SURVIVORS ORGANIZATION, ADVOCATING FOR POSITIVE CHANGE

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Not only on human rights advocacy, we also advocated for health rights. We have been doing this for the past sixteen years, helping the entire western community in creating awareness in reduction of HIV new infection, reduction of stigma to zero percent and also share ring information on importance of knowing their health status.

This has enhanced a positive change where by we have been conducting health campaigns in various hotspots in the entire community in the western Kenya thus in Busia town, namable, samia and also Matayos.

Survivors Team setting the stage to conduct VCT Outreach at Matayos Market in Busia County.Kenya
Survivors Team setting the stage to conduct VCT Outreach at Matayos Market in Busia County.Kenya

 

One of the counselors attending to a client.
One of the counselors attending to a client.

Being a sex workers organization, at first we had a very big challenge where by the community had a negative attitude in terms of publicity, but through sensitization meetings with stakeholders, this has created positive impact and gave us a platform in achieving our mission and goals.

Since the community at large challenges that lead to the lost of our loved one’s , we felt it was our responsibility to ensure the key population (Female sex workers and Msm,s)know the facts on health issues especially on risk reduction plan.landscapeReport

EVERYBODY HAS A RIGHT

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Just a point of concern to all who are there to discriminate and stigmatize others, have you ever asked yourself this question, “if you were in his or her shoes how would you feel?” suppose    you were neglected due to your sexual orientation or the kind of work you do to earn a living, what will be your views?

There is a point I would like to make, not everybody was meant to be a farmer or be a teacher. Everybody has his or her own career, profession or job. If we were all meant to be farmers, who will buy our products?

You are within the community neglecting other people rights; you are doing a wrong thing. Let everyone has his or her freedom as long as he or she is not interfering with other persons interest or mandate.

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As human beings, let everybody express their views in order to create a well and established society with full of knowledge, positive attitude and anxiety in order to achieve our mission, vision and positive impact in our future generation.

Let everybody exercise their freedom and rights in order to enhance peace across all genders and ages. Let everyone feel free to associate with one another in order to build a working nation. Keep this in mind. ONLY RIGHTS CAN STOP WRONG.PEACE

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Sex Worker Rights Advocates’ Community of Learning

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Welcome! Here you can learn Advocacy Tactics used successfully by advocates for sex workers’ rights, get Documentation Tools you can use in your campaigns, and get to know Member Organizations active in the field to learn more about their victories and challenges in human rights advocacy projects.

This community is supported by the Open Society Public Health Program

Survivors Organization members protesting marking.END VIOLENCE AGAINST SEX WORKERS RIGHTS.
Survivors Organization members protesting marking.END VIOLENCE AGAINST SEX WORKERS RIGHTS.

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Why Document Human Rights Violations?

There are many reasons why people document human rights violations. In rare cases, documenting violations and exposing them to the public can on its own put an end to abusive practices. More often, however, documentation is only part of a larger effort to end abuses. In addition, it may take years and a combination of efforts to put a stop to an abuse altogether. Advocacy efforts based on the evidence gathered through documentation should therefore identify interim goals that are realistic to achieve and that contribute in a meaningful way to creating the conditions necessary to eventually put a stop to abuse.

It is therefore important for people who document violations to be clear about what specific changes they seek, and to be realistic about what they are capable of changing. The specific changes that result from documentation are referred to as outcomes. Outcomes should be designed to respond to particular problems that documentation seeks to solve and should be targeted at particular actors. Once these problems and outcomes are identified, the documentation process typically involves the following steps:

  • Designing the documentation methodology
    (this differs according to the advocacy and intended audience)
    • Collecting data
    • Data analysis and report-writing
    • Targeted advocacy

Common Human Rights Violations Experienced by Sex Workers

The Open Society Public Health Program has developed a clear and simple guide that pairs common violations experienced by sex workers with relevant provisions of major human rights treaties.

