Amid the electoral turmoil, we should remember that governments, including Parliaments, are elected to govern, and to fulfil the promise of the Constitution. Central to that promise are human rights, a national value, and subject of the longest chapter in the Constitution. Responsibilities to ensure human rights protection, and often, indeed, to positively promote them, are placed upon the president, political parties and police, not just the human rights commissions and the courts.
IT IS A JOB OF LEGISLATURES
Parliament — and the county assemblies — is absolutely central to the whole rights enterprise. All the national values are binding on all state organs (including elected bodies) and state officers (including MPs and MCAs). The Constitution specially mentions the that this is so when they are enacting law — the core function of Parliament and the assemblies. The Constitution also mentions law as one of the ways of achieving the rights to equality, health, education, food, water, housing, social security and a clean and healthy environment.
The role of legislatures is not limited to the rights just listed. In fact, we have seen Parliament passing various laws to provide details of how rights are to be protected. The Access to Information Act (fleshing out Article 35 ), the Fair Administrative Justice Act (Article 47 ), the Legal Aid Act (Articles 48 and 50 ), the Rights of Persons Deprived of Liberty (Articles 29 and 51 ), the Counter-Trafficking in Persons Act (Articles 29 and 53 and international law), the Victim Protection Act (Article 50 ( 9 )), the Prevention of Torture Act (Article
29 ) the Health Act (Article 43 ) and the Consumer Protection Act (Article 46 ) are all examples passed since the Constitution. It’s not a bad record, even if some of the Acts leave something to be desired, and implementation is weak.
HOW ABOUT THE COUNTIES?
The counties are given certain powers under the Constitution, while any power not mentioned is supposed to be a national government power. The list of county powers does not include something like “protecting human rights”. But this does not mean that the counties have no responsibility for rights. Their powers over health, education and water must obviously be used in ways that support rights — because rights are to be respected and supported by all of us, especially state bodies. The counties don’t have prisons, or courts; they can’t improve the lives of people in prison or being tried. But they do have responsibilities for agriculture, markets, recreation facilities, libraries and museums and local planning, to take just a few. When county assemblies make law about these matters, they should not only take care not to harm people’s rights, but should as far as possible use their powers to improve the rights situation in the county. County laws promoting urban agriculture to enhance food supply are an example.
THE POWERS OF LAWMAKERS TO LIMIT RIGHTS
People often misunderstand human rights and imagine that they are supposed to apply in all circumstances and wonder how this is possible. In fact, most rights can be limited. Limits must be by law — and most law is made by legislatures, or by other entities ( such as Cabinet Secretaries) given the power to make law by the Legislature.
The drafters of the Constitution placed much responsibility on the lawmakers. Only reasonable limitations on rights are allowed, and this must be judged in the context of “an open and democratic society based on human dignity, equality and freedom”. This phrase might serve as a motto summarising the vision of the Constitution for Kenya.
Reasonableness means that a balance must be struck between protecting the particular right (whether of individuals or groups) and the purpose that limitation of the right is supposed to serve. The purpose might be the national interest, or protecting the rights or interests of other individuals or groups. There is no rule that national interest always outweighs rights. Parliament (or a county assembly) should ask itself whenever they consider a Bill whether it does — or is likely to — affect people’s rights. And, if the answer is “Yes”, they must ask themselves — and those who promote the legislation — other questions.
How important is the right protected? How important is the purpose supposed to be achieved by limiting that right? It’s not enough to hope that a useful purpose will be served by the limitation: Is there really good reason, backed by evidence, to suppose that the intended purpose will actually be achieved? And could this purpose actually be achieved without affecting anyone’s rights, or by affecting them less?
The law will have no effect on rights unless it includes a statement recognising that it does have the potential to limit rights, and making it clear how far they intend those limits to go. The whole objective of this provision in the Constitution is to require MPs, Senators and MCAs to focus on the implications of the laws they pass, especially their impact on rights.
HOW SHOULD LEGISLATORS BE EQUIPPED FOR THIS TASK?
First, legislators must make the effort to understand human rights and how they work in law and government. Perhaps very the first step is to accept the concept of equality. A legislator would not go far wrong if he or she acted upon the principle that everyone is equal. Most human rights failures in lawmaking involve unjustified different treatment of people because of some characteristic: women or children, the elderly or gays, prisoners or people who speak a different language or wear different clothes or follow a different religion, are married or not married, are pregnant or HIV positive, look different or sound different, are poor (or rich). Treating people differently may sometimes be necessary to remedy past injustice or to protect the vulnerable, but is generally unconstitutional.
Second, people must be treated with dignity. Third is freedom of expression: Another common legislative failing, because people find it hard to tolerate expression of views they disagree with. And the idea of fair trial — perhaps because of the same sort of psychology that leads to discrimination: “others” (including “criminals” and “terrorists”) do not deserve to be treated quite like us.
Rights like housing, education and health generally require more sophisticated analysis and more positive action by the state, especially. But they lie at the heart of the purpose of the modern government. It is not just to keep the peace and fight off aggressors. It is to make a better life for its people. Not as acts of generosity, but as a matter of their rights as human beings and as citizens or residents of your country or county.
Legislative houses should have human right committees; the last Senate had a Legal Affairs and Human Rights Committee, despite having a limited role in lawmaking. And the cross-party, both Houses, parliamentary human rights caucus played an important role in lawmaking.
Legislators do not just make law. They pass budgets, monitor the working of government, and investigate issues of public importance and debate government policies.
National legislators will make a valuable contribution if they support the work of the National Commission on Human Rights, the Gender and Equality Commission and the Ombusdman. But Parliament hardly looks at the reports of these agencies.
In their oversight role, they should be focussing on how far the government and state agencies respect human rights, including the decisions of courts, both national — and international, such as the African Commission or Court’s decisions on the Enderois and the Ogiek.
They should note the reaction of UN and African human rights monitoring agencies to the regular reports Kenya must make on its human rights performance. Are criticisms justified? Does improvement follow?
Parliament now decides whether an international treaty signed by Kenya is to come into force. Does it commit us to protect more rights? What are the implications? Does it oblige us to limit rights? Is this justified?
Kenyans will watch their legislators and are ready to work with them to protect our common human rights.
By JILL COTTRELL GHAI