The 2010 Kenyan constitution and the hierarchical place of international law in the Kenyan domestic legal system: a comparative perspective

The prominent use of international human rights law in a state’s domestic legal system depends on the hierarchical place occupied by international law in general, and international human rights law in particular, among the sources of law in that particular legal system. Two systems of receipt of international law in the domestic legal systems have been used by different states: monism, which looks to directly incorporate ratified international law treaties in a state’s domestic legal system; and dualism, which entails the transformation of international law into the domestic legal system through the domestication of ratified international law treaties by means of the enactment of parliamentary legislation. Kenya, as a Commonwealth country, has always primarily followed a dualist approach which requires that domesticating legislation be enacted by parliament for ratified international law treaties to have application in the domestic legal system. However, with the promulgation of the new Constitution in August 2010, international law has been given a more prominent role in the domestic legal system through the inclusion in the Constitution of a provision directly incorporating ratified treaty law into the Kenyan legal system as a legitimate source of law. This article is primarily focused on analysing the hierarchical place of international law, specifically international human rights treaty law, in the Kenyan domestic legal system in the context of the new constitutional dispensation. It recommends that in order for international human rights law to have a prominent place in the governance of the country, article 2(6) of the Constitution should be interpreted progressively so as to give international human rights law norms an infra-constitutional but a supra-legal status in the domestic legal system. In this way, international human rights law will act as a bulwark against recession to totalitarian rule, as well as safeguard the democratic and fundamental rights protection gains that were won in the struggle for constitutional change.Department of HE and Training approved lis

Limitation of socio-economic rights in the 2010 Kenyan Constitution: a proposal for the adoption of a proportionality approach in the judicial adjudication of socio-economic rights disputes

On 27 August 2010 Kenya adopted a transformative Constitution with the objective of fighting poverty and inequality as well as improving the standards of living of all people in Kenya. One of the mechanisms in the 2010 Constitution aimed at achieving this egalitarian transformation is the entrenchment of justiciable socio-economic rights (SERs), an integral part of the Bill of Rights. The entrenched SERs require the State to put in place a legislative, policy and programmatic framework to enhance the realisation of its constitutional obligations to respect, protect and fulfill these rights for all Kenyans. These SER obligations, just like any other fundamental human rights obligations, are, however, not absolute and are subject to legitimate limitation by the State. Two approaches have been used in international and comparative national law jurisprudence to limit SERs: the proportionality approach, using a general limitation clause that has found application in international and regional jurisprudence on the one hand; and the reasonableness approach, using internal limitations contained in the standard of progressive realisation, an approach that has found application in the SER jurisprudence of the South African Courts, on the other hand. This article proposes that if the entrenched SERs are to achieve their transformative objectives, Kenyan courts must adopt a proportionality approach in the judicial adjudication of SER disputes. This proposal is based on the reasoning that for the entrenched SERs to have a substantive positive impact on the lives of the Kenyan people, any measure by the government aimed at their limitation must be subjected to strict scrutiny by the courts, a form of scrutiny that can be achieved only by using the proportionality standard entrenched in the article 24 general limitation clause

The Place of the "Minimum Core Approach" in the Realisation of the Entrenched Socio-Economic Rights in the 2010 Kenyan Constitution

The high levels of poverty, inequality and socio-economic marginalisation that bedevilled Kenya for generations led to a struggle for a new constitutional dispensation, which culminated in the promulgation of a new, egalitarian and transformative constitution in August 2010. This constitution entrenched justiciable socio-economic rights within an elaborate Bill of Rights. Though an important step in the process of the egalitarian transformation of the country, the challenge remains to transform these precepts into practice with their scrupulous implementation through legislative, policy and programmatic frameworks, as well as judicial decision-making. This article argues that, in order to achieve the intended egalitarian transformation, Kenya must adopt a strong interpretive approach, with sufficient foundational standards for the translation of these rights into tangible realities for Kenyans. Kenya must therefore explicitly adopt a minimum core approach for the realisation of these rights to transform them into practical realities for the poor, vulnerable and marginalised Kenyans

Poverty, inequality and socio-economic rights: a theoretical framework for the realisation of socio-economic rights in the 2010 Kenyan Constitution

