Christopher McCrudden trifurcates the basic minimum content of the core of human dignity to entail: every human being possesses an intrinsic worth, just by being human. Secondly the intrinsic worth should be recognized and respected by others and that some forms of treatment by others are inconsistent with, or required by, respect for this intrinsic worth.[1] The trio are well mirrored in their pragmatic aspect within the lens of street families in Kenya. A walk into almost all, if not all, towns and cities in the country gives a black and white disparity picture between those considered normal and those living in the streets alias chokoras.[2] It is interestingly weird that we may be so used to the far glance of the inhuman lifestyles of our fellow country people struggling to find life in the streets to the extent that we may fail to tell the pinch therein. This paper hence evaluates the constitutional right to a dignified life to all and its dismemberment in the day-to-day way of street life in Kenya.
Background
Over and above the immerse struggles and suffering that is experienced by street families, the life in the streets is full of emptiness, hatred and general inhumane experiences. The families that call streets and town corridors home suffer from lack of food, lack of shelter, clothing, general care and lack of security. As per UNICEF, the Kenyan streets are marred by individuals who are highly potentiated and great dreamers.[3] The families find themselves in the streets and have to find their way to survive. Most of the street families have nowhere to call home save for the pathetic dumpsites in the cities, the cold corridors in the town halls and their corners of survival in the towns across the country. There also exists those who despite having homes, they source their livelihood in the streets through begging throughout the day and are later taken back home.
The US Senate subcommittee on Juvenile Justice did categorize street children into two; the “push-outs” or “throwaways” and the “runaways”.[4] The “push-outs” or “throwaways” are those children in the streets who found themselves there as a result of neglect from their families and/or abandonment by their families and/or guardians. On the other hand, the “runaways” are those who live in the streets as a result escaping home due to various reasons such as poverty, brutality and neglect or from being laden with duties and responsibilities that are beyond their coping capacities.[5]. There also exists another group of street families who don’t necessarily spend in the streets; They are brought to the streets in the morning by their aides (Who in most instances are their family members) and are later picked in the evening and returned home by whoever brought them.[6] When brought to the streets , they strategically position themselves so as to beg for their ‘daily bread’ from the people passing through their various strategic points of location.
It is noteworthy that street families struggle to survive as some are subjected to sexual harassment, torture, bullying and even arbitrary arrest.[7] Rubbing salt into the wound, many people have the worst attitude ever against the street families. The society treats them as if they even lack the right to exist.[8] They are viewed and perceived to be guttersnipes, trumps, urchins, imps, scavengers etc. Not to give any redress, most street families lack the general know-how on how to go about everything with regards to their rights and space in the society.
By dint of the suffering and torture that street life offers to a sizable number of the people, the law lacks its pragmatic sense to humanity. This is because the pathetic life experiences in the streets deny the members of the street families various rights. Most importantly, the guarantee of human dignity which includes their Economic social and cultural rights (ESCR) in the ambit of effectuating the right to a dignified life.[9] It is my submission that the law is grossly violated more especially the provisions on human rights. This is as herein substantiated.
Street life as an infringement to the law on human rights
The lifestyle in the streets denies street families the right to life and if at all if offers, then it grants the right to life without life in the right. Indisputably, the existence of street families in our towns and the status quo of their life experiences raises the question of human rights and the dignity of the people therein. This is despite the legal guarantee of their protection both under international law and municipal laws of the Republic of Kenya.
It is worth noting that the progressiveness of the Constitution of Kenya (2010)[10] is premised on among other things, its people-centric nature.[11] The 2010 constitution recognizes the people as the beholders of the sovereign powers in the State[12] and further delegating a whole chapter on their rights i.e. Chapter four on The Bill of Rights,[13] which is also considered as among the most progressive bills of rights in the world.[14]
Article 43 of the Constitution of Kenya[15] entitles every person to the enjoyment of the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care; the right to accessible and adequate housing, and to reasonable standards of sanitation; the right to be free from hunger, and to have adequate food of acceptable quality; the right to clean and safe water in adequate quantities; the right to social security; and the right to education. This is further buttressed by Article 53[16] which speaks to the specific rights of children. Sub- Article b of Article 53 entitles every child the right to free and compulsory basic education as sub article c entitles them the right to basic nutrition, shelter, and healthcare. Article 55[17] among other provisions, similarly echoes the afore-Stated rights guaranteed to all persons within the State.
