Introduction On 12th March 2020, the Ministry of Health (“MoH”) confirmed the first positive COVID – 19 case in Nairobi, Kenya.2 It was apparent that the novel virus had found breeding ground and was determined to wreak havoc of magnanimous proportions. Timeo!
To effectively respond to the real threat, on 28th February 2020, the President issued Executive Directive No. 2 of 2020, establishing the National Emergency Response Committee on Coronavirus (“NERC”).3 NERC was tasked with several roles, key among them: Conducting Economic Impact Assessments and developing mitigation strategies with regard to the Disease.4
As the cases continue to shoot, like a rollercoaster only headed upwards, the government has taken several remedial measures, including the issuance of further directives, including the dusk to dawn curfew and containment restrictions on movement, into and out of Nairobi and Mombasa regions.
The attendant social and economic effects, have led several leaders and persons of goodwill to initiate aid, including delivering care packages to families. The areas of focus would seem slum and informal settlements, where many citizens lead a somewhat hand to mouth lifestyle. One thing is definite, that the effects of the virus are felt uniformly amongst the different classes of people, but more especially the low-income earners. The question that then begs is whether the virus is causing enhanced marginalization, especially within vulnerable groups. This is so, especially because the state has failed to ensure that socioeconomic rights are enjoyed by Kenyans, a decade later, since promulgation of the constitution.
Recent reports saw residents of Kibra constituency scramble for food donations, which led to the NERC issuing guidelines on distribution of aid food. This is the situation countrywide, as government lobbies support through the Covid 19 Fund. The government has recently put in place a mechanism for distribution of a “weekly stipend” to vulnerable groups. The Ministry of Public Service has termed this a dignified form of aid, compared to donations in the form of physical distributions. Beneficiaries of this programme include the elderly, the disabled and the poor. This is done through the ministry of Labor and Social Protection.
The cash outs are meant to cushion these vulnerable groups from the negative effects of the Covid – 19 pandemic. What is interesting is that the model adopted by the state is identification of “needy” households to receive the weekly stipend. This is done by local administration, leaving room for abuse of discretion.
Background It is obvious that the government has failed to meet basic constitutional guarantees, even before the pandemic struck. As recent as 14th March 2019, the media reported that thousands of Kenyans were facing starvation. One particular caption was “Drought: Thousands facing starvation in Turkana.”5 The Deputy Governor, Woman Rep and Turkana Central MP appealed to the national government and relief agencies to intervene urgently to save thousands of the region’s residents from starvation. An appeal was also made to the National Government’s Affirmative Action Fund (“NGAAF”) to release emergency funds urgently so that the villagers can be saved from starvation.
Kenyans, having promulgated the Constitution in 2010, expected, to say the least, that their lives be fundamentally transformed, considering the history of an imbalanced distribution of resources occasioned by centralized and monopolized systems of power and decision making. By expressly guaranteeing socioeconomic rights, the Constitution of Kenya has been termed as being revolutionary and with the capacity to transform the lives of Kenyans.7 The transformational nature of the constitution is this article’s main focus, for reason that, over 10 years after promulgation of the constitution, Kenyans, continue to battle deplorable living conditions and below average standards of living.
The state, seems to have abdicated its responsibility under the constitution and international legal instruments, hence there is urgent and apparent need to discourage capitalistic theories such as Robert Nozick’s theory of historical entitlement, which gives the impression of being hostile to socio-economic rights.8 This hostility in enforcement of socioeconomic rights can best be understood by analyzing the state’s failure to provide mechanisms to alleviate both continual and periodic crises in historically marginalized communities and low income earning citizens.
It would seem that Kenyans were mistaken when they thought that the Constitution would be a life changing document through the aspirations therein. Devolution, which was meant to aid in achieving a balance in distribution of resources. However, nothing seems to have changed at all. If anything, there is rampant misappropriation and violent looting of public funds, instead of expending resources on ensuring improved livelihood in the devolved units.
