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Constitution of Kenya Review Commission
By APOLLO MBOYA,B.A. (Political Science), B. G.L, L.L.B. (Hons.)Dip. Law Advocate of the High Court of Kenya Legal Specialist UN V/POVERTY ERADICATION COMMISSION
A Rights Based Approach To Poverty Reduction
This paper bears evocative title of Basic Needs and Basic Rights, but apart from the emotive sound, the theme that forms the body of this presentation would have been attenuated in places. To further qualify this presentation I have added a sub title "A Rights based approach to poverty reduction". An even more appropriate title could have been "Basic Needs are Basic Rights"
The Late Sir James Fawcett, a former member of European Commission of Rights preferred to call human rights "common rights" because what we are talking about is fundamental.
I quote Sir James not because he was my "foreign Master" when he was alive nor because his ghost plays that role. What interests me is the neat way in which he has encapsulated the concept of human rights.
Indeed, the underlining issue for the promotion and advocacy of basic needs as basic rights is the widespread poverty that now afflicts our society, which in essence can undermine the basis for the existence of the State. Communities and individuals have one simple agenda when they enter into social contract where by they agree to be subjected to the rule of an authority called Government. The agenda is that they hope that by coming together into such an arrangement whereby they agree to be ruled by an authority, their socio-economic well-being shall be of paramount importance. This gives rise to certain presumptions of rights accruing to the persons who agree and submit themselves to this authority hereby called the State.
These rights often referred to as the Third generation Rights are by their nature very fundamental to an extent that the other more conventional rights cannot be achieved if the so called Third generation Rights are not guaranteed.
The Kenya Government is a signatory to the Declaration of the World Summit for Social Development held in Copenhagen, Denmark whose goals focused on commitments to poverty eradication, universal primary education, health for all and social integration of the disadvantaged. More recently the government launched the National Poverty Eradication Plan (NPEP) 1999-2015 which seeks to provide an enabling national policy framework for addressing poverty.
The plan has 3 major components notably a Charter for Social Integration (CSI) that sets out rights and responsibilities of citizens and communities and envisages major improvements in the supply and accessibility to basic services, commitments to improved access to essential services by low income households lacking basic health, education and safe drinking water and a strategy for broad based economic growth.
Lately again the government has released another policy paper known as the Poverty Reduction Strategy Paper (PRSP) for the period 2000-2003 .We find ourselves surrounded with a lot of policy papers which has left us confused and wondering what is the direction to take in the battle against poverty.
This paper does not claim to pinpoint all the basic socio-economic rights, which have direct link to poverty nor solutions thereto, but offers a heightened awareness and understanding around the various issues and the laws concerned and hope to lead to intense discussion on how to tackle poverty by guaranteeing certain rights. The paper offers an in-depth look into the range we should go when examining the issue of Rights. It highlights a position where by the fundamental needs are not at the mercy of changing governmental policies and programs but become the peoples' entitlements and shifts the burden of proving the necessity of limiting the enjoyment of a right to anyone or authority seeking its limitation.
Correlation between Poverty and Human Rights
Poverty is a result of several factors both nationally and internationally. I will focus on the national aspect of the causes of poverty. At the national level causes of poverty are mainly seen as a result of poor governance or the denial of the basic rights. People become poor when their capability to provide for themselves and influence others is eroded. Increasing the capability of the poor to analyze situations, make decisions and self-organization for empowerment is the key to poverty eradication. The sense, among the poor, of hopelessness and lack of control or influence over processes and relationships that affect their well being highly facilitates their continued impoverishment and incapacitation.
People who are incapacitated to the extent that they are unable to participate in household and public governance, fulfill their basic needs, access productive resources and public services are described as poor and vulnerable.
The opportunities brought by economic liberalization and the widening of democratic space are significant and provide Kenyans with a window of opportunity to improve the lives of all and in particular those living in poverty.
The basic rights approach considers poverty as the denial and violation of the fundamental human rights in the context of the inability of the State to provide the basic needs. This makes poverty an integral part of the governance equation. Development should and must be centered on human beings and the central goals of development must include the eradication of poverty, the fulfillment of the basic needs of all people and the protection of all human rights. That being the case, in fulfilling its mandate the State must be at the pivotal point as the custodian of duty to guarantee facilities necessary for the enjoyment of Basic Rights.
