HUMAN RIGHTS
AND
THE CONSTITUTION OF KENYA
Human Rights
and the
Constitution of Kenya
This pamphlet was developed by Katiba Institute’s director Jill
Ghai assisted by the Executive Director Christine Nkonge, The
communications officer Kevin Mabonga and The Programs Officer
Michelle Mwanahamisi to mark the 10 years anniversary of the
Constitution of Kenya 2010. KI appreciates the support offered by the
Office of the High Commissioner for Human Rights in the development
of this publication and the Katiba at 10 celebrations. Katiba Institute
wishes to acknowledge with gratitude the our partners the Social
Justice centre working groups for actively participating in the 10
year commemoration of the Constitution and the development of the
publication. We would like to acknowledge the entire Katiba Institute
Team for their various contributions throughout the whole process of
developing this book.
Table of Content
Human Rights and the Constitution of Kenya........................................................... 1
Equality....................................................................................................................................... 6
Rights Of Persons Disability............................................................................................... 7
Conscience and Belief........................................................................................................... 9
Assembly and Demonstration............................................................................................ 10
Language and Culture............................................................................................................ 11
Violence....................................................................................................................................... 13
Child’s Right to Education................................................................................................... 14
Water............................................................................................................................................. 15
Health........................................................................................................................................... 17
Housing....................................................................................................................................... 18
Questions to think about..................................................................................................... 21
Human Rights and the Constitution of Kenya
Human Rights
and the
Constitution of Kenya
H uman rights in a Constitution are a way to give legal force to the idea
that we have certain rights as human beings; they are not the gift of
government. They protect individuals and groups against discrimination and
oppression by the state which has so much political, economic, police and
military power. They guarantee a space within which the people can carry out
their lives, work and other activities without unjustified interference by the state.
For example, human rights protect our family life, the exercise of our beliefs or
religion, enable us to acquire and enjoy property, to form associations and work
with others who share our values. Many other rights, such as the freedoms of
expression, education and privacy help us to fulfil our potential as human beings.
Human rights are also the foundation of democracy, because they ensure to us
the right to vote and to choose, and sometimes remove, state officials.
Which rights are protected under the Kenyan Constitution?
Many kinds of rights are protected, not only civil and political rights as in the
previous Constitution. But civil and political rights are still there: freedom of
speech, to organise, to vote, for example. So is the right to liberty, including to
release on bail, to be brought before a court within 48 hours of arrest, and to
a fair trial (Articles 49-51). Particularly important, given that so many Kenyans
live in poverty, are socio-economic rights: health, education, food, housing,
water and social security (Article 43(2)). And since we are a multi-cultural state,
the rights of each community to its language and culture are protected (Article
44). The Constitution recognises the rights of specific groups, addressing
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Human Rights and the Constitution of Kenya
their particular problems (women, youth, elderly, children, minorities and
marginalised communities, and persons with disability). In some instances, this
will require the state to take positive measures, special action to assist them; this
is not a denial of equal treatment, but rather ensuring real equality.
We can say that the real themes of the rights under the Kenya Constitution are
equality and dignity. The Constitution says that the essential purpose of human
rights is to “preserve the dignity of the individuals and communities and to
promote social justice and the realisation of the potential of human beings”
(Article 19)2)).
Most of the rights belong to everyone in Kenya, although a few, like the right
to vote (Article 38), are restricted to adult citizens.
How do the rights work?
The Constitution says that the Bill of Rights is an integral part of Kenya’s
democratic state and “the framework for social, economic and cultural policies”
(Article 19(1)). The rights are to be protected not only against the state but
against “all persons”, so for example employers have to behave towards their
workers, and the landlords towards their tenants, in a manner that respects their
rights. Commercial companies have become very powerful, employ thousands
of workers and sell their products and services to millions of consumers, and
if they were not required to respect human rights, social justice would become
unattainable. The duties of companies and citizens to respect human rights do
not work exactly in the same way as those of the state; it will be for the court
in each case to decide whether a non-state actor had the duty to respect
particular rights.
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Human Rights and the Constitution of Kenya
Since 2010, a number of laws have been passed to give more detailed protection
to human rights, including:
• Rights of Persons Deprived of Liberty Act
• Access to Information Act
• Fair Administrative Action Act
• Consumer Protection Act
• Legal Aid Act
But won’t rights - even those that have special laws passed to implement them – just remain
nice words on paper?
The Kenya Human Rights and Equality Commission was established by the
Constitution to promote and protect human rights, and “develop a culture
of human rights in the Republic” (Article 59). However, as the Constitution
allows, it was replaced by three Commissions: the Kenya National Commission
on Human Rights, the National Gender and Equality Commission and the
Commission on Administrative Justice.
