups.

8. Enforcement of Fundamental Rights and Freedoms under the Constitution of Kenya

2010
The Constitution of Kenya 2010 provides robust mechanisms for the enforcement of fundamental
rights and freedoms. Judicial enforcement, alternative dispute resolution, constitutional
commissions and independent offices are vital in ensuring the protection and promotion of human

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rights. The enforcement mechanisms aim to ensure the protection, promotion, and realization of
these rights for all individuals in Kenya.

8.1. Bill of Rights

The Bill of Rights in the Constitution of Kenya 2010 guarantees a wide range of civil, political,
economic, social, and cultural rights. These rights are legally binding and provide the foundation
for the enforcement mechanisms.

8.2. Judicial Enforcement

The Constitution establishes the judiciary as the primary institution responsible for the
enforcement of fundamental rights and freedoms. Any person who alleges a violation or threatened
violation of their rights may seek redress through the courts. The judiciary has the power to hear
and determine cases related to human rights violations and provide appropriate remedies.

8.3. Jurisdiction of the Courts

The Constitution grants the High Court original jurisdiction to hear and determine matters relating
to the enforcement of fundamental rights and freedoms. Individuals can directly petition the High
Court for the protection and enforcement of their rights.

8.4. Right to Petition

The Constitution recognizes the right of any person to petition Parliament, a County Assembly, or
any other state or public institution to take action on a matter of public interest. This right allows
individuals and groups to raise human rights concerns and seek appropriate remedies from relevant
authorities.

8.5. Constitutional Commissions and Independent Offices

The Constitution establishes independent constitutional commissions and offices, such as the
Kenya National Commission on Human Rights, to promote and protect human rights. These
institutions have the mandate to investigate human rights violations, receive complaints, and
recommend appropriate remedies. They play a crucial role in monitoring the enforcement of
fundamental rights and freedoms and holding public authorities accountable.

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8.6. Alternative Dispute Resolution
The Constitution encourages the use of alternative dispute resolution mechanisms, such as
mediation and arbitration, for the resolution of human rights disputes. These mechanisms can
provide faster and more accessible avenues for resolving conflicts related to human rights
violations.

8.7. Public Interest Litigation

The Constitution allows public interest litigation, where individuals or organizations can bring
legal action on behalf of others or for the protection of a wider public interest. This enables
advocacy groups and civil society organizations to address systemic human rights issues and seek
remedies for marginalized and vulnerable groups.

8.8. Remedies and Compensation

The Constitution ensures that individuals whose rights have been violated are entitled to adequate
remedies and compensation. The courts have the power to grant various remedies, such as
declarations of rights, injunctions, and damages, to address the harm caused by the violation.
8.9. International Human Rights Standards
The Constitution recognizes the application of international human rights standards in the
interpretation and enforcement of fundamental rights and freedoms. Kenyan courts may consider
international treaties and conventions to which Kenya is a party when adjudicating human rights
cases.

9. Challenges to the Enforcement of Fundamental Rights and Freedoms under the

Constitution of Kenya 2010
The Constitution of Kenya 2010 guarantees a wide range of fundamental rights and freedoms to
its citizens. While these rights are enshrined in the constitution, their effective enforcement can
face several challenges.

9.1. Lack of Awareness and Information

Many individuals may not be aware of their rights and the mechanisms available for their
enforcement. Limited access to information about legal processes and remedies can hinder
individuals from seeking redress for violations.

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9.2. Weak Institutional Capacity
Inadequate institutional capacity within the justice system can pose challenges to the effective
enforcement of fundamental rights. Courts, tribunals, and other relevant institutions may face
resource constraints, leading to delays in processing cases and delivering justice.

9.3. Judicial Backlog and Delays

The backlog of cases and delays in the judicial process can undermine the timely enforcement of
fundamental rights. Overburdened courts and lengthy litigation processes can result in a lack of
timely remedies for individuals whose rights have been violated.

