The basic needs of majority of Kenyans of food, water, housing, healthcare, education, work and social security which in human rights language translate to economic social and cultural rights should be included in the Supreme Law of the Land, the Constitution.
The PSC excluded these important rights and basic needs after prominent inclusion all along in the CKRC, Bomas and Wako drafts. Committee of Experts Revised Draft released on 24th February needs to include the rights.
Economic, social and cultural rights guarantee the right to health, food, water, housing, work and labour relations, education and social security. These basic needs are rights and not aspirations as discussed by PSC.
These are the current problems of our time that the Constitution must respond to. Poverty is not in the imagination of human rights organisations. Poverty manifests itself in lack of socio economic rights that we need to enshrine in the Constitution.
One of the checks for a Presidential System is a comprehensive and extensive Bill of Rights. It is a misnomer to have a strong presidency without an equally strong and extensive Bill of Rights including social economic rights protected for all Kenyans.
Majority of Kenyans do not enjoy consistent, fair and equitable access to rights. Legally, Kenyans have no enforceable socio-economic rights. We cannot hold the State accountable to provide these rights, we cannot require the Government to monitor these rights and we cannot require the Government to make progress to fulfil these rights.
Millions of Kenyans face levels of deprivation that undermine the right to live with dignity. Hunger, homelessness, disease and unemployment are violation of people’s economic, social and cultural rights. Kenyans, particularly those living in poverty, have these rights violated daily and are denied access and justice.
The PSC sent the wrong message by changing the Bill of Rights to remove the Economical, Social and Cultural Rights. It signifies a lack of commitment to the very basic needs of Kenyans who continue to wallow in their misery.
These rights cannot be subject of campaign manifestos. The Constitutional review process is the time to extend the right to education to pre-primary, primary and secondary education.
Unemployment is a major problem in Kenya. We have the right to work enshrined in the Universal Declaration of Human Rights and it is time to have the right in our Constitution so that the obligation can rest squarely with Government to pursue fulfilment.
An article should be inserted as follows:- "Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment."
The State is happy to include rights that have negative obligations for example freedom of expression and freedom of assembly where the State is only called upon to avoid interfering with exercise of the rights. But there is need to include rights that require positive obligations from the State.
Positive obligations for fulfilment of rights where the state is required to put in place measures to ensure the rights are extended to every person. We want a democracy where people have water, food, healthcare, education, housing and not just a free media and freedom of movement. The language of granting rights is “every person” has the right of…….
Sixty one years ago, the Universal Declaration of Human Rights was adopted and in it, were economic, social and cultural rights. Kenya became a party to the International Covenant on Economic, Social and Cultural Rights 34 years ago and recognised these rights as applicable Kenyans.
Since 1974, the Government has failed to enact national laws to implement this Covenant. The constitution review is the best opportunity for the Government to follow through on its commitment to ensure that current and future Governments are devoted to the livelihood of Kenyans.
The South African Constitution has a Bill of Rights with emphasis on economic, social and cultural rights. South African Constitutional Court has heard claims under these obligations. The African Charter on Human and Peoples\’ Rights adopted in Nairobi in 1981 places emphasis on economic, social and cultural rights.
This Constitutional Review process has brought hope to many Kenyans for change. The people have expressed their views and demanded an entrenchment of these rights in our constitution. For the PSC to remove them makes a contentious issue of one that never was. Furthermore, it does not represent the needs of the majority.
It is inadequate to only have laws and policies. When these rights are in the Constitution, a duty on the Government is created to promote, protect and fulfil these rights to Kenyans. Laws and policies in these areas do not create this duty.
Instead, it will be left up to the Government whether or not to act on laws and policies. This leads to inequality as we have seen since independence. It can be Government policy to give water to some parts of the country and not others.
Kenyans should ask for these rights to be included through petitioning the Committee of Experts (COE), MP’s, Reference Group, Church Leaders and the Media. The Referendum Draft Constitution should include the rights.
(Ms Nyokabi is the executive director of Kituo cha Sheria)