Background of the issue
It is now a normal occurrence that cyclists are perceivedas less “worthy” road users compared to motorists. To defend this position, one may term it as a manifestation of social classes on the roads. With the less economically empowered- the cyclists, against the motorists with a stronger financial muscle. The aforementioned position gradually solidified as the number of motorists increased with the authorization of car importation by the government as well as the booming cab business within Nairobi and its outskirts. Therefore, the number of cyclists on the roads as compared to motorists is a drop in the ocean.
Cycling is viewed as a sport and a leisure activity in the more affluent areas of the city, like Kilimani and Upper Hill. Contrarily, cycling is frequently used as a form of transportation in the city’s lower socioeconomic areas to save money on daily bus fares (this is typically done by people who work in the city and must commute back and forth); unfortunately, most of these cyclists hardly ever wear protective gear on the roads because it is prohibitively expensive as it must meet Kenya Bureau of Standards requirements.
Steps taken thus far
To accommodate bicyclists and pedestrians, who are regarded to be the most vulnerable category of road users, various legislative changes have been enacted. One is that new policy modifications mandate the construction of roads with cycling lanes. This policy has been implemented in some areas of the city, however on roads like the Ngong Road and Thika Superhighway, the lanes have poor intersection designs for cyclists and do not meet the recommended width of a bike lane, which is 1.5 metres (or 5 feet) from the face of a curb or guardrail to the bike lane stripe, and if the [longitudinal] joint is not smooth, 1.2 metres (or 4 feet) of the ridable surface.1 The majority of these lanes inevitably come to an end, forcing the cyclists to ride back on the main road, which is unsafe because the majority of Kenyan roads are not wide enough to safely fit both automobiles and bicycles.
Another noteworthy development is the Nairobi City County Government’s (NCCG) pledge to devote at least 20% of its current and future transport budget to non- motorised transportation (NMT), in this instance bicycles. This entails building and maintaining transportation amenities. The NCCG additionally committed itself to collaborate with the private sector to raise money for NMT and to ensure that any estate included the necessary provisions for NMT modes to link to existing or future networks, such as street lighting, bicycle parking and tree shading.2 The Nairobi Metropolitan Services (NMS) executed NCCG’s pledge by allocating 1.5 billion to build sidewalks and bike lanes throughout the city. However, this progress seems to have stalled this year even after the announcement of the allocation of 1.5 billion to build sidewalks and bike lanes in city estates.
Legal framework
The Traffic Act only goes as far as defining the term “bicycle”; which it describes as “any bicycle or tricycle that is not self-propelled”. Relative to other road users, it does not explicitly address cyclists as road users. Likewise, the rest of the Act makes no mention of the rights of bicyclists in relation to those of other road users; this depicts that cyclists are among the lowest rungs of road users. Consequently, this stance is to a large extent unconstitutional as “Every person is equal before the law and has the right to equal protection and equal benefit of the law.3” Sadly, there are not nearly as many laws and highway regulations protecting cyclists as road users as there are for other road users, thus they do not get the recognition they deserve.
The Highway Code provides for road guidelines that cyclists should follow on the road for their personal road safety. In as much as this is the case, most of these guidelines are there to make cyclists less of a nuisance to other road users, especially the motorists. One such guideline is “A light- coloured or fluorescent clothing which helps other road users to see you in daylight and poor light.” One may agree that indeed a cyclist has to ensure their visibility on the road ultimately for their safety but if you look at it from a fair view one may state that the wearing of light- coloured clothing is to enable visibility of the nuisance so that motorists may know what to avoid.
There are no adequate highway regulations ensuring the safety of cyclists as users of the road. Examples of some of the fundamental provisions lacking are the lack of a legally suggested safe cycling space and a recommended speed for automobiles while approaching cyclists. The present situation is a blatant indicator of how lowly regarded cyclists are.
A noteworthy element is the harassment cyclists’ face on the roads, and in most instances this harassment comes from motorists. One major reason for this is the narrow roads where both motorists and cyclists end up using to get by and reasonably speaking vehicles being bigger in space and mass will occupy a larger space consequently pushing the cyclist off the road.4 Such conduct illustrates the absence of the responsibility to exercise care for other road users (in this case cyclists). This, in a wider sense, endangers the cyclist’s right to life. Some drivers take it a step further by being verbally abusive to cyclists on the road. Such conduct undermines the cyclist’s right to human dignity, which ought to be acknowledged and safeguarded. Human dignity cannot be conferred by the state because it is inherent to every individual in their capacity as humans; rather, it can only be safeguarded and promoted by the state. Human dignity is founded on the idea that people should be treated with respect and consideration simply because they are human. Sadly, such unbecoming behavior is not unfamiliar to cyclists on the road or other users of the road. The duty of care is disregarded and cyclists are seen as being less deserving of basic road safety. The demeaning treatment they face on the roads threatens their right to dignity as held in Republic v Kenya National Examinations Council & Another ex-parte Audrey Mbugua Ithibu where the court held that “human dignity can be violated through humiliation, degradation or dehumanization”.5 Merriam Webster dictionary defines humiliate as “to reduce (someone) to a lower position in one’s own eyes or others’ eyes”.6 This is what transpires on the roads as motorists hurl insults onto the cyclists or when motorists try to intimidate the cyclists by veering them off the roads. Such treatment is humiliating since the cyclist’s status is degraded to one that is viewed as less deserving. Additionally in Ahmed Issack Hassan vs. Auditor General, the Court held that:
“…the right to human dignity is the foundation of all other rights and together with the right to life, forms the basis for the enjoyment of all other rights…put differently thereof, if a person enjoys the other rights in the Bill of rights, the right to human dignity will automatically be promoted and protected and it will be violated if the other rights are violated”. 7
This case law suggests that the rights to life and dignity are both fundamental freedoms that form the basis for all other rights. Far more emphasis should be placed on protecting these rights since they subsequently influence a person’s overall quality of life. Likewise, if the right to life is in jeopardy, the right to dignity is likewise in jeopardy.
