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.*
Justice is a universally accepted principle that has been enshrined in various international legal instruments including the Charter of the United Nations which seeks among other things ‘to establish conditions under which justice and respect for obligations arising under international law can be maintained.’ Further, the Universal Declaration of Human Rights recognises the inherent dignity and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world.
The International Covenant on Economic, Social and Cultural Rights recognises in its preamble that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights. The International Covenant on Civil and Political Rights recognizes in its preamble that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights.
The African Charter on Human and Peoples’ Rights (Banjul Charter) reaffirms in its preamble the pledge African States members of the African Union solemnly made in Article 2 of the said Charter to eradicate all forms of colonialism from Africa, to coordinate and intensify their cooperation and efforts to achieve a better life for the peoples of Africa and to promote international cooperation having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights.
With respect to Kenya’s domestic legal frameworks, the Preamble to the Constitution of Kenya 2010 recognises the aspirations of all Kenyans for a government based on the essential values of human rights, equality, democracy, social justice and the rule of law. Article 4(2) of the Constitution provides that the Republic of Kenya is a multi-party democratic State founded on the national values and principles of governance referred to in Article 10. These values and principles of governance 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, non-discrimination and protection of the marginalized.
The Constitution of Kenya 2010 also provides that the national values and principles of governance which include the rule of law, human dignity, equity, social justice, inclusiveness, equality, human rights, nondiscrimination and protection of the marginalised are binding on 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. Also notable is Article 19 (2) of the Constitution which provides that the purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of the individuals and communities and to promote social justice and the realization of the potential of all human beings. Further, article 48 of the Constitution enshrines the right of access to justice and mandates the state to ensure access to justice for all persons in Kenya.
The desire of a socially just society in Kenya was well captured in the Supreme Court case of In the Matter of the Speaker of the Senate & another [2013] eKLR where the Court stated as follows:
[51] 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. This is clear right from the preambular clause which premises the new Constitution on – “RECOGNISING 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.” And the principle is fleshed out in Article 10 of the Constitution, which specifies the “national values and principles of governance”, and more particularly in Chapter Four (Articles 19-59) on the Bill of Rights, and Chapter Eleven (Articles 174-200) on devolved government.
Similarly, in Centre for Rights Education & Awareness (CREAW) v Attorney General & another [2015] eKLR, the High Court of Kenya at Nairobi observed that:
The Constitution of Kenya has been described as one of the most progressive in the world. It envisions a society based on the rule of law, non-discrimination and social justice. At its core is the belief that there can only be real progress in society if all citizens participate fully in their governance, and that all, male and female, persons with disabilities and all hitherto marginalized and excluded groups get a chance at the table.
Despite such pronouncements by courts, strong constitutional and statutory provisions as well as positive steps taken by the State in creating a socially just society in Kenya, the country is arguably still very far from achieving the ideals of social justice, namely, inter alia: equality, equity, inclusiveness and fairness, among others.
*This article is an extract from the Article “Sustainable Development Goals and Social Justice in Kenya” 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., “Sustainable Development Goals and Social Justice in Kenya” (2021) Journal of Conflict Management and Sustainable Development (JCMSD) 7(1), p. 1; Available at: http://journalofcmsd.net/ wp-content/uploads/2021/08/Sustainable-Development-Goals-and-Social-Justice-in-Kenya.pdf (accessed on 28th May 2022).