Poverty, inequality and socio-economic rights

526 Pages·2013·2.39 MB·English

Poverty, inequality and socio-e  conomic rights: A theoretical
framework for the realisation o f socio-economic rights in the

2010 Kenyan Constitution

By
Nicholas Wasonga Orago
LL.B Hons (Nairobi), PostGrad.Dip. Law (KSL), LL.M (Pretoria)

A thesis submitted in fulfilment of the requirements for the degree
Doctor of Law in the Faculty of Law of the University of the
Western Cape, South Africa

Promoters:
Professor Jacques de Ville
Faculty of Law, University of the Western Cape
And
Professor Frans Viljoen
Centre for Human Rights, University of Pretoria
16 August 2013
Declar ation

I, Nicholas Wasonga Orago, declare that Pov erty, inequality and socio-economic rights: A
theoretical framework for the realisation of socio-economic rights in the 2010 Kenyan

Constitution is my work, and that it has not been submitted for any degree or examination in any
other university or institution. All the sources I have used, referred to or quoted have been
indicated and duly acknowledged by complete references.

Nicholas Wasonga Orago
Signed:………………………………
Dated: 16 August 2013

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Key w ords

Poverty and inequality

Social justice

2010 Kenyan Constitution
Justiciability
Purposive interpretation
Socio-economic rights
Progressive realisation
Minimum core content of socio-economic rights
Dialogical constitutionalism
Participation

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Abst ract

Poverty and inequality are deeply entrenched in Kenya, with the country being one of the most

unequal countries in the world. To eradicate poverty and inequality, enhance the achievement of

social justice, fast-track human development, as well as to entrench participatory democracy
and a culture of justification in governance, Kenya has, for the first time, entrenched justiciable
socio-economic rights (SERs) in its 2010 Constitution. In this thesis, I undertake a critical
analysis of the prospects for the implementation and enforcement of the entrenched SERs as
well as the probable challenges that Kenya may face in their realisation. In this endeavour, the
thesis develops a theoretical and interpretive approach for the realisation of these entrenched
SERs. It entails an expansive analysis of the nature, scope, content and extent of the SERs
entrenched in the 2010 Kenyan Constitution, and especially the place of international human
rights obligations contained in customs and ratified international human rights treaties due to the
provisions of the 2010 Constitution which espouse the direct application of international law in
Kenya’s domestic legal system.
It is submitted in this thesis that in order to improve the socio-economic conditions of the
poor, vulnerable and marginalised groups in Kenya, there is a need for their socio-economic as
well as political empowerment to enable them to effectively take part in societal decision-making
in both the public and private spheres with regard to resource (re)distribution. The theory of
dialogical constitutionalism, based on the constitutionally entrenched principle of popular
participation in governance and public decision-making, is aimed at the realisation of both
political and socio-economic empowerment of these groups. Even though the theory of
dialogical constitutionalism underscores the importance of litigation in the achievement of the
transformative aspirations of the 2010 Kenyan Constitution contained in the entrenched SERs, it
acknowledges that litigation is not the panacea of SER enforcement, and that other political and
advocacy strategies play an important role in the emancipation of the socio-economically
deprived groups in society. The thesis thus advocates a multi-pronged strategy which espouses
the equal participation of all sectors of society in a collaborative and cooperative deliberative
effort aimed at the full realisation of the entrenched SERs.
To accompany the above theoretical framework for the interpretation and
implementation of the entrenched SERs, the thesis further proposes a transformative and
integrated approach which combines the progressive aspects of the minimum core approach
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and the reasonableness approach. This is an a pproach of purposive interpretion which, in the
first instance, envisages the courts undertaking a strict and searching scrutiny of the SER

implementation framework developed by the political institutions of the State to ensure that

sufficient provision has been made for the basic necessities of the most poor and vulnerable
groups in society, basically the espousal of a m  inimum core content approach. The approach
entails the requirement that should the SER implementation framework fail to provide this basic
minimum to vulnerable groups, and the political institutions do not provide a substantive
justification as to the failure, then the courts should find the relevant SER implementation
framework per se unreasonable and thus invalid. However, should the implementation
framework provide sufficiently for the basic essentials for vulnerable groups, the courts should
then proceed to review it using the reasonableness standards that have been developed by the
South African Constitutional Court. The rationale for this searching analysis is the
acknowledgement that if the needs and interests of the most indigent and marginalised in
society are not catered for, the entire corpus of rights in the Bill of Rights becomes redundant.
The thesis then undertakes a case study of two rights, the right to food and the right to
housing, using the theoretical and interpretive approaches developed in the previous chapters
of the thesis. On food security, the thesis finds that Kenya is a food insecure country with a
declining food production capacity. This is basically due to a lack of subsidy to farmers, global
warming leading to intermittent rainfall, lack of investment in sustainable agriculture as well as a
fragmented and contradictory legislative and policy agenda. In response to this situation, the
thesis proposes the adoption of a livelihoods approach to food security in Kenya, based on the
constitutionally entrenched right to food and other supporting rights. This approach advocates
the enhancement of the food entitlements of the different sectors of the Kenyan society to
ensure their access to adequate and nutritious food, be it through self-production or through the
market.
On the right to housing, the thesis finds that housing plays a crucial role in ensuring that
people are able to have a holistic, dignified and valuable existence. However, Kenya faces a
dire housing situation, with the majority of Kenyans, both in rural and urban areas lacking
adequate shelter and sanitary conditions, evidenced by the large informal settlements in urban
areas and the squatter phenomenon in rural areas. With the entrenchment of a justiciable right
to adequate housing in the 2010 Constitution, the study finds that several legislative and policy
reforms are underway to improve the housing situation, with efforts being made to draft the
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Landlord and Tenant Bill 2007, the Housing  Bill 2011, the Evictions and Resettlement
Guidelines and the Evictions and Resettlement Procedures Bill, 2012, among others. The thesis