The guide, entitled Common Human Rights Violations Experienced by Sex Workers, explains briefly how human rights treaties are enforced and lists some of the most important enforcement mechanisms.  It also provides a key that sex workers’ rights advocates can use to determine which rights protected by international law have been violated when sex workers have certain kinds of experiences.  For instance, when a sex worker is arbitrarily arrested or detained, his or her right to liberty and security of person is violated and he or she may also experience violation of the right to equality and non-discrimination, the right to freedom from torture and cruel, inhuman, and degrading treatment, and the right to a fair trial. The guide lists these rights along with the relevant provisions of international treaties that are violated when these rights are not respected.

The purpose of the document is to make clear the connection between abusive acts commonly experienced by sex workers and international rights guarantees. By referencing the guide, sex workers’ rights advocates can present the experiences of sex workers in terms that international treaty bodies created to enforce human rights law can understand and take action on.

Documentation Tools

Rights groups can use a range of tools to document violations committed against sex workers. Here you will find examples of questionnaires that sex worker advocacy groups have developed to ensure that the way they engage with sex workers about their experiences is respectful and consistent, and results in the collection of clear and relevant data that can be used in reports or other advocacy materials. You will also find materials that describe the connection between advocacy and documentation, and share advice about the most relevant and effective targets for evidence-based advocacy projects.

For more information about the role of documentation in advocacy, see our Why Document Human Rights Violations Guide.

International and regional human rights mechanisms exist to implement human rights treaties and monitor governments’ compliance with international standards for human rights. By submitting testimony to these bodies, advocates link documentation and advocacy to achieve change. Learn more about alerting human rights bodies to rights violations.

For information about appropriate terminology to use in documentation reports, see this glossary of terms related to sexual health and rights.

Resource Guides Advocacy Tactics

Advocacy tactics are specific actions that groups take to achieve their strategic goals. These tactics are the means by which groups achieve their advocacy objectives to improve the situation for sex workers and gain greater respect for sex workers’ fundamental human rights. Sex worker groups have employed a range of advocacy tactics to forward the cause of sex worker rights. Here you will find examples from letter writing campaigns, NGO shadow reports exposing rights violations, NGO advocacy reports aimed at bringing about concrete legislative and policy changes, and real life examples of groups using strategic litigation as an advocacy tactic.

Member Organizations

We are working together to end human rights violations against sex workers.

Bar Hostess Support and Empowerment Program (BHSEP), Kenya

Center for Rights Education and Awareness (CREAW), Kenya

Survivors Organization Busia. Kenya

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Healthy Options Project Skopje (HOPS) and the Coalition for Protection and Promotion of Sexual and Health Rights of Marginalized Communities (the “Sexual and Health Rights Coalition”), Macedonia

Jazas, Serbia

Keeping Alive Societies’ Hope (KASH), Kenya

Legalife, Ukraine

Sex Workers’ Rights Advocacy Network (SWAN), Central and Eastern Europe and Central Asia

Sex Workers Education and Advocacy Taskforce (SWEAT), South Africa

Tais Plus, Kyrgyzstan

Women’s Legal Center (WLC), Cape Town, South Africa

Resources

This list of resources provides information about recognizing and documenting human rights abuses from organizations that work on a range of human rights issues.  Although not specific to advocacy for the rights of sex workers, these guides, manuals, and organizations provide useful tools for collecting information about abuses and developing creative and effective plans for human rights advocacy.

Guides and Manuals

Advocates for Human Rights and US Human Rights Network: A Practitioner’s Guide to Human Rights Monitoring, Documentation and Advocacy
This manual from Advocates for Human Rights and the US Human Rights Network provides comprehensive information and guidance on how to use a human rights framework to facilitate social change.  The manual includes instructions for every step of the human rights documentation process, including establishing a project and its objectives, setting up and conducting interviews, formulating recommendations, and writing a report.
External Link: A Practitioner’s Guide (English)

Asia Catalyst: Prove It Documenting Rights Abuses Manual
“Prove It” is the first in a three part series of manuals, called “Know It, Prove It, Change It: A Rights Curriculum for Grassroots Groups” which will be published jointly by Thai AIDS Treatment Action Group (TTAG), Korekata AIDS Law Center in China, and Asia Catalyst in the US.  “Prove It” covers such topics as how to plan a research project, obtain informed consent, conduct interviews, and manage post-traumatic stress disorder among interviewees. It comes with a supplement containing detailed lesson plans that activists can use to hold community workshops.
External Link: Prove It Guide (English)

