Vincent Chahale The Kenyan Constitution has been lauded as one of the most progressive in the world, on account of its broad approach, appreciation and specific provisions on fundamental rights as provided in the Bill of Rights, the vesting of sovereignty in the people, the decongestion of power (executive, legislative and judicial) and devolution. The placement of the provisions for socio-economic rights in the Bill of Rights as opposed to having them imbued in the preamble as directive principles of state policy enhances their guarantee. However, the main task in ensuring these gains are realised is through appropriate implementation strategies developed by the state. In order to have in place an appropriate implementation strategy for socio-economic rights, an appreciation and understanding on what amounts to the core content on the various socio-economic rights is important. Legal foundation for socio-economic rights The basis for social and economic rights in Kenya is anchored in Article 43 of the Constitution which provides that (1) every person has the right to the highest attainable standard of health, which includes the right to healthcare services, including reproductive healthcare; accessible and adequate housing, and to reasonable standards of sanitation; be free from hunger, and to have adequate food of acceptable quality; clean and safe water in adequate quantities; social security; and education; (2) a person shall not be denied emergency medical treatment; and (3) the state shall provide appropriate state security to persons who are unable to support themselves and their dependants. The Constitution has other provisions which form the basis for socio-economic rights and which are generally termed as group rights. These provisions includes Articles 40 (protection of right to property), 41 (labour relations), 44 (language and culture), 45 (family), 53 (children rights), 54 (rights of persons with disabilities), 55 (youth), 56 (minorities and marginalised groups) rights and 57 (older members of the society). Other articles which are critical in the realisation of socio-economic rights include Articles 27 on equality and freedom from discrimination, 28 on human dignity, 46 on consumer rights, 47 on fair administrative action and 48 on access to justice. Further, article 2(6) of the Constitution provides that “any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.” This means that any treaty or convention which has been ratified by Kenya and which provides for socio-economic rights becomes part of the Kenyan legal foundation on socio-economic rights. Some examples of such conventions at the international level include the International Covenant on Economic, Social and Cultural Rights (ICESCR), which was ratified by Kenya in 1972, Convention on the Rights of the Child (CRC), ratified in 1990, Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, ratified in 2002, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), ratified in 1984, and Convention on the Rights of Persons with Disabilities, ratified in 2008. At the regional level, Kenya is a party to the African Charter on Human and Peoples’ Rights, having ratified it in 1992, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, ratified in 2010, and African Charter on the Rights and Welfare of the Child, ratified in 2000. These Conventions complement the Constitution in providing a basis for socio-economic rights in line with article 19 (3) (b) of the Constitution of Kenya, which provides that “the rights and fundamental freedoms in the Bill of Rights do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised or conferred by law, except to the extent that they are inconsistent with this Chapter.” The foregoing forms the legal basis of social economic rights in Kenya. Distinct characteristics of socio-economic rights Socio-economic rights have both individualistic and collective aspects. This means that any of the socio-economic rights such as the right to education can be claimed by an individual person as an entitlement to that person alone and may be claimed by an individual person as an entitlement on behalf a collective group, including a group of persons, a class of persons or a community. Moreover, any of the social- economic rights can be claimed by a collective group as a right to that group of persons; for instance, an ethnic community can claim the right to enjoy their culture and use of their language. Normative content of socio-economic rights Core content refers to the basic minimum conditions under which the realisation of a socio-economic right can be made possible. Let us examine the right to education for illustrative purposes. The Committee on Economic, Social and Cultural Rights (CESCR) which is the body tasked with the implementation of the provisions of the International Covenant on Economic, Social Cultural Rights observes that “…education is both a human right in itself and an indispensable means of realising other human rights. As an empowerment right, education is the primary vehicle by which economically and socially marginalised adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities.[…] Increasingly, education is recognised as one of the best financial investments states can make” (CESCR 1999. “Implementation of the International Covenant on Economic, Social and Cultural Rights”, General Comment No. 13 – The Right to Education; UN doc E/C.12/1999/10). The right to receive education as indicated in Article 13(2) of ICESCR includes the following four normative contents. The first is the aspect of “availability” which requires “functioning educational institutions and programmes […] available in sufficient quantity within the jurisdiction of the state party”. Second is “accessibility”, which requires educational institutions and programmes to be accessible to everyone, without discrimination, within the jurisdiction of the state. This content has three overlapping dimensions – being that institutions and programmes should be accessible to all without any form of discrimination, be physically accessible as well as be affordable (economic accessibility). Third is that education must be ‘acceptable’ in form and substance, wherein its curricula and teaching methods have to be acceptable (i.e. relevant, culturally appropriate and of good quality). Fourth is “adaptability”, meaning that education must be flexible to adapt to the needs of the changing society by being responsive to the needs of students within their diverse social and cultural settings. In essence and in a general summary, the normative contents of most socio-economic rights include availability, accessibility (both physical and economic) and acceptability. The fourth content changes depending on the kind of right e.g. adaptability for the right to education, quality for right to highest attainable standard of health or adequacy for right to housing and right to be free from hunger. The state is obligated to facilitate fulfilment of socio-economic rights as follows: Respect, protect and fulfil Like all fundamental human rights, socio-economic rights have three elementary obligational aspects, that is, to “respect, protect and fulfil”. The respect obligation requires the state to refrain from actions/inactions which would interfere with the enjoyment of these rights. For instance, the closure of private schools by the government may be interpreted as a violation of the “respect obligation” in respect to the right to education (CESCR. General Comment No. 13, the Right to Education, UNdoc. E/C.12/1999/10 at para.50). Evicting people from their homes without following lawful procedures or offering them alternatives or allowing them to access judicial mechanisms may be construed as a violation of the “respect obligation” in relation to right to adequate housing. If the government requires people to move from their homes to obviate a catastrophe that may result from the El Niño rains for example, then rather than just advise them to move to higher ground, the state is obligated to provide the alternative shelter. The “protect obligation” requires the state to take measures which prevent third parties or private entities from interfering with the enjoyment of socio-economic rights. The obligation on the state is to provide appropriate legal and policy framework to inhibit violation of social–economic rights by private bodies. Such measures should include aspects of remedial action and sanction in the event of violation by such parties. Instances where multi-national corporations violate communities’ rights to land, food, water, housing and so on through, for instance, forced evictions, pollution etc., may amount to violations of the obligation to protect, in the event that the state fails to put in place appropriate and effective mechanisms to prevent these violations. In “SERAC v. Nigeria  ACHPR, Case No. 155/96”, the Ogoni community of the Niger Delta region filed a claim against Nigeria at the African Commission on Human and People’s Rights, claiming infringement of their socio-economic rights by Shell Petroleum Company. The Commission held that Nigeria had breached its obligation to protect the community by failing to put in place effective regulatory mechanisms and to undertake due diligence to ensure that the oil company did not contaminate the land, water and food sources of the community. The “fulfil obligation” has two dimensions namely to “facilitate” and “provide”. The “facilitate” dimension requires the state to take positive measures to enable and assist individuals and communities to enjoy socio-economic rights. The state’s obligation here is to create a well enabling environment through conducive legislative, policy and programmatic framework, that enables people to meet their own socio-economic needs using their own resources, as well as for private actors to work together with the state in public-private partnerships for the realisation of these rights. The “provide” dimension requires the state to take positive measures and steps, including the provision of adequate resources – even actual goods and services – vital for realisation of socio-economic rights, especially to the most vulnerable persons/groups . Strategies and undertakings on free basic education are examples of the “provide obligation” in relation to the right to education. The provision of subsidised houses under a housing scheme for public officers is an example of the “provide obligation” in relation to the right to adequate housing. Through the National Housing Corporation, the state can provide for housing schemes that cater for the less endowed members of the society and not lay ground for investment opportunities for the rich and middle class who already have adequate housing. Obligation on non-discrimination Article 27 of the Constitution provides for non-discrimination on any ground as therein listed. This provision is amplified by Article 2(2) of ICESCR, which requires the Covenant rights to be exercised without discrimination. ICESCR has, in its General Comment No. 20, Paragraph 8, indicated that… “Eliminating discrimination in practice requires paying sufficient attention to groups of individuals which suffer historical or persistent prejudice, instead of merely comparing the formal treatment of individuals in similar situations.” This increases the scope within which non-discrimination is to be observed by looking into the past as opposed to considering discriminatory incidences of the present and future. Obligation to take steps The state has an obligation, under Article 21(2) of the Constitution, to