Auditing the Bill of Rights under the Constitution, 2010

Auditing the Bill of Rights under the Constitution, 2010

By Kibe Mungai

The Constitution 2010, for which nearly 70 percent of Kenyans voted to adopt on August 4, 2010, did not come on a silver platter but after a long struggle, during which thousands of people lost lives, limb, property and suffered State terror and humiliation. And so in the wake of the promulgation of the Constitution on 27th August, 2010 President Mwai Kibaki rightly observed:-

“Many Kenyans have invested heavily over the years towards the realization of this constitution. Some paid the ultimate price as they sought freedom for their compatriots. Every Kenyan who contributed their views to the constitutional-making bodies, debated the proposals upon which the new constitution was made, voted in the referenda of 2005 and 2010 and ensured peace prevailed in our country, are central architects of our new dawn.”

It is no surprise therefore that the preamble to the Constitution declares that we adopted and enacted it to honour those who heroically struggled to bring freedom and justice to our land and to realize “the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law”.

Furthermore Article 10 sets out the national values and principles of governance that bind all state organs, state officers, public officers and all persons whenever any of them applies, interprets or implements the Constitution, any law or public policy. These values and principles include “human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized”.

The book ‘They Lived to Tell’ is a heartrending account of gross human rights atrocities committed during the Nyayo era against hundreds of activists, who were lucky enough to survive to tell their tales. Thousands more did not survive to record their harrowing experiences in Nyayo House and other dark places where those who dared to express dissenting views on very basic public issues were murdered in cold blood by state agents. In 2002, when Kenyans united to deal KANU a decisive electoral defeat, many people hoped that such atrocities would never happen again within our shores. How wrong we were!

In early 2003, Kiraitu Murungi, then Minister for Justice and Constitutional Affairs, spoke about Kenya becoming a human rights state upon the enactment of a new constitution. It is against this background that Chapter 4 of the Constitution provides for one of the most comprehensive and progressive Bill of Rights, more so because for the first time the supreme law declares in Article 19 that the basic rights and freedoms are inherent to all human beings and not privileges granted by the State.

At a general level, the 2010 Constitution enshrines three broad categories of rights and freedoms. First are substantive and procedural political rights such as right to life human dignity, privacy, liberty, fair hearing and freedoms from discrimination, slavery, servitude and forced labour or freedoms of expression, media, access to information, association, movement and residence and of course protection of right to property.
The second category are what are generally known as social and economic freedoms that include labour relations, consumer rights, rights to adequate housing, clean and safe water, social security, education, emergency treatment and freedom from hunger and such other good things. The third category includes what many law textbooks describe as controversial rights because they tend to attract contentious arguments of moral and philosophical nature. Such rights include the right to qualified abortion under Article 26 (which also pretends to settle the philosophical question of when life begins by declaring that it begins at conception), rights of minorities and marginalized groups, reproductive rights and the right to found a family with a member of the opposite sex.

It is prudent, however, to sound the caveat that in human rights practise what matters is not the enumeration of rights per se but their actualization in real life situations. On this front the proposed Bill of Rights scores very well in three ways. First, it contains few clawback clauses and grounds for derogation from fundamental rights and freedoms compared to the former Constitution adopted at Lancaster House in Britain in 1963 and subsequently amended to introduce a repressive dictatorship. Secondly, Articles 20, 21 and 22 set out progressive standards for application, implementation and enforcement of the Bill of Rights. Thirdly, the Constitution deepens the independence of the judiciary and specifically enjoins courts to enforce the Bill of Rights in a purposive way that will ensure real protection for those in need.

As we mark the tenth anniversary of the People’s Constitution, it is an opportune moment to audit and reflect on the performance and efficacy of the Bill of Rights. The record is not as rosy as many Kenyans hoped when we lined up in our thousands to vote for the Constitution after a protracted struggle that spanned over two decades. Broadly speaking, Kenya is far from becoming the human rights state that Kiraitu spoke about in the wake of NARC’s victory in 2002 over the Nyayo dictatorship. More specifically, there are three major shortcomings that have obstructed the free society and nation envisaged in the Bill of Rights from becoming a reality.

The first shortcoming relates to the challenge of implementing the Constitution. The main duty of the High Court is to adjudicate cases concerning the Bill of Rights and to protect the Rule of Law by ensuring that all wielders of power act within the boundaries of the law. In recognition of the fact that Kenyans have no easy access to High Court stations, Article 23(2) of the Constitution requires Parliament to enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation on infringement of the Bill of Rights. Unfortunately, after ten years Parliament is yet to enact this enabling legislation which means that only a small section of Kenyans can actually file cases concerning any alleged violation of the Bill of Rights.

