By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publisher of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*
Kenya and the African continent need to take charge of their development agenda and truly focus on what will benefit their people. They must ask themselves whether every development project they are carrying out is for selfish interests or for the common good of their people. Lawmakers and policymakers need to ensure that they put in place governance structures that will uplift the lives of citizens through promoting good governance and holding accountable those charged with utilising public funds. As expected of law in its role to promote development, the Constitution of Kenya 2010 outlines the national values and principles of governance which must bind all State organs, State officers, public officers and all persons whenever any of them––applies or interprets the Constitution; enacts, applies or interprets any law; or makes or implements public policy decisions. These values include: (a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; (b) human dignity, equity, social justice, inclusiveness, equality, human rights, nondiscrimination and protection of the marginalised; (c) good governance, integrity, transparency and accountability; and (d) sustainable development.
These values and principles of governance are geared towards creating a socially just society where all persons equally and equitably enjoy high socioeconomic and human development benefits. The inclusion of sustainable development as one of the national values and principles of governance also speaks volumes as to the path that national development agenda is expected to take. It is a path that is supposed to empower the citizens socially, economically and politically (giving them a voice) while at the same time meeting their basic needs in a sustainable way for the good of the current and future generations.
This is also reflected under Article 43 of the Constitution which guarantees the rights of every person to an adequate standard of living for all and this encompasses right to adequate food, clothing, shelter, clean and safe water, education, health and social security. Faced with the threat of Covid-19, locusts’ invasion and raging floods across the country, these should serve as a wakeup call for the National and County Governments on what really matters for their people. The county governance system was introduced to take development nearer to the people. This also meant that such development should be implemented with closer and frequent consultation and participation of all the affected groups of people.
As already pointed out, there have been instances where a large chunk of donor funds is directed towards administrative activities, for both local and the foreign human resource activities, leaving a barely enough percentage to go towards the actual projects. This is a trap that even the national and county governments have often found themselves in. Their primary focus should be to ensure the implementation of Article 43 of the Constitution of Kenya 2010 on socioeconomic rights. While infrastructural development across the country is important, the socio-economic rights of communities deserve equal if not more attention. One cannot negotiate or consult with a hungry person on the best types of roads to put up within the counties. That is not to say that the infrastructural development activities are not important, but they do not fall within the definition of basic needs of human beings.
The various socio-economic rights as outlined under Article 43 may currently be at different stages of realisation by the national and county governments for the different regions and counties. The aspirations and social realities of the different regions may also mean differing priorities. For these reasons, it may be beyond the scope of this paper to offer recommendations on the best way forward on realising the same. However, as held in various domestic court cases, these social and economic rights should be progressively realised. Lady Justice Mumbi Ngugi, J. held in Mitubell Welfare Society vs. The Attorney General & 2 Others, Petition No. 164 of 2011 that:
“The argument that socio-economic rights cannot be claimed at this point two years after the promulgation of the Constitution ignores the fact that no provisions of the Constitution is intended to wait until the state feels it is ready to meet its constitutional obligations. Article 21 and 43 require that there should be “progressive realization” of socioeconomic rights, implying that the state must be seen to be taking steps, and I must add be seen to take steps towards realization of these rights………Granted also that these rights are progressive in nature, but there is a constitutional obligation on the state, when confronted with a matter such as this, to go beyond the standard objection….Its obligation requires that it assists the court by showing if, and how, it is addressing or intends to address the rights of citizens to the attainment of the socio-economic rights, and what policies, if any it has put in place to ensure that the rights are realized progressively and how the Petitioners in this case fit into its policies and plans.”
It was also acknowledged in Isaac Kipyego Cherop v State Ministry of Water & 142 others [2017] eKLR, Petition 348 of 2015, that “Rights under Article 43 of the Constitution can only be realized progressively. The State cannot realize this right for every Kenyan in one investment”. The import of this is that the real development should mainly be geared towards making tangible and lasting investments for the realisation of the socio-economic rights as guaranteed under Article 43 of the Constitution. It is the high time that the political leaders and policy makers realised that the solutions to most of the challenges facing their people during this period of the Covid-19 pandemic will not be solved by the foreign aid and donations but by conscious homegrown solutions developed through people-centred investments.
The national development agenda such as the Vision 2030 and other development initiatives should guide their expenditure. Corruption should also be firmly dealt with as it is also a huge threat to achieving these aspirations. The concept of development in the country as we know it must be revisited so as to ensure that it captures the aspirations of the local people since what they feel about it also matters. Development should offer them the freedom from the shackles of poverty, hunger, illiteracy and other social ills. The concept of development is both objective and subjective and the policymakers must thus always bear this in mind when coming up with development projects and programmes.
The Development programmes, plans and projects must start working towards empowering people so that they can stand on their own. The country must start investing in its own people and also work towards building wealth that would not only cushion the national economy against internal and external shocks such as the current pandemic but also cushion the public against abject poverty and the extreme levels of vulnerability. While it may certainly not be feasible for the country to immediately stop their reliance on foreign aid, such funds must be redirected towards building a solid economy that will take the country towards self-reliance in future. The country must aggressively start the aspirational journey towards economic and social freedom of its people in the near future.
*This article is an extract from the Article: “Redefining Development in Kenya-Reflections and Lessons from the Coronavirus disease (COVID-19) Pandemic,” Journal of Conflict Management and Sustainable Development Volume 4(4), p. 12. by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and ADR Lifetime Achievement Award 2021 (CIArb Kenya). Dr. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Kenya by the Chambers Global Guide 2022.
References
Muigua, K., “Redefining Development in Kenya-Reflections and Lessons from the Coronavirus disease (COVID-19) Pandemic,” Journal of Conflict Management and Sustainable Development Volume 4(4), p. 12.