Recognition of Socioeconomic Rights as Equal Rights Even as affirmative and corrective action measures are being adopted by the state in the conte8xt of the pandemic, there is need to bring into light the compelling nature of socio-economic rights. In the past, Civil and Political rights were viewed as superior to economic, social and cultural Rights but this notion has since been abandoned due to the acceptance of equality of rights regardless of class. For one to be said to have a dignified life they have to be guaranteed all the rights.
Therefore, for socioeconomic rights to be effectively enforced, the notion that they are third class rights must be demystified completely. The state must adopt a radical enforcement approach, because there is equality of rights regardless of ‘class’ or ‘generation’ and that they are ‘universal, indivisible, interdependent and interrelated.9
Kenya, as a state party to the ICESCR, has committed to taking progressive steps towards achieving the full implementation of rights under the covenant. In doing so, Kenya made the commitment to using the maximum available resources. Without respect of socioeconomic rights, which in their right sense are essentially human rights, the state cannot be said to respect, protect, and promote its international legal obligations owed to the people.
Socio-economic Rights and the Constitutional Vision The Constitution of Kenya 2010 entrenches justiciable socioeconomic rights in an expansive Bill of Rights. It places an obligation on the state to progressively realize the SERs, which requires the state to put in place measures, to be accomplished in stages bearing in mind the resources available to the state for the implementation of SERs.
Just like South Africa, entrenchment of socioeconomic rights is based on our watershed as a state, characterized inequalities occasioned by colonialism that brought about the need for provision of facilities and services to bridge the gap created in order to bring about equality, human dignity and social justice.10
Article 43 of the constitution provides for economic and social rights and it provides that; “Every person has the right – (a) to the highest attainable standard of health, which includes the right to healthcare services, including reproductive health; (b) to accessible and adequate housing; and to reasonable standards of sanitation; (c) to be free from hunger, and to have adequate food of acceptable quality; (d) to clean and safe water in adequate quantities; (e) to social security; and, ( f) to education.
Unlike the repealed constitution that hardly guaranteed these rights, the new constitution’s vision, in this article’s view, was that these rights are inherent and the state must guarantee their full realization, eventually. This is because these rights are at the core of enjoyment of other human rights such as the right to life and the right to human dignity.
The spirit of the constitution is to the effect that the people of Kenya must achieve their full potential and this includes enjoyment of these rights and there is need to better these conditions at every achievable stage in life. Progressive Realization: What it really Means Article 21(2) of the Constitution espouses the principle of progressive realization. It obligates the state to take legislative, policy and other measures to achieve progressive realization of the SERs provided under Article 43.11
Article 2(1) of the ICESCR states that: “Each state party to the Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources with a view to achieving progressively the full realization of the rights recognized in the present covenant by all appropriate means, including particularly the adoption of legislative measures.”12
The Limburg Principles on the implementation of the ICESCR elaborate on progressive realization. They provide for obligations states to begin taking steps immediately to achieve justiciable SERs, right to minimum subsistence and the use of available resources.
The Principles state that “progressive realization cannot be interpreted under any circumstance to imply that the states have the right to defer indefinitely efforts to ensure full realization” This in effect means that states are required to begin immediately to take steps to fulfill their obligations under the Covenant.13
Progressive realization then requires a state to strive towards the realization and improved enjoyment of SERs for its people to the maximum extent possible in the circumstances regardless of scarcity of resources.14 The state through the relevant governmental agencies has to take steps towards the full realization of the SERs and in particular housing rights that are the focus of this paper, in a manner that allows the provisions of the Constitution to be enforced resulting in tangible gains for the people and especially the most vulnerable.
In Michael Mutinda Mutemi v. Permanent Secretary, Ministry of Education and 2 others,15 the petitioner could not afford to pay secondary school fees for his son which was 50,000 shillings a year; even on application of bursaries and other government aid, he only got 4,000 shillings. Even though the right to education is to be achieved progressively, the court held that the State failed to show concrete policy measures, guidelines and progress it had made towards the realization of the right to education. It held that the State must be seen to take firm steps in achieving the right to basic education in a holistic manner.