9.4. Limited Access to Justice

Limited access to justice, particularly for marginalized and vulnerable populations, can impede the
enforcement of fundamental rights. Financial barriers, distance to courts, language barriers, and
cultural factors can hinder individuals from seeking legal remedies.

9.5. Lack of Implementation and Compliance

The effective enforcement of fundamental rights requires the implementation and compliance of
state institutions and actors. Inadequate implementation of laws and policies can undermine the
realization of rights on the ground.

9.6. Corruption and Impunity

Corruption within the justice system can compromise the enforcement of fundamental rights.
Bribery, favoritism, and lack of accountability can erode public trust and hinder the fair and
impartial adjudication of rights-related cases.

9.7. Socio-Cultural Factors

Socio-cultural factors and traditional practices may conflict with certain rights guaranteed under
the constitution. Deep-rooted customs, attitudes, and discriminatory social norms can hinder the
enforcement of rights, particularly for women, children, and minority groups.

9.8. Insufficient Awareness and Capacity of Law Enforcement Agencies

Law enforcement agencies, such as the police, may lack sufficient awareness, training, and
capacity to effectively protect and promote human rights. Misconduct, abuse of power, and
negligence by law enforcement officials can infringe upon individuals' rights.

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9.9. Political Interference
Political interference in the enforcement of fundamental rights can undermine the independence
of the judiciary and other oversight institutions. Politically motivated decisions, pressure, or
influence can compromise the impartiality and effectiveness of the justice system.
Despite the constitutional guarantees of fundamental rights and freedoms, the enforcement of these
rights in Kenya faces numerous challenges. Addressing these challenges requires collaborative
efforts from the government, civil society, legal institutions, and the public. Strengthening
institutional capacity, raising awareness, promoting access to justice, combating corruption, and
fostering a culture of human rights are crucial for the effective enforcement of fundamental rights
and freedoms in Kenya.

10. Gains Made in the Enforcement of Fundamental Rights and Freedoms under the
Constitution of Kenya 2010
The Constitution of Kenya 2010 introduced a comprehensive framework for the protection and
enforcement of fundamental rights and freedoms. Since its enactment, significant gains have been
made in advancing and safeguarding these rights, fostering a culture of human rights in Kenya.

10.1. Expanded Bill of Rights

The Constitution of Kenya 2010 expanded the scope of the Bill of Rights, incorporating a wide
range of civil, political, economic, social, and cultural rights. This expansion has provided
individuals with a more extensive set of rights and protections, promoting inclusivity and equality.

10.2. Judicial Independence and Activism

The Constitution has strengthened judicial independence, allowing courts to play a critical role in
the enforcement of fundamental rights. Kenyan courts have shown increased activism in protecting
and upholding constitutional rights through landmark decisions. The judiciary has become more
accessible to citizens seeking redress for human rights violations.

10.3. Right to Access to Justice

The Constitution has emphasized the right to access justice for all individuals, regardless of their
socio-economic status. Mechanisms such as public interest litigation, legal aid, and alternative
dispute resolution have been promoted to enhance access to justice. The establishment of small
claims courts and mobile courts has improved accessibility and reduced case backlog.

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10.4. Promotion of Gender Equality and Women's Rights
The Constitution of Kenya 2010 includes provisions that promote gender equality and protect
women's rights. Affirmative action measures have been implemented to address historical
imbalances and ensure women's participation in public life. Women's representation in political
leadership and decision-making positions has increased as a result.

10.5. Protection of Minority and Vulnerable Groups

The Constitution recognizes and protects the rights of minority and vulnerable groups, including
persons with disabilities, children, and indigenous communities. Laws and policies have been
enacted to safeguard the rights of these groups, promote their inclusion, and address discrimination
and marginalization.

