FROM THE BILL OF FROM THE BILL OF EXCEPTIONS TO THE EXCEPTIONS TO THE

BILL OF RIGHTSBILL OF RIGHTS

Analysis of the Proposed Analysis of the Proposed Constitution of KenyaConstitution of Kenya

Tom KagweTom KagweFriday, June 11, 2010Friday, June 11, 2010

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Bill of RightsBill of RightsHuman rights five characteristics: inalienable, Human rights five characteristics: inalienable, inherent, universal, indivisible and interdependent. inherent, universal, indivisible and interdependent.

Protection of rights in modern constitutions has Protection of rights in modern constitutions has phases:phases:– 1st generation: civil and political in nature including 1st generation: civil and political in nature including

protection of life and individual liberty, freedom of protection of life and individual liberty, freedom of association and expression, voting rights etc. association and expression, voting rights etc.

– 2nd generation including right to food, descent shelter, 2nd generation including right to food, descent shelter, education and employment among others. education and employment among others.

– 3rd generation (3rd generation (solidarity solidarity rights), including to clean, rights), including to clean, healthy and sustainable environment, right to peace, healthy and sustainable environment, right to peace, cultural identity, and to development among others. cultural identity, and to development among others.

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Constitution of Kenya Constitution of Kenya ““Protection of Fundamental Rights and Protection of Fundamental Rights and Freedoms of the Individual”:Freedoms of the Individual”: Sections 70 to Sections 70 to 86:86: protection from protection from, , right toright to and and freedom offreedom of

Protection limited: those protected; range of Protection limited: those protected; range of the rights; and, those bound. the rights; and, those bound.

No form of directive principles of state policyNo form of directive principles of state policy

Derogations to these rights: e.g. 6Derogations to these rights: e.g. 6thth, 23, 23rdrd and and 2424thth amendments amendments

Chapter as a Chapter as a Bill of Exceptions Bill of Exceptions rather than a rather than a Bill of RightsBill of Rights..

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Apollo Mboya: Apollo Mboya: Basic Needs and Basic RightsBasic Needs and Basic Rights

““Is it that drafters of our Constitution did not Is it that drafters of our Constitution did not appreciate that the right to work, food or shelter appreciate that the right to work, food or shelter and other socio-economic rights are indeed and other socio-economic rights are indeed human rights? It is not a privilege to know how to human rights? It is not a privilege to know how to read and write. It is a need without which your read and write. It is a need without which your very existence in the present world is very existence in the present world is threatened. It is not a privilege to have food; it is threatened. It is not a privilege to have food; it is a basic need… there is no need to belabor this a basic need… there is no need to belabor this point because well all know that if you don’t point because well all know that if you don’t have food to eat, you will die thereby defeating have food to eat, you will die thereby defeating all the intent and purposes of the Civil and all the intent and purposes of the Civil and Political Rights… This basic needs therefore Political Rights… This basic needs therefore automatically translates into Basic Rights.”automatically translates into Basic Rights.”

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Rights-based DebateRights-based Debate1963 Constitution had Bill of Rights based 1963 Constitution had Bill of Rights based on UDHR (1948) and ECHRFF (1950)on UDHR (1948) and ECHRFF (1950)How to deal with access to and/or equitable How to deal with access to and/or equitable distribution of land; perceived or anticipated distribution of land; perceived or anticipated marginalization of less-populated ethnic marginalization of less-populated ethnic groups; and, the unresolved question of self-groups; and, the unresolved question of self-determination by the then Northern Frontier determination by the then Northern Frontier District District Quests were essentially put on ice still melt Quests were essentially put on ice still melt Issues within Bill of Rights Chapter and also Issues within Bill of Rights Chapter and also outside informs the debate and contestations outside informs the debate and contestations

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Cap 4: Bill of RightsCap 4: Bill of Rights

Strong provisions on non-discrimination (27)Strong provisions on non-discrimination (27)

Banning indirect discrimination [27(4)]Banning indirect discrimination [27(4)]

Rights to be respected by all and not just by Rights to be respected by all and not just by the state (20)the state (20)

Most civil rights including privacy (31), Most civil rights including privacy (31), consumer (46), right to strike (41)consumer (46), right to strike (41)

Rights to health, housing and sanitation, food Rights to health, housing and sanitation, food and water and social security (Art. 43)and water and social security (Art. 43)

State obligation to realisation of the rights State obligation to realisation of the rights (21) Cf. 20(5)(21) Cf. 20(5)

Cap 4: Bill of Rights (cont.)Cap 4: Bill of Rights (cont.)Rights of specific groups: children, youth, Rights of specific groups: children, youth, persons with disability, marginalized groups, persons with disability, marginalized groups, the elderly (53-57)the elderly (53-57)

State to have policies of affirmative action State to have policies of affirmative action [27(6)][27(6)]

State must carry out its human rights State must carry out its human rights obligations under international law [21(4)]obligations under international law [21(4)]

Treaties as part of Kenyan law (Art. 2(6))Treaties as part of Kenyan law (Art. 2(6))

Remedies through courts (22+23) Cf. 258 Remedies through courts (22+23) Cf. 258

KNHREC with a constitutional status (59)KNHREC with a constitutional status (59)77

Limitation of rightsLimitation of rights

Laws can limit rights (except for 4 rights Laws can limit rights (except for 4 rights specially protected in Article 25)specially protected in Article 25)

Limiting a right will depend on what Limiting a right will depend on what objective is to be achieved and whether the objective is to be achieved and whether the limit is greater than would be needed to limit is greater than would be needed to achieve that objective.achieve that objective.

Misunderstandings about the human rights Misunderstandings about the human rights e.g. right to life (26), striking police [24(5)]e.g. right to life (26), striking police [24(5)]

Therefore, rights with responsibilities, in a Therefore, rights with responsibilities, in a democratic manner (helped by courts)democratic manner (helped by courts)

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ConclusionConclusion

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The PCK has many great provisions on human rights.

Wanjiku’s rights: Is the glass half-full for you?

As a Kenyan, you have to vote! It is either YES or NO: there is no WAIT.

Vote Wisely on 4th August 2010

THANK YOUTHANK YOU

Tom Kagwe, J. P.Tom Kagwe, J. P.

Ag. Deputy Executive DirectorAg. Deputy Executive Director

KENYA HUMAN RIGHTS COMMISSIONKENYA HUMAN RIGHTS COMMISSION

Opposite Valley Arcade, Gitanga Road, Opposite Valley Arcade, Gitanga Road,

P.O Box 41079, 00100 GPO, Nairobi, Kenya.P.O Box 41079, 00100 GPO, Nairobi, Kenya.

Tel. +254-020-3874998/9 3876065/6Tel. +254-020-3874998/9 3876065/6

Fax. +254-020-3874997Fax. +254-020-3874997

Email: Email: tkagwe@khrc.or.ke    

Website: Website: http://www.khrc.or.ke      

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