Doctor Legum - LLDPoverty and inequality are deeply entrenched in Kenya, with the country being one of the mostunequal countries in the world. To eradicate poverty and inequality, enhance the achievement ofsocial justice, fast-track human development, as well as to entrench participatory democracy and a culture of justification in governance, Kenya has, for the first time, entrenched justiciable socio-economic rights (SERs) in its 2010 Constitution. In this thesis, I undertake a criticalanalysis of the prospects for the implementation and enforcement of the entrenched SERs as well as the probable challenges that Kenya may face in their realisation. In this endeavour, the thesis develops a theoretical and interpretive approach for the realisation of these entrenched SERs. It entails an expansive analysis of the nature, scope, content and extent of the SERs entrenched in the 2010 Kenyan Constitution, and especially the place of international human rights obligations contained in customs and ratified international human rights treaties due to the provisions of the 2010 Constitution which espouse the direct application of international law in Kenya’s domestic legal system. It is submitted in this thesis that in order to improve the socio-economic conditions of the poor, vulnerable and marginalised groups in Kenya, there is a need for their socio-economic as well as political empowerment to enable them to effectively take part in societal decision-making in both the public and private spheres with regard to resource (re)distribution. The theory of dialogical constitutionalism, based on the constitutionally entrenched principle of popular participation in governance and public decision-making, is aimed at the realisation of both political and socio-economic empowerment of these groups. Even though the theory of dialogical constitutionalism underscores the importance of litigation in the achievement of the transformative aspirations of the 2010 Kenyan Constitution contained in the entrenched SERs, it acknowledges that litigation is not the panacea of SER enforcement, and that other political and advocacy strategies play an important role in the emancipation of the socio-economically deprived groups in society. The thesis thus advocates a multi-pronged strategy which espouses the equal participation of all sectors of society in a collaborative and cooperative deliberative effort aimed at the full realisation of the entrenched SERs. To accompany the above theoretical framework for the interpretation and implementation of the entrenched SERs, the thesis further proposes a transformative and integrated approach which combines the progressive aspects of the minimum core approach and the reasonableness approach. This is an approach of purposive interpretion which, in the first instance, envisages the courts undertaking a strict and searching scrutiny of the SER implementation framework developed by the political institutions of the State to ensure that sufficient provision has been made for the basic necessities of the most poor and vulnerable groups in society, basically the espousal of a minimum core content approach. The approach entails the requirement that should the SER implementation framework fail to provide this basic minimum to vulnerable groups, and the political institutions do not provide a substantive justification as to the failure, then the courts should find the relevant SER implementation framework per se unreasonable and thus invalid. However, should the implementation framework provide sufficiently for the basic essentials for vulnerable groups, the courts should then proceed to review it using the reasonableness standards that have been developed by the South African Constitutional Court. The rationale for this searching analysis is the acknowledgement that if the needs and interests of the most indigent and marginalised in society are not catered for, the entire corpus of rights in the Bill of Rights becomes redundant. The thesis then undertakes a case study of two rights, the right to food and the right to housing, using the theoretical and interpretive approaches developed in the previous chapters of the thesis. On food security, the thesis finds that Kenya is a food insecure country with a declining food production capacity. This is basically due to a lack of subsidy to farmers, global warming leading to intermittent rainfall, lack of investment in sustainable agriculture as well as a fragmented and contradictory legislative and policy agenda. In response to this situation, the thesis proposes the adoption of a livelihoods approach to food security in Kenya, based on the constitutionally entrenched right to food and other supporting rights. This approach advocates the enhancement of the food entitlements of the different sectors of the Kenyan society to ensure their access to adequate and nutritious food, be it through self-production or through the market. On the right to housing, the thesis finds that housing plays a crucial role in ensuring that people are able to have a holistic, dignified and valuable existence. However, Kenya faces a dire housing situation, with the majority of Kenyans, both in rural and urban areas lacking adequate shelter and sanitary conditions, evidenced by the large informal settlements in urban areas and the squatter phenomenon in rural areas. With the entrenchment of a justiciable right to adequate housing in the 2010 Constitution, the study finds that several legislative and policy reforms are underway to improve the housing situation, with efforts being made to draft the Landlord and Tenant Bill 2007, the Housing Bill 2011, the Evictions and resettlement Guidelines and the Evictions and Resettlement Procedures Bill, 2012, among others. The thesis proposes that these legal reforms must be undertaken within an environment of cooperative and collaborative strategic partnership involving all sectors of society so as to ensure that the housing concerns as well as interests of all are catered for

Limitation of Socio-Economic Rights in the 2010 Kenyan Constitution: A Proposal for the Adoption of a Proportionality Approach in the Judicial Adjudication of Socio-Economic Rights Disputes

