What are Human Rights?
- Human rights are the basic rights and freedoms that belong to every person in the world, from birth until death.
- states that every person has inherent dignity and the right to have that dignity respected and protected.
What is the Bill of Rights?
- prescribes rights and fundamental freedoms which shall belong to each individual and are not a privilege from the State.
- and it contains two types of rights: those that cannot be limited (inalienable or non-derogable rights) and are found under article 25 and article 30 and those that the State can limit (derogable rights)
- They can be limited by either the Constitution itself or other related laws or Acts of Parliament.
- These rights can only be limited where it is reasonable and justifiable in an open democratic society.
- The limitations must be based on human dignity, equality and freedom.
What role does the State play?
- Article 20 states that The Bill of Rights applies to all laws and binds all State organs and all persons.
- The role of the State is to realize over time the fulfillment of these rights according to its capacity to do so, while having due regard to the prevailing circumstances in the country.
- Article 21 provides that it is a fundamental duty of the State and its organs to observe and protect the rights and fundamental freedoms contained in the Bill of Rights.
- It also mandates the State to enact and implement all the international obligations with regard to human rights and fundamental freedoms;
- A right or fundamental freedom in the Bill of Rights can be limited by the State as provided for Article 24 and as per any other written laws. Its provisions are;
- The limitation must be reasonable and justifiable.
- It must take into account all relevant factors, including:
- the nature of the right or fundamental freedom;
- the importance of the purpose of the limitation;
- the nature and extent of the limitation;
- the need to ensure that the enjoyment of rights by any individual does not prejudice the rights of others; and,
- the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
- A law limiting a right is not valid unless it specifies clearly the intention to limit that right and the nature and extent of the limitation;
- The law cannot limit the right or fundamental freedom so far as to derogate from its core or essential content.
- The State or a person seeking to justify any limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been met.
- The provisions of equality in the Bill of Rights do not apply to Muslims.
- Muslims must refer to Muslim Law and the Kadhi’s Court in matters relating to: personal status; marriage; divorce; and, inheritance.
- The following rights for persons serving in the Kenya Defence Forces or the National Police Service may be limited by law;
- Article 31-Privacy;
- Article 36-Freedom of association;
- Article 37-Assembly, demonstration, picketing and petition;
- Article 41-Labour relations;
- Article 43-Economic and social rights;
- Article 49-Rights of arrested persons.
What should I do if my rights have been violated?
- Article 22 allows any person can go to court claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
- Any person can also go to court for either; on behalf of someone who is unable, to represent a group of persons or for public interest.
- Article 20 guides the courts in applying these rights, to interpret them in such a way that enhances their enjoyment by the individual and is consistent with the spirit of the Constitution.
- Article 23 gives the High Court jurisdiction to hear and determine Constitutional petitions, while Parliament is allowed to enact legislation to allow subordinate courts to hear Constitutional petitions in appropriate cases.
- These courts can grant various orders for the protection of Constitutional rights including;
It restrains a person from starting or continuing an action invading the legal right of another, or compelling a person to carry out a certain act.
Money to cover loss or injury suffered by a violation of a person’s right.
- Judicial review
It’s a challenge in court to a decision by a public body. A judge reviews the lawfulness of a decision on rights of an individual made by a public body.
- an order declaring that act or omission invalid.
- Article 59 establishes the Kenya National Human Rights and Equality Commission (KNHRC) as the principal organ of the State to ensure compliance of the country to obligations to international human rights instruments.
- The commission is bestowed with the mandate to, among other things;
Promote the protection and respect of human rights everywhere in the country; and most importantly, receive and investigate complaints about violations of human rights, abuse of power, unlawful or oppressive official conduct etc. and offer redress for the same.