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Law on social, economic rights form Kenyans overdue

COMMENTARY
By Steve Akoth | July 17th 2015

NAIROBI: Five years since the promulgation of the Constitution of Kenya, the transformative content and spirit of the supreme law seems to be taking root.

Today most of the requirements for improvement of the human condition like water, health and clean environment and many others, often branded as socio-economic rights, are obligations of the county governments.

These steps reiterate the central purpose of the Constitution of Kenya 2010 as the creation of a democratic society where public power and resources are used to promote the common welfare of all people.

Our Constitution envisages an open society where the productive powers of our economy are used to promote social justice and equity.

This vision is captured in the preamble of the constitution. It is also the reason for a robust Bill of Rights and the litany of Social and Economic Rights in Article 43 of the Constitution.

In terms of responsibility, the Constitution also defines with much clarity the obligation of the State to ensure realisation of all human rights, including the socio-economic rights that were for long treated as non-justiciable.

Although this is recognised in the CoK, the practices of governance and unregulated market have tended to skew the economy against the minorities.

It therefore seems that even in the context of justiciable economic, social and cultural rights, unless there are clear mechanisms of governance and programmes of action from the county and national governments, the current inequalities, indignities and marginality may persist.

We can therefore not fail to take notice of a Bill tabled in the Senate on June 18, 2015 by Mombasa Senator Hassan Omar. The Bill, named Preservation of Human Dignity and Enforcement of Socio-Economic Rights Bill, 2015, proposes mechanisms that shall enable negotiations and facilitation of the county and national government in implementing socio-economic rights.

Overall, the Bill proposes a set of criteria that can be useful for balancing of income accompanied with redistribution of opportunities. In this regard, the Bill introduces new politics of entailment to social, economic and social rights that go hand in hand with the redistribution of wealth and income across the entire county.

The Bill is not a money bill within the meaning of Article 114 of the Constitution; rather it is a framework law that creates a nexus between Article 19 of the Constitution on Human Dignity and Article 43 of the Constitution on Economic and Social Rights.

The principle objective of the Bill is to ensure the preservation of human dignity as set out under Article 19 of the Constitution.

This shall be done through mechanisms that require county governments to adhere to Article 204 of the Constitution with regard to the use of the Equalisation Fund—the grants by the national government.

These include empowering the Kenya National Commission on Human Rights to develop an Economic and Social Rights Index through which it shall make recommendations to the national and county governments on the implementation of policies, strategies and programmes for the realisation of economic and social rights; Requirement of both levels of government to integrate, within their national and county development plans, strategies, actions and such other measures as it would consider necessary for the realisation of the economic and social rights under the Constitution.

For county governments, the Bill requires each county government to include within its County Integrated Development Plan a strategy for the realisation of economic and social rights.

The Commission on Revenue Allocation on the other hand is required for the purposes of Articles 204(4) and 216(4) of the Constitution to analyse the economic and social circumstances in each county for the purposes of determining the criteria by which to identify counties where marginalised areas are found, which are eligible for a conditional grant under Article 204 of the Constitution; and finally, in allocating the Equalisation Fund, the Commission for Revenue Allocation shall consider the impact on the economic and social rights and the distribution of services and facilities to as wide a section of the population as possible.

This Bill is a major addition to the various welfare programmes such as The Hunger and Safety-net Programme, Women Enterprise Fund, Youth Enterprise Development Fund, Uwezo (Ability) Fund, Affirmative Action policy in Public Procurement and Cash Transfers, which have been introduced by the Government over time.

While these programmes are useful, they largely operate out of the much-required structural reforms envisaged by Article 43 of the Constitution.

The provisions of the Preservation of Human Dignity and Enforcement of Economic and Social Rights Bill require that citizens are treated with equal respect when their shared dignity is guaranteed through deliberate efforts by themselves and their governments.

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