The obligations of the state in this regard is to take steps, both as an individual state and in collaboration with other states to the maximum of its available resources with a view to achieving progressively the bill realization of the rights provided for in the covenant. Progressive realization requires special measures be taken by the state party in respect of the vulnerable members of society who must be protected by the adoption of relatively low-cost programs.16 This approach is supported by John Rawls’ theories of distributive justice.
Within the context of Covid – 19, arguments for progressive realization become problematic, because what is at stake is lives of people. This is especially because of the general disruption of the daily activities ordinarily carried out by citizens, towards self-sustenance.
Kenya; A state in Regression? Regression refers to acts and omissions of the state which deprive people of the rights that they used to enjoy or reduce the quality of enjoyment. These actions include high taxes on basic necessaries and failure to supply these necessaries to all regions equitably. Failure to allocate considerable amounts of money to ensure healthcare systems and other social services available adequately and affordably is a form of regression on the part of the state.
In other words, “regressive measures” mean a step back in the level of protection accorded to the rights in the ICESCR as a consequence of an intentional decision by the State. This includes an unjustified reduction in public expenditures devoted to implementation of Covenant rights in the absence of adequate compensatory measures aimed at protecting the affected individuals.17
Rawls’ conception of distributive justice,18 resonates with modem day international law and in particular the ICESCR which advocates for progressive realization which requires a state to strive towards fulfilment and improvement in the enjoyment of socio-economic rights to the maximum extent possible, even in the face of resource constraints.19
There is an immediate obligation on the state to ensure constant improvement in the realization of SERs and retrogressive measures are not permissible under the Covenant and if taken they have to be justified by reference to the totality of rights. The obligation requires that state parties take more steps even where people already have access to SERs to improve the nature and quality of services to which people have access.20 State parties to the ICESCR are obliged to ensure that no deliberate regressive measures are taken in respect of SERs.21
It must therefore remain top priority for the government to ensure that the progress made in terms of enforcing socio- economic rights is not watered down. Covid-19 cannot be a legitimate excuse for noncompliance with the constitution and international standards.
Minimum Core Approach in Progressive Realization The CESCR has defined the minimum core obligations of SERs as at least the minimum essential levels of each of the rights.22 In the Grootboom case, it was argued that the minimum core obligation for the right of access to adequate housing would mean that everyone is entitled to some basic shelter, including shelter for children.
In the Treatment Action Campaign Case, it was argued that the minimum core obligation for the right of access to health care would mean that everyone is entitled to receive nevirapine, including pregnant women living with HIV and their newborn babies.
Limburg Principles23 that particularly require the state parties to guarantee respect for the minimum standards for all notwithstanding the resources available at the state’s disposal.24 The concept of core of rights is not unique to SERs47 and it connotes die set of specific individual entitlements that constitute the right. This standard has been used to attempt to establish legal minimum content of SERs that are largely indeterminate.25
The CESCR in recognition of this, developed the minimum core approach to establish the minimum standards that were to be achieved by al states regardless of the economic situation. It is the non-negotiable foundation of a right which is entitle to all human beings irrespective of their context or circumstances,26 the Constitution places the burden on the State to use the maximum available resources in implementing these rights and the responsibility to show that resources are not available.27
State parties of the ICESCR besides the duty to progressively realize SERs, have immediate obligations regarding the covenant including to prioritize minimum core obligations and to ensure that no unjustified retrogressive measures are taken.
While the obligation to realize the minimum core content of the rights means that the state should prioritize the realization of the rights for the poorest and most vulnerable in society it does not remove the obligation to progressively realize the rights for all individuals.28
Considering the fact that no one was prepared for the pandemic therefore, for the state to enforce socioeconomic rights, there is need to adopt a minimum core approach, with distributive justice theories in mind. The implementation of socioeconomic rights has to take a practical path, appreciating that there is need for all Kenyans to be afforded a decent life by the state, considering the availability of resources.
