*We continue the analysis of the proposed constitution- editor
We have rights because we are human; the government does not give them to us, and in a sense has no power to take them away from us. In reality we all know that governments are major violators of human rights. We also know that other citizens, commercial organisations, militia groups and institutions within society violate rights.
Recognition of rights in a constitution gives people a tool. Perhaps, more than any other part of the constitution, human rights need the active involvement of the people to leap off the printed page and become effective. Government may recognise that to achieve their objectives (good or bad) they need to follow the constitutional rules about the exercise of power. Without vigorous insistence by the citizenry they may be less scrupulous about observing human rights obligations that stand in the way of their own view of the uses of power.
What does the Proposed Constitution say?
An important preliminary point: people often misunderstand human rights provisions, and think that something that says “everyone has a right [to freedom of speech or religion or anything else]” means that everyone can do as they please without any possible limits! This is responsible for all sorts of misunderstanding. So as you read about the rights, please bear this in mind. There is a box below that explains about limiting rights.
The main features of the proposed human rights chapter are:
Strong provisions on non-discrimination, including a long list of prohibited grounds of discrimination, such as disability, pregnancy, marital status, health status (Art. 27), as well as the more familiar gender, race and belief, that are in the current constitution
• Banning of indirect discrimination – that is laws or conduct that discriminates in effect even if not intended to be discriminatory (Art. 27(4))
• Rights are to be respected by all and not just by the state (Art. 20)
• In addition to the most familiar rights (such as freedom of expression, assembly, association, movement, right to property and to a fair trial) that are recognised in the current constitution, various other rights are recognised, including a wider right to privacy (Art. 31), information (Art. 35), media freedom (Art. 34), right to vote (Art. 38) and right to fair working practices, including the right to strike (though not the right to work) (Art. 41), right to use the language of one’s choice (Art. 44), equal rights in marriage (Art. 45), consumer rights (46), right to fair administrative action (Art. 47) and right to a clean environment (Art. 42)
• Clear rights to health, housing and sanitation, food and water and social security (economic, social and cultural rights (Art. 43), and the state has the obligation to take measures necessary to achieve the progressive realisation of the rights (Art. 21) (see below)
• Clarification of how rights apply to various specific groups: children, youth, persons with disability, marginalized groups, the elderly (Arts. 53-57)
• Requiring the state to have policies of affirmative action to ensure that disadvantaged and marginalized groups can achieve true equality (Art. 27(6))
• A duty on the state must carry out its human rights obligations under international law (Art. 21(4))
• A provision that treaties (many of which relate to human rights) that Kenya is a party to are part of Kenyan law (Art. 2(6))
• Remedies – the procedure for going to court to protect rights includes the possibility of bringing an action on behalf of groups or even of other people who are unable to do so for themselves (Art. 23); the procedures must be simple and there must be no court fees for bringing a case to protect human rights (Art 22)
• A human rights commission with a constitutional status, role and protection (Art. 59).
Limiting Rights
It would of course be unreasonable for everyone to claim that freedom of speech means that there is no limit on what they can say. The Proposed Constitution is clear that the law can limit rights (except for 4 rights specially protected in Article 25). But the limitations must be reasonable. And it gives clear guidance about how to decide whether limiting a right would be reasonable. The main test is “is such a limitation on a right justifiable in a democratic society like Kenya”? The courts would decide if there is any dispute, but Parliament should also think about this, and the Human Rights Commission will also give guidance.
Whether it is justifiable to limit a right will depend on what objective is to be achieved by the limit and whether the limit is greater than would be needed to achieve that objective.
So – it will be justified to limit freedom of speech to protect reputations (though the current law on this topic may be too restrictive of freedom of speech), and freedom of religion would not protect Mungiki as someone seems to have suggested!
Some constitutions limit each right individually. This tends to make limitations appear more prominent than rights! That is the case with many of the rights in the current constitution. The Proposed Constitution takes a different approach, one that is legally neater, and more protective of rights.
Affirmative action
Like many modern constitutions, the Proposed Constitution recognises that sometimes more than equality is recognised. Affirmative action may be required for a while to achieve true equality of groups that are held back because of past practices of discrimination. But the Proposed Constitution not only says that such affirmative action is not discriminatory, but is also says that measures needed to overcome the consequences of past discrimination, including affirmative action, must be taken (Article 27(6)).
Overall impression
The Proposed Constitution is a considerable improvement on the current constitution which bans fewer forms of discrimination (and does not include a general ban on discriminatory behaviour); it does ban laws that discriminate in effect as well as by intention. In its style of drafting the Proposed Constitution is clearer, whereas the current constitution lays far more emphasis on when rights do not apply! The Proposed Constitution is very specific and firm about how human rights may be limited (see box). The recognition of economic social and cultural rights is very significant (see below). The right to information may prove to be valuable not just for the protection of individual rights but to facilitate citizens’ scrutiny of government (see section on “Participation”).
Poverty, Basic Needs and Economic, Social and Cultural Rights
Many people do not understand the idea of socio-economic rights (which are new for Kenya in the Proposed Constitution, though Kenya is a party to international treaties that recognize them). Some people ask questions like “how can government have a duty to feed everyone or house everyone?” In the years since the International Covenant on Economic Social and Cultural Rights and other treaties such as the Convention on the Rights of the Child were adopted the rights have been analysed and spelled out by courts, and international bodies in some detail. It is now clear that the main point of these rights is that people must be free to fulfil them for themselves. The state, and others, should not interfere with people’s rights to feed and clothe themselves and to live decent lives. Some rights require more state intervention, especially education (and there is a right to free and compulsory primary education). But the state must do more than stand aside: it must prevent infringement of these rights by others, and if necessary (for example in cases of extreme poverty or drought) must take positive steps.
The Proposed Constitution says that the State must realise the socio-economic rights progressively (Art. 21(2)), and it is for the State to show that it does not have the resources to fulfill the rights if this is its justification for failing to do so (Art. 20(5)). The courts in South Africa (and other countries) have been able to give some remedies for the victims of violations of socio-economic rights, and they should not be regarded as utopian “aspirations” or empty words, but a genuine tool for social justice.
These rights are not only a matter of legal enforcement. They are an agenda for the state (and one that, as we have mentioned, the state of Kenya has accepted). The State (meaning the government and its servants and agencies) must constantly think about how its policies affect the welfare of the people, ensuring that their socio-economic rights are promoted. At the time of the budget preparation, government should take into account its obligations.
Using the rights
The courts and the human rights commission will be stronger under the Proposed Constitution than under the existing law. People should take advantage of this to press for their rights and the rights of others. Traditionally courts usually allowed only people personally affected by wrongful acts to take a case to court, but the Proposed Constitution says that a person or organisation may bring an action to protect the rights of others who cannot bring cases for themselves (this would cover those who are too poor, for example, or situations where large numbers of people are the victims of violations of rights) (Art. 22).
The courts are directed to some extent how they should approach human rights cases. They are told to interpret the law, including the constitution, so as to achieve the realisation of the human rights, and the values that underlie them (Art. 20).
Many people may be unaware that Kenya is required to report on its own human rights performance to the UN Human Rights Council, and to the mechanism under the African Charter for Human and People’s Rights. These occasions can be used for civil society to present counter reports showing where the country falls short. The Bomas draft tried to make the UN process a national event by requiring that the government make the process public and ensure that it was debated at home (it should have included the African process in this provision). Unfortunately, this provision disappeared from the recent drafts.
*The analysis is courtesy of a team of lawyers led by an experienced Constitutional Lawyer of International Repute
Disclaimer: Views expressed in this section do not represent the opinions of CISA.
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