10.6. Right to Public Participation

The Constitution emphasizes the right to public participation, ensuring that citizens have a voice
in decision-making processes.
Public participation has been institutionalized in policy formulation, legislation, and governance
structures at various levels.
Citizens have been empowered to engage in public affairs and hold public officials accountable.

10.7. Strengthened Independent Commissions

The Constitution established independent commissions, such as the Kenya National Commission
on Human Rights, to promote and protect human rights. These commissions have played a crucial
role in monitoring and investigating human rights violations, providing redress, and raising
awareness. They have contributed to a culture of accountability and transparency in the
enforcement of human rights.

10.8. Landmark Court Decisions

Kenyan courts have made significant rulings that have advanced human rights protection.
Landmark decisions have been made in cases involving discrimination, gender-based violence,
freedom of expression, and police brutality. These judgments have set important precedents and
reinforced the enforcement of human rights.

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10.9. Increased Public Awareness and Advocacy
The Constitution of Kenya 2010 has generated increased public awareness and consciousness of
human rights. Civil society organizations, human rights defenders, and advocacy groups have
emerged and played a vital role in promoting and defending human rights. The media has also
contributed to public awareness through reporting and highlighting human rights issues.
The enforcement of fundamental rights and freedoms under the Constitution of Kenya 2010 has
brought about significant gains in advancing human rights in the country. The expanded Bill of
Rights, judicial independence, increased access to justice, and protection of marginalized groups
have contributed to a more inclusive and rights-oriented society. However, challenges remain, and
continued efforts are needed to fully realize the vision of a society where human rights are
respected, protected, and fulfilled for all Kenyan citizens.

11. Procedures for the Enforcement of Fundamental Rights and Freedoms under the
Mutunga Rules in the Constitution of Kenya 2010
The Constitution of Kenya 2010 provides robust mechanisms for the enforcement of fundamental
rights and freedoms.
The Mutunga Rules, also known as the Rules of Court for the Enforcement of Constitutional
Rights, were formulated to guide the judiciary in implementing these provisions effectively.

11.1. Petition for Enforcement of Fundamental Rights

Any person can file a petition in court to enforce their fundamental rights and freedoms under
Article 22 of the Constitution. The petitioner must establish a prima facie case, demonstrating a
violation or imminent violation of their rights. The petition should be filed promptly, as delays
may affect the court's ability to provide effective remedies.

11.2. Jurisdiction and Venue

The High Court has the jurisdiction to hear and determine petitions seeking the enforcement of
fundamental rights and freedoms. Petitions can be filed in any High Court registry within the
jurisdiction where the alleged violation occurred or where the petitioner resides.

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11.3. Service of Petition
The petitioner must serve the petition to the respondent(s) named in the petition, as well as any
other interested parties. Service should be done promptly and in compliance with the rules of
service to ensure the respondents have adequate notice of the proceedings.

11.4. Interim Orders and Injunctions

The court has the power to issue interim orders or injunctions to protect the rights and prevent
irreparable harm pending the final determination of the petition.
The court may grant such orders if it is satisfied that the petitioner has demonstrated a prima facie
case and that there is a need for urgent intervention.

11.5. Hearing and Evidence

The court will schedule a hearing to allow the parties to present their arguments and evidence. The
court has the discretion to receive evidence in any form, including affidavits, witness statements,
and expert opinions. The parties have the right to cross-examine witnesses and present counter-
evidence.

11.6. Public Interest Litigation

The Mutunga Rules recognize the importance of public interest litigation in protecting and
promoting constitutional rights. Public interest litigants, including civil society organizations, can
file petitions on behalf of individuals or groups whose rights have been violated or are at risk.

11.7. Remedies and Relief

The court has the power to grant appropriate remedies and relief to redress the violation of
fundamental rights and freedoms. Possible remedies include the issuance of declarations, orders
of compensation or restitution, orders of specific performance, and injunctive relief. The court can
fashion remedies tailored to the specific circumstances of each case.

