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*
The Constitution of Kenya 2010 stipulates that ‘the national values and principles of governance include, inter alia, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised’. The Preamble also recognises the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law. In addition, the Constitution states that ‘the Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies’. It also states that ‘the purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings’. Article 28 of the Constitution also guarantees that ‘every person has inherent dignity and the right to have that dignity respected and protected’. One of the ways that human dignity is violated or lost is through poverty. Indeed, it has been argued that the loss of dignity is worse than poverty itself.
The Court of Appeal at Mombasa in COI & another v Chief Magistrate Ukunda Law Courts & 4 others [2018] eKLR quoted with approval the Constitutional Court of South Africa in Dawood and Another vs. Minister of Home Affairs and Others (CCT35/99) [2000] ZACC 8:-
“Human dignity informs constitutional adjudication and interpretation at a range of levels. It is a value that informs the interpretation of many, possibly all, other rights. Human dignity is also a constitutional value that is of central significance in the limitations analysis.” [Emphasis added].56 The Court Appeal went on as follows: It is thus apparent, regardless of one’s status or position or mental or physical condition, one is, by virtue of being human, worthy of having his or her dignity or worth respected. In addition, the South African Constitutional Court in Mayelane vs. Ngwenyama and Another (CCT 57/12) [2013] ZACC 14 stated that: – “…the right to dignity includes the right-bearer’s entitlement to make choices and to take decisions that affect his or her life – the more significant the decision, the greater the entitlement. Autonomy and control over one’s personal circumstances is a fundamental aspect of human dignity.”
The place of human dignity in the Bill of rights has also been acknowledged in both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) provide in their preambles which are similar as follows: “Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, recognizing that these rights derive from the inherent dignity of the human person…”
The Constitution also guarantees that ‘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 to education.61 It also guarantees that no person shall not be denied emergency medical treatment. It also obligates the State to provide appropriate social security to persons who are unable to support themselves and their dependants. The Constitution obligates all State organs and all public officers to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities.
Going by the elements of poverty that were discussed hereinabove, it is arguable that the denial of any of these social economic rights in Kenya places one on a direct path to poverty. For instance, in the case of Githunguri Residents Association v Cabinet Secretary – Ministry of Education, Attorney General & 5 others [2015] eKLR, the Court affirmed the relationship between education and alleviation of poverty by citing a South African case as follows:
- Why is education such an important right? In Constitutional Law of South Africa, Stu Woolman and Michael Bishop quoted the opening lines of the Committee on Social, Economic and Cultural Rights’ General Comment on the Right to Education to make the point that education is empowerment. The Committee stated thus; “Education is both a human right in itself and an indispensable means of realizing other human rights. As an empowerment right, education is the primary vehicle by which economically and socially marginalized adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities. Education has a vital role in empowering women, safeguarding children from exploitative and hazardous labour and sexual exploitation, promoting human rights and democracy, protecting the environment, and controlling population growth. Increasingly, education is recognized as one of the best financial investments States can make. But the importance of education is not just practical; a well-educated, enlightened and active mind, able to wander freely and widely, is one of the joys and rewards of human existence.” 31. I agree with the above sentiments……
The Kenyan Court went on as follows:
It is therefore the conviction and strong view of this Court that the right to basic education is not to be progressively realised as seems to be the expectation of school management bodies. That right is to be enjoyed now and to argue otherwise would be to cheapen the Constitution and even in a society where we live with great wealth disparities and million wallowing in abject poverty, only education can give everyone the chance and opportunity to realise their dream and aspirations. That opportunity was not granted in the circumstances obtaining in this Petition.
While the Constitution affirms that the State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realisation of the rights guaranteed under Article 43, and courts have also ruled in the past that some of the social economic rights are to be progressively realised, it is also true that ‘in applying any right under Article 43, if the State claims that it does not have the resources to implement the right, a court, tribunal or other authority shall be guided by the following principles—it is the responsibility of the State to show that the resources are not available; in allocating resources, the State shall give priority to ensuring the widest possible enjoyment of the right or fundamental freedom having regard to prevailing circumstances, including the vulnerability of particular groups or individuals; and the court, tribunal or other authority may not interfere with a decision by a State organ concerning the allocation of available resources, solely on the basis that it would have reached a different conclusion. While striving towards progressive realisation of social economic rights in Kenya, the Government should thus work towards ensuring that the most basic needs of people are met or such people are empowered enough to access the same, as a step towards fighting poverty.
*This article is an extract from the Article: “Eradicating Poverty for Inclusive Development in Kenya,” (2021) Journal of Conflict Management and Sustainable Development Volume 7(3), p. 81 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., “Eradicating Poverty for Inclusive Development in Kenya,” (2021) Journal of Conflict Management and Sustainable Development Volume 7(3), p. 81.