The battle against poverty starts with an enabling Constitution for poverty reduction. The mandate of the proposed Constitution Review Commission is sufficiently broad to receive representations on almost any issue that is related to the Constitution including poverty.
Chapter V of the present Constitution deals with the fundamental rights of the citizens. The Chapter only recognizes civil and political rights - the right to life; personal liberty; protection from slavery and forced labour; protection from torture, and inhuman and degrading treatment; the rights to private property; protection from arbitrary search or entry; the right to due process, freedom of conscience, freedom of expression, freedom of assembly and association, freedom of movement and protection from discrimination.
It is evident that the present Constitution is glaringly deficient of economic, social and cultural rights. For example rights to basic education. Food Health, Shelter, Water and Information among others are not guaranteed despite that these are basic human needs without which the Civil and Political Rights can not be achieved. Expanding the Bill of Rights in to encompass these fundamental needs, as rights will be the first step in mainstreaming poverty reduction as a core function of the State. The Constitutional review process has given this nation an opportunity to domesticate into our supreme legislation key international commitments Kenya has made.
Neither the Constitution nor any other laws secure economic and social rights - e.g. the right to education, the right to work, the right to food, the right to shelter, the right to water and the right to health - but legislation often regulates the environment in which such rights, once secured by individuals, are to be enjoyed. Thus for example while the right to work is not secured, the Employment Act (Cap 296) and the Regulation of wages and conditions of employment Act (Cap 229) regulates terms and conditions of employment. Though the right to access clean water is not secured, the Water Act (Cap 372) regulates the use of that resource. The Education Act (Cap 211) governs establishment and management of the school institutions even though the right to education is not protected therein or in the constitution.
Is it that the drafters of our constitution did not appreciate that the right to work, food, shelter and other socio-economic rights are indeed human rights? It is not a privilege to know how to read and write. It is a need without which your very existence in the present world is threatened. It is not a privilege to have food; it is a basic need. It is not a privilege to have shelter or to be healthy; it is a basic need. This basic needs therefore automatically translates into Basic Rights.
Education as a Basic Right
It is more than 40 years since the Universal Declaration of Human Right, asserting, "everyone (girl and boy; woman and men; poor and rich) has a right to education". Grim statistics of access to education enrolment rate, completion rate, gender and regional disparities are still magnificent at all levels of education despite the substantial expansion of learning institutions since independence.
The answer to this question has, first in various government commitments to recognizing education as a basic need and a basic right and second, how such commitment is translated into country - specific development policies and actual intervention/activities put in place.
The World Declaration on Education for All and other relevant conventions ratified by Kenya committed government to urgently pursue sustainable policies and frameworks for providing basic education for all by the year 2000. It is generally considered that the first 10-12 years of schooling to be basic education without which an individual might be confined to perpetual poverty. If that is the case then the denial of education of the first 10-12 years of schooling to an individual is a serious Human Rights violation. Those years of schooling should be made free and compulsory. The cost sharing - policy should be excluded for the period of acquiring basic education to enable the children who are in this instance the violated, acquire the basic education.
Since the Education Act (Revised 1980) meant to guide the development and operation of education in the country is silent on education as a basic right, primary schooling is not compulsory in Kenya. Consequently, parents can deny their children education without inviting any penalty and still argue that they cannot afford it. The Children and Young Persons Act cap. 141 which is designed to safe guard the welfare of the child has not been effectively been enforced resulting into our children pouring into alleyways as street kids and thereafter as street families. Obviously education is the first way of empowering an individual to be self-
sustaining. If this basic equipment is not even guaranteed, then the government will always be offering half measures to the provision of education.
Food as a Basic Right
Available data shows that food security situation has deteriorated since the 1980s and the country has relied on commercial imports and food aid to fill the gap between food production and consumption. Food security refers to the actual access to an adequate and balanced diet, including safe drinking water, by all people at all times.
