Socio-Economic Rights Implementation Quagmire.
Author: Cecil Oseko.
Introduction:
The Socio-economic rights as envisaged by the Constitution of Kenya 2010 are inextricably linked to the people’s livelihood and sustainable human development. Over the last two decades, successive governments have striven to put into place infrastructure and material development projects geared towards the realization of the socio-economic rights of their Citizens. However, very little impact has been recorded with regard to the poverty level in the country.
In this compendium, we analyze the Historical context of the socio-economic rights, the Constitutional authority, regional and International instruments addressing the Socio-economic rights, as well as the implementation quagmire in Kenya.
Historical Context of Socio-economic Rights in Kenya.
Pre-2010 Constitution, socio-economic rights in Kenya were not explicitly enshrined in the foundational legal provisions, leading to a history of limited access and enforcement. Despite the fact that some international and regional human rights instruments such as the International Convention on Economic, Social and Cultural Rights (ICESCR) among others, which were ratified by Kenya, their impact on domestic law were limited.
Under the Common law dualist doctrine as was embedded in the independent constitution, significant entitlements pursuant to various international laws ratified by Kenya remained in abeyance and could not be enforced before the domestic courts simply because they had not been domesticated.
Consequently, successful reliance by individuals and groups on the International Human rights law instruments was not guaranteed due to the fact that International law could not automatically apply in domestic courts without undergoing a process of transformation through domestication. This therefore lead to a situation where the socio-economic rights were viewed as aspirational rather than justiciable, with the marginalized groups facing significant disparities in access to the basic essential resources and services.
The pre-2010 Constitution primarily focused on civil and political rights, with little or o attention to the socio-economic rights such as housing, health and education, thereby leading to a limited enforcement of the same. Weak and fragile enforcement mechanisms and lack of judicial oversight meat that the violations of socio-economic rights often went unaddressed, and particularly the marginalized communities, including women, minorities and those in informal settlements, often experienced significant barriers in accessing essential services like healthcare, education and adequate housing.
Since attaining political independence in 1963, Kenya has been grappling with the persistent problem of unbalanced regional development. Through various policies and interventions, successive governments have made attempts to reverse some of the discriminatory effects of colonial policies, which had caused widespread disparities and imbalances between regions. However, even after decades of experimenting with different economic and social policies, the challenges in upholding the socio-economic rights and developments still exist.
2010 Constitution on Socio-Economic Rights.
The Constitution of Kenya, promulgated on 27th August, 2010, marked a significant shift by explicitly guaranteeing socio-economic rights under Article 43. The Constitutional recognition paved the way for a more robust framework for the protection and realization of these rights. Article 43 of the Constitution of Kenya 2010 guarantees the right to the highest attainable standards of health, accessible and adequate housing, reasonable standards of sanitation, to be free from hunger, to clean and safe water in adequate quantities, social security and education while also emphasizing that these are not merely aspirational but fundamental rights that are justiciable and every person in Kenya is entitled to.
Some of the most foundational constitutional provisions in the 2010 Constitution of Kenya include: Article 27 which guarantees equality and freedom from discrimination, which plays a key role geared towards ensuring equal access to Socio-economic rights. This provision addresses the historical injustices occasioned prior to the promulgation of the 2010 constitution, where there was a widespread regional imbalances and discrepancies in the distribution of the basic fundamental resources; Article 53 read together with Article 43(f) which addresses the rights of children, specifically right to Education, which is an epicenter of the socio-economic rights; Most fundamental is article 19 which establishes that the Bill of rights is an integral part of the Kenya’s Democratic state, thereby rendering the Socio-economic rights justiciable by all colour of law rather than just aspirational.
While addressing the socio-economic rights under Article 43, the Constitution expressly outlines some aspects of these socio-economic rights and the requisite background and foundation in which they must be realized, including:
Progressive Realization - Article 20(5)(a) of the Constitution imposes an obligation on the state to ensure progressive realization of socioeconomic rights, within the limits of available resources. The Constitution acknowledges that the process of achieving these rights may be gradual, and for the full realization of these rights, backed by the implementation, may require time and resources, thereby mandating the state to progressively work. The standard of progressive work was adopted as a flexibility device which acknowledges that the full realization of the socio-economic rights cannot be achieved in a short period of time, Kenya being a developing country. The objective of this flexibility is not , however, in place to give the state an unchecked leeway to be lethargic or unduly delay the realization of the socioeconomic rights at the national and County level.
