Setting the record straight in socio-economic rights adjudication : the Mitu-Bell Welfare Society Supreme Court of Kenya judgment

A leading criticism of the Mitu-Bell Welfare Society decision in the Supreme Court of Kenya is that it fell short of achieving the transformative effects expected similar to South Africa’s Irene Grootboom. One such critique has been provided by Ian Mwiti Mathenge in his paper which this article responds to by asserting that the Court addressed relevant issues to Kenya’s jurisprudential needs. Specifically, the Court clearly affirmed evictees’ rights to seek redress, including compensation, adequate notice, dignified treatment and even the provision of alternative land for resettlement. The analysis of the case also acknowledges the Court’s interpretation on the place of international law in Kenya, and areas for future research and development.Publisher PDFPeer reviewe

Equality in Kenya’s 2010 constitution:understanding the competing and interrelated conceptions

This book makes a significant contribution to the ongoing global conversations on the various understandings of equality. It illuminates the many ways in which diverse equality guarantees clash, or are interrelated. It also sets out principled approaches on how they can be coherently interpreted to address the myriad inequalities in Kenya.Taking a comparative approach, the book considers how other jurisdictions including the United States, United Kingdom, Canada, South Africa, India and Botswana have approached the conceptualisation, interpretation and application of various equality concepts.The book focuses on important issues such as:- transformative constitutionalism in relation to the interpretation of Kenya's 2010 Constitution;- expanding the list of enumerated grounds for non-discrimination;- affirmative action;- accommodating religious and cultural diversity versus gender equality;- the interrelation between socio-economic rights and status-based equality

Human rights and equality commissions in Kenya and their role in tackling poverty and economic inequality

This article explores the significance of the Kenya National Human Rights Commission (‘KNCHR’) and the National Gender and Equality Commission (‘NGEC’), as independent ‘fourth branch’ institutions protecting democracy (‘IPDs’) in Kenya, in promoting and protecting human rights, democracy and addressing poverty and economic inequality. It provides a conceptual background for the establishment of the two Commissions and evaluates their functions and effectiveness compared to civil society organisations with similar roles. It then examines the unique role of the Commissions in addressing poverty and economic inequality and their accomplishments in upholding the rule of law, democratic ideals and human rights in Kenya. The article also analyzes the challenges faced by the Commissions in achieving their goals and the opportunities arising from their emergence as fourth branch IPDs. Finally, it concludes that the constitutional entrenchment of the KNCHR and NGEC provides them with credibility, legitimacy and freedom to carry out their work effectively. However, resource constraints and dependence on political goodwill may hinder their effectiveness in translating human rights, particularly socio-economic rights, into reality. Despite these challenges, the Commissions’ oversight, investigation and complaint handling roles are critical in preventing and addressing poverty and economic inequality through data-driven transformation and collaborative efforts

Inequality and access to justice:a focus on the adjudication of socio-economic rights in Kenya

Kenya’s 2010 Constitution establishes the necessary legal framework for tackling inequalities in the country. The multiple provisions on equality, non-discrimination and socio-economic rights create the impetus for rights-based litigation. Now society wants to claim these rights but there are still many hurdles to do so. Many special interest groups do not have access to lawyers nor the skills to access courts on their own. The growing concern is, therefore, that despite the progressive nature of constitutional provisions that seek to tackle inequalities in the country, they are not by themselves the panacea to the problem of access to justice in the country. Aside from the prohibitive cost of legal representation being a major concern, there are other access to justice challenges that inhibit the poor and marginalised in Kenya from instituting claims in court, and which also affect their chances of succeeding in their claims. This article discusses how an equality-sensitive approach to adjudicating socio-economic rights can help avoid reinforcing inequality and promote equality. It argues that failure to apply such an approach can exacerbate the inequality and access to justice challenges that vulnerable groups already face, especially in times of a crisis like the COVID-19 pandemic

Competing and interrelated conceptions of equality in Kenya's 2010 constitution

This thesis explores the ways in which competing and interrelated conceptions of equality in Kenya’s 2010 Constitution should be conceptualised, interpreted and applied. Kenyans’ overwhelming support for the adoption of the 2010 Constitution signalled a rebirth of the nation with a strong emphasis on equality and redressing past injustices. For this reason, the document has been termed as ‘transformative’, ‘historic’ and ‘revolutionary’ as it seeks to fundamentally change the social, political and economic way of life of all Kenyans. The entrenchment of multiple equality provisions not guaranteed in the previous Constitution establishes a crucial constitutional framework for addressing inequalities. However, more decisive still is how well the 2010 Constitution’s equality provisions continue to be conceptualised, interpreted and applied. The Constitution contains different articulations of equality, both in the equality clause (Article 27) and elsewhere in the Constitution. These provisions reflect different, sometimes complementary and other times potentially conflicting, conceptions of equality. Yet, current equality jurisprudence says little, if anything, on how the multiple and competing conceptions of equality in the Constitution should be harmoniously interpreted. The concept remains open-textured, which offers limited guidance to legal practitioners and other pertinent players on what is required of them by law in addressing inequalities. This thesis aims to provide more clarity in this area of law in Kenya by examining all the equality principles in the Constitution with a specific emphasis on the potentially conflicting issues, with the aim of attempting to find a coherent and mutually supportive way of understanding the broader conception of equality in the Constitution. Two principled approaches are proposed for the harmonious interpretation of the Constitution’s equality concepts; the equal concern and respect approach and the multi-dimensional equality approach.</p

An equality-sensitive approach to delivering socio-economic rights during crises:a focus on Kenya