take measures, including the setting of standards, to achieve the progressive realisation of socio-economic rights guaranteed under Article 43. CESCR, in General Comment Number 3, points out that states have an obligation “to take steps” and this obligation is not limited by other considerations such as resource constraints. Examples of steps to be taken are policy directives, decisions, planning, budgeting, and programmatic framework. These measures are to be undertaken within a reasonably short time since some require minimum resources, but with the aim of progressively realising the socio-economic rights. Obligation on progressive realization of socio-economic rights Progressive realisation as expounded by the CESCR General Comment No. 3. The Nature of State Parties Obligations implies the “…respect of the full realisation of the rights in question […] imposing an obligation to move as expeditiously and effectively as possible towards that goal” of full realisation. Therefore, this requires the taking of steps by state parties, which are “deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognised in the Covenant.” In our case, the Constitution is the first covenant. This obligation is intertwined with the obligation on allocating resources on the goal of realising socio-economic rights to the “maximum available resources” within a state’s jurisdiction. However, what constitutes “maximum available resources” for socio-economic rights within the State’s resource base is often a contested matter as will be seen hereafter. Implementation of the obligation to allocate maximum available resources for socio-economic rights A member state has an obligation under article 2(1) of ICESCR to take steps to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognised in that Covenant. This obligation is similar to the obligation created by Article 20 (5) of the Constitution, which states that “in applying any right under Article 43, if the State claims that it does not have the resources to implement the right, a court, tribunal or other authority shall be guided by the following principles: (a) it is the responsibility of the State to show that the resources are not available; (b) in allocating resources, the State shall give priority to ensuring the widest possible enjoyment of the right or fundamental freedom having regard to prevailing circumstances, including the vulnerability of particular groups or individuals.” There is no formal definition or parameters on what “maximum available resources” (MAR) constitutes in the international human rights law spectrum. CESCR, which is entrusted with the role to interpret ICESCR by states, has not defined MAR but has outlined some scales on what MAR constitutes. Robertson in his article “Measuring State Compliance with the Obligation to Devote the ‘Maximum Available Resources’ to Realising Economic, Social and Cultural Rights, views MAR as a concept composed of two extreme opposites; “maximum” representing the need for total commitment to ESCR, and “available” representing practicability on allocations towards socio-economic rights obligations. The case of “Purohit and Moore v. Gambia  ACHPR, Communication 241/200 (15-29 May 2003)” in the African Commission on Human and Peoples’ Rights highlights this point when the African Commission, despite noting the poverty levels in African states, reminded them of their obligation “…to take concrete and targeted steps, while taking full advantage of [their] available resources, to ensure that the right to health is fully realised in all its aspects…” The aspect of determining whether allocated resources are the “maximum available resources” within a resource base is open to determination on objective criteria such as “equitable and effective use of and access to available resources”, as well as protection to the most vulnerable groups. At the very least, Kenya should allocate resources towards the goal of realising the minimum contents of socio-economic rights while cushioning the most vulnerable persons. The obligation entails a well-balanced justifiable resource allocation while ensuring prioritisation and ultimate sensitivity towards socio-economic rights. Measures to do with resource mobilisation, expenditure, budget analysis as well as checks and balances to minimise losses in revenue and ensuring efficiency and effectiveness are essential. Challenges to implementing socio-economic rights in Kenya Article 2(1) places the duty to take steps upon each state individually and through international assistance and cooperation. CESCR General Comment 3 indicates that “maximum available resources” includes both national resources and international assistance. It is open for any state such as Kenya if it needs any assistance to carry out its socio-economic obligations to seek international assistance. Economists agree that resources availability for human rights progression depend on tax collection and its subsequent administration, expenditure as well as international assistance and cooperation. To this end, CESCR in its General Comment No. 3 at Paragraph 14 observes that “…international cooperation for development and thus for the realisation of economic, social and cultural rights is an obligation of all States.” Principle of separation of powers The concept of separation of powers is a principle ensuring the independence of each arm of the government from interference in its work by the other arms, with the traditional roles being that the Executive will formulate and implement policy, the Legislature will make laws and the Judiciary will interpret the laws. In the South Africa case of “Soobramoney v. Minister for Health (CCT 32/97, 27 November 1997)”, a matter on the right to health, the Constitutional Court of South Africa expressed itself with abundant