The Constitution of 2010 is the fruit of struggles for democratic transformation from the early 1990s onwards. It marks a clear break with the authoritarian and often undemocratic regimes which dominated Kenya in the colonial and post-colonial periods.
It guarantees the civil and political rights of individuals and establishes a system of checks and balances to secure accountable government.
However, as the Constitution of Kenya Review Commission found in 2002, the popular desire for change went further. Citizens repeatedly told Commissioners that the state must act to alleviate poverty and to secure the basic needs of all.
Raila Odinga, Prime Minister in Kenya from 2008 to 2013. Photo: Fredrick Onyango / Wikimedia Commons
Article 43 of the new 2010 constitution responds to this call by guaranteeing rights to health, adequate housing, sanitation, freedom from hunger, clean water, education and social security.
As the Chief Justice has said, Article 43 is a charter for structural change in Kenya – no such rights were contained in the independence constitution of 1963. The success of the new order and its legitimacy in the eyes of ordinary Kenyans will depend to a significant extent on whether this promise of transformation can be realized.
To understand the factors likely to determine the success of this project, it is useful to look at those countries already with more experience in the implementation of socio-economic rights such as South Africa. Indeed, the drafters of Article 43 were particularly influenced by the corresponding provisions of South Africa’s 1996 constitution, Sections 26 and 27.
A recent workshop at the British Institute in Eastern Africa in Nairobi brought together senior members of the Kenyan judiciary, legal professionals, civil society activists and academics to provide a timely review of what has been achieved in South Africa and to reflect on the lessons which Kenya can learn from that experience.
The Nairobi offices of the British Institute in Eastern Africa. Photo: www.biea.ac.uk
The event saw the launch of an edited collection entitled, ‘Socio-Economic Rights in South Africa: Symbols or Substance‘ which asks to what extent the rights contained in Sections 26 and 27 have been realised and how has this outcome been influenced by the actions of social movements, academics and the judiciary.
As the book illustrates, socio-economic rights are not merely the focus of scholarly debate. They are also used strategically in real struggles over the allocation of power and resources in society. Their legal content is shaped by conflicts, in court and outside, over tangible goods and services.
Several high profile gains have been made through socio-economic rights litigation in South Africa. For example, in the ‘Nevirapine’ case taken by the Treatment Action Campaign, the Constitutional Court ordered the government to remove barriers to anti-retroviral therapies and to create a national treatment plan for people living with Aids.
The terms on which tenants can be evicted for non-payment of rent or in pursuit of slum clearance programmes have also been rebalanced in a series of cases. Local authorities are now required to give adequate notice and to provide alternative accommodation for evictees. The latter obligation arises whether the land in question was publicly or privately owned.
The Kibera slum in Nairobi. Colin Crowley / Wikimedia Commons.
Landowners are also required to ‘meaningfully engage’ with residents, discussing the options for resolving eviction disputes with them in good faith.
The South African courts apply a test of ‘reasonableness’ in deciding whether the actions, decisions or policies of the state are in violation of sections 26 and 27.
The authorities must take account of the needs of the most vulnerable citizens, plan effectively on the basis of sound evidence, facilitate public participation, allocate sufficient resources, take account of long term as well as short term needs and so on.
The ‘reasonableness’ test is sometimes criticized as a ‘weak standard of review’ since it does not entitle individual citizens to a specific quantity of health care or quality of housing, for example. However it does focus the courts’ attention on the process and quality of public decision-making.
This has been of critical importance given that South Africa has been a de facto one-party state since the end of apartheid. In the absence of effective parliamentary opposition, socio-economic rights have opened up questions of resource allocation to democratic debate and given a voice to the most marginalized and vulnerable in society.
What factors allowed these gains to be made? As the book shows, the end of apartheid created a unique opportunity for social, as well as political transformation.
Not least, there was the ideological inheritance of the liberation struggle which aimed at overcoming historic injustice and achieving equality for the black majority.
Admittedly the ANC had been divided over whether enforceable constitutional rights were the best means of achieving this. But, given the background of many judges and senior lawyers in the anti-apartheid movement, it is not surprising that there was a firm commitment to transformation through the constitution once it had been passed. As activists moved into government, there was also a cadre of officials sympathetic to the realisation of socio-economic rights, at least in the early years of the new dispensation.
The organisational strength and clear political focus of civil society was another legacy from the years of struggle. Many activists had worked at grassroots within the ANC and shared its transformative agenda. They had the legitimacy and the tactical ability to challenge the government when it adopted neo-liberal economic policies likely to promote inequality in the late 1990s.
Campaigns have also been strengthened by the creation of alliances between grassroots movements, trade unions, and professional groups, such as doctors, who provided crucial expert evidence for the work of the Treatment Action Campaign. Of critical importance has been the ability to see litigation, not as an end in itself, but also as a means to secure actual implementation of the rights.
Treatment Action Campaign activists. Photo: Joe Wright / Wikimedia Commons
Since 2010 the Kenyan High Court has drawn heavily on the reasoning of the South African courts in interpreting Article 43. The ‘Nevirapine’ case was cited in a ruling that anti-counterfeit legislation was unconstitutional in so far as it threatened to block access to affordable generic medicines. The requirements of adequate notice, ‘meaningful engagement’ and alternative accommodation have been introduced into Kenyan housing law from the South African ‘eviction’ cases.
As the workshop learned, by adopting the reasonableness test of state action in relation to socio-economic rights, the Kenyan courts, like their South African counterparts, are able to focus more on inadequate systems and policies than on individual entitlements.
Notwithstanding this evidence of a commitment to transformation, there are still important obstacles to the realization of socio-economic rights in Kenya.
Litigants are understandably more concerned with obtaining compensation for themselves than with the more difficult task of structural change. State bodies show a worrying tendency to ignore adverse court orders. The policies and legislation needed to give practical detail to fundamental rights are often either poorly drafted or not drafted at all.
By contrast with South Africa no common political philosophy unites Kenyan activists, senior judges, administrators and politicians.
The link between anti-colonial struggle, trade unionism and political radicalism was broken during the Emergency of the 1950s. Given the ideology of self-help promoted by the founders of independent Kenya, socio-economic rights are at risk of being seen as a safety net for the very poor, rather than a means of building nationwide social solidarity.
The workshop considered the strategies which might be used to overcome these problems. While high quality scholarship on socio-economic rights is emerging from Kenyan universities, the link between research and legal activism could be strengthened.
Civil society organisations dependent on donor funding are under pressure to show tangible outputs in the form of successful litigation or changed policies.
Important though these are, they allow little time for detailed empirical research on whether the case law and legislative reform based on Article 43 are having an impact beyond the courtroom and the debating chamber. Drawing on a range of disciplines, such as urban planning, administration studies and public health, such research would also provide sound evidence for further policy initiatives or litigation.
Kenya Vision 2030: The government’s development blueprint.
It was also agreed that the legal profession needed to do more to meet the challenge of Article 43. The Judicial Training Institute has done important work on socio-economic rights, though many judges remain doubtful of their importance. In any case under the adversarial system judges depend on the arguments presented by the parties. Where the government side fails to construct a detailed argument, as often happens in Article 43 cases, the resulting opinion is inevitably weaker.
This situation may improve as a growing number of Kenyans return from South Africa and elsewhere with post-graduate qualifications in human rights.
But participants urged Kenyan law schools themselves to develop masters’ level programmes on litigation and socio-economic rights. The tendency of some Nairobi law firms to mix commercial work with public interest litigation was also to be encouraged.