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FROM THE BILL OF EXCEPTIONS TO THE BILL OF RIGHTS

FROM THE BILL OF EXCEPTIONS TO THE BILL OF RIGHTS. Analysis of the Proposed Constitution of Kenya Tom Kagwe Friday, June 11, 2010. Bill of Rights. Human rights five characteristics: inalienable, inherent, universal, indivisible and interdependent.

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FROM THE BILL OF EXCEPTIONS TO THE BILL OF RIGHTS

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  1. FROM THE BILL OF EXCEPTIONS TO THE BILL OF RIGHTS Analysis of the Proposed Constitution of Kenya Tom Kagwe Friday, June 11, 2010

  2. Bill of Rights • Human rights five characteristics: inalienable, inherent, universal, indivisible and interdependent. • Protection of rights in modern constitutions has phases: • 1st generation: civil and political in nature including protection of life and individual liberty, freedom of association and expression, voting rights etc. • 2nd generation including right to food, descent shelter, education and employment among others. • 3rd generation (solidarity rights), including to clean, healthy and sustainable environment, right to peace, cultural identity, and to development among others.

  3. Constitution of Kenya • “Protection of Fundamental Rights and Freedoms of the Individual”:Sections 70 to 86: protection from, right to and freedom of • Protection limited: those protected; range of the rights; and, those bound. • No form of directive principles of state policy • Derogations to these rights: e.g. 6th, 23rd and 24th amendments • Chapter as a Bill of Exceptions rather than a Bill of Rights.

  4. Apollo Mboya: Basic Needs and Basic Rights • “Is it that drafters of our Constitution did not appreciate that the right to work, food or 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… there is no need to belabor this point because well 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… This basic needs therefore automatically translates into Basic Rights.”

  5. Rights-based Debate • 1963 Constitution had Bill of Rights based on UDHR (1948) and ECHRFF (1950) • How to deal with access to and/or equitable distribution of land; perceived or anticipated marginalization of less-populated ethnic groups; and, the unresolved question of self-determination by the then Northern Frontier District • Quests were essentially put on ice still melt • Issues within Bill of Rights Chapter and also outside informs the debate and contestations

  6. Cap 4: Bill of Rights • Strong provisions on non-discrimination (27) • Banning indirect discrimination [27(4)] • Rights to be respected by all and not just by the state (20) • Most civil rights including privacy (31), consumer (46), right to strike (41) • Rights to health, housing and sanitation, food and water and social security (Art. 43) • State obligation to realisation of the rights (21) Cf. 20(5)

  7. Cap 4: Bill of Rights (cont.) • Rights of specific groups: children, youth, persons with disability, marginalized groups, the elderly (53-57) • State to have policies of affirmative action [27(6)] • State must carry out its human rights obligations under international law [21(4)] • Treaties as part of Kenyan law (Art. 2(6)) • Remedies through courts (22+23) Cf. 258 • KNHREC with a constitutional status (59)

  8. Limitation of rights • Laws can limit rights (except for 4 rights specially protected in Article 25) • Limiting a right will depend on what objective is to be achieved and whether the limit is greater than would be needed to achieve that objective. • Misunderstandings about the human rights e.g. right to life (26), striking police [24(5)] • Therefore, rights with responsibilities, in a democratic manner (helped by courts)

  9. Conclusion The PCK has many great provisions on human rights. Wanjiku’s rights: Is the glass half-full for you? As a Kenyan, you have to vote! It is either YES or NO: there is no WAIT. Vote Wisely on 4th August 2010

  10. THANK YOU Tom Kagwe, J. P. Ag. Deputy Executive Director KENYA HUMAN RIGHTS COMMISSION Opposite Valley Arcade, Gitanga Road, P.O Box 41079, 00100 GPO, Nairobi, Kenya. Tel. +254-020-3874998/9 3876065/6 Fax. +254-020-3874997 Email: tkagwe@khrc.or.ke Website: http://www.khrc.or.ke

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