On 27 August 2010 Kenya adopted a transformative Constitution with the objective of fighting poverty and inequality as well as improving the standards of living of all people in Kenya. One of the mechanisms in the 2010 Constitution aimed at achieving this egalitarian transformation is the entrenchment of justiciable socio-economic rights (SERs), an integral part of the Bill of Rights. The entrenched SERs require the State to put in place a legislative, policy and programmatic framework to enhance the realisation of its constitutional obligations to respect, protect and fulfill these rights for all Kenyans. These SER obligations, just like any other fundamental human rights obligations, are, however, not absolute and are subject to legitimate limitation by the State. Two approaches have been used in international and comparative national law jurisprudence to limit SERs: the proportionality approach, using a general limitation clause that has found application in international and regional jurisprudence on the one hand; and the reasonableness approach, using internal limitations contained in the standard of progressive realisation, an approach that has found application in the SER jurisprudence of the South African Courts, on the other hand. This article proposes that if the entrenched SERs are to achieve their transformative objectives, Kenyan courts must adopt a proportionality approach in the judicial adjudication of SER disputes. This proposal is based on the reasoning that for the entrenched SERs to have a substantive positive impact on the lives of the Kenyan people, any measure by the government aimed at their limitation must be subjected to strict scrutiny by the courts, a form of scrutiny that can be achieved only by using the proportionality standard entrenched in the article 24 general limitation clause.  &nbsp

Interrogating the competence of the African court of justice and human rights to review

Globalisation and the transfer of powers from state constitutional systems to international organisations (IOs) have led to several deficiencies, especially with regard to checks and balances in global governance. The need to inculcate the rule of law and constitutionalism in global governance has therefore gained currency in the 21st century. This has been exemplified by calls for the reform of the United Nations (UN) and the extensive reforms in regional IOs, such as the European Union (EU), with emphasis on institutional balance and the tempering of political power with institutional controls.Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2010.A dissertation submitted to the Faculty of Law University of Pretoria, in partial fulfilment of the requirements for the degree Masters of Law (LLM in Human Rights and Democratisation in Africa). Prepared under the supervision of Dr. Jacqui Gallinetti Faculty of Law, University of the Western Cape, Cape Town, South Africa. 2010.http://www.chr.up.ac.za/Centre for Human RightsLL

Amicus Brief by Amnesty International and Others

On September 2, 2020, six Portuguese youth filed a complaint with the European Court of Human Rights against 33 countries. The complaint alleges that the respondents have violated human rights by failing to take sufficient action on climate change, and seeks an order requiring them to take more ambitious action. The complaint relies on Articles 2, 8, and 14 of the European Convention on Human Rights, which protect the right to life, right to privacy, and right to not experience discrimination. The complainants claim that their right to life is threatened by the effects of climate change in Portugal such as forest fires; that their right to privacy includes their physical and mental wellbeing, which is threatened by heatwaves that force them to spend more time indoors; and that as young people, they stand to experience the worst effects of climate change. The case is brought against the Member States of the Council of Europe (Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Germany, Greece, Denmark, Estonia, Finland, France, Croatia, Hungary, Ireland, Italy, Lithuania, Luxembourg, Latvia, Malta, the Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain and Sweden) as well as Norway, Russia, Switzerland, Turkey, Ukraine and the United Kingdom. The complainants allege that the respondents have fallen short of their human rights obligations by failing to agree to emissions reductions that will keep temperature rise to 1.5 degrees Celsius, as envisioned by the Paris Agreement. On November 30, 2020, The European Court of Human Rights fast-tracked and communicated the case to 33 defendant countries, requiring them to respond by the end of February 2021. According to the Global Legal Action Network (GLAN), who are supporting the case, only a tiny minority of cases before the Court are fast-tracked and communicated. On February 4, 2021, the Court rejected a motion by the defendant governments asking the Court to overturn its fast-tracking decision. The governments had asked the court to overturn priority treatment of the case and to hear arguments only on the admissibility of the case. The Court sent a letter to the parties rejecting these motions and gave the defendants until May 27, 2021 to submit a defense on both admissibility and the merits of the case. The Court also granted until May 6, 2021 third party interventions. Among other seven third-party intervention, on May 5, 2021, Amnesty International intervened in the case and submitted her written observations to the European Court of Human Rights. The submission supports the claimants\u27 position, providing legal arguments to the Court to show that international law requires states to not harm, and to not allow companies within their jurisdiction to harm, the human rights of people outside their borders. On May 19, 2021 a new intervention was made by the European Commission submitted her written observations to the European Court of Human Rights. Noting the pronounced impact of environmental degradation and climate change on human rights, the Commissioner argues that international environmental and children’s rights law instruments should play a significant role in defining the scope of states’ obligation to prevent human rights violations caused by environmental harm. The Commission bases its defense of EU policy in the field of environmental protection on sound legal reasoning and science-based evidence. The term ‘climate emergency’ expresses the political will to fulfill the obligations under the Paris Agreement. The Commissioner concludes that “the increasing number of climate change-related applications provide the Court with a unique opportunity to continue to forge the legal path towards a more complete implementation of the Convention and to offer real-life protection to individuals affected by environmental degradation and climate change.” On August 14, 2021, the claimants received the respondent governments’ respective defenses. However, on legal advice, the claimants have decided not to make them public. The claimants have until January 12, 2022 to respond to the governments’ defenses. On June 30, 2022, the Chamber of the European Court of Human Rights relinquished jurisdiction in favor of the Grand Chamber. The case is now going to be examined by the ECtHR\u27s Grand Chamber of 17 judges on account of the fact that the case raises a serious question affecting the interpretation of the Convention (Art 30 ECHR). At Issue: Youth filed human rights complaint against 33 governments