Kenya is signatory to covenants that bind her to guarantee food security to the citizens. Article 25(1) of the Universal Declaration of Human Rights bestows the right to food to everyone, the convention on the Rights of the Child commits the state to provide adequate nutritious food and clean drinking water. None of these covenants have been translated into national law as required. The constitution of Kenya is once more silent on the critical issue of food, as a basic right yet we all know it is basic need. The right to life is, however, addressed in sections 70 and 71 of the constitution.
The silence on the food question renders the government legally unaccountable for its failure to ensure food security in the country. Statutes that give ownership of land to persons and which have a bearing on food security in the country are the Government Land Act (Cap 280), the Registered Land Act (Cap 300), the Trust Land Act (Cap 302) and the Wildlife (Conservation and Management) Act (Cap 376). These statutes if appropriately amended and even consolidated can influence national food security.
The need to overcome food insecurity has been recognized and articulated in the major policy papers and the various National Development Plans. It has therefore rightly been observed that the statements made have been enough, conferences held have been great, and the covenants signed are instrumental. It is now time to move from observance to enforcement by including food as one of the basic rights in the Constitution and thereafter amend the related subordinate statutes to be in line with that guarantee. There is no need to belabor this point because we all know that if you don't have food to eat you will die thereby defeating all the intent and purposes of the Civil and Political Rights.
Health as Basic Right
While it is important to recognize the great strides made in improvement in health standards of the citizens, Kenya still has a long way to go in tackling maternal mortality rate, infant mortality rate and HIV/AIDS and safe motherhood initiatives.
Health issues in Kenya are governed by four main legislation; the Constitution, Medical Practitioners and Dentist Act (Cap 253), Nurses Act (Cap 257), and Pharmacy and Poisons Act (Cap 244). As I have pointed out the constitution does not make provisions that facilitate the enjoyment of social, economic and cultural rights consequently, health is not listed as right within the Bill of Rights.
Other laws governing health do not endorse adequate health as a right but merely regulate the environment and institutional and individual conduct within which the right to health is enjoyed.
The law, despite the increasing recognition by the government, does not regulate the activities of traditional medicine practitioners. There is a need for their greater integration into the health care system.
The rapidly collapsing physical, economic and social services have a negative impact on the health of the people and on the capacity of the health care system to respond to their increased needs. This situation renders the achievement of basic health needs difficult to meet and hence basic rights (human rights) will be prone to violation.
Shelter as a Basic Right
It is without doubt that shelter has been recognized universally as a basic need, playing role of protecting human beings against the elements.
Shelter development in Kenya receives a very small proportion of the national budgetary allocation. While shelter is easily acknowledged as basic need, it does not enjoy practical acceptance as a basic right. This is despite the international community having long recognized the right to adequate housing and incorporated in various international instruments.
Kenya is signatory to nearly all international covenants touching on the subject of shelter but housing as a right is not provided for in the country's legal framework.
The Universal Declaration of Human Rights declares shelter as "inalienable and inviolable rights" of all members of the human family. But perhaps the most authoritative international covenant with regards to the right to housing is the covenant on Economic, Social and Cultural Rights, which has been ratified by Kenya.
In order to address the shelter crisis facing Kenya, there is need to thoroughly scrutinize the legislative and policy environment, which are bottlenecks to shelter development. The Housing Act (Cap 117) is so narrow in that it deals with only one agency i.e. the National Housing Corporation and does not address other important players and variables in the development of shelter.
Land is a crucial factor in the development of shelter. At present Kenya has nearly 100 inconsistent Acts of Parliament governing land, which has been a major hindrance to the development of shelter.
The Sectional Properties Acts has been lying on the shelves instead of being put to use. This Act was designed to enable low-income people to be "partial owner" of buildings by owning only units in a building and not the whole building.
Water as a Basic Right
We have been told that life started in water. Water is the most important precondition for sustaining life, protecting the environment, improving health and alleviating poverty. It is important, therefore, that strategies adopted for the development and management of water resources is critically analyzed to ensure equity in the distribution of and access to the resource by different social economic classes in society. The first step is to guarantee Water as a basic right.
