The Citizen Handbook

The Constitution of Kenya, 2010: The People’s Power

The Constitution of Kenya, 2010: My Constitution, My Future

Rights under the Constitution

One of the primary purposes of modern constitutions is to grant and define rights. The Constitution of Kenya, 2010 provides two sets of rights: (1) civil and political rights, and (2) economic, social, and cultural rights.

The Bill of Rights

A bill of rights is a list of the most important rights for citizens in their constitution. These rights belong to each individual and are not granted by the State but protected in the constitution. It is usually very difficult to modify a bill of rights under the normal constitutional amendment procedures. Any modification often requires extraordinary actions like a referendum or a supermajority of votes in Parliament (a special majority that is greater than a simple majority of 50 per cent plus one vote).

“The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings.” – Article 19(2), The Constitution of Kenya, 2010

The Bill of Rights in our constitution is comprised of rights listed from Article 19 to 59, and is considered one of the most progressive Bills of Rights in the world. This is because our Bill of Rights guarantees a variety of fundamental rights and freedoms, including political, civil, and social economic rights.

Civil Rights

Civil rights refer to the entitlement of an individual to personal freedom or liberty. The Constitution guarantees civil rights, including:
 ·         Right of equality and freedom from discrimination asserts that every person is equal before the law and has the right to equal protection and equal benefit of the law. Equality includes the full enjoyment of all rights and fundamental freedoms.
 ·         Right to freedom and security includes the right to no arbitrary detention, no physical or mental torture, and no inhumane or degrading treatment.
 ·         Right to freedom of conscience, religion, and opinion entitles every person the right to join or participate in any religion or to choose not to participate.
 ·         Right to freedom of movement and residence means that all citizens have a right to freedom of movement within the country. It also means that citizens have a right to enter, remain in, and reside anywhere in Kenya. Citizens also have the right to leave the country at any time.
·         Right to freedom of expression refers to freedom to seek, receive, or communicate information and ideas, artistic creativity and academic freedom including scientific research.
 ·         Right of access to information ensures that every citizen has the right of access to information held by the State; and information held by another person and required for the exercise or protection of any right or fundamental freedom. Every person also has the right to have the State correct or delete untrue or misleading information about him or herself. Furthermore, the State shall publicize any important information affecting the nation.
 ·         Right to freedom of the media is the right to prevent the state from attempting to control or interfere with any person engaged in broadcasting, the production, or circulation of any publication or the dissemination of information by any medium; orto penalize any person for any opinion or view or the content of any broadcast, publication or dissemination.
 ·         Right to freedom of association means that every person has the right to associate freely, to include forming, joining or participating in the activities of an association of any kind. This right also protects a person from forceful membership in a specific group, and from having their registration withheld or withdrawn without first receiving a fair hearing.

Limits to the Right of Freedom of Expression

 The right of freedom of expression does not extend to the following areas:
 ·         propaganda for war;
 ·         incitement to violence;
 ·         hate speech;
 ·         expressions of hatred that constitutes ethnic incitement, and vilification of others;
 ·         inciting others to cause harm; and
 ·         expression that is based on any ground of discrimination.
 Article 33(2), The Constitution of Kenya, 2010

Political Rights

Political rights refer to two broad categories of rights. The first guarantees a fair trial for any accused person. The second category refers to rights to making political choices and participation in political activities. Article 38 of The Constitution states that every citizen is free to make political choices, which includes the right to form, or participate in forming, a political party; participate in the activities of, or recruit members for, a political party; or to campaign for a political party or cause. Furthermore, every adult citizen has the right to:
 ·         free and fair elections;
 ·         be registered as a voter;
 ·         vote by secret ballot in any election or referendum;
 ·         be a candidate for public office, or office within a political party of which the citizen is a member; and
 ·         hold office, if elected.

Social, Economic, and Cultural Rights

Social economic rights are referred to as “second generation rights” in the human rights naming system, and are one of the most significant achievements of theConstitution.Inspired by the United Nation's International Covenant on Economic, Social, and Cultural Rights (ICESCR), these second generation rights intend to protect an individual’s access to education, housing, an adequate standard of living, and good health. Other rights in this grouping include rights of citizens topracticetheir indigenous languages and to family.
 The Constitution contains numerous economic and social rights, including:
 ·         Economic rights provide the right to secure a living under certain working conditions;
 ·         Social rights guarantee access to basic services such as health, social security, housing, food, water and education;
 ·         Cultural rights provide citizens with the rights to preserve and practice cultural activities unless they harm or discriminate against a particular group, or violate other human rights in the Constitution;
 ·         Environmental rights mean that citizens have a right to an environment that is not harmful to people’s health and wellbeing. These rights further call on citizens to protect the environment and conserve vegetation and wildlife for future generations; and
 ·         Developmental rights give citizens the right to live in prosperity and have enough resources for current use as well as saving some for future generations.

Limitation of Rights and Fundamental Freedoms

Article 24(1) of the Constitution stipulates that “a right shall not be limited except by law and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom and taking into account of all the relevant factors” including the:
 ·         nature of the right and fundamental freedom;
 ·         importance and the purpose of limitation;
 ·         nature and the extent of the limitation has provision on the nature of rights which can be limited; and
 ·         circumstances that will necessitate the limitation of those rights.
 However, the Constitution also clearly states that the following rights and fundamental freedoms shall not be limited to:
 ·         the right to habeas corpus;
 ·         freedom from torture and cruel inhuman or degrading treatment or punishment;
 ·         freedom from slavery or servitude; and
 ·         the right to a fair trial.

What does Habeas Corpus mean?

Habeas corpus is a legal action that calls for the release of a prisoner for unlawful detention due to not having enough cause or evidence. The prisoner, or a person acting on his/her behalf, may seek habeas corpus.

Application & Implication

The Bill of Rights aims to protect all citizens so they can live a life of dignity where there is social justice and respect for human rights and the rule of law. It is important as a citizen that you to be aware of your rights in order to fulfill your responsibilities in ensuring that all citizens live peacefully with one another. Resources may not be immediately available to implement fully all economic and social rights because the Constitution allows for their gradual implementation.

The State, however, must demonstrate genuine and organized efforts towards full implementation of these rights. The State’s efforts can take the form of clearly published programs and implementation plans on all areas covered by the Bill of Rights. Such plans must include verifiable information on the actions the government is taking to ensure the realization of these rights.

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