AWID: Reference Tool for Women Rights Defenders
This compilation of resources put together by the Association for Women’s Rights in Development (AWID) lists research materials dealing with the security and protection of defenders, resources that women activists can consult concerning their wellbeing and self-care, manuals dealing with how to document and monitor violations of women’s rights, as well as manuals on the rights and mechanisms available to women human rights defenders at risk. The list also references materials that address specific themes particularly relevant to women defenders, such as sexual orientation and documenting sexual violence by state actors.
External Link: AWID Guide (English)

Equitas Manuals
The Equitas website provides access to manuals on how to conduct human rights education and reports about violations of women’s rights in specific countries.
External link: Equitas Manuals (English)

Front Line Handbook for Human Rights Defenders
The website for Front Line, the International Foundation for the Protection of Human Rights Defenders, provides several manuals that provide human rights defenders with knowledge and tools to improve their understanding of security and protection.  Additionally, the “Front Line Handbook for Human Rights Defenders: What protection can EU and Norwegian Diplomatic Missions offer?” summarises the provisions of the EU Guidelines on HRDs and Norwegian guidelines on HRDs. It draws on the results of the EU’s own evaluation of the implementation of its guidelines carried out in the first half of 2006. The handbook details the ways in which the EU and Norway have committed themselves to supporting and protecting human rights defenders. It also makes suggestions to HRDs regarding how they might benefit from these policies.
External links: Front Line Manuals (English); Front Line Manuals (French)

HURIDOCS Manuals
On the website for Human Rights Information and Documentation Systems, International, advocates will find useful manuals, such as, “What is Monitoring?” “What is Documentation?” “Data Analysis for Monitoring Human Rights,” and the “Handbook on Fact-Finding and Documentation of Human Rights Violations.” There is also free HURIDOCS software for use in creating a database for managing information about human rights violations.
External link: HURIDOCS Manuals (English)

IHRA UN Human Rights Systems and Harm Reduction Advocacy Training Package
This training, produced by the International Harm Reduction Association, provides civil society groups with an introduction to human rights concepts, the UN human rights system, and skills required to engage with UN accountability mechanisms.  The training involves a mix of discussions, group work, exercises, and presentations.  IHRA’s training manual and the necessary exercise materials can be found at the link.
External Link: IHRA Training (English)

ILGA-Europe Advocacy Manuals and Documentation Tools
Members of the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association have undertaken a series of human rights documentation and advocacy projects regarding abuses against LGBTI people in specific countries and circumstances. ILGA-Europe developed its own handbook in 2008, which covers principles of human rights documentation, interviewing guidelines, advice for report writing, and a sample questionnaire. “Make it Work,” ILGA’s 2010 manual, provides a set of tools, methods, and skills which advocates can use in planning and implementing their advocacy work.  ILGA-Europe has also posted documentation tools and materials useful to activists documenting rights abuses against members of marginalized communities, including guidelines for documentation and examples of interview questions.
External links: ILGA Manuals;  Documentation Tools (English)

Martus
Martus software can be used for creating an encrypted database of rights violations that is backed up on a secure, remote server. The software and instructional publications, developed by the Benetech initiative, are available for free download.
External link: http://www.martus.org/index.shtml

Open Society Institute Human Rights Documentation and Advocacy: A Guide for Organizations of People Who Use Drugs
This guide aims to help activists recognize human rights abuses that are systematically conducted and condoned by state and non-state actors and silently suffered by people who use drugs. The guidebook focuses on providing activists with the tools necessary to develop a human rights advocacy plan, particularly by documenting abuses against people who use drugs.
External link: Human Rights Documentation and Advocacy: A Guide for Organizations of People Who Use Drugs (English)

