The excitement that greeted every progressive judgment on socio-economic rights (SERs) in the country post 2010 constitutional dispensation could be forgiven for an assumption that finally, we were headed somewhere in terms of actualizing the goals and aspirations of the 2010 Constitution. From J Mumbi Ngugi’s decision in Mitu Bell Welfare Society & 2 Others vs. Kenya Airports Authority to the High court decisions in Susan Waithera Kariuki & 4 Others vs. Town Clerk Nairobi City Council and 2 Others, Ibrahim Sangor Ouma vs. Minister of State for Provincial Administration and Internal Security and 3 Others and Satrose Ayuma & 11 Others vs. The Registered Trustees of Kenya Railways Staff Retirement Benefits Fund Scheme and 3 Others, the courts ( read High court) made every attempt to give life to the socio -economic rights enshrined under article 43 of the 2010 constitution and that attempt to give them life translated to pulpable anticipation among many people that finally we were on the road towards dealing with the chronic poverty and social marginalization issues that had plagued the country since independence. That doesn’t seem to be the case so much and the extent of the same has been exposed by the occurrences in the country during the Covid 19 epidemic. Before getting to the task of showing whether or not the Covid epidemic has exposed that failure to achieve the bare minimums of socio-economic rights, I shall undertake a quick recap of the provision of socio-economic rights in the 2010 Constitution and the judicial interpretation of the same.
Provision of SERs under the 2010 Constitution
The 2010 constitution has been hailed and recognized as being a transformative constitution, or at least it is supposed to be one. Ojwang J (as he then was) remarked in Joseph Kimani Gathungu vs. Attorney General & 5 Others:1 ‘A scrutiny of the several constitutions Kenya has had since Independence shows that, whereas the earlier ones were designed as little more than a regulatory formula for State affairs, the Constitution of 2010 is dominated by a “social orientation”, and as its main theme, “rights, welfare, empowerment”, and the Constitution offers these values as the reference-point in governance functions.’
The Supreme Court in Speaker of The Senate & Another vs. Hon. Attorney-General & Another & 3 Others2 speaks the same language when it states that Kenya’s Constitution of 2010 is a transformative charter. Unlike the conventional “liberal” Constitutions of the earlier decades which essentially sought the control and legitimization of public power, the avowed goal of today’s Constitution is to institute social change and reform, through values such as social justice, equality, devolution, human rights, rule of law, freedom and democracy.
The reasons for doing away with the previously lifeless independence constitution are well known as are the goals sought to be achieved by its successor. Karl Klare in ‘Legal culture and transformative constitutionalism’3 envisions that for a constitution to engender transformative aspirations, it must contain a substantive (redistributive) conception of equality, entrench justiciable social economic rights, engender positive state duties to combat poverty and inequality as well as promote social welfare, provide for both vertical and horizontal application of the constitution in general and the Bill of Rights in particular, engender participatory governance, entail multi-culturalism, be historically self-conscious, as well as envision transformative adjudication (i.e. the creation of a new role and responsibilities for the judiciary through the transformation of adjudicative processes and methods.
The most critical takeaways from the above paragraph are the requirement for entrenchment of SERs, positive state duties to combat poverty and inequality as well as promotion of social welfare and being historically self -conscious. As a nation, we share the same sentiments and as we promulgated the new constitution in 2010, we must have envisaged a scenario where 10 years later, the aspirations of that Constitution would have been actualised or at least been in the process of being actualised progressively.
Providing a steppingstone for the SERs is article 10 of the 2010 Constitution. Article 10(2)(b) provides that the values and principles of governance include…human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised. Social justice and human rights are themes that run throughout the whole Constitution.
More important however is Article 43 which proceeds to provide for the aforementioned SERs. The article provides as follows; Every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care; to accessible and adequate housing, and to reasonable standards of sanitation; to be free from hunger, and to have adequate food of acceptable quality; to clean and safe water in adequate quantities; to social security; and (f) to education.
A person shall not be denied emergency medical treatment. The State shall provide appropriate social security to persons who are unable to support themselves and their dependants.
For purposes of our discussion, the right to be free from hunger and have adequate food of acceptable quality, housing, clean and safe water in adequate quantities and social security shall be of particular interest.
As is with any provisions of any law, the next step after the enshrinement of the same in a legal document is the enforcement of the same. That next step is so crucial because failure to achieve that will leave us with mere fantastic pieces of paper that contain rights and freedoms written using beautiful words but which are of no use to the people who were supposed to benefit from the same. It also so happens that it is the most difficult part. It is in the same spirit that in M.K Mbondeanyi & J.O Ambani’s paper,4 it’s argued that the anticipation is that the most contentious issue on the 2010 Constitution’s economic and social rights provisions will be their enforceability.
