Social welfare for Wanjiku may be mirage

By Dann Okoth

As the vote tally tilted in favour of the ‘Yes’ camp, Wilta Nyaboke waited in anticipation at her Soweto East village in Kibera, Nairobi.

And when the Government side led by President Kibaki and Prime Minister Raila Odinga announced the ‘Greens’ victory, Nyaboke broke into jubilant celebrations.

Swamped by poor housing and sanitation, and malnutrition, the 46-year-old mother of four hopes the new constitution would change her life for the better.

She is particularly hopeful that Chapter 4 of the Constitution on the Bill of Rights, which addresses rights and fundamental freedoms, would bring hope to the poor and marginalised communities.

Under Article 43 (1a, b, c, d, e and f), every person has the right to the highest attainable standard of health, which includes the right to health care services.

Untenable For Marginalised

Others include right to accessible and adequate housing, reasonable standards of sanitation, adequate food of acceptable quality, clean and safe water in adequate quantities, social security and education.

"Such rights have always existed in paper but in reality they are untenable for some of us in poor and marginalised communities," charges Nyaboke, who is also a member of Nairobi Peoples Settlement Network (NPSN) — a community based organisation pushing for basic rights for slum dwellers.

She adds: "Now that these rights have been identified and captured in the Constitution, the Government will be obliged to make them more tenable."

Mr Owino Kotieno of Dignity and Rights for All, an outfit that creates awareness on food and malnutrition situation in the slums, agrees.

Kotieno says legislation would force the Government to include fundamental rights and freedoms in its policy formulation.

"With the implementation of the new constitution the Government would be forced to come up with a sound food policy that would secure food security and subsequently the right to food and freedom from hunger," he says.

He observes that while there have been provisions like Free Primary Education, quality has been compromised because enrolment far outstripped investment in the sector leading to overcrowded classrooms, lack of teachers and pilfering of funds.

"With the new constitution, however, communities can go to court to demand quality and accessible education from the Government," he says.

Rights leader Ezekiel Rema says the new constitution recognises the basic rights of common citizens.

"We see it as giving us a strong opportunity to protect our members against forced evictions and to make the Government ensure that we get our basic needs as rights," says Rema, who heads Muungano wa Wanavijiji, formed in 1996 to resist forced evictions and land grabbing in Nairobi and its environs.

But are economic and social rights tenable in a liberalised economy like Kenya’s?

Experts believe they are, albeit with a change of attitude on the part of the Government.

"A fallacy that has been exposed by the recent global financial crisis is the traditional ideological objection that State intervention in the workings of the globalised economy is harmful to growth and should be avoided at all costs," says Mr Odindo Opiata, director of Economic and Social Rights Centre.

This notion, argues Opiata, was laid to rest as major economies rushed to bail out their ailing banks and businesses.

"The size and speed of the billion-dollar ‘safety nets’ provided to the financial sector is in marked contrast to the hesitation by governments to adopt social protection mechanisms for ordinary people affected by the crisis," he charges.

Economic and social rights are often seen as unattainable and unenforceable and while many countries have affirmed these rights in principle, they have remained stubbornly difficult to enforce in practice.

While judiciaries in some countries have become increasingly sensitive to economic and social rights claims, most political decision-makers remain wilfully oblivious to these obligations.

Opiata notes the adopted Constitution does not only explicitly recognise these rights but also provides a useful mechanism for holding the Government accountable in fulfilling these rights.