Progressive Nature of Social and Economic Rights in Kenya: a Delayed Promise?
DOI:
https://doi.org/10.31078/consrev615Keywords:
Constitutional Court, Progressive Realization, Social and Economic RightsAbstract
This paper evaluates the steps taken towards the progressive realization of social and economic rights (SER) in Kenya. It aims to provide a better understanding of SER and the obligations of the state under international, regional, and national law. It further elucidates the components of progressive realization. Additionally, it identifies the guiding principles of measuring progressive realization and recommendations to develop tools that would monitor progressive realization. Recognition of SER faces many challenges as they are considered as second class rights that are not equal to civil and political rights considered as first-generation rights. The most enduring challenge for SER is that it interferes with the concept of the separation of powers and the political question doctrine by enabling courts to interfere in matters considered to be under the purview of the legislative and executive branch. The paper uses a desktop review of international, regional, and national legal instruments as well as comparative evaluation of SER jurisprudence from a host of jurisdictions. The concept of progressive realization is a goal in the ICSECR, Kenya’s Constitution, and other Constitutions with the implication that SER would be implemented over a period of time. Jurisprudence from other jurisdictions is evaluated to determine the lessons learned by Kenya. The paper demonstrates that progressive realization and implementation of SER are still work in progress before they are finally anchored into mainstream human rights, just like political and civic rights. In conclusion, progressive realization of SER imports an immediate obligation by Kenya having ratified the three human right bodies (ICSECR, UNCRC, and CRPWD) pursuant to Article 2(5)(6) of the Constitution to expeditiously move towards the realization of SER. There is a further presumption that the country would refrain from retrogressive measures and instead adopt the minimum content approach in the implementation of SER.References
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Ahmed, Dawood and Elliot Bulmer. Social and Economic Rights International IDEA Constitution-Building Primer 9, 2nd Ed. Stockholm: International Institute for Democracy and Electoral Assistance, 2017.
Bantekas, I and Oette.L. International Human Rights Law and Practice 2nd ed. Cambridge: CUP, 2016.
Cahill-Ripley, A and Hendrick. Economic, Social, and Cultural Rights and Sustaining Peace: An Introduction. London: Friedrich-Ebert-Stiftung, 2018.
Centre for Rights Education and Awareness (CREAW) and 8 others v Attorney General & Another. Petition no. 207 & 208 of 2012, [2012] eKLR (CREAW case).
Center for Economic and Social Rights. The Universal Periodic Review: A Skewed Agenda? Trends analysis of the UPR’s coverage of Economic, Social and Cultural Rights. New York: CESR, 2016.
Chenwi, Lilian. “Monitoring the Progressive Realisation of Socioeconomic Rights: Lessons from the United Nations Committee on Economic, Social and Cultural Rights and the South African Constitutional Court.” Research paper written for Studies in Poverty and Inequality Institute, Community Law Centre, University of the Western Cape, 2010.
Federation of Women Lawyers Kenya and Others v The Attorney General and Others, High Court Petition No. 102 of 2011.
Ferraz, Octavio Luiz Motta. “Harming the Poor Through Social Rights Litigation: Lessons from Brazil.” Texas Law Review 89 (2011).
Government of the Republic of South Africa and Others v Grootboom and Others, 2001 (1) SA 46 (CC).
John Harun Mwau & 3 Others v Attorney General & 2 Others the Court, High Court Petition no. 123 of 2011.
John Kabui Mwai and Others v The Attorney General and 2 others, High Court of Kenya at Nairobi, Petition No. 15 of 2011.
Kenya Society for the Mentally Handicapped (KSMH) v Attorney General and Others. High Court Petition No. 155A of 2011 (Kenya Society for Mentally Handicapped case).
Kondo, T, Kondo. “Socioeconomic Rights in Zimbabwe: Trends and Emerging Jurisprudence.” African Human Rights Law Journal 17 (2017).
Landau, David. “The Reality of Social Rights Enforcement.” Harvard International Law Journal 53, no. 1 (2012).
Liebenberg, S. Socioeconomic rights: Adjudication under a Transformative Constitution. Pretoria: Juta and Company Ltd, 2010.
Mathew Okwanda V Minister of Health and Medical Services & 3 others, Petition 94 of 2012.
Menell, Natasha G. “Judicial Enforcement of Socioeconomic Rights: A Comparison Between Transformative Projects in India and South Afric.” Cornell International Law Journal 49 (2016).
Merali, I & V Oosterveld. Giving Meaning to Economic, Social and Cultural Rights. Philadelphia: University of Pennsylvania Press, 2011.
Minister of Health and Others v Treatment Action Campaign and Others, no. 2, 2002 (5) SA 721 (CC).
Moyo, Khule Kani. The Jurisprudence of the South African Constitutional Court on socioeconomic rights, in Foundation for Human Rights, Socioeconomic Rights: Progressive Realisation? Johannesburg: Foundation for Human Rights, 2016.