Open Society Foundations: An Introduction to the European Human Rights System
The Open Society Foundations has created a brief overview of the European human rights system. The guide describes ways in which civil society groups can participate in European processes to hold states accountable for their compliance with human rights law and provides contact information and useful links to key European institutions.
Internal Link: An Introduction to the European Human Rights System (English)

UN Secretary-General’s Database on Violence Against Women
The Secretary General’s online database on violence against women is easy to use and contains primary source information about conditions women face in specific countries. It also includes a good practices section that directs visitors to examples of legislative reform and NGO projects designed to counter violence against women. The purpose of the database is to encourage the exchange of information and ideas about policies, services, and other measures to tackle violence against women.
External Link: UN Secretary-General’s Database on Violence Against Women (English)

Tactical Tech: Transforming Data into Images for Advocacy
Drawing By Numbers, a website created by the Tactical Technology Collective, is a collection of software tools and advice that organizations can use to turn information about human rights abuses into charts, maps, pictures diagrams and other visual instruments that can be used in advocacy, strategic planning, public education or training. Having something visual to present to audiences can be an effective means of convincing people of the importance of a problem and that you have the best solution. Information graphics are also useful in making large amounts of data or evidence easier to understand.

Tactical Tech worked with two sex-worker collectives in India and Cambodia to explore how data visualization could be used in advocacy campaigns for sex workers’ rights. They’ve published a write-up, the first in a series documenting the project, which explores how they collected data, analyzed it, crafted a message, and turned the information gathered into compelling visual evidence to present to a target audience.

The write-up of this case study is just one example of how organizations can use the data they collect as evidence in their advocacy campaigns. The website offers online manuals, toolkits, software and tutorials for organizations to use in crafting their own visual products using their own information about rights abuses.
External Link: Drawing by Numbers (English)
External Link: Sex worker voices: Documenting violations in India (English)

World Health Organization Guidelines on Conducting Research on Violence Against Women
These guidelines provide instructions on creating safeguards to make sure that the research participants are protected.
External Link: Guidelines on Conducting Research Against Violence Against Women (English, .pdf)

Organizations

Open Society Foundations
The Open Society Foundations work to build vibrant and tolerant democracies whose governments are accountable to their citizens. To achieve this mission, the Foundations seek to shape public policies that assure greater fairness in political, legal, and economic systems and safeguard fundamental rights. The Foundations have supported a number of sex worker organizations’ projects to document abuses and advocate for human rights.

Tactical Technology Collective
Tactical Tech is an international NGO helping human rights advocates use information, communications and digital technologies to maximise the impact of their advocacy work. Tactical Tech provides advocates with guides, tools, training and consultancy to help them develop the skills and tactics they need to increase the impact of their campaigning.

Women’s Link
Women’s Link Worldwide is an international NGO that provides technical assistance to women’s rights groups working strategically within the courts to promote gender equality through the development and implementation of human rights standards.  Women’s Link assists advocates in using international human rights law in national cases and bringing cases to regional and international tribunals.

 

SEX WORK AND THE POLICE

The illegal status of sex work creates conditions in which exploitation and abuse can thrive. Sex workers and brothel owners could be an important source of information for the police about abuse in the industry, including human trafficking. But because sex work is criminalized, they tend not to be open with the police.

Sex workers experience various forms of physical abuse violence and corruption at the hands of police. Some of them have been threatened with violence by the police; others have been forced to have sex with police officers (i.e. raped), others have been asked for sex for sex by policemen in exchange for release from custody.

The relationship with the police clearly does not encourage sex workers to report cases of abuse or exploitation. The consequence of this is that sex workers, who are already vulnerable to abuse by the clients and other third parties, are made even more vulnerable.

 

The Kenyan Bill of Rights (2010): Consolidating the Gains and Analysing the Domestication of International Human Rights Instruments.

Author: Muthee Thuku. Form and Content Review: M/s Mercy Njoroge, Mr. Njuki Githethwa, M/s Gillian Nevins. Editing: M/s Gillian Nevins. April 2011. 2 Table of Contents: Abstract…….………………………………………………………………………………………..3 1.0 International human rights law and instruments……………………. …………………..4 1.1 Human rights and their characteristics………………………………………………………..6 2