The State is obligated to take measures which include affirmative action programs to ensure that the youth have access to the necessary and relevant education and training. Furthermore, in Sub-Article c and d of Article 55, the State is tasked to ensure that the youths access employment and that they are protected from harmful cultural practices and exploitation.
Though not guaranteed to street families, Article 19(2)[18] further speaks to the core purpose for the recognition and protection of human rights and fundamental freedoms. This is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings.[19] While underscoring the centrality of the people’s dignity in Kenya, the court in A.N.N v Attorney General[20] contextualized the right to human dignity and the non-discrimination provision to be the foundation upon which the rest of the constitution is premised. As in the John Kabui Mwai case,[21]the dignity of the people extends to their socio-economic and cultural wellbeing.
Furthermore, by dint of article 2(5) and 2(6) of the Constitution of Kenya,[22] International law similarly finds its place in Kenyan jurisprudence to frown antagonistically against the life in Kenyan streets. The Universal Declaration on Human Rights (UDHR)[23] as well as the International Covenant on Civil and Political Rights (ICCPR, 1966),[24] equally underscore the place of the people’s dignified life by dint of their existence as humans.
Needless to say, with such degree of legal protection and guarantee of a dignified life to all, the thriving of street sufferation in Kenya averts the logic as to the existence of the law. Being an integral part of Kenya’s democratic State and the framework for economic, social, and cultural policies in our societies, unminding the Bill of Rights dismembers the full meaning of the law. This paper hence proceeds to juxtapose the constitutional guarantee of a dignified life to all against the duty bearer’s obligation.
The obligation of State towards every person; street families included
Thomas Hobbes, John Locke, and Jean-Jacques Rousseau in their conceptualization of the social contractarian theory, it is consensual that the existence of the State is premised on the people rendering part of their power to the State. The State is then obligated to give back a hand to the people by inter alia, protecting, respecting, and promoting their rights.[25] This is no difference to the practice of democracy and governance in Kenya today. It thus renders the State a big obligation towards its people.
Among other International legal instruments, the General Comment No 3 the UN Committee on Economic, Social and Cultural Rights[26] obligates each State to, in good faith, take all appropriate measures towards the realization of economic, social, and cultural rights. This includes the taking of’ legislative and policy measures towards the realization of economic, social and cultural rights. In the event of insufficient resources, the States should establish effective and low-cost programmes to protect the most at risk.[27] Notably, the constitution binds the State to enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms.[28]
Municipally, article 21 of the Constitution[29] explicitly provides that it is the fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms encapsulated in the Bill of Rights. The State is further expected to pursue legislative, policy and other measures, including the setting of standards, to ensure the progressive realization of socio-economic and cultural rights. At sub article 3,[30] all State organs and all public officers bear the duty to address the needs of vulnerable groups within our society, including women, older members of society, persons with disabilities, children etc. Notably the people on the street are a very vulnerable group which requires special State attention. But then, till when shall the bill of rights continue frowning at the existence of street families in their pathetic conditions within our towns? It is my submission that the concept of ‘progressive realization’ does not grant the State a carte-blanche to attend to the street families whenever and however it deems fit.
Where is the State?
As the good book in the Christian faith would say, “Give to Caesar what belongs to Caesar, and to God what belongs to God.”[31] To this end the place of the State is not discredited; and so are its shortcomings. In the 2020 National Policy on Rehabilitation of street children, the State purposed to provide a coherent and sustainable framework for the rehabilitation of street families in Kenya.[32] In the policy, it prioritized the prevention of emergence of street families, rescuing and rehabilitation of street families, prevention of the emergence of street families as well as the reintegration and the resocialization of street families.[33]These were equally accompanied by strategic measures to implement the policy.[34]
However, the policy aspirations remain to be so up to date. As afore-substantiated, the Kenyan towns are still marred with street families. Not much has been done to free our brothers and sisters in the streets from the inhumane sufferation therein. It is a thing to have laws and policies; and another to have them implemented. As herein canvassed, this paper posits that the State has failed to realize the right to a dignified life for its people on the streets.