Reasonableness in Enforcement of SERs The reasonableness standard has its origins in the works of Prof. Etienne Mureinik, who besides making a persuasive case for the inclusion of the SERs s in constitutions, argued that the state has a duty to its citizens to make an honest and reasonable effort to realize their SERs. Mureinik suggested judicial review for the measure of governmental action.29 The government is required to justify the means chosen to realize SERs.30
Reasonableness is characterized as a flexible and realistic standard that takes into account individual circumstances and particularly emphasizing on the most vulnerable.31 The South African Constitutional Court (SACC), which is the highest court in constitutional matters, interpreted the duty of the state to take reasonable measures in Government of the Republic of South Africa v Grootboom.32
The tests laid in the case include; (i) clearly allocate responsibilities and tasks between the three spheres of government (national, provincial and local), in consultation with each other; (ii) must be balanced and flexible taking account of short, medium and long-term needs of the people including those persons in desperate and immediate need; (iii) ensure that appropriate financial and human resources are available to implement SERs; (iv) reasonably conceived and implemented in that the state must execute well directed policies and programs, and ensure sufficient financial, human and other resources are allocated; (v) the programs contents must be made known to the intended beneficiaries in line with constitutional values of accountability and openness.
Realization Formula and Indicators Denial of access to basic SERs amounts to denial of a chance to live dignified lives.33 Therefore, inclusion of socioeconomic rights as justiciable rights indicates that the Constitution envisages an important role for the judiciary in their enforcement.
Judicial officers adjudicating socioeconomic claims must be guided by among other principles, whether the interests of the most vulnerable are considered in relevant state policies, particularly those relating to allocation of resources in a determination of whether or not the state has complied with its obligation to progressively realize SERs.34
There is need to avoid pulverizing the effect of socioeconomic rights by actively implementing affirmative action policies to take into account the most vulnerable in society and guarantee the provision of their socio-economic rights. The best approach is to ensure that government action and involvement is that which advocates for the enjoyment of rights of vulnerable groups in an equitable way.35 This can also be achieved through putting in place affirmative action programs to reduce structural inequalities and to give appropriate differential treatment to these groups.36
There is also need to ensure that Kenya refrains from taking regressive measures. This is through ensuring that the standards do not depreciate and that citizens do not lose enjoyment of rights that they initially enjoyed.
Conclusion Progressive realization is not a strategic cave sanctioning untenable excuses. It requires the government to strive towards the realization of Socio-economic rights by its
people, to the maximum extent possible, even in the face of scarcity of resources.37 It is unfortunate that it is in the face of a pandemic that various leaders, elected or otherwise, are contributing and lobbying, what they refer to as donations, to “help” residents of their constituencies. I am totally perturbed.
This particular pandemic is proof that there is need for immediate and tangible progress towards realization of Socio-economic rights for the people of Kenya. Therefore, although progressive realization allows the state room for flexibility in the enforcement of SERs, it does not provide a green light for the government to drag its feet.
The Rawlsian theory of distributive justice must be embraced forthwith. In the face of imminent restrictions in light of COVID – 19, the government needs to step up to ensure that Kenyans do not die of hunger. Further, that Article 43 of the Constitution of Kenya 2010 guarantees Kenyans a dignified life free of deplorable living conditions.
Failure to achieve full realization of Socio-economic rights continues to subject Kenyans to enhanced marginalization. The aesthetics of the Constitution of Kenya 2010 make it quite progressive, only if enforced, even in the face of the COVID – 19 pandemic, determined to wipe us all off mother earth!
Chrispin Bosire is a Legal Assistant at Simba & Simba Advocates (Commercial and Corporate Law Department). He is an Intellectual Property, Media, Communications, Technology, Tax and Data Protection Law Analyst, available at <email@example.com>