Obligation on the State - For the expeditious realization of the socio-economic rights to be made, the Constitution obligates the state to immediately take deliberate and concrete steps aimed at achieving the Constitutional spirit of access to the socio-economic rights and services at the national and county level. Article 21(2) of the Constitution of Kenya states thus, “The state shall take legislative, policy and other measures, including setting of standards, to achieve the progressive realization of the rights under Article 43” The necessity of the adoption of the reasonable steps in the realization of socio-economic rights is also affirmed, at the national level in the South African Socio-economic Rights Jurisprudence which indicates that for such measures to be reasonable, they have to meet the following criteria: must be comprehensive, coherent and coordinated and they must also be properly conceived and implemented; they must be inclusive, balanced, flexible and make appropriate short, medium and long-term provisions for people in desperate need or in crisis situations, whose ability to enjoy the human rights is most in peril; they must be transparent and have their contents made known appropriately and effectively to the public and finally must allow for a meaningful or reasonable engagement with the public or affected people and communities.
Greatest extent of the available state resources - A critical aspect of the standard of progressive realization is the resources and the requirement that the state expend the maximum of their available resources is actually an acknowledgement of the fact that the full realization of these rights depends to a large extent on the economic status
Regional and International Authorities.
The legal framework in Kenya for socioeconomic rights is shaped by both international and regional human rights instruments, as well as the Constitution. Besides broadening the categories of the socio-economic rights, the Constitution of Kenya 2010 has also greatly broadened the application of International laws in domestic courts, thereby paving the way for a very progressive socio-economic rights jurisprudence in Kenya. Article 2(5) and (6) recognizes the application of the general rules of international law, any treaty or convention ratified by Kenya as part of the laws of Kenya under the Constitution. This marks a fundamental departure from the common law dualism doctrine to which Kenya subscribed under the Independence Constitution. There are series of regional authorities whose provisions on socioeconomic rights are inherently applicable in Kenya, including but not limited to: African Charter on Human and People’s Rights (ACHPR) which recognizes socioeconomic rights including the right to development, which is a key instrument influencing the legal landscape in Kenya; African Committee of Experts on the Rights and Welfare of Child, which plays a critical role in promoting and protecting the children’s rights within the African continent.
International authorities touching on the socioeconomic rights also applicable in Kenya include: International Covenant on Economic, Social ad Cultural Rights (ICESCR), which is a cornerstone treaty of International human rights law recognizing a wide range of socio-economic rights; Universal Declaration of Human Rights (UDHR) which recognizes the importance and centrality of socio-economic rights in the protection, promotion, and realization of human rights in the world. The treaty I article 22, 23, 24 and 25 recognizes socio-economic rights such as the right to food, clothing, housing, medical care, social services, work and leisure among others; and finally International Covenant on Economic Social and Cultural Rights (ICESCR) which expressly recognizes a socio-economic rights and underscores the importance of these rights in realizing a fundamental objective of the UDHR, which is; free human beings enjoying freedom from fear and want. The Convention reiterates that this significant ideal can only be realized if a favorable environment is created to enable everyone to enjoy fully their economic, social and cultural rights, as well as their civil and political rights.
Implementation Quagmire.
The fact that these categories of rights are expressly referred to in the Constitution means that they are justiciable, both horizontally as well as vertically, before the local courts. The justiciability of the economic and social rights and the competence of judicial officers to adjudicate them have been affirmed at the International level and in comparative national jurisdictions. The question that lingers, therefore, is what progress has been made by the Kenyan courts in the adjudication of the economic and social rights cases with the aim of achieving the egalitarian aspiration of the Constitution of Kenya 2010?