Regrettably, for some, this does not always work out well; some cyclists pass away, and some suffer from long- term injuries that make it difficult for them to maintain themselves and their dependents.
Progress in other parts of the world
In contrast to other countries, Colombia boasts the Bogota Bike Path Network, a system of about 300 kilometers of secure riding lanes. Such is an indication of how well cycling is taken by the locals and how proper policies are put in place to set aside funds for cycle track construction and maintenance that run for a large number of kilometres. In addition to this, there are proper highway codes that provide for cyclists’ safety from other road users expect a third-world country like Kenya to pump in so much money into cyclists funds’ investments but one can expect progress in the right direction which in this case means setting aside some part of taxpayers’ money into the construction of the bare minimum, which are the cycle tracks and lighting lanes. Such development is necessary not only in Nairobi City but also in other urban regions like Mombasa and Kisumu, which are both booming urban areas.
What can be done?
Despite all these new regulations, a growing number of people are still discouraged from using bicycles for transportation. One reason is that the recommended 1.5 metres between a bicycle and a car is rarely considered by the majority of drivers. And most Nairobi drivers have the “barabara ni ya magari,” mentality which translates to “the road is for automobiles”. This gives the impression that most cyclists are a waste of space. Therefore, even when fully equipped with safety gear, a cyclist’s safety cannot be entirely assured. Although complete safety cannot be guaranteed, there are steps that can be taken to reduce the risks.
One measure is the building of wider roadways so that even when the bike paths end, the vehicle may still give the cyclist some room to move around. The second is raising public awareness; driving schools may have a segment teaching budding drivers about the ideal spacing between cyclists and motorists and about common road courtesy. The implementation of urban design that allows for cycling tracks with significant lengths of kilometres is another step worth mentioning. Most cycle tracks are a few kilometres long, which forces cyclists back onto the main road, which can be dangerous. The creation of comprehensive, thorough, and express legislation that provides protection for the rights and safety of bicyclists on the roads is the other core that should be taken into account. Such laws will, among other things, seek to provide a remedy to this vulnerable minority.
Conclusion
Given the aforementioned difficulties, it is reasonable to conclude that we are not prepared for the increase in cyclists using the roads. However, there is still hope, as additional funding may be set aside for the creation and upkeep of cycling lanes, public awareness campaigns, as well as the formation of comprehensive laws to protect cyclists’ rights as road users. In the end, society needs to adopt a different perspective on cyclists.
The author is a final-year law student at the University of Nairobi.
One that is well known is the recommended 1.5 metres distance between the cyclist and the motorist on the road and insurance policies that cater to the needs of cyclists.8 Moreover, countries such Netherlands have The Rotterdam route, which is 46 kilometers long and is accessible from various parts of the city. Such proper consideration of cyclists is lacking within our borders. Taking the example of Germany which has set plans in motion to invest about $ 1.38 billion in cycling considering that this new investment comes on top of other existing funding investments such as €170 million for cycle highways, and €46 million for the national cycle tourism network. This new $ 1.38 billion investment project is geared towards the construction which includes setting up cycle tracks, bike boxes, and lighting lanes among other things as an effort to deal with climate change which is now a hot topic globally.9 Well one cannot
1National Association of City Transportation Officials, Urban Bikeway design guide < https://nacto.org/publication/urban-bikeway-design-guide/bike-lanes/ conventional-bike-lanes/ > accessed 2 November 2022.
2The Kenya Alliance of Resident Associations, ‘Non Motorized Transport (NMT) Policy for Nairobi The popular version’ < http://www.kara.or.ke/Nairobi%20NMT%20 Policy%20Popular%20Version.pdf > accessed 2 November 2022.
3Article 27 (1) Constitution of Kenya, 2010.
4Kizzi Asala, The COVID-19 Pandemic sees a growing cycling trend in Nairobi (19 February 2021) < https://www.africanews.com/2021/02/19/the-covid-19-pandemic-sees- a-growing-cycling-trend-in-nairobi/ > accessed 2 November 2022.
5(2014) e KLR.
6Merriam Webster, Humiliate < https://www.merriam-webster.com/dictionary/humiliate > accessed 2 November 2022.
7 [2015].
8Charlie Allenby, How Bogota became a world beating cycling haven (4 November 2021) < https://www.timeout.com/news/how-bogota-became-a-world-beating-cycling- haven-110421 > accessed 2 November 2022.
9Phil Latz, German climate package earmarks $ 1.38 billion for cycling (11 March 2021) <https://micromobilityreport.com.au/infrastructure/policy-and-funding/german-climate-package-earmarks-1-38-billion-for-cycling/ > accessed 25 October 2022.
The Platform for Law, Justice & Society is published by Gitobu Imanyara & Co every month principally to offer a platform for informed and critical discussion of the National Values and Principles set out in Articles 10 (2) of the Constitution of Kenya.