Judicial Interpretation of the SERs Intertwined with the concept of transformative constitutionalism is the central role that the courts play in ensuring the achievement of the transformative constitution. The Kenyan high court has on more than one occasion pronounced itself on the issue of SERs.
In Satrose Ayuma & 11 Others vs. The Registered Trustees of Kenya Railways Staff Retirement Benefits Fund Scheme and 3 Others which concerned the issue of evictions of the residents of Muthurwa Housing complex, The high court granted an injunction restraining the eviction of the petitioners in that matter and noted with concern the lack of legal guidelines governing evictions in Kenya, whether such intended evictions are from formal or informal settlements. J Masinga noted that the court acknowledged the challenge of providing accessible and adequate housing as required under article 43(b). Since the problem of informal settlements in urban areas couldn’t be wished away, there was the need to address the issue of forced evictions.
The court added that as stated under general comment number 4 of the CESR( UN Committee on Economic, Social and Cultural rights), the right to adequate housing shouldn’t be interpreted narrowly as a right to basic shelter or roof over someone’s head but rather, as a right to live somewhere in security, peace and dignity.5 It also contended that human rights are interrelated and indivisible and the right to housing is linked to inherent dignity of the human person. The court further stated that the right to housing should be ensured to all persons irrespective of their income or access to economic resource.6 In doing so, the court was basically giving life to article 43 guarantee of the right to housing.
In Ibrahim Sangor Ouma v Minister of State for Provincial Administration and Internal Security and 3 Others,7 which also involved evictions, the court held that the forced evictions were a violation of the rights of the petitioners to accessible and adequate housing as guaranteed under article 43 of the 2010 Constitution of Kenya. By a mandatory injunction, the respondents were compelled to return the petitioners to the land from which they were evicted. Further, they were to reconstruct the reasonable residences&/ alternative accommodation and housing for the petitioners.
In Susan Waithera Kariuki &4 others v Town Clerk Nairobi City Council and 2 Others,8 a case which concerned evictions from an informal settlement in Nairobi, J Musinga said that while the court recognised that the 1st respondent had a duty to control developments in Nairobi, the protection of the petitioners’ fundamental rights as guaranteed under the constitution overrides the aforesaid duty and responsibility of the 1st respondent. Since the petitioners had resided on the properties for many years, it would be unreasonable and unconstitutional for the respondents to give the petitioners a one or two-day notice to move out of their respective houses and immediately upon expiry pf the short notice, embark on forceful evictions and demolition of those houses. In the courts view, the government had a constitutional obligation to provide them with alternative housing.
These are just but a few cases which illustrate the high court’s desire to ensure that the government is on its toes with regards to enforcement of Article 43 rights.
Prof. Yash Paul Ghai in ‘Chimera of constitutionalism: State, economy and society in Africa’ in explaining the contemporary surge in constitution making and the difficulties in implementing constitutions in many African countries observes that: ‘The primary reason for adopting new constitutions is the failure of governments to fulfill the promise of independence, or internal conflicts or serious economic crises that have beset these countries. These new constitutions therefore seek to solve several problems, of both state and society. In particular they aim to promote values and framework of ‘nation building’ as well as to restructure the state. The perception has gained ground that without constitutionalism, these countries face massive problems of unity, solidarity, fair and effective administration, the protection of rights, and social and economic development. The constitution is then regarded as the basis of both state and society. The simultaneous pursuit of these objectives accounts for the ambitiousness of these constitutions, reflected in the scope and multiplicity of their purposes and the range and complexity of institutions. The Status of Socio-Economic Rights during the Covid 19 Pandemic No country can ever be properly and totally prepared to deal with force majeure events. All they can do is have contingent measures incase such events as chronic starvation caused by drought, medical epidemics, enduring floods and others strike. Those measures are supposed to be aimed at cushioning the citizens of that country from the effects of such events, taking into consideration the difficulties that may occur to them in their pursuit of satisfaction of their basic needs. Those basic needs in Kenya are contained in Article 43 of the 2010 Constitution.
The occurrence of the Covid 19 epidemic has proved to be devastating already with many people around the globe having lost not only their lives but jobs and other sources of livelihood. Our country has not been spared in the vicious cycle of the virus. Its occurrence has not only exposed how badly prepared we are in dealing with epidemics of any kind, it has also exposed a problem which had recently disappeared from the discourse of constitutional and human rights activists- the status of actualization of socio-economic rights in Kenya. The so-called progressive judgments seem a long time ago and unlike other monumental judgments down the years, their enduring legacy seems to be the occurrence of the complete opposite of what they envisioned during this covid-19 epidemic. The rot has been exacerbated by the inability of many Kenyans to have food on their tables, afford housing, access water services among other issues.