The question of a failed State; A redux of the Mitu-bell promise
Underscoring the constitutional obligation of the State to progressively realize socio-economic and cultural rights, Kenya’s sui generis statute at article 20(5) establishes guiding principles as to the effectuation of the requirement to progressively realize the Article 43 rights. If the State claims resource inadequacy, it bears the duty to prove unavailability of the resources. Constitutionally, while allocating resources, the State must ensure the widest possible enjoyment of the right or fundamental freedom having regard to prevailing circumstances, including the vulnerability of particular groups or individuals.
The supreme court in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (amicus curiae)[35] pronounced itself on the obligation of the State to progressively realize socio-economic rights under article 43 of the Constitution. In its pronouncement, the apex court buttressed the constitutional standing at article 20(5) on the guiding principles on progressive realization of rights. In defining what exactly is meant by ‘progressive realization’, the apex court relied on its position in the Matter of the Principle of Gender Representation in the National Assembly and the Senate[36]where it averred that the concept of progressive realization speaks to the gradual realization of human rights which by its very nature, cannot be achieved on its own, unless a certain set of supportive measures are taken by the State towards it.
The government hence has an obligation to effectuate the rights under article 43 while in the same vein acknowledging the intrinsic worth of its people; in the case at hand, the citizens ‘purported to be alive’ in the streets. However, not to unmind the steps taken by the State, it is my submission that that may only be a drop in an ocean. There is much to be done by the State to dignify the people living on the streets.
Conclusion
Conclusively, an upshot of the foregoing is that the street life menace in Kenya is not a problem of resource unavailability but a question of State priority. Notably, the people in the streets, too, are part of the sovereigns of this country and should be treated as such.[37] The State should up its game vis a vis its obligation towards the realization of the right of a dignified life to all. This paper renders a clarion call to the State and all the necessary stakeholders to pursue all possible means and mechanisms of redress towards respecting the place of our countrymen and countrywomen of this and the next generation(s) dreeing in the street sufferation struggle. These should include, inter alia, the Institution of public-private partnerships on social protection of street families. This will entail the collaboration of the State with private entities such as Non-Governmental Organizations to conjunctively effectuate the rehabilitation. Furthermore, the State should ensure Strict budgetary allocation of funds towards the realization of the ‘paper policies’ on the rehabilitation of street families. Equally, the various institutions beginning from the ministry of labour and social protection, Street families and Rehabilitation Trust Fund, County governments as well as parliament should mean business on resolving the street life menace. Downing my pen, I aver, ‘street life is Kenyan life, street families are Kenyan families, street people are Kenyan people, let’s wake to this reality!’
The author is an undergraduate student at The Moi University School of Law (Annex Campus). He can be reached through the email ndubimarvis@gmail.com
[1] McCrudden, Christopher. “Human dignity and judicial interpretation of human rights.” European Journal of international Law 19, no. 4 (2008): 655-724.
[2]Sitienei, Emily Chepngetich, and Jace Pillay. “Life experiences of children living on streets in Kenya: from the pot into the fire.” Journal of child & adolescent trauma 12 (2019): 201-209.; see also, Githiora, Chege. “Sheng: Peer Language, Swahili Dialect or Emerging Creole?” Journal of African Cultural Studies 15, no. 2 (2002): 159–81. Accessed at: http://www.jstor.org/stable/3181415.
[3] Children on the Streets Juliett Otieno, UNICEF Kenya. Accessed at: https://www.academia.edu/35131323/Children_on_the_Streets
[4] The U S Senate. Committee on the Judiciary. Subcommittee on Juvenile Justice. 99th Congress Private sector initiatives regarding missing children serial no J – 99 – 26 Washington: US Government Printing Office (1986). Accessed at: https://www.rhyclearinghouse.acf.hhs.gov/sites/default/files/docs/189-Private_Sector_Initiatives_Regarding_Missing_Children.pdf
[5] Ibid
[6] UNICEF (2005). The state of the world’s children: Invisible and excluded children. New York: UNICEF.