People can complain about human rights violations to these commissions
which should investigate. They may advise how a wrong should be set right. In
fact, a court recently said that decisions of the Commission on Administrative
Justice should be followed – its decisions are about fair decision making by
public bodies.
The most powerful bodies are the courts. Judges have special responsibilities for
protecting rights, with rules to facilitate the discharge of these responsibilities.
It is made easier to go to court than in the past to protect rights.
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Human Rights and the Constitution of Kenya
If people are aware of their rights, and insist on their rights be respected, this
can have an effect, even without going to court. And maybe publicity about
rights and about violations of rights may lead to some public officials at least
rethinking their behaviour.
It is not right to assume that someone else will always want to deny you your
rights. Discussion and negotiation are often more effective than confrontation.
Perhaps discussion would make it possible to resolve the issue. Aggressively
insisting that “this is my right” before you have said “I should like to discuss
this” may be counter-productive. But the knowledge that this is your right may
give you strength, and may be an important tactic in argument at the right time.
But does the Constitution mean that rights are more important than anything else –
like national security?
Most rights may be limited by law provided that “the limitation is reasonable
and justifiable in an open and democratic society based on human dignity,
equality and freedom, taking into account all relevant factors” (Article 24).
But any limitation on rights must be no more than is necessary to achieve the
purpose, and the purpose itself must be justified. For example, it would not be
right to restrict people’s freedom of expression in order to save embarrassment
to anyone, or to prevent public demonstrations because they may cause litter.
For example, a case was brought to the High Court about the government’s
plan for a Device Management System on mobile phone networks to monitor
and identify stolen handsets, counterfeit phones, and unapproved devices. The
Court decided it would violate people’s privacy and said “The alleged illegal
devices are not manufactured in Kenya. There are laws governing importation
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Human Rights and the Constitution of Kenya
of goods. There are laws governing counterfeit goods. The Kenya Bureau of
Standards monitors standards. We have the Kenya Revenue Authority. We have
the National Police Service. All the points of entry are manned. These laws
and the institutions they create have not been shown to be insufficient. …This
can be used to effectively combat the illegal devices by denying them access as
was successfully done in the past. All these are lawful and less restrictive means
which are available to achieve the same purpose.”
When you say there is a right to health, water, education and housing does it mean that
people can just sit back and the state must provide them with health care, water, education
and housing?
No –the duty of the state – and of private individuals and companies – includes
giving the people space to fulfil their own rights. They must not positively
interfere with your rights. The state must go further – it must use its powers to
protect your rights (like prosecuting people who commit crimes against rights,
like violence against women and children, and environmental pollution). It must
encourage the protection of rights by education, and in cases of real need it
must provide what is needed – like food in a drought, water supplies, clinics
and schools. Because all this takes time and money the Constitution does not
expect miracles. But it does expect sustained efforts to achieve these rights
“progressively”. If the state says in a court case “but we don’t have the money”
it would have to prove to the court that this was true.
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Human Rights and the Constitution of Kenya
Particular rights
Equality
Every person is equal before the law and has the right to equal protection and benefit of the
law. Equality includes the full and equal benefit of all rights and fundamental freedoms.
What does this mean?
It does not mean treating everyone the same if their needs are different.
It does not mean a society in which people have no individuality. Equal
opportunity is very important – not sameness.
No-one must be discriminated against because of their sex, age, ethnicity,
religion, language, whether they are married or not, or any other reason.
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Human Rights and the Constitution of Kenya
Does it mean you can’t insist on qualifications for jobs etc?
Absolutely not – but the qualifications must be genuinely required. Obviously,
a priest for a Hindu temple must be a Hindu – and of the right sect. A Christian
could not insist on being considered.
Rights of persons with disability
A person with disability is entitled to be treated with dignity and respect…to reasonable access
to all places, public transport and information. No-one should be discriminated against on the
grounds of disability.
What does this involve?
No-one – private person or authority – should use insulting language to people
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Human Rights and the Constitution of Kenya
with disability. The state especially should take care to understand why some
ways of addressing them is insulting or demeaning.
Public buildings should be designed or adapted to enable persons with disability
to get access. The state should by law or guidance require or persuade public
transport providers, and the providers of other public facilities to make sure
that everyone can get access.
Architects’ training should include accessibility.
Isn’t this very expensive?
It does add to the cost. But a necessary cost. Otherwise people with disabilities
have to bear extra costs or remain at home, and suffer. Advance planning in all
sorts of ways can suggest ways of providing access with limited additional cost.
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Human Rights and the Constitution of Kenya
Conscience and belief
Every person has the right to freedom of conscience, religion, thought, belief and opinion.