Ngang, Carol C. “Judicial Enforcement of Socioeconomic Rights in South Africa and the Separation of Powers Objection: The obligation to Take Other Measures.” African Human Rights Law Journal 14, no. 2 (2014).
Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v City of Johannesburg and Others, 2008 (3) SA 208 (CC).
O’Connell, Paul.“The Death of Socio Economic Rights.” Modern Law Review 74, no. 4 (2011).
PAO v. AG, High Court of Kenya, Petition No. 409 of 2009. R v Askov [1990] 2 SCR 1199.
Ray, Brian. “Engagement’s Possibilities and Limits as a Socioeconomic Rights Remedy.” Washington University Global Studies Law Review 9, (2010).
Satrose Ayuma and 11 Others v The Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme and 2 Others. High Court of Kenya, Petition No. 65 of 2010. Schachter v Canada [1992] 2 SCR 679, [63].
Scott, Craig and Philip Alston “Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoney’s Legacy and Grootboom’s Promise.” S.AFR. J. ON HUM. RTS 16 (2000).
Schmid. E. Taking Economic, Social and Cultural Rights Seriously in International Criminal Law. Cambridge: Cambridge University Press, 2015.
Ssenyonjo, M. “The Influence of the International Covenant on Economic, Social and Cultural Rights in Africa.” Neth Int Law Rev 64, (2017): 259–289.
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The City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties. 39 (Pty) Ltd and Another 2012 (2) SA 104 (CC). The Constitution of Kenya 2010.
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The Constitution of South Africa, 1994.
The East African Centre for Human Rights. A Compendium on Economic and Social Rights Cases under the Constitution of Kenya 2010. Nairobi: EACHR, 2015.
Trispiotis, I. “Socioeconomic Rights: Legally Enforcable or just Aspirational.” Opticon 8 (2010).
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UNTS. “Convention on the Rights of Persons with Disabilities 2006.” Volume 2515, entry into force 3 May 2008.
UNTS. “UN Convention on the Rights of the Child 1989.” UNTS 1577, entry into force 2 September 1990.
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U.N. Econ. & Soc. Council [ECOSOC], Comm. on Econ., Soc. & Cultural Rights. “Report on the Fifth Session, Supp. No. 3, Annex III, 10, U.N. Doc. E/1991/23.” 1991.
Universal Declaration of Human Rights (UDHR) adopted 10 December 1948.
Woolman, S and H Botha. “Limitations.” In Constitutional Law of South Africa 2nd ed, edited by S Woolman et al. Juta& Co., Original Service, 2006.
African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5, 21 ILM 58 (1982), ratified by 53 member States of the African Union (AU).
African Charter on the Rights and Welfare of the Child (1990). Ratified by Kenya on 25 July 2000.
Ahmed, Dawood and Elliot Bulmer. Social and Economic Rights International IDEA Constitution-Building Primer 9, 2nd Ed. Stockholm: International Institute for Democracy and Electoral Assistance, 2017.
Bantekas, I and Oette.L. International Human Rights Law and Practice 2nd ed. Cambridge: CUP, 2016.
Cahill-Ripley, A and Hendrick. Economic, Social, and Cultural Rights and Sustaining Peace: An Introduction. London: Friedrich-Ebert-Stiftung, 2018.
Centre for Rights Education and Awareness (CREAW) and 8 others v Attorney General & Another. Petition no. 207 & 208 of 2012, [2012] eKLR (CREAW case).
Center for Economic and Social Rights. The Universal Periodic Review: A Skewed Agenda? Trends analysis of the UPR’s coverage of Economic, Social and Cultural Rights. New York: CESR, 2016.
Chenwi, Lilian. “Monitoring the Progressive Realisation of Socioeconomic Rights: Lessons from the United Nations Committee on Economic, Social and Cultural Rights and the South African Constitutional Court.” Research paper written for Studies in Poverty and Inequality Institute, Community Law Centre, University of the Western Cape, 2010.
Federation of Women Lawyers Kenya and Others v The Attorney General and Others, High Court Petition No. 102 of 2011.
Ferraz, Octavio Luiz Motta. “Harming the Poor Through Social Rights Litigation: Lessons from Brazil.” Texas Law Review 89 (2011).
Government of the Republic of South Africa and Others v Grootboom and Others, 2001 (1) SA 46 (CC).
John Harun Mwau & 3 Others v Attorney General & 2 Others the Court, High Court Petition no. 123 of 2011.
John Kabui Mwai and Others v The Attorney General and 2 others, High Court of Kenya at Nairobi, Petition No. 15 of 2011.
Kenya Society for the Mentally Handicapped (KSMH) v Attorney General and Others. High Court Petition No. 155A of 2011 (Kenya Society for Mentally Handicapped case).
Kondo, T, Kondo. “Socioeconomic Rights in Zimbabwe: Trends and Emerging Jurisprudence.” African Human Rights Law Journal 17 (2017).