[7] (Human rights watch: Street children) https://www.hrw.org/legacy/children/street.htm accessed May 7, 2023
[8]See” Living on the Edge, Experiences, programs and the future of street children in Embu town”; by Mwenda Ntarangwi. Accessed at: https://www.academia.edu/6514491/Ten_Years_of_Street_Children_Programming_1987-1997_PLAN_International_Embu-Meru
[9] United Nations Human Rights; Office of the High Commissioner on Economic, social and cultural rights. Accessed at: https://www.ohchr.org/en/human-rights/economic-social-cultural-rights#:~:text=Economccccccccic%20social%20and%20cultural%20rights,and%20sanitation%2C%20and%20to%20work.
[10] Constitution of Kenya, 2010
[11] People Power in The 2010 Constitution; A reality or an Illusion? By prof Willy Mutunga, Former Chief Justice of Kenya and President of the Supreme Court of the Republic of Kenya. Accessed at: https://www.theelephant.info/op-eds/2020/03/06/people-power-in-the-2010-constitution-a-reality-or-an-illusion/?print=print
[12] Supra note 11, Constitution of Kenya 2010, article 1(1)
[13] Constitution of Kenya (2010), Chapter IV on The Bill of Rights
[14] Supra note 12, People Power in The 2010 Constitution; A reality or an Illusion? By prof Willy Mutunga, Former Chief Justice of Kenya and President of the Supreme Court of the Republic of Kenya. Accessed at: https://www.theelephant.info/op-eds/2020/03/06/people-power-in-the-2010-constitution-a-reality-or-an-illusion/?print=print
[15] Supra note 11, Constitution of Kenya 2010, Article 43
[16] Ibid, Constitution of Kenya 2010, Article 53
[17] Ibid, Constitution of Kenya 2010, Article 55
[18] Ibid, Constitution of Kenya 2010, Article 19(2)
[19] Ibid, Constitution of Kenya 2010, Article 19(2)
[20] A.N.N v Attorney General [2013] eKLR, PETITION NO 240 OF 2012
[21] John Kabui Mwai & 3 others v Kenya National Examination Council & 2 others [2011] eKLR
[22] Constitution of Kenya (2010), Article 2(5 & 6)
[23] Assembly, UN General. “Universal declaration of human rights.” UN General Assembly 302, no. 2 (1948), preamble
[24] International Covenant on Civil and Political Rights, preamble
[25] Ritchie, David G. “Contributions to the history of the social contract theory.” Political Science Quarterly 6, no. 4 (1891): 656-676.
[26] General Comment No. 3: The nature of States parties’ obligations (article 2, para. 1) (1990), adopted by the Committee on Economic, Social and Cultural Rights at the Fifth Session, E/1991/23, 14 December 1990.
[27] Ibid
[28] Supra note 23, Constitution of Kenya (2010), Article 21(4)
[29] Ibid, Constitution of Kenya (2010), Article 21
[30] Ibid, Constitution of Kenya (2010), Article 21(3)
[31] New International Version Bible, Mark 12:17. Accessed at: https://www.bible.com/bible/111/MRK.12.NIV
[32] National Policy on the rehabilitation of street families, 2020. Accessed at: http://sfrtf.socialprotection.go.ke/wp-content/uploads/2020/12/Draft-Policy-on-Street-Families.pdf
[33] Ibid, National Policy on the rehabilitation of street families, 2020. Accessed at: http://sfrtf.socialprotection.go.ke/wp-content/uploads/2020/12/Draft-Policy-on-Street-Families.pdf
[34] Ibid, National Policy on the rehabilitation of street families, 2020. Accessed at: http://sfrtf.socialprotection.go.ke/wp-content/uploads/2020/12/Draft-Policy-on-Street-Families.pdf
[35] Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (amicus curiae) [2021] KESC 34 (KLR)
[36] In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR
[37] Supra note 29, Constitution of Kenya (2010), Article 1(1); see also, Kangu, J. Mutakha. “’We the people ‘as the sovereign in the theory and practice of governance.” Moi University Law Journal 1, no. 2 (2007): 197-215
