Understanding power of the Bill of Rights

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BY LADY JUSTICE ASENATH ONGERI

One of my favourite stories is that of a farmer who owned a cow, a goat and a hen. One day a snake came into the farm and it happened that the hen was the first to be accosted by the snake. The hen ran to the goat for help but the goat declined to give any assistance telling the hen “that’s your problem, not mine.”

Then the hen approached the cow, but the cow also refused to help saying “that’s your problem, not mine.”

And as fate would have it, it was the farmer who was bitten by the snake and died the same day. That night, the few mourners who turned up had the chicken for supper. Thus, the hen was the first casualty.

The following day, mourners increased and they had goat meat for supper, the goat was no more. Come the day of the funeral, the large crowd of mourners had to be treated to meat from a larger beast; and the cow is the one that provided the meat.

All this would not have befallen the entire farm had each played their individual role to protect their farm from intrusion. Equally, each Kenyan has a duty not only to know, but to promote, protect and fulfil the Bill of Rights as enshrined in the Kenyan Constitution 2010. Failure to do so opens the gates wide open for the snake to set off a series of calamities that might end up wiping all and sundry.

The rights and liberties are clearly spelt out in Chapter 4 of the Constitution. The Chapter is very clear on the diverse roles of the right holders and the duty bearers in their overall quest for human rights attainment, protection, promotion and observance in Kenya. It is very clear on the specific rights that should be enjoyed by the citizens in the Sovereign State of Kenya.

The current Bill of Rights, unlike the previous Bill of Rights, uses clearly defined language and simple explanations on the meanings of the clauses that are being observed. This means that the overall quest of easy interpretation and application has been made possible for all Kenyans.

MUCH CHERISHED CONSTITUTION
The inclusion of the socio-economic rights under Article 43 of the Constitution is one of the key features that make the Constitution of Kenya 2010 a much cherished and celebrated documents worldwide.

The fact that the Kenyan Constitution dedicated an entire chapter to dissect and discuss the overall quality of life for all greatly enhances the quality of life for all in the social sphere.

Through the set understanding, it is possible for all human beings to clamour for a life of equality, non-discrimination, respect, freedom, fairness and dignity. It also goes ahead to give options to all persons who experienced violations in one way or another, ways of seeking and attaining compensation for any harm experienced.

Kenya is divided under very many social classifications because of its rich economic, social, cultural and political alignments. As a result, it is possible for many divisions to occur in such a society as a result of the diverse interested being propagated.

The Bill of Rights aims to ensure that, despite the social classifications, it is possible for all human beings to enjoy a life of reputable standards. This is through the overall protection of the lives of people in society that would have suffered adversely under the yoke of marginalization and vulnerability.

The most crucial aspect of the Bill of Rights is that it aims to recognize and protect human rights and fundamental freedoms directly preserving the dignity of individuals and the community at large.

This is through the promotion of social justice for all persons and the realization that all human beings have political, social, cultural and economic potential. As a result, they are entitled to a life that promotes, protects and observes their set rights and liberties.

All the rights that a Kenyan citizen should enjoy are adequately addressed in the political, social, cultural and economic arenas. The rights are highly interrelated and interdependent and there is no class or group of rights that is deemed or perceived to be superior to the other.

All State organs and individuals are expected to respect the indivisible, interrelated and interdependent nature of human rights at all times. This will ensure that the process of implementation is easy.

The State is mandated, as the duty bearer, to ensure that it creates legislations that promotes, protects, preserves and observes the tenets of Chapter 4. In the event that this is not obtained, then any person that experiences a violation of any kind has the right to seek legal redress.

It should be noted that the State does not have any rights in “its possession” that should be duly provided to the citizens under its care.

Historically, human rights have been categorized into three generations: first generation rights referring to civil and political rights; second generation rights referring to socio-economic rights; and third generation rights referring to group or solidarity rights. However, it is clear that the Bill of Rights in the current Constitution protects all the rights and liberties for all Kenyan citizens.

Justice Albie Sachs of the Constitutional Court of South Africa advises that Judges must fight two temptations: firstly, “to be unduly formalistic showing a passive and uncaring attitude to the real lives of actual people” and secondly; “to be overly eager to secure favourable headlines as champion of the poor…..”

One can only hope that despite the challenges that the courts face as they embark on the new path of judicial enforcement of socio-economic rights, their steadfast loyalty will be to the Constitution, and not to being “unduly formalistic” or “overly eager to secure favourable headlines” as in the words of the wise Justice Sachs of South Africa.

(The writer is a Judge of the High Court of Kenya and an author)

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