The preamble to the 2010 Constitution declares that we adopted and enacted it to honour those who heroically struggled to bring freedom and justice to our land and to realise “the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law”.
In early 2003, Kiraitu Murungi, the then Minister for Justice and Constitutional Affairs, spoke about Kenya becoming a human rights State upon the enactment of a new Constitution. It is against this background that Chapter 4 of the Constitution provides for one of the most comprehensive and progressive Bill of Rights. This is especially because for the first time, the supreme law declares in Article 19 that the basic rights and freedoms are inherent to all human beings and not privileges granted by the State.
Thus the Bill of Rights is an integral part of Kenya’s democratic state in order to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings.
At a general level, the 2010 Constitution enshrines two broad categories of rights and freedoms. First, the Bill entrenches substantive and procedural political rights such as right to life human dignity, privacy, liberty, fair hearing and freedoms from discrimination, slavery, servitude and forced labour or freedoms of expression, media, access to information, association, movement and residence and of course protection of right to property.
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The second category of rights is what are generally known as social and economic freedoms that include labour relations, consumer rights, rights to adequate housing clean and safe water, social security, education, emergency treatment and freedom from hunger and such other good things. It is prudent however to sound the caveat that in human rights practise, what matters is not the enumeration of rights per se but their actualisation in real life situations. On this front, the proposed Bill of Rights scores very well in three ways.
First, it contains few clawback clauses and grounds for derogation from fundamental rights and freedoms compared to the previous Constitution adopted at Lancaster House in 1963 and subsequently amended to introduce a repressive dictatorship.
Secondly, articles 20, 21 and 22 set out progressive standards for application, implementation and enforcement of the Bill of Rights. Thirdly, the Constitution deepens the independence of the Judiciary and specifically enjoins courts to enforce the Bill of Rights in a purposive way that will ensure real protection for those in need.
As Kenyans mark the tenth anniversary of the People’s Constitution, it is an opportune moment to audit and reflect on the performance and efficacy of the Bill of Rights. The record is not as rosy as many Kenyans hoped when we lined up in thousands to vote for the constitution after a protracted struggle that spanned over two decades.
Broadly speaking, Kenya is far from becoming the human rights state that Kiraitu spoke about in the wake of NARC’s victory in 2002. More specifically, there are three major shortcomings that have obstructed the free society and nation envisaged in the Bill of Rights from becoming a reality.
The first shortcoming relates to the challenge of implementation of the Constitution. The main duty of the High Court is to adjudicate cases concerning the Bill of Rights and to protect the Rule of Law by ensuring that all wielders of power act within the boundaries of the law. In recognition of the fact that Kenyans have no easy access to High Court stations Article 23(2) requires Parliament to enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation on infringement of the Bill of Rights. Unfortunately, after 10 years, Parliament is yet to enact this enabling legislation.
The second challenge is that the Bill of Rights is yet to become an effective touchstone and imprimatur of how power is exercised in Kenya. Viewed against the backdrop of systematic State-sponsored human rights violations, the real value of the Bill of Rights was that it would check against abuse of power by the police, administrative officials, the military and other armed or coercive agents of the State.
The third shortcoming for the Bill of Rights concerns the frequent enactment of legislation that negate or subvert the substance and spirit of the Bill of Rights on the pretext of state security and maintenance of public order and social decency.
These laws are too many to discuss in this article but it suffices to state that their invariable effect has been to weaken the efficacy and sanctity of the Bill of Rights.
In the wake of the promulgation of the Constitution on August 27, 2010, President Mwai Kibaki rightly observed that many “Kenyans have invested heavily over the years towards the realisation of this Constitution. Some paid the ultimate price as they sought freedom for their compatriots”.
Kibaki implored us to appreciate that the implementation of a Constitution is a process and “it takes time to implement the rights contained in a new chapter”. Acknowledging all this, we must celebrate the fact that the Bill of Rights remains intact and cannot be amended without a referendum. This means that the challenges of implementation can easily be surmounted so long as we put in power a government that respects human rights and freedom. We must also note that courtesy of the 2010 Constitution, Kenyans today are more conscious of their human rights and expect the wielders of power to respect them. Thus the language of human rights is a dominant feature of Kenya’s political life and legal adjudication.
We should never forget that there was a time when the constitution was almost regarded as a seditious document. For it was the document that dissidents and subversives supposedly hinged their rebellion against “legitimate” government. Lawyers Mirugi Kariuki and John Khaminwa were detained for defending clients who had taken the Constitution seriously and thereby sought to vindicate its majesty in court. And when Gibson Kamau Kuria sought to secure Mirugi’s constitutional rights, he, too, was detained.
Today, constitutional litigation is a mainstream discourse as opposed to a trade of political rubble-rousing by ‘political lawyers’. When all is said and done, the long journey to freedom, or rather to the road of freedom, was apparently worth the broken limbs, shattered careers and liquidated souls.
-Mr Mungai is a constitutional lawyer