The second challenge is that the Bill of Rights is yet to become an effective touchstone and imprimatur of how power is exercised in Kenya. Viewed against the backdrop of systematic state-sponsored human rights violations, the real value of the Bill of Rights was that it would check against abuse of power by the police, administrative officials, the military and other armed or coercive agents of the State. Unfortunately, this is yet to become a reality because at the highest echelons of the Kenyan State there is considerable reluctance to accept the Bill of Rights as a legitimate bar to the orthodox style of exercising State power in colonial and post-colonial Africa.

As illustration, in early 2016 lawyer Willy Kimani, his client Josphat Mwenda and taxi driver Joseph Muiruri were kidnapped outside a court in Mlolongo, executed by the police shortly thereafter and their bodies dumped in the Ol Donyo Sabuk River. Thus the real tragedy for this country is that the 2010 Constitution could not save Willy Kimani and his colleagues. Equally tragic is that whereas in the 1980s my senior colleagues Dr. John Khaminwa, Senator James Orengo, Dr. Gibson Kamau Kuria, Paul Muite, Gitobu Imanyara and Mirugi Kariuki expected that a habeas corpus application would result into a court appearance for their clients, in 2016 a habeas corpus application I filed in Nairobi High Court for Abdul Karuri Mwangi, an official of Pumwani Riyadha Mosque Committee in Nairobi – who was suspected to be a collaborator of Al Shabaab terror group – was not enough to secure his production in Court dead or alive and in the end his family had to abandon the case after the main witnesses of his abduction were intimidated from swearing the affidavits required to prove the case.

The third shortcoming for the Bill of Rights concerns the frequent enactment of legislations that negate or subvert the substance and spirit of the Bill of Rights on the pretext of state security and maintenance of public order and social decency. These laws are too many to discuss in this article but suffice it to state that their invariable effect has been to weaken the efficacy and sanctity of the Bill of Rights.

Back in 2020, President Kibaki implored us to appreciate that the implementation of a constitution is a process and “it takes time to implement the rights contained in a new chapter”. Acknowledging all this, we must celebrate the fact that the Bill of Rights remains intact and it cannot be amended without a Referendum. This means that the challenges of implementation can easily be surmounted so long as we put in power a government that respects human rights and freedom. We must also hasten to note that courtesy of the 2020 Constitution today, Kenyans are more conscious of their human rights and expect the wielders of power to respect them. Thus the language of human rights is a dominant feature of Kenya’s political life and legal adjudication.

This fact is more important than it seems at first mention. Michael Ignatieff, a prolific writer in human rights law, observes: “The Universal Declaration universalised rights talk at least allows people to speak the same language but it doesn’t mean they will say the same things. The most we can say is that rights talk has legitimised individual selfhood and authenticated every form of discontent with injustice, ascribed and inherited status. Rights language has been central not simply to the production of modern individuals. There are many ways to become an individual, but the desire to be one on one’s own terms is a universal aspiration. To the degree that it has helped to legitimise and empower that aspiration human rights has allied itself with a need shared by several billions of our fellow creatures.”

In Kenya, we should never forget that there was a time when the Constitution was almost regarded as a seditious document. Lawyer Mirugi Kariuki and Dr. John Khaminwa were detained for defending clients who had taken the Constitution seriously and thereby sought to vindicate its majesty in court. And when Dr. Kamau Kuria sought to secure Mirugi’s constitutional rights, he, too, was detained. Indeed, as a law intern, I recall hearing chuckles in a Nairobi court when Dr. Kuria, referred to a constitutional provision in a case that did not appear to have a constitutional bearing at first sight. And this was only in 1997 not 1987!

Today, constitutional litigation is a mainstream discourse as opposed to a trade of political rabble-rousing by “political lawyers”. The most conservative lawyers who barely two decades ago espoused and defended single-party despotism now publicly wear the garb of “constitutional lawyers” with obvious pride. The long journey to freedom, or rather to the road of freedom, was apparently worth the broken limbs, shattered careers and liquidated souls. That in Kenya the language of human rights has become a universal and common heritage of all Kenyans is perhaps the best monument to those who made the silent human rights revolution a reality as embodied in Chapter 4 of the 2010 Constitution.

— The writer is a constitutional lawyer (kibemungai@yahoo.com)

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