The Commonification of Food as an Approach for the Achievement of Food Security: and the Realisation of the Right to Food for All

The commodification of food is one of the many causes of food insecurity as it occasions the inability of poor households to access the available food because of high prices and dysfunctional markets. A change of approach from commodification to commonification to deal with food insecurity at the national, regional and global level is the way to go. As commodification of food is a social construct adopted as a result of deliberate societal policy-making, commonification can similarly be adopted through legal and institutional design at the local, national and international levels; creating polycentric systems for the management of food-producing resources for the local communities. With commonification, decisions relating to the use of local resources for the production, processing, distribution and consumption of food are made at the local level, to ensure that other socioeconomic and cultural aspects of food are considered in the decision-making processes. The integrated aspects of the right to food and food democracy are critical components of the commonification approach to food security

Amicus Brief by Amnesty International and Others

On September 2, 2020, six Portuguese youth filed a complaint with the European Court of Human Rights against 33 countries. The complaint alleges that the respondents have violated human rights by failing to take sufficient action on climate change, and seeks an order requiring them to take more ambitious action. The complaint relies on Articles 2, 8, and 14 of the European Convention on Human Rights, which protect the right to life, right to privacy, and right to not experience discrimination. The complainants claim that their right to life is threatened by the effects of climate change in Portugal such as forest fires; that their right to privacy includes their physical and mental wellbeing, which is threatened by heatwaves that force them to spend more time indoors; and that as young people, they stand to experience the worst effects of climate change. The case is brought against the Member States of the Council of Europe (Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Germany, Greece, Denmark, Estonia, Finland, France, Croatia, Hungary, Ireland, Italy, Lithuania, Luxembourg, Latvia, Malta, the Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain and Sweden) as well as Norway, Russia, Switzerland, Turkey, Ukraine and the United Kingdom. The complainants allege that the respondents have fallen short of their human rights obligations by failing to agree to emissions reductions that will keep temperature rise to 1.5 degrees Celsius, as envisioned by the Paris Agreement. On November 30, 2020, The European Court of Human Rights fast-tracked and communicated the case to 33 defendant countries, requiring them to respond by the end of February 2021. According to the Global Legal Action Network (GLAN), who are supporting the case, only a tiny minority of cases before the Court are fast-tracked and communicated. On February 4, 2021, the Court rejected a motion by the defendant governments asking the Court to overturn its fast-tracking decision. The governments had asked the court to overturn priority treatment of the case and to hear arguments only on the admissibility of the case. The Court sent a letter to the parties rejecting these motions and gave the defendants until May 27, 2021 to submit a defense on both admissibility and the merits of the case. The Court also granted until May 6, 2021 third party interventions. Among other seven third-party intervention, on May 5, 2021, Amnesty International intervened in the case and submitted her written observations to the European Court of Human Rights. The submission supports the claimants\u27 position, providing legal arguments to the Court to show that international law requires states to not harm, and to not allow companies within their jurisdiction to harm, the human rights of people outside their borders. On May 19, 2021 a new intervention was made by the European Commission submitted her written observations to the European Court of Human Rights. Noting the pronounced impact of environmental degradation and climate change on human rights, the Commissioner argues that international environmental and children’s rights law instruments should play a significant role in defining the scope of states’ obligation to prevent human rights violations caused by environmental harm. The Commission bases its defense of EU policy in the field of environmental protection on sound legal reasoning and science-based evidence. The term ‘climate emergency’ expresses the political will to fulfill the obligations under the Paris Agreement. The Commissioner concludes that “the increasing number of climate change-related applications provide the Court with a unique opportunity to continue to forge the legal path towards a more complete implementation of the Convention and to offer real-life protection to individuals affected by environmental degradation and climate change.” On August 14, 2021, the claimants received the respondent governments’ respective defenses. However, on legal advice, the claimants have decided not to make them public. The claimants have until January 12, 2022 to respond to the governments’ defenses. On June 30, 2022, the Chamber of the European Court of Human Rights relinquished jurisdiction in favor of the Grand Chamber. The case is now going to be examined by the ECtHR\u27s Grand Chamber of 17 judges on account of the fact that the case raises a serious question affecting the interpretation of the Convention (Art 30 ECHR). At Issue: Youth filed human rights complaint against 33 governments