LEAVE NOTHING TO CHANCE: The proposed Bill of Rights has attempted to cover every imaginable avenue through which a derogation could occur
The proposed Bill of Rights in the harmonised draft Constitution of Kenya makes provisions for all areas of fundamental civil liberties that are conceivable and tries to ensure that there is a little room for subjective interpretation of the protection granted.
At the beginning of the proposed Bill of Rights, provision is made for the perspectives in which these rights are to be interpreted and enforced. For instance, Article 28 declares that the rights and freedoms set out “belong to the individual and are not granted by the state.”
Further on, the Bill of Rights requires that in the application of the Bill, a court shall develop the law so as to give effect to the freedom and should adopt an interpretation that most favours the enforcement of the freedom.
The proposed Bill has attempted to cover every imaginable avenue through which a derogation could occur. It has even declared that no fees shall be sought by the court for proceedings under the Bill and where such proceedings are against a public authority, no costs may be awarded against an unsuccessful applicant unless the claim was frivolous.
After laying down the perspectives, the Bill then sets out the freedoms to be guaranteed: Right to life, freedom from slavery and servitude, freedom of expression etc. To these, the Bill has added other emerging freedoms such as access to information, right to language and culture, consumer rights, social security, health, education, housing, food, water, environment etc. These were never contemplated in the current constitution when it was passed and their promulgation has been the dream of many civil society activists over the years.
Contemporaneous with the introduction of these rights is the recognition of the various classifications within these rights that need to be protected. For instance, provision is made for women, youth, children, family, persons with disabilities and minority and marginalised groups as classes that must be particularly recognised when interpreting fundamental rights and freedoms.
Classes of rights
Under these classifications, the particular concerns of these classes are provided for. Persons living with disabilities, for instance, are guaranteed the right to be treated, addressed and referred to in a manner and in words that are not demeaning or derogatory.
For children, provision is made grating equality to all children whether born in or out of wedlock and also declaring that both the mother and father have an equal duty, whether married or not, to provide for the child.
But it is in its ambition that the Bill will face its test. In a way it has gone slightly overboard and will need rethinking on some areas.
One such area is the freedom of refugees and asylum seekers. The proposed Bill recognises the right of aliens to seek and obtain asylum in Kenya in accordance with international law and practise. While Kenya’s obligation under such international treaties is never denied, the issue of refugees is often very political and these rights are granted or denied along diplomatic and national security considerations. It may not be in Kenya’s interest, particularly considering the various armed conflicts in neighbouring countries, to overrule these considerations by giving refugees fundamental rights under our constitution. It is not even clear why the proposed Bill finds this desirable.
A similarly ambitious provision that will raise concern after further consideration is the equality of obligation to children between natural parents, whether married or not. When the Children’s Act was being debated in Parliament a few years ago, there was a similar provision, which was viewed as an attempt to promulgate the Affiliation Act through the backdoor.
Kenyan men had always resisted any law that puts an automatic obligation o a natural father regardless of his will to assume paternal obligation to the child, so much so that the Affiliation Act that used to exist in the early days of the country was repealed and every attempt to put in law a similar obligation has been rejected.
Freedom of refugees and asylum seekers.
The proposed Bill recognises the right of aliens to seek and obtain asylum in Kenya in accordance with international law and practise.
Equality of obligation to children between natural parents
When the Children’s Act was being debated in Parliament a few years ago, there was a similar provision, which was viewed as an attempt to re-promulgate the Affiliation Act through the backdoor.
The article of health
Grants every Kenyan the right not to be refused emergency medical treatment. Emergency medical treatment can range from the simple and lifesaving cardiopulmonary resuscitation to specialised expensive surgeries like appendectomy and heart by-pass.
There are other ambitious provisions that though not offending any particular interest group are of doubtful efficacy.
The article on health grants every Kenyan a right not to be refused emergency medical treatment. Emergency medical treatment ca assume a long range of presentation from the simple ad lifesaving cardiopulmonary resuscitation to specialised expensive surgeries like appendectomy and heart bypass.
I cannot imagine how the right granted by the proposed Bill will make a hospital force a specialised surgeon to conduct an expensive procedure on a non-paying patient because it is a emergency. Similarly, when the Bill states that the state must provide social security to persons who are unable to support themselves or their dependants, it is not clear how the Bill expects an agrarian Third World economy to support such a right. Even the US, the richest economy in the world, is fighting over its ability to provide free healthcare to poor people.
In a way, therefore, the Bill needs to first walk before it runs. By trying to achieve too much, it may compromise the achievement of what is really and desperately needed by Kenyans. While it would be a good thing to provide as much as it can in this Constitution review, Kenya should remember that Constitutions are amendable, and future generations will have an opportunity to upgrade on the provisions that are made today.