Our constitution is again found wanting as it is silent on the individual right to water. Although there are a number of laws, which touch on different aspects of activities in the water and sanitation sector, the major ones are the Water Act (Cap 332) and Local Government Act (Cap 265).
The existing legislation should be revisited as the government adopts a new role as a facilitator, rather than provider of services in the sector. The government would now be responsible for such tasks as drawing up the national plans for the sector, drafting and enacting legislation to ensure the smooth running of the sector and protecting the interest of the user. The existing Water Act does not apply to non-gazetted water undertakers and therefore the undertaker would be unable to provide water until the Minister responsible has appointed them and gazetted their appointments. Provisions on control of pollution need revision as the Water Act attempts to link the institutional regime within the Water Act with that under the Public Health Act are not clear cut.
With the acknowledgement of water as a basic right, policy makers will then be obliged to establish adequate water points nearer to the population.
Information as a Basic right
Information held by the State is a public resource. Access to such information is critical in assisting individuals and private bodies in their planning processes. More importantly however access to public information empowers citizens to hold the government accountable and improve levels of participation in public affairs by citizens.-In our constitution and our laws that touch on this crucial sector (Books and Newspapers Act cap. Ill) provisions should be made to provide for measures to ensure full enjoyment of the right to access information unless such access would compromise security or privacy.
Right to fair labour practices
The right to fair labour practices should encompass the workers right to form and join a trade union of choice, to participate in the activities and programmes of trade union and to strike as regulated by the law. Equally the employers are entitled to form and join an employers' organization and participate in their activities and programmes.
This is a key aspect to the health of an individual. Healthy minds bread a healthy nation. Everyone has the right to an environment that is not harmful to their health or well-being; and to have the environment protected, for the benefit of present and future generations through conservation measures, prevention of pollution and ecological degradation
Maintenance of Security is should not be a mere State function. Security for both the person and property is fundamental to enable any person to go about and undertake their daily socio-economic and political activities. Indeed communities organize themselves into States believing and trusting that their personal and property shall be secured.
INALIENABILITY OF RIGHTS
It should be noted that Rights of the individual are inherent and not granted by the State. There is normally a misconception portraying Rights as something to be begged from the State. We are born with our Rights.
RESPONSIBILITIES OF THE CITIZENS TO ACHIEVE THE BASIC RIGHTS
Rights and Responsibilities are go hand in hand. The achievement of Socio-
economic Rights demands for an equally responsible and enlightened citizenry.
ENFORCEMENT OF RIGHTS
However it is important that the Rights granted are capable of being enforced. Citizens should have the right to approach a competent court, alleging that a right has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are-
a) Anyone acting in their own interest
b) Anyone acting on behalf of another person who cannot act in their own name
c) Anyone acting as a member of, or in the interest of, a group or class of persons;
d) Anyone acting in the public interest; and
e) An association acting in the interest of its members.
In conclusion, I wish to state that Constitution is not self-empowering. Basic needs and rights are two sides of the same coin. Without the guarantee of basic needs, basic rights will never be fulfilled. But it should be admitted that mere provision of these needs as rights within the new Constitutional dispensation will not ensure their enjoyment if there is no effective and accountable governance structures - an independent and pro-
people judiciary, professional and committed civil service, enlightened police force, independent electoral structures and the overall culture of Constitutionalism imbibed in the society. The empowerment of the poor to benefit from rights enshrined in the Constitution is the only lasting way to eradicate poverty.
In the fight against poverty, what is needed is the mobilization of all national forces -government, political parties, the private sector, trade unions, policy institutes, and non-governmental organizations- around common social development objectives. In reviewing our laws that target poverty, provisions that ensure the participation of these sectors in the task should be provided. Empowering people to define their own priorities, articulate their needs and enter into coalitions around commonly defined goals will greatly contribute to closing the power-gap, which keeps them poor and isolated.
The basic rights approach illuminates the probability of a new method that confronts poverty directly and puts the concerns of people living with poverty and marginalisation at the forefront of the national agenda. It is here that the core challenge of Constitutional reform lies.