Failure to afford meals It has only been 2 months since the government announced the presence of the virus and put the country under a lockdown, but millions of people have already been identified as being unable to access meals. The prospect of what could be the state of things should this situation persist for longer is frightening. Instead of corona virus, Hunger will kill us,9 Stampede in Kenya as Slum Residents Surge for Food Aid,10 Food security worries most Kenyans during Covid-19 pandemic,11 COVID-19 in Africa: To Eat or to Heal?12 -Those are just but a few of the headlines seen in the past few weeks which serve to illustrate the extent to which a substantial number of persons in the country have been left depending on well-wishers to go through a day.
In the first article,13 Abdi Latif contends that in Kibera, the largest slum in the country, people already live in extreme poverty and the virus has just but escalated the situation, causing more to go hungry. He recounts an incident which saw a stampede as people desperate to get a token of the flour and cooking oil ran for the same, leaving many of them injured and 2 people dead. He then gives a statement that perhaps puts into context the goals and aspirations of the 2010 Constitution. He states, ‘The corona virus has sometimes been called an equalizer because it has sickened both the rich and poor, but when it comes to food, the commonality ends. It is now the poor who are going hungry and facing the prospect of starving.’
Well, one of the anticipated results of the 2010 Constitution was bridging the gap between the poor and the rich, reducing chronic poverty and ensuring that people exist in conditions which preserve human dignity. 10 years later, through no a fault of anyone, we have come to realise that maybe it was too ambitious an objective and dream that the new constitutional dispensation would actually come to do exactly that. It leaves me thinking, and rightly so, that the government has done little to achieve those Article 10 values and principles.
It would be silly to imagine that any government has the ability to feed every vulnerable person during sui generis times as now but that was the situation that existed at independence. Those who participated in the new constitution making process must have been aware of this fact but still included provisions of social justice and entitlement of persons to food and the entitlement of those who can’t fed for themselves to social security in the Constitution. I would imagine that in their minds, they knew there is something the government could do, steps it could take towards realizing those goals. It is safe to say that those steps haven’t been undertaken by our government at all.
It is contended by many that a number of people will die of hunger before the virus even gets to them which should reflect so badly on the governments of such nations. That resources are scarce is not in question, but that fact was known at the time the Constitution was being drafted. That excuse has been rejected by courts on a number of occasions. The provision of justiciable socio-economic rights in the 2010 Constitution clothes it with a reference of having an egalitarian leitmotif. It is in turn termed transformative because it seeks to ensure a restructuring of the State and society to ensure there is the egalitarian redistribution of power and resources through the eradication of systemic forms of domination by the elites and material disadvantage to the less privileged.14
Occurrence of evictions and demolition The second discussion point has to do with the evictions and demolitions which have been witnessed during the lockdown period. As earlier highlighted, article 43 guarantees the right to accessible and adequate housing, and to reasonable standards of sanitation. Housing remains one of the most notorious problems in Kenya; after all, we are home to one of the largest informal settlements in the world (otherwise referred to as slums) in Kibera. From disputes between landlords and tenants to evictions by county governments of persons occupying certain areas, it is an issue whose address is long overdue.
The laws to guide on the issue are in existence but their actualization and sometimes interpretation has remained wanting. One of the sources of problems when it comes to implementation of socio-economic rights unlike the civil political rights is the issue of protection of private property rights against the enforcement of SERs. Those who clamor for the protection of those private property rights subscribe to the school of thought that the bill of rights only applies vertically. In Mwangi Stephen Mureithi v Daniel Moi,,15 Gacheche J observed that the rigid position that human rights apply vertically was being overtaken by the emerging trends in the development of human rights litigation and it had to be appreciated that the reality is that private individuals and bodies wield great power over individual citizens who should as a result be protected from such non- state organs.
True to Gacheche J’s words, it is no secret that private individuals wield greater power and are likely to engage more in acts of violation of protected rights. That is the reason the government should have long time ago come up with laws that prevented landlords from evicting persons during unique times as this. Right now, the Court of Appeal decision in the Mitu Bell Welfare Society case which upheld and sought to protect private property rights looks extremely ill advised. Since the virus invaded the country, we have been treated to news of landlords in some areas of the country evicting tenants, especially in the informal settlements where the most vulnerable exist.
On 11th April, NTV ran a story of how a landlord in Kayole forced 16 families to sleep on the streets by evicting them from their houses for late payment of rent.16 They had pleaded with the agent to give them more time but the same fell on deaf ears. President Kenyatta’s response to cries of the burden of paying rent was an appeal to the landlords to be compassionate. What about those who have no idea what being compassionate means? 10 years later, we shouldn’t be seeking to protect the dignity of the people (by not having them sleep on the streets in the simmering night cold) by asking private property owners to be compassionate. The vertical and horizontal application of the bill of rights dictates that every person is obligated with observing the bill of rights.