proposes that these legal reforms must be undertaken within an environment of cooperative and

collaborative strategic partnership involving all sectors of society so as to ensure that the
housing concerns as well as interests of all are c atered for.

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Acknowle dgments

First and foremost, I want to thank the almighty father for the gift of life, good health, faith, hope

and humility, gifts without which this thesis would have remained a distant pipe dream.

Secondly, I would like to acknowledge and appreciate the people who have guided me
throughout the life of this thesis, especially my supervisor Professor Jacques de Ville of the
University of the Western Cape, and my co-supervisor Professor Frans Viljoen of the University
of Pretoria, for their efforts, insights, inspirations and patience in supervising this research.
Without their prompt and critical comments to the draft chapters and the many phases of the full
thesis draft, this research would not have been what it is now. Many thanks, in this regard, also
go to Dr. Yonatan Fessha for his effort to get suitable readers for my thesis chapters presented
at the Doctoral Colloquia, readers whose constructive comments have immensely helped
improve the quality of this thesis.
Thirdly, I want to thank the Community Law Centre (CLC) in general for providing for me
a home away from home as well as the requisite facilities to enable me to undertake this
research. I want to thank specifically Professor Nico Steytler, former director of the CLC, and
the former head of the Socio-Economic Rights Project, Professor Lilian Chenwi, for believing in
me and entrusting me with the opportunity to benefit from the FORD Foundation funding that
enabled me to complete this research. Without this generous support from the FORD
foundation, channelled through the CLC, this study would not have been possible. I also wish to
acknowledge Trudi Fortuin for her motherly love, care and guidance; Jill Claasen for her
resourcefulness and assistance in accessing research materials for this study; Staff at the UWC
Interlibrary Loans, Khonziwe Mpandle and Helena Primo, who ensured that I was able to access
research materials from other Universities, sometimes at short notice; Mutakha Kangu and
Conrad Bosire for the many discussions shared on how to make the 2010 Kenyan Constitution
work; as well as all the other Doctoral Candidates both at the CLC and at the Law Faculty in
general for their camaraderie and support.
This thesis would not have been completed without the support, prayers and
encouragement from my family and friends back in Kenya. I want to especially acknowledge my
mother, Leah Orago, for her prayers, encouragement and belief in me throughout my academic
life, and especially during the trying times when this study was completed. Mama, I want to
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thank you for being the rock of our family an d for teaching us the value of hard work and
dedication in life. We will always be indebted to you.

All errors and mistakes remain my own.

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List of abbreviations

AHRS - African Human Rights System

AU - African Union
CCC - Constitutional Court of Colombia
CEDAW - Convention on the Elimination of All Forms of Discrimination against
Women
CESCR - UN Committee on Economic, Social and Cultural Rights
CIC - Commission for the Implementation of the Constitution
COHRE - Centre on Housing Rights and Evictions
CPRs - Civil and Political Rights
CRC - Convention on the Rights of the Child
CRPD - Convention on the Rights of Persons with Disability
DFID - United Kingdom’s Department for International Development
DPMF - Development Policy Management Forum
ECOSOC - United Nations Economic and Social Council
FAO - Food and Agricultural Organisation
GNP - Gross National Product
HDI - Human Development Index
HRC - United Nations Human Rights Committee
ICC - International Criminal Court
ICCPR - International Covenant on Civil and Political Rights
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ICESCR - International Covenant on  Economic, Social and Cultural Rights
ICJ - International Court of Justi ce

ICJ-Kenya - International Commission of Jurists, Kenyan Chapter

IDPs - Internally displaced persons
IFAD - International Fund for Agriculture and Development
ILO - International Labour Organisation
IMF - International Monetary Fund
KDHS - Kenya Demographic and Health Survey
KIHBS - Kenya Integrated Household and Budget Survey
KNHREC - Kenya National Human Rights and Equality Commission
MDGs - Millennium Development Goals
MNCs - Multinational Corporations
NER - Net Enrolment Rate
OHCHR - Office of the High Commissioner for Human Rights
OP-ICESCR - Optional Protocol to the International Covenant on Economic, Social
and Cultural Rights
SAC - The 1996 South African Constitution
SACC - South African Constitutional Court
SERs - Socio-economic rights
SID - Society for International Development
UDHR - Universal Declaration of Human Rights
UN - United Nations
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