11.8. Appeals
Parties dissatisfied with the decision of the High Court may appeal to the Court of Appeal within
a specified period. The Court of Appeal has the power to review the decision of the lower court
and may affirm, reverse, or modify the decision based on the merits of the case.

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11.9. Implementation and Compliance
The Mutunga Rules emphasize the need for prompt and effective implementation of court
decisions. Public officials and institutions are required to comply with court orders and judgments
within the specified timeframes. Failure to comply may result in contempt of court proceedings.
The Mutunga Rules provide a clear framework for the enforcement of fundamental rights and
freedoms under the Constitution of Kenya 2010. These procedures ensure that individuals have
access to justice and effective remedies in cases of rights violations. The judiciary plays a crucial
role in upholding and protecting constitutional rights, promoting accountability, and advancing the
rule of law in Kenya.

12. Kenya's Commitments to the Enforcement of Human Rights

Kenya has recognized and embraced various international and regional human rights instruments
and has taken steps to protect and promote human rights within its national framework.

12.1. International Human Rights Instruments Ratified by Kenya

Kenya has signed and ratified virtually all the major international human rights instruments. The
main ones which include the International Bill of Rights are listed below.
• Universal Declaration of Human Rights (UDHR): Kenya is a signatory to the
UDHR, which sets out a broad range of civil, political, economic, social, and
cultural rights.
• International Covenant on Civil and Political Rights (ICCPR): Kenya ratified the
ICCPR, affirming its commitment to the protection of civil and political rights,
including freedom of speech, assembly, and fair trial.
• International Covenant on Economic, Social, and Cultural Rights (ICESCR):
Kenya has also ratified the ICESCR, signaling its commitment to promoting
economic, social, and cultural rights such as the right to education, healthcare, and
adequate standard of living.
• African Charter on Human and Peoples' Rights: As a member of the African Union,
Kenya has ratified the African Charter, which guarantees civil, political, economic,
social, and cultural rights specific to the African context.

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 12.2. Constitutional Provisions on Human Rights
• 2010 Constitution: Kenya's current constitution, adopted in 2010, includes an
extensive Bill of Rights that enshrines a wide range of human rights.
• Protection of civil and political rights: The constitution guarantees rights such as
the right to life, equality, dignity, freedom of expression, religion, and association.
• Promotion of economic, social, and cultural rights: The constitution recognizes the
right to education, healthcare, housing, and social security, among others.

12.3. Institutional Framework for Human Rights Enforcement

• Independent National Human Rights Commission (KNHRC): Established under the
constitution, the KNHRC promotes and protects human rights in Kenya, investigates
human rights violations, and provides redress to victims.
Judiciary: The judiciary plays a crucial role in the enforcement of human rights through
the interpretation and application of laws and constitutional provisions.
National Police Service: Kenya has taken measures to enhance police accountability and
respect for human rights through training programs, reforms, and the establishment of
oversight mechanisms.

12.4. Efforts to Address Specific Human Rights Issues

• Gender equality and women's rights: Kenya has implemented laws and policies to promote
gender equality, address gender-based violence, and increase women's participation in
decision-making positions.
• Rights of marginalized communities: Kenya recognizes the rights of marginalized
communities, including indigenous peoples, and has taken steps to protect their cultural
heritage and promote their participation in governance and development processes.
• Access to justice: Efforts have been made to enhance access to justice for all individuals,
including through legal aid programs, alternative dispute resolution mechanisms, and
court reforms.

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13. Required Interventions
• Implementation gaps: Despite Kenya's commitments, there are challenges in fully
realizing human rights due to limited resources, weak institutional capacity, and social,
cultural, and political factors.
• Strengthening the rule of law: Continued efforts are needed to strengthen the rule of law,
enhance accountability, and address corruption and impunity, which are crucial for
effective human rights enforcement.
• Civil society engagement: The active involvement of civil society organizations and
human rights defenders is vital in advocating for human rights, monitoring compliance,
and holding the government accountable.

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