Bill of Rights in Kenya – In general

Chapter 4, the Bill of Rights, is the longest chapter in the Constitution of Kenya. It does a lot of work: it sets out the rights of all people; it provides a framework for implementing the rights so that all Kenyans benefit from them; and it establishes the Kenya National Human Rights and Equality Commission.

The Bill of Rights protects all the rights in the current Constitution, like the rights to life, a fair trial, freedom of expression and to be free from torture, and the rights of people in custody.

It also expands on some existing rights. So, it states expressly that life begins at conception and that abortion is prohibited. It sets out limited, exceptional circumstances in which abortions may be procured (when the life or health of the mother is in danger, for instance). It says that the right to freedom of expression does not give anyone a right to use hate speech. The right to freedom and security of the person includes the right to be protected from domestic violence.

People in custody have a right to humane treatment. And, as part of the right to a fair hearing, Parliament must pass a law to protect the rights of victims of offences.

The Bill protects many new rights too including:

  • a right to access information so that the government can’t keep secrets from citizens
  • the right to vote and stand for election (this is not a right now)
  • a right to fair labour practices
  • social and economic rights like health care services, housing, freedom from hunger, and social security
  • a right to freedom of the media so that the state cannot interfere with broadcasting or publishing

Reading Chapter 4 you will see that most of these rights are brief. There are no long qualifications as in the current Constitution. So, you may ask, aren’t they unrealistic? Can everyone suddenly have a house? Where is the money? Can freedom of expression be uncontrolled? And can citizens demand all information that the State has? What about State security?

The answer is that the Proposed Constitution deals with limits on rights in a new way. First, special provisions deal with social and economic rights, like the right to housing. These will be considered in the next article in this series.

For the other rights, following Canada, Uganda, South Africa and other countries, the Proposed Constitution uses a “general limitation clause” which allows laws to limit rights. The limitation clause says that, with only four exceptions, all rights may be limited by law. But it sets a test that laws limiting rights must pass. The limitation must be “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.

So, freedom of expression cannot be used to insult people. A law that prohibits defamation is reasonable in a democratic society and its limit on freedom of expression would pass the limitation clause test and be constitutional. And a law saying that people may not have access to information about defence force manoeuvres would also be constitutional.

In fact, there will be some limits on most rights. The right to gender equality might be limited by a prison regulation saying that female prisoners may not be searched by male guards. The right to assembly may be limited by a law prohibiting gatherings outside hospitals where patients need peace. Your right to privacy will be limited when the police reasonably believe you have evidence needed in a criminal trial.

The important thing is that in most cases limits on rights must pass the limitation-clause test. Moreover, the Bill of Rights says, laws limiting rights must specify what right they limit. Rights can’t be limited accidentally.

One category of people is treated differently: people serving in the Defence Forces and the police. Parliament may limit their rights to privacy, freedom of association, assembly and fair labour practices, among others, as it wishes. So, these people can be prohibited from joining trade unions, striking or protesting when their property is searched.

Of course, the long list of rights in Chapter 4 must be implemented. To ensure this the Proposed Constitution does three things –

  • it requires the State to act, including passing laws, to implement the rights
  • it allows people to go to court if their rights are infringed and gives courts the power to declare laws and actions invalid if they infringe rights
  • it establishes the Kenya National Human Rights and Equality Commission to promote respect for human rights and to protect them

Giving all people access to court is particularly important. Courts have been strict about who could complain about the abuse of rights. People complaining about a rights abuse have to prove that they are directly affected by the abuse. Under the Proposed Constitution, all Kenyans can monitor the implementation of rights and anyone can go to court to protect a right.

Article by Christina Murray

Member of the Committee of Experts and Professor of Constitutional and Human Rights Law at the University of Cape Town

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