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Constitution of Kenya Review Commission |
By Prof. 0. K. Mutungi, EBS, LL.B; LL.M; 3SD, Advocate Professor of Law and Chairman, SCHR (Kenya)
15-09-2001
I am encouraged and delighted by the fact that the primary responsibility of the Constitution of Kenya Review Commission is to make recommendations for a NEW CONSTITUTION - not a revised or amended document. I am therefore confident that the views expressed herein have a chance of inclusion in the new document.
I. INTRODUCTION
Why constitutionalize basic rights?
The assumption behind such a move is that the constitution is the supreme law of the land and therefore any law or conduct inconsistent with it is void. Constitutionalization of basic rights is therefore an attempt to entrench such rights in not only the highest law in the country for justiciable purposes, but also to flag the primary purpose for the existence of the state namely; the promotion and protection of human dignity, equality for all, and human rights.
However, for the above to hold water, the constitution itself "must be entrenched" (supreme) before it can purport to protect those rights; institutions, and offices entrenched in it.
A constitution is not a plastacine toy that should be moulded at every hurdle the state encounters, at every bend of our national development. Such a law would be neither supreme nor worth the name. If anything, it is a source of instability by virtue of its unpredictability.
II. GENERAL PRINCIPLES AND STRUCTURE OF A MODERN BILL OF RIGHTS
A Bill of Rights should be founded on certain values, which include:
human dignity; equality, and human rights. For such rights to be meaningful, it is essential that they be crafted within the right environmental infrastructure such as constitutional supremacy, democracy, and rule of law.
A Bill of Rights, should, at least in theory, group basic rights into two categories: civil and political, and economic, social and cultural rights.
III. HUMAN RIGHTS
Human Rights are generally grouped into: Civil and Political and Economic Social and Cultural rights. Of the two categories, civil and political rights seems to have not only occupied an inordinately larger claim than probably deserved (S.70-86 of the current Constitution) but evokes considerable emotions vis-?-vis the other category of rights. What cannot be overemphasized is that human rights are interdependent and indivisible. No human right or group of such rights can claim priority over the rest, except the right to life, around which all other rights revolve.
(a) Civil and Political Rights
These are stipulated in Sections 70 through 86 of the current constitution; and include the right to: life; security of the person; privacy; participation in the choice of our governors; citizenship;
equal treatment (equality) before the law; right to private property etc. Also within the civil and political rights fall such fundamental freedoms as: freedom of religion; conscience, expression; assembly, association; and freedom of movement. The list is fairly lengthy.
All the foregoing rights are justiceable, even though their actual enjoyment by the citizenry is quite a different matter due to a variety of reasons.
(b) Economic, Social and Cultural Rights
This category of rights is not in the current constitution of Kenya and is by and large, unjusticeable. The source of this group of rights are: International Treaties, and Conventions and other international instruments to which a state is a party. The rights under this category may/ for want of a better term, be described as rights that deal with basic needs. They include the right to: food; health care; water; social security; housing; education; employment; right to information; right to healthy environment; language and culture. The collectivity of all the foregoing rights constitutes the recently found right to development.
As compared to civil and political rights, it is difficult to rationalize inclusion of some rights in the constitution, while leaving out those without which the first category is practically hollow. A hungry person is unlikely to be concerned about freedom of association or assembly.
(c) Misconceptions about Economic, Social and Cultural Rights
A number of arguments have been advanced as to why economic, social and cultural rights have not been constitutionalized or are not justiciable. The arguments run like: "no state can afford to actualize such rights because of the economic implications thereof". Proponents of the economic, social and, cultural rights have even been branded "communists", or "pseudo socialists". Such accusations are based on misconceptions and, or, deliberate distortions by those who ought to know better.
A demand for an economic, social or cultural right is not a demand for state handouts. To the contrary, such a demand is for the state and the government of the day, to put in place social and policy arrangements that facilitate access to such right. An examination of any of such rights, within the Kenyan context illustrates the point. Consider, for instance, the right to: housing;
education; and employment.
It is worth noting that economic, social and cultural rights are not rights that can be "imposed" or demanded of any state, overnight. They are progressive rights, and given the proper wording and will, they are actualizable and an essential component of a Bill of Rights of the future.
IV. PROMOTING A RIGHTS CULTURE
Human Rights - Basic Rights - is not a subject to be raised only when there is a crisis - genocide; ethnic clashes or a Constitutional Review Process. It should be a continuous, life-time process.
In the process of executing one of the Terms of Reference, of the SCHR (K) "to educate Kenyans on Human Rights issues" - the Committee opted for an inclusion of a human rights topic in our educational curricular - primary to university levels. That is the only way the Committee sees sustained success in human rights awareness; respect and observance of the same, in the long term.
(The preparation of the curriculum/ in consultation with other stakeholders, is in its final Stages).
V. THE STATE OF RIGHTS IN KENYA
As alluded to elsewhere, the existence of human rights - civil/political or economic/ social and cultural is one thing. Their accessibility and enjoyment by the potential beneficiaries is a totally different matter. For instance, in the human rights sphere, Kenya is party to some seventeen conventions. These include, to mention but a few: 1948 Genocide Convention; 1952 Convention on the Political Rights of Women; 1954 Convention on the Status of Stateless Persons; the Convention Abolishing Slavery (1956); Convention on the Elimination of Racial Discrimination (1965); Covenants on Economic, Social and Cultural Rights; Covenant on Civil and Political Rights; Convention on the Elimination of all Forms of discrimination Against Women (1979(; Convention Against Torture 1984); 1989 Convention on the Rights of the Child; the African Charter on Human and people's Rights (1992) and the African Charter on the Rights and Welfare of the Child.
Despite ratification of the foregoing instruments by Kenya, the provisions therein are of no consequence to individual Kenyans. This is on account of lack of domestication. The problem is not confined to human rights instruments. It is found across the entire spectrum of the international conventions to which Kenya is a party.
The root cause of the problem is the loud silence in our the constitution on such an important matter. The dualist approach to the intergration of treaty obligations into domestic law which Kenya practices is conducive to unmanageable backlogs in the enactment of enabling legislations.
There is urgency in a constitutional solution on the matter, for the enjoyment of the human rights provisions contained in the countless human rights conventions to which Kenya is a party. The monist (self-executing) approach may go a long way in hastening the process if enshrined in our proposed new constitution.
V. CONCLUSIONS AND RECOMMENDATIONS
Reviewing or rewriting a constitution is not an opportunity man' countries go through or experience in their nationhood. Kenya, and this Review Commission, must neither misuse nor trivialize such rare opportunity. This Commission has the heavy burden of guiding the country in determining the system we need for an effective practical constitutional democracy that values human dignity, rule law and the full enjoyment of our human rights.
A constitution that will achieve the foregoing vision must itself entrenched - zealously protected by us all, before it can protect all. To that end, the following recommendations are made:
(a) The new constitution should have an all-inclusive Bill of Rights which provides for both civil and political as well as for Economic, Social and Cultural Rights.
(b) The Constitution of Kenya should not be changed or amended except through an effective process of referendum.
(c) The proposed Kenya National Commission on Human Rights should be made a constitutional body, with, among other functions:
* The promotion and protection of human rights, and
* The monitoring of the observance of human rights within the country