Kenyan courts have made fundamental progress in the interpretation and application of the socio-economic rights as envisioned in the Constitution. While the courts recognize the Constitutional aspiration of progressive realization, they have emphasized the need and significance of due process, fairness and the protection of marginalized groups in society. The Supreme Court’s decision in Mitu-Bell Welfare Association (Mitubell) v Kenya Airports Authority & 2 others affirmed the justiciability of socio-economic rights, with emphasis on their inalienable nature. The court delivered its judgement on 11th January 2021 on the eviction of over 3000 households and the interpretation of socio-economic rights under the Constitution of Kenya. In the Mitubell case, the court emphasized the need for due process, including reasonable notice and consultations with the victims before evictions, to preserve their socio-economic rights. Furthermore, the court laid emphasis on the need to protect vulnerable groups during evictions and ensure that priority is given to providing alternative accommodation is made.
On access to justice and equality, Article 27 read together with Article 48 of the Constitution prohibits unlawful discrimination and inequality with regards to all aspects including benefits of law. In the case of Samuel G. Momanyi v The Attorney General & Another (petition no. 341 of 2011), Judge Lenaola, as he then was, observed that the Employment Act was enacted in 2007, prior to the 2010 Constitution and therefore the need to align the provisions of all statutes enacted prior to it with the said Constitution. In this case, Samuel, an employee of SDV Tsunami Kenya Ltd, serving as a project manager, whose services were terminated without being accorded an opportunity to be heard. He filed a claim before the Industrial Court, which was struck off under Section 45(3) of the Employment Act 2007, as he had only worked for 11 months compared to the statutory standards of 13 months. The court held that that provision of the statute was in contravention of Articles 21 and 48 of the Constitution and therefore Samuel had been denied equal protection and benefit of the law, violating the right to access to justice, which is one of the fundamental principles of socio-economic rights enforcement mechanisms.
The courts have also sufficiently recognized that the right to property includes the protection of goods and building materials even in cases of evictions, which has been a major occurrence recently.
The courts in Kenya have boldly declared that socio-economic rights are not decorative ideals, as has been demonstrated by several court decisions; their implementation remains mired in political inertia, financial mismanagement and administrative neglect. The spirit of Article 43 of the Constitution risks becoming a constitutional mirage unless the state, civil society and citizens collaborate to close the gap between courtroom victories and on-the-ground realities. The blurry implementation is attributed to factors such as :
Budgetary constraints and prioritization:
The spirit of Article 20(5)(c) envisages the progressive realization of socioeconomic rights. However, many state actors have used this as a loophole, citing the excuse of limited resources without meaningful prioritization in the budget allocation.
Weak Institutional accountability:
Whereby the court decisions are met with fragile willpower to implement them. For instance, the Mitu-Bell case, whereby several years after the judgement, the victims have not been remedied. This speaks volumes about the fragility of the implementation of the court decisions.
Corruption and Misallocation of Public Funds:
Whereby projects meant to address the economic and social rights of the people are hijacked by cartels. Recently, we witnessed a section of Members of Parliament, led by Hon Kuria Kimani, Molo MP, lamenting over the misuse of the Equalisation Fund. This is a fund that is constitutionally created with the purpose of addressing the historical marginalization. It is meant to level the ground with regard to equality in terms of the distribution of resources within the country. This therefore exposes the level of corruption that the Country has sunk deep into, thereby hampering the full realization of the socio-economic rights as envisioned by the Constitution.
Public awareness and Legal illiteracy:
It is important to recognize the fact that a significant portion of the population is unaware of their socio-economic rights, thereby allowing room for flagrant violations, which go unchallenged.
Conclusion:
Socio-economic rights are not a luxury; they are a bold promise to the Kenyan people. Article 43 of the Constitution envisaged a situation where no citizen of Kenya would go to bed hungry, that every child would go to school, that every family would have access to clean water, adequate and dignified housing, as well as healthcare services regardless of their tribes or socio-economic status. Judiciary, to its credit, has striven to uphold this Constitutional promise on paper through several landmark cases, such as Mitu-Bell and Samuel v Attorney General & Another, which have proven that courts are more inclined to confront violations and pronounce themselves on the justiciability of these rights. However, the reality of millions of Kenyans across the country tells a completely different story, one where court orders gather dust on the shelves due to fragility in their enforcement, while marginalized communities remain trapped in cycles of deprivation. Let this not be just another chapter in the annals of constitutional optimism. Let it be a call to action. The Constitution laid the foundation. The courts have echoed its spirit. Now the baton lies with the state, parliament, civil society and most importantly, the people!