What does it mean?
Everyone has the right to hold views on any topic – politics, religion, social
custom. They are entitled to express their views. They must not be discriminated
against because of their views – for example, excluded from a school, or a job.
The state must protect people’s rights to have and express their views.
Does it mean they can push their views onto others?
Everyone must respect the views of others. No-one should think they can
compel someone else to agree with them. And no-one should express their
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Human Rights and the Constitution of Kenya
views in ways that express hatred of others, urges discrimination against others,
or stirs up violence. This Constitution makes it very clear that such behaviour
does not have the protection of the Bill of Rights.
-
Assembly and demonstration
Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and
to present petitions to public authorities.
What does it mean?
People can get together with others, have marches and meetings to express a
common view. Picketing means to stand outside a workplace – to try to persuade
workers not to go into work if there is a strike – or some other place, perhaps
with placards, or even chanting, to make a point.
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Human Rights and the Constitution of Kenya
The authorities should try to not try to interfere, unless there is very good
reason, and indeed should protect those meeting, or protesting, from attacks by
those who disagree with their views.
Does it mean that there is complete freedom to block the road and
cause a nuisance?
No – while allowing people to exercise this democratic right may cause some
traffic delay and inconvenience, if the interference with others is very serious
(causing major traffic delays - although even these may be allowed if they
are temporary - making noise outside a hospital, for example) the authorities
may insist on a change of route, a change of time, or some other change of
arrangements or even ban an event if the serious consequences cannot be
avoided. But the reason for the change or ban must be strong, and the limits on
the rights of the people must be no more than necessary.
Language and culture
Everyone has the right to use the language, and to participate in the cultural life, of that
person’s choice.
What does it mean?
It must not be against the law – as it has been in some countries – to use a
particular language, or to follow the traditions of one’s culture.
The state must not allow others to attack cultural festivals, discriminate against
those who use a certain language and so on. Indeed, if possible, it should assist
in making the observance of cultural traditions possible.
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Human Rights and the Constitution of Kenya
And it may be important for the state to communicate with people in their own
languages, and make arrangements for people to use their own language if they
cannot communicate in English or Kiswahili. Kiswahili is a national and official
language in Kenya; English is also an official language here.
Suppose the practices are harmful?
Culture cannot be used as an excuse for harming others. This is why Female
Genital Mutilation (FGM) is banned even though it is a cultural practice. Like
most other rights, this one can be limited, to protect important interests, and
positive harm is forbidden by Constitution.
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Human Rights and the Constitution of Kenya
Violence
Everyone has the right not to be subjected to any form of violence from either public or
private sources.
What does it mean?
It is wrong for anyone to use violence on another.
The government must educate people about the wrong use of violence, and
must have a system for punishing violence, as well as not using it itself.
But are there never any good reasons for using violence?
It may be necessary to use violence to stop injury to people, to arrest a violent
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Human Rights and the Constitution of Kenya
criminal for example. But the violence used must be absolutely necessary. It
must be the only way to prevent risk to someone, or for some other really
important reason, and must be no more than is necessary for that purpose. And
torture, and cruel and inhuman punishment must never be used. And mob
justice is wrong and against the law.
Child’s right to education
Every child has the right to free and compulsory basic education.
What does this involve?
This is not a right that the state can say “We do not have the resources”.
Children have the right to education now.
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Human Rights and the Constitution of Kenya
Basic education is usually taken to mean at least primary education. But
shortening primary school years should not be used as a way of reducing the
effect of this right.
The education should be not only available for children but should be accessible
(not too far away from home, for example), acceptable (it must not compel
children to give up their culture, for example) and of reasonable quality.
Isn’t it strange to have a right to compulsory education?
It is made compulsory partly to ensure that parents do not keep children out of
school and also to ensure that children do not refuse to go to school at an age
when they might not realise how important education is.
Water
Everyone has the right to water.
What does it mean?
No-one is allowed to do anything to reduce water supplies, or the quality of
water for others below a reasonable standard.
The state (which may mean the national or the county government depending
on the circumstances) must protect water against pollution and people or
businesses that take excessive quantities of water.
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Human Rights and the Constitution of Kenya
The state (national or the county government) must have a programme of
improving the availability of water and the quality of water and must carry out
that programme moving towards everyone having access to enough water of
adequate quality – and it must give priority to people with the greatest need.
How about charges for water?
Charges should be affordable. And the poor should not be paying more for
water than the rich.
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Human Rights and the Constitution of Kenya
Health
Everyone has the right to the highest attainable standard of health.
What does this mean?
No-one should act in a way that reduces anyone else’s health.
