Opinion & Analysis

New Constitution will ensure social and economic rights are fulfilled

The right to food, education, work, health and many others have for a long time been described as second generation rights due to questions about their enforceability. Photo/FILE
The right to food, education, work, health and many others have for a long time been described as second generation rights due to questions about their enforceability. Photo/FILE 

A raft of rights that will empower Kenyans have been incorporated in the new Constitution.

The recognition of culture as the cradle of Kenyanness and the antecedent fundamental freedoms, economic and social rights, consumer rights, recognition of marginalised groups in society among others is a step forward in realising the dreams of our forefathers.

It is a milestone for a country to have fully incorporated the provisions of the International Covenant on Social and Cultural Rights in our supreme law.

The bill of rights provides a framework where rights have to be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or even social origin.

Having these provisions in our laws is the first step and realising them is another.

Mechanisms must be put in place to hold the government to account in fulfilling these rights.

Questions are bound to emerge as to the nature of these rights.

The right to food, education, work, health and many others have for a long time been described as second generation rights due to questions about their enforceability.

Therefore, taking economic and social rights seriously as rights, and not just as policy goals, is a way of giving full meaning to the interdependence and indivisibility of all human rights and no right should supersede the other.

Any individual or group of individuals, communities, NGOs, Trade Unions can lodge a complaint alleging violation of any right as provided under the bill of rights.

The complaints should allege the existence of a violation of one or more of the rights i.e rights to education, food, health, housing, social security or labour.

Violations of these rights can occur when the government unduly interferes with their enjoyment i.e. unjustified evictions, lack of specific and targeted measures to ensure universal access to primary education, deaths by starvation when sufficient food programmes are available or abrogation of existing legislation on social security or provision of safe and clean water.

The High Court has jurisdiction to hear and determine applications for redress for any violation of rights provided.

Remedies that accrue from state activities are wide as the government has the discretion to devise appropriate responses and select the means by which to implement respective obligations.

This will include restitution or compensation.

For these rights to gain wide acceptance, there is need to train judicial officers, public servants and civil society organisations and encourage legal and judicial activism as important steps towards the full realisation.

Also an important ingredient is to ensure that local courts and tribunals adequately provide redress for victims of violations of economic, social and cultural rights.

The writer is a researcher with Kenya Debt Relief Network.