In the same spirit therefore, it would be well within his discretion to not only reprimand such actions by private property owners but also come up with regulations and directives that curb such actions. Perhaps, the government wants nothing to do with disputes between private property owners and the citizens even if the same would mean exposing the people to potential violations of human rights by those landlords. In May, it was the turn of Kariobangi informal settlements to have a taste of the same treatment, only that this time the same did not come from the private landlords but from the authorities which should be protecting them. Under the authorization of the authorities, Bulldozers gave the residents of Kariobangi informal settlements a surprise and painful early morning visit which ended in over 600 homes being demolished, leaving over 5,000 homeless.17 Not only did the same put them at an even greater risk of contracting the virus (referred to by activist Boniface Mwangi as a self -defeatist move), it did little to protect their entitlement to human dignity which is enshrined in the Constitution. Even if the land in question was illegally occupied, evicting them at that point was outright inhumane and an affront to the goals of a transformative Constitution.
This was the same story in the aforementioned cases of Satrose Ayuma,18 Ibrahim Sangor19 and Susan Waithera.20 In the Susan Waithera case, the court was of the opinion that the government had to first provide them with alternative housing before evicting them. In the Kariobangi demolitions scenario, no such thing was given, no sufficient notice and even if a notice so existed, no alternative housing was offered. If that cannot happen, then there was no point coming up with a guarantee of the right to housing in the Bill of Rights.
A whole 3 weeks later, the government had not done anything to help those people and a Citizen Tv investigative report that aired on 24th May confirmed the same.21 The report by journalist Wahiga Mwaura sought to find out how those families which the government had evicted from Kariobangi were faring on. He encountered a woman, Yvonne Njeri and her 6-month old baby, Precious who have been living in the open and to protect that poor baby, she made a makeshift structure out of cardboard! She recounted the day the bulldozers came, at 6am in the morning and asked them to get their things out immediately. For her, she had to choose between saving her baby who had chest problems or save her utensils and the few household items she had. Now her baby has flu and she does not have the cash to get her treatment. She in the process lost her source of income as all her customers were also among those evicted, leaving her in dire straits. It surely cannot get worse than that.
A government that well knows of the tough economic times its people are having to endure, and especially those who reside in informal settlements should not be the one giving the green light to have the houses occupied by those persons demolished. If that is not self-defeatist in its plan to realise the provisions of the bill of rights then it is simply immoral and inhumane. It is also a confirmation that socio- economic rights do not elicit the same excitement among the government officials as do civil political rights.
The two issues I have highlighted above are sufficient for one to question where we stand as a country in our desire to enforce and realise socio-economic rights. Not to say they are the only ones because we have also seen the rights to water being under attack after governors threatened to disconnect water supply because of unpaid water bills and threaten the people’s right to not only access clean and safe water but also to sanitation regardless of the fact that most people are finding it hard to foot such bills because they are not getting no income whatsoever. The right to healthcare services and more importantly reproductive healthcare has also come under considerable threat as evidenced by tribulations of some of the pregnant women and their harassment by police which has put in jeopardy their ability to access reproductive healthcare from hospitals.22
Conclusion The purpose of this paper is not to highlight the tribulations of the Kenyans during this difficult time and convince the government to do anything because that is an exercise in futility but is an attempt at reminding those who share the same sentiments about socio economic rights that we are so far away from what was envisaged by the 2010 Constitution. At this point, it is absurd to even take refuge in the progressive realisation excuse because it has been a whopping 10 years since we promulgated the Constitution yet some of the very reasons as to why we came up with that Constitution in the first place still exist as problems in the country. The gap between the poor and the rich that the Constitution sought to reduce continues to widen, the social equality that was envisaged seems a distant dream and the desire to reduce chronic poverty remains a mere academic concept.
The incidences referenced above do not probably tell the whole story and there may be more cases that point to our failure to deal with the issue of enforcing socio-economic rights. This epidemic has only but shone a light on this bitter truth and if the same cannot be used an opportunity to self- reflect as a country, then reaslising the Bill of Rights moving forward will remain a chorus which every regime that comes and goes will continue to sing to the Kenyans. Those fantastic pieces of judgment by the high court will also remain mere legal pronouncements to be studied by students of law and admired by human rights activists. If we cannot see it now, then maybe we will never see it ever.
Omukonyi Bryson Ometo is a student at the Kenya School of Law pursuing the Advocates Training Programme for the year 2020/2021.