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Constitute national human rights body

By Demas Kiprono | April 1st 2021
A police officer flogging a resident for flouting Covid-19 curfew. [Courtesy]

Part of the Kenyan struggle for good governance, equality and fairness has been steeped in the idea and principle that every person must be treated with dignity and that they are entitled to certain fundamental rights and freedoms.

Before the idea was codified in the Universal Declaration of Human Rights (UDHR) in 1948, claims to rights and freedoms tended to emanate from one’s membership to a group. Property ownership, inheritance, marriage rights, criminal sanctions and commerce depended on a person’s belonging to a race, nationality, religion, caste, tribe, ethnic group and even gender. 

For instance, the trans-Atlantic slave trade was perpetuated against people of African ancestry by those who had convinced themselves of their superiority as a rationale for the inhumane treatment.

Eighty years ago, NAZI Germany justified the systemic and industrial-scale genocide of Jews because of a similar ideology. The holocaust and the death and destruction during World War II led to the formulation of the UDHR that declared no person shall be discriminated against based on nationality, race, tribe, belief et cetera.

For the first time, countries agreed on the freedoms and rights that deserve universal protection for every individual everywhere to live their lives freely, equ­­ally and indignity. Since independence, Kenya has struggled to fulfil its obligations to ensure that all Kenyans enjoy their human rights as per the independence constitution; the UDHR, which is non-binding and foundational text; and the International Convention on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICERD) which are binding covenants that Kenya is a party to.

The ICCPR is termed as ‘first generation’ rights such as the right to life, equality before the law, freedom of speech, freedom of religion, property rights, the right to a fair trial, freedom from slavery and torture, and voting rights - whereas ICERD rights are considered the second-generation because they deal with entitlement issues such as the right to food, housing, healthcare, labour among others. Third generation rights on the other hand include group rights such as the rights of indigenous people and minorities.

Throughout Kenya’s history, there has been more emphasis on first-generation rights, especially about ensuring that the people have a say in terms of how they are governed and ensuring that the state does not interfere with citizens’ freedoms.

The clamour for multipartyism, campaigns for the release of political prisoners, organising protests and demonstrations and campaigning against the use of state agents to silence dissenting voices are some of the hallmarks of Kenya's struggle for human rights in the past decades that culminated in the promulgation of the Constitution of Kenya 2010. Increasingly, Kenyans are now demanding their second and third generation rights.

Chapter 4 of the Constitution sets out the three generations of rights elaborates which rights can never be limited; how and when to limit those that could be justifiably limited; and expressly gives the High Court the jurisdiction to hear and determine claims by citizens when they feel their rights are threatened or when their rights have been violated.


Additionally, it creates the Kenya National Human Rights and Equality Commission to promote, protect and monitor human rights. It has investigatory powers, powers to summon and quasi-judicial powers with the security of tenure for commissioners and protection from watering down or repeal by Parliament. Over the years, the Commission has complained of perennial inadequate funding.

Since the terms of the last Commissioners lapsed early last year, the appointment process of their replacement has not been initiated. This means that the Commission is not properly constituted, thereby threatening its ability to promote and protect the rights of Kenyans at a time when the country is going through a pandemic and heading towards a possible referendum and a general election in 2022; times that many violations tend to occur.

To cure this, the state must speedily begin the competitive process of recruiting Commissioners and ensure that the Commission is adequately funded as required by the Constitution.

Mr. Kiprono is a Constitutional and Human Rights [email protected]

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