caution by avoiding the temptation of meddling in budgetary issues which are a preserve of the Executive. The same attitude is also noticeable in other jurisdictions such as Brazil where courts are willing to enforce the right while being reluctant to interfere with policy decisions as observed by Siri Gloppen in his article “Legal Enforcement of Social Rights: Enabling Conditions and Impact Assessment”. Nonetheless courts can, and indeed have the duty to, extract as much information as possible from the state, which resultantly diminishes this challenge. In the matter of “Mazibuko and others v. City of Johannesburg and others (CCT 39/09 8 October 2009)”, the court observed thus: “…This case illustrates how litigation concerning social and economic rights can exact a detailed accounting from government and, in doing so, impact beneficially on the policy-making process.” Inadequacy of traditional remedies The Courts therefore can, through litigation, make government demonstrate the steps it has taken to observe, respect, promote and fulfil the socio-economic rights, but not dictate the steps it should take. As rightly observed by Craig Scott in his article “Constitutional Ropes of Sand or Justiciable Guarantees?”, courts create their own competence and the courage to be creative depends on a conviction that the values at stake are legitimate concerns for the judiciary. Most of the available traditional judicial remedies such as “certiorari”, “mandamus” and “prohibition” may not be rightly fitted to address socio-economic rights. This poses a problem to litigants with many be an indication that there are no remedies for these rights. The Inter-American Commission on Human Rights in the case of “Metropolitan Nature Reserve v. Panama (Case No. 11.533 Report No. 88/03, Inter-Am. CHR (2003))” for instance, observed that it did not have competence to determine generalised harms that affect broad sectors of the society. It requires skills and innovations to be able to formulate the best possible alternative remedies which would fit in for socio-economic rights. However, the courts must be innovative in interpretation of the law by aligning the socio economic rights with other rights in order to find a remedy for redress of an infringement. Enforcement of court orders on socio-economic rights In line with inadequacy of the remedies is the issue of enforcement and the role courts can play in enforcement. There is a perception that socio-economic rights remain a framework for political discussions and the role of courts is limited to interpretation. To what extent should the courts have to go in policy and political matters without necessarily meddling with the affairs of the other arms of government? This poses a challenge in enforcing realisation of these rights. However, nothing stops a court from giving a direction on the execution of its judgment and in the event of failure, utilising the “contempt of court” proceedings against the contemnors. In the Kenyan case of “Satrose Ayuma & Others v. The Registered Trustees of the Kenya Railways Staff & others, Nairobi High Court Petition No. 65 of 2010”, for example, while the court made declarations on violations of the petitioners right to adequate housing, it went further to order the Attorney-General to file an affidavit within 90 days of the judgment, “…detailing out existing or planned State policies and legal framework on forced evictions and demolitions in Kenya generally and whether they are in line with acceptable international standards [and]…the measures the Government has put in place towards the realisation of the right to accessible and adequate housing and to reasonable sanitation in Kenya.” Difficulties in unpacking the normative content of socio-economic rights Some of the key concepts in socio-economic rights such as progressive realisation, maximum available resources, non-retrogression and so on are difficult concepts for litigants to appreciate. The foregoing requires the citizenry to have a thorough understanding of the key aspects of each of the socio-economic rights and what is required for a violation to be said to have taken place. This knowledge extends to the understanding of the available redress mechanisms established by law or policy to address any violations and different methods of seeking a remedy. Failure to have this knowledge can become a handicap in enforcing the rights. In the Kenyan case of “Kenya Society for the Mentally Handicapped v Attorney General & Others, Nairobi High Court Petition No 155A of 2011”, the court observed thus: “At the core of the petitioner’s claims are economic and social rights protected under Article 43. Budgets and budgetary allocation are a key consideration in the enforcement of these rights, and Article 20(5) sets out principles applicable when determining whether the State has met its obligations in terms of providing resources. It is clear, that apart from the figure cited, the petitioner has made no attempt to provide the context of the budget to enable the Court make the necessary assessments and determination.” What then? The foregoing discussion brings out the fundamental aspects that will come into play in the realisation of socio-economic rights. Clearly, it demonstrates that the path to realisation of these rights is not a well trodden one. It may be in the years to come, but as is clear from the preceding discussion, it will be fraught with, legal, social, economic and political hurdles. It is incumbent upon all stakeholders to play their roles and play them well. The government, as the duty bearer, has a bigger responsibility in ensuring that the respective obligations are duly met. The state’s developmental agenda should reflect deliberate, concise and well targeted actions aimed at realising these rights.