This chapter discusses how the dire situation of vulnerable groups in Kenya is exacerbated in times of crises, such as the Covid-19 pandemic. Loss of employment, food shortages, and the high cost of living, coupled with the lack of equality-sensitive interventions by the government, have led to a rise in the number of Kenyans living in absolute poverty. This is despite the fact that Kenya’s 2010 Constitution contains multiple provisions on the protection of the socio-economic rights of vulnerable groups, with Article 20(5)(b) going even further to require the prioritization of the needs of vulnerable groups when implementing the socio-economic rights in Article 43 of the Constitution, to ensure their widest possible enjoyment. The chapter argues that, as much as Kenya’s laws provide the necessary legal framework and impetus for applying equality-sensitive approaches to delivering socio-economic rights and to avoid reinforcing inequality in times of crisis, they are not implemented by those in charge. The challenge, therefore, is the lack of application of actual laws in practice to facilitate the implementation of socio-economic rights to address the adverse effects of crises and their aftermath. In the final analysis, the chapter emphasizes that the needs of the most vulnerable in society should be prioritized when the state is implementing initiatives to respond to crises. This is what is constitutionally mandated in Kenya. To achieve this may mean the enactment of laws to best tackle contempt of court orders and blatant disregard of the law

An equality-sensitive approach to delivering socio-economic rights during crises:a focus on Kenya

This chapter discusses how the dire situation of vulnerable groups in Kenya is exacerbated in times of crises, such as the Covid-19 pandemic. Loss of employment, food shortages, and the high cost of living, coupled with the lack of equality-sensitive interventions by the government, have led to a rise in the number of Kenyans living in absolute poverty. This is despite the fact that Kenya’s 2010 Constitution contains multiple provisions on the protection of the socio-economic rights of vulnerable groups, with Article 20(5)(b) going even further to require the prioritization of the needs of vulnerable groups when implementing the socio-economic rights in Article 43 of the Constitution, to ensure their widest possible enjoyment. The chapter argues that, as much as Kenya’s laws provide the necessary legal framework and impetus for applying equality-sensitive approaches to delivering socio-economic rights and to avoid reinforcing inequality in times of crisis, they are not implemented by those in charge. The challenge, therefore, is the lack of application of actual laws in practice to facilitate the implementation of socio-economic rights to address the adverse effects of crises and their aftermath. In the final analysis, the chapter emphasizes that the needs of the most vulnerable in society should be prioritized when the state is implementing initiatives to respond to crises. This is what is constitutionally mandated in Kenya. To achieve this may mean the enactment of laws to best tackle contempt of court orders and blatant disregard of the law

Competing and interrelated conceptions of equality in Kenya's 2010 constitution

This thesis explores the ways in which competing and interrelated conceptions of equality in Kenyaâs 2010 Constitution should be conceptualised, interpreted and applied. Kenyansâ overwhelming support for the adoption of the 2010 Constitution signalled a rebirth of the nation with a strong emphasis on equality and redressing past injustices. For this reason, the document has been termed as âtransformativeâ, âhistoricâ and ârevolutionaryâ as it seeks to fundamentally change the social, political and economic way of life of all Kenyans. The entrenchment of multiple equality provisions not guaranteed in the previous Constitution establishes a crucial constitutional framework for addressing inequalities. However, more decisive still is how well the 2010 Constitutionâs equality provisions continue to be conceptualised, interpreted and applied. The Constitution contains different articulations of equality, both in the equality clause (Article 27) and elsewhere in the Constitution. These provisions reflect different, sometimes complementary and other times potentially conflicting, conceptions of equality. Yet, current equality jurisprudence says little, if anything, on how the multiple and competing conceptions of equality in the Constitution should be harmoniously interpreted. The concept remains open-textured, which offers limited guidance to legal practitioners and other pertinent players on what is required of them by law in addressing inequalities. This thesis aims to provide more clarity in this area of law in Kenya by examining all the equality principles in the Constitution with a specific emphasis on the potentially conflicting issues, with the aim of attempting to find a coherent and mutually supportive way of understanding the broader conception of equality in the Constitution. Two principled approaches are proposed for the harmonious interpretation of the Constitutionâs equality concepts; the equal concern and respect approach and the multi-dimensional equality approach.</p

Setting the record straight in socio-economic rights adjudication:the <i>Mitu-Bell Welfare Society</i> Supreme Court of Kenya judgment

A leading criticism of the Mitu-Bell Welfare Society decision in the Supreme Court of Kenya is that it fell short of achieving the transformative effects expected similar to South Africa’s Irene Grootboom. One such critique has been provided by Ian Mwiti Mathenge in his paper which this article responds to by asserting that the Court addressed relevant issues to Kenya’s jurisprudential needs. Specifically, the Court clearly affirmed evictees’ rights to seek redress, including compensation, adequate notice, dignified treatment and even the provision of alternative land for resettlement. The analysis of the case also acknowledges the Court’s interpretation on the place of international law in Kenya, and areas for future research and development

Setting the record straight in socio-economic rights adjudication:the <i>Mitu-Bell Welfare Society</i> Supreme Court of Kenya judgment

A leading criticism of the Mitu-Bell Welfare Society decision in the Supreme Court of Kenya is that it fell short of achieving the transformative effects expected similar to South Africa’s Irene Grootboom. One such critique has been provided by Ian Mwiti Mathenge in his paper which this article responds to by asserting that the Court addressed relevant issues to Kenya’s jurisprudential needs. Specifically, the Court clearly affirmed evictees’ rights to seek redress, including compensation, adequate notice, dignified treatment and even the provision of alternative land for resettlement. The analysis of the case also acknowledges the Court’s interpretation on the place of international law in Kenya, and areas for future research and development