On the right to adequate food vis-a-vis the requisite duty to respect in Kenya

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By Patrick Mutinda

The right to adequate food as provided for by the Constitution, as well as the obligation to respect such a right by the state, provides a significant move towards the progressive realisation principle provided in that same Constitution. But both of these are met by extreme challenges.

Even with the adoption and ratification of international instruments, which have a bearing on the right to adequate food, as well as the obligation of states to respect those rights, many still don’t have access to adequate food; the state has failed in its duty. More pointedly is that when these two phenomena are taken as correlatives, then they are apt to, together, facilitate the realisation of the very important right to human dignity which is the main goal of the right to adequate food.

This is in resonance with the case of “Francis Coralie Mullin vs Administrator, Union Territory for Delhi” (1981) SCR (2) 516, where it was held that the right to live with dignity and all that goes along with it – namely adequate nutrition, clothing and shelter, education, expression and movement – is the pillar of all other rights.

Defining ‘right to adequate food’

The right to adequate food can be understood as the right of a people to be fed or, on the other hand, the right to be free from hunger and to have sufficient food. Both of these contexts though controversial present a similar point of argument. That despite the right being understood differently, it is the right to have access to food in adequate quantities. This right is both inclusive and paramount – it is a right to all nutritional elements that a person needs to live a healthy and active life, and to the means to access them.

As a consequence of the world food summit in May, there came the draft code of conduct on the Right to Adequate food, which was an outcome of action taken by FIAN (the international human rights organization on the right to feed oneself) and WANAHR (the World Alliance for Food and Nutrition), and the institute Jacques Maritain. In the draft code, the right to adequate food was defined to means that every man, woman and child alone and in community with others must have physical and economic access at all times to adequate food using a resource base appropriate for its procurement in ways consistent with human dignity.

Nevertheless, the International Covenant on Economic, Social and Cultural Rights recognises the “right to an adequate standard of living, including adequate food”, as well as the “fundamental right to be free from hunger”. The relationship between the two concepts is, however, not straightforward. For example, “freedom from hunger”, which General Comment 12 designates as more pressing and immediate, could be measured by the number of people suffering from malnutrition, and at the extreme, dying of starvation. The “right to adequate food” is a much higher standard, including not only absence of malnutrition, but to the full range of qualities associated with food, including safety, variety and dignity – in short, all those elements needed to enable an active and healthy life.

Inspired by the above definition, United Nations special rapporteur Jean Ziegler in 2002 also defined the Right to adequate food thus: “… a human right, inherent in all people, to have regular, permanent and unrestricted access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of people to which the consumer belongs, and which ensures a physical and mental, individual and collective fulfilling, dignified life free of fear”.

This entails the most important normative elements of the right to adequate food as explained in General comment 12 of the ICESCR, which states, “the right to adequate food is realised when every man, woman and child, alone or in community with others, have the physical and economic access at all times to adequate food or means for its procurement”.

It is through this definition that the normative nature of the right to adequate food is considered to include a state of food security and the availability of sustainable food quantities to all. While the definition seems to recognise the importance of this right, it also seeks to imply that such a right should be achieved progressively within the ambits of the available resource.

Prof Olivier De Schutter reiterated the definition advanced by Ziegler in that he seemed to agree with Jean’s point of view that the right to adequate food is just like any other right: a human right. De Schutter opines that it should not be met with restrictions for it is full realisation. He further sought to bring forth the notion that the fulfilment of this right by the duty bearers to the consumer should be aimed at the foremost importance of ensuring the development of a people. He advocated for a minimum core to the right, which he calls sufficient food, but which in one way or another must be dependent on the cultural traditions within which the consumer belongs. To this end, it is clear that the fulfilment of the elements provided for by De Schutter in his definition produce a standard measure within which the realisation of this right by a people may be examined or based. The right to adequate food is a right constitutive of the very essential aspects that contribute to it being a human right and it being realized by the same humans it seeks to benefit.