The state (which may mean the national or the county government depending
on the circumstances) must do what is reasonably necessary to prevent injury
to people’s health, like penalising pollution.
The state (the national or the county government) must have positive
programmes – which it must follow – to improve the health of everyone. It is
not expected to deal with every health issue straight away, but it must steadily
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Human Rights and the Constitution of Kenya
improve. Its programme can include encouraging private medical services. It
must give priority to people with the greatest need.
What does highest attainable standard mean?
Not every best state of health is the same – age, disability, personal history may
affect it. And financial and other difficulties mean states cannot achieve health
for everyone straight away, but they must do so progressively.
Housing
Everyone has the right to accessible and adequate housing.
What does it mean?
Everyone must respect the right to housing – even if they have to evict someone
because of non-payment of rent, they must give adequate notice, treat them
humanely.
And demolitions of people’s homes without notice and at least giving them a
chance to find alternative accommodation violates the right.
The state (which may mean the national or the county government depending
on the circumstances) must have programmes, and must carry them out, to
progressively ensure that people have adequate housing, that is affordable. They
must give priority to those most in need.
Does it mean the state must provide houses for everyone?
No – but they must try to make it easier, by law and other means (such as
affordable loans), for people to get housing. And they should have emergency
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Human Rights and the Constitution of Kenya
housing arrangements for those in dire need. The Constitution does not expect
miracles – but it expects serious, sustained and effective efforts.
How does a human rights court case work?
Imagine a law says: “No one shall gather with more than 20 other people, or
demonstrate, in a public place, on a Sunday, other than for Christian worship”.
A group of 30 people gather at Freedom Corner on a Sunday morning to
discuss this law. They are arrested and charged with violating the law.
The magistrate refuses to hear any argument about the Constitution. They
appeal to the High Court, arguing that:
This is a violation of their freedom to assemble with others, and to express
their opinions.
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Human Rights and the Constitution of Kenya
It is a violation of the right to non-discrimination because it favours
Sunday Christian worship – but there is no similar protection for any other
sort of worship, including by Seventh Day Adventists or Muslims.
The state argues that:
It is not a violation of their right to assembly or express opinions – they
could always do it in their homes or a hired hall.
That the law is justified so that Christians are not disturbed when they are
worshipping on Sundays.
The people convicted respond:
Like many people they cannot afford a hired hall, and none of them has
a place large enough for a meeting of 30 people, and they would have
disturbed people much more in their home than in Uhuru Park – so it does
affect their rights.
In addition, they work on other days so Sunday is the only day they could
meet.
That while not disturbing worship may be a valid purpose, the law is much
too wide and should have specified within a certain distance of a church,
for example, not in any public place.
Or the law could have said that it was only an offence if there actually was
a disturbance.
In other words, though the right could be limited according to Article
24 of the Constitution the limits were not justified by the purpose, being
much too wide.
If the court accepted their argument they would have wanted (i) their convictions
to be set aside and (ii) the law declared unconstitutional.
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Human Rights and the Constitution of Kenya
Questions to think about
1. How do you think it is possible to develop in Kenya a “culture of human
rights”, in which the state respects the rights of the citizens, and the
citizens respect the rights of their fellows?
2. Do you think there can be a serious problem of culture clashing with
human rights?
3. Do you think it is important to protect languages from dying out? How
should this be done?
4. How might the system of human rights play a role in making government
and other state agencies more accountable?
5. Do you think it is important that human rights are respected not just
by government but by everyone in society – including individuals, and
companies?
6. In what ways are you aware of companies violating human rights?
7. The Constitution of Kenya puts a lot of emphasis on public participation.
Can participation help government to respect human rights?
8. Discuss with others if there are things that you find difficult to accept.
Maybe some people find it hard to accept that women are equal to men,
or that children have rights, or that people with disability are not being
punished for something they have done wrong. Do you think it is useful
for people to be open about these ideas and discuss them?
9. How can the ordinary person become a defender of the human rights of
others, with exposing themselves to being themselves arrested or vilified?
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Notes
Notes
HUMAN RIGHTS
AND
THE CONSTITUTION OF KENYA
This booklet has been produced to mark the
10th anniversary of Kenya’s Constitution.
Katiba Institute
House No.5, the Crescent, off Parklands Road,
P.O. Box 26586-00100,
Nairobi, Kenya.
Telephone: 0704594962
Email: info@[Link]
Website: [Link]
Social Justice Centres Working Group
Dandora Community Justice Centre,
Dandora Phase 2. Muigai Kenyatta Road,
Next to Dandora Secondary School,
[Link] 58078-00200
Nairobi, Kenya.
Telephone: +254 722746164
Website: [Link]
Email: socialjusticecentreswg@[Link]