Landau, David. “The Reality of Social Rights Enforcement.” Harvard International Law Journal 53, no. 1 (2012).
Liebenberg, S. Socioeconomic rights: Adjudication under a Transformative Constitution. Pretoria: Juta and Company Ltd, 2010.
Mathew Okwanda V Minister of Health and Medical Services & 3 others, Petition 94 of 2012.
Menell, Natasha G. “Judicial Enforcement of Socioeconomic Rights: A Comparison Between Transformative Projects in India and South Afric.” Cornell International Law Journal 49 (2016).
Merali, I & V Oosterveld. Giving Meaning to Economic, Social and Cultural Rights. Philadelphia: University of Pennsylvania Press, 2011.
Minister of Health and Others v Treatment Action Campaign and Others, no. 2, 2002 (5) SA 721 (CC).
Moyo, Khule Kani. The Jurisprudence of the South African Constitutional Court on socioeconomic rights, in Foundation for Human Rights, Socioeconomic Rights: Progressive Realisation? Johannesburg: Foundation for Human Rights, 2016.
Ngang, Carol C. “Judicial Enforcement of Socioeconomic Rights in South Africa and the Separation of Powers Objection: The obligation to Take Other Measures.” African Human Rights Law Journal 14, no. 2 (2014).
Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v City of Johannesburg and Others, 2008 (3) SA 208 (CC).
O’Connell, Paul.“The Death of Socio Economic Rights.” Modern Law Review 74, no. 4 (2011).
PAO v. AG, High Court of Kenya, Petition No. 409 of 2009. R v Askov [1990] 2 SCR 1199.
Ray, Brian. “Engagement’s Possibilities and Limits as a Socioeconomic Rights Remedy.” Washington University Global Studies Law Review 9, (2010).
Satrose Ayuma and 11 Others v The Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme and 2 Others. High Court of Kenya, Petition No. 65 of 2010. Schachter v Canada [1992] 2 SCR 679, [63].
Scott, Craig and Philip Alston “Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoney’s Legacy and Grootboom’s Promise.” S.AFR. J. ON HUM. RTS 16 (2000).
Schmid. E. Taking Economic, Social and Cultural Rights Seriously in International Criminal Law. Cambridge: Cambridge University Press, 2015.
Ssenyonjo, M. “The Influence of the International Covenant on Economic, Social and Cultural Rights in Africa.” Neth Int Law Rev 64, (2017): 259–289.
Soobramoney v Minister of Health (Kwazulu - Natal), 1998 1 SA 765 (CC). 41. Stein, T. “Constitutional Socio-economic Rights and International Law: You are not Alone.” PER, / PELJ 16, no. 1 (2013).
Supreme Court Advisory Opinion, In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, Supreme Court of Kenya, Advisory Opinion Application 2 of 2012, paras 1-2 & 27-30 (Gender Rule Advisory Opinion).
The City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties. 39 (Pty) Ltd and Another 2012 (2) SA 104 (CC). The Constitution of Kenya 2010.
The Constitution of Kenya (Protection of Fundamental Freedoms) Practice and Procedure Rules, 2013, Legislative Supplement No. 47, 28 June 2013, Kenya Gazette Supplement No. 95, Rule 3(2).
The Constitution of South Africa, 1994.
The East African Centre for Human Rights. A Compendium on Economic and Social Rights Cases under the Constitution of Kenya 2010. Nairobi: EACHR, 2015.
Trispiotis, I. “Socioeconomic Rights: Legally Enforcable or just Aspirational.” Opticon 8 (2010).
UNTS. “Convention on the Elimination of All Forms of Discrimination against Women 1979.” Treaty Series 1249, Entry into force 3 September 1981, https://treaties.un.org/doc/Publication/UNTS/Volume%201249/v1249.pdf.
UNTS. “Convention on the Rights of Persons with Disabilities 2006.” Volume 2515, entry into force 3 May 2008.
UNTS. “UN Convention on the Rights of the Child 1989.” UNTS 1577, entry into force 2 September 1990.
UNTS. “International Covenant on Civil and Political Rights, General Assembly of the UN on 19 December 1966.” Res. 2200A, U.N. GAOR, 21st Sess U.N. Doc. A/RES/2200, entered into force Mar. 23, 1976, hereinafter ICCPR.
U.N. Econ. & Soc. Council [ECOSOC], Comm. on Econ., Soc. & Cultural Rights. “Report on the Fifth Session, Supp. No. 3, Annex III, 10, U.N. Doc. E/1991/23.” 1991.
Universal Declaration of Human Rights (UDHR) adopted 10 December 1948.
Woolman, S and H Botha. “Limitations.” In Constitutional Law of South Africa 2nd ed, edited by S Woolman et al. Juta& Co., Original Service, 2006.
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Gitiri, J. (2020). Progressive Nature of Social and Economic Rights in Kenya: a Delayed Promise?. Constitutional Review, 6(1), 133–165. https://doi.org/10.31078/consrev615
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