Furthermore, the committee on economic, social and cultural rights in its General Comment No 12 considered the core content of the right to adequate food to include the availability of food in quality and quantity sufficient to meet the dietary needs of the people. It is in its’ explanation that while food should be sufficiently available, the accessibility of such food should be in ways that do not at all interfere with the enjoyment of other rights inherent in human. This implies that though the right to adequate food operates under the notion of interdependency of rights, it should not override the very basic content of such other rights it depends on.

Core elements

The “minimum core obligation” has been interpreted to mean that states have an “obligation to ensure the satisfaction of, at the very least minimum essential levels of each of” these rights. Just like any other right, the right to adequate food as provided for both by the Constitution 2010 and other international instruments, is comprises certain elements that are of much relevance for its operation and realization. To wit:

Accessibility

This means the quality of the content of the right should be receptive to the people it vests in. Food accessibility entails both physical and economic accessibility. Economic accessibility means that a person or a community has, due to its economic activities, for example (production), access to food in the broad sense. Furthermore, economic access to food is more determinative on the available resources for the production to take place. Economic accessibility can also mean work – either as self-employed or a wage-employed. Economic accessibility implies that personal and household financial cost associated with the acquisition of food for an adequate diet should be at a level that the attainment and satisfaction of other basic needs are not threatened or compromised.

On the other hand, physical accessibility ignores economic accessibility in that it does base itself on economic effects of access to food, but to the fact that if at all food is to be adequately accessible, it should be so accessible immediately and to everyone. This line of argument seems to be based on the notion that, while some groups can have economic access to food, others cannot enjoy such privilege due to their social status in the community, for example, children or infants and elderly people as well as those disabled.

This brings into play the state in complying with its obligations.  

The case of “C.M.D y otros c/ G.C.B.A (S/de amparo, Juegado contencioso Administrativo y Tributario n3 Buenos Aires 11/03/03” dealt with an arbitrary exclusion of a woman and her children from a food programme. The court was of the opinion that the state should, in ensuring accessibility of food to the woman and her children, provide them adequate food as a temporary solution to malnutrition. This case presents a classic example of the obligation that the state has in ensuring that this core obligation is fulfilled.

Adequacy

The normative content of the human right to adequate food is, inter alia, developed around the notion of adequacy. Adequate food must be “sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture”. While adequacy involves satisfaction of dietary needs, the notion of sustainability is essentially linked to the notion of adequate food and food security. This implies that a guarantee is placed forth for the present and future generations as regards access to adequate food. Therefore, adequacy is more or less determined by the existent economic, socio-cultural and ecological conditions while sustainability incorporates the notion of long-term accessibility and availability.

Availability

Article 2 (1) of the ICESCR acknowledges that achievement of rights encompassed therein can only be within the resource capacity of a state, and obliges them to fulfil their duties to the maximum of their available resources. Availability refers to the possibilities either for feeding oneself directly from productive land or other natural resources, or for well-functioning distribution, processing and market systems that can move food from the site of production to where it is needed. It requires, on the one hand, that food should be available from natural resources either through the production of food, by cultivating land or animal husbandry, or through other ways of obtaining food, such as fishing, hunting or gathering. On the other hand, it means that food should be available for sale in markets and shops.

Importance of the right

The justification of economic, social and cultural rights, does not lie only in their creating the necessary conditions for the enjoyment of other interrelated rights but on their ability to promote human dignity as well as provide a means through which the human race realises its full potential. This is as was demonstrated in “John Kabui Mwai and 3 others v Kenya National Examinations Council & Others” (John Kabui Case) Petition No. 15 of (2011) eKLR, where the court stated, “the inclusion of economic, social and cultural rights in the Constitution is aimed at advancing the socio-economic needs of the people of Kenya, including those who are poor, in order to uplift their human dignity. The protection of these rights is an indication of the fact that the Constitution‘s transformative agenda looks beyond merely guaranteeing abstract equality. There is a commitment to transform Kenya from a society based on socio-economic deprivation to one based on equal and equitable distribution of resource”.

Inherent in the implementation of these rights is their humanism and their consideration for the physical and mental integrity of every individual. Thus, it can be said that these rights may be considered universal human rights in so far as they relate to fundamental elements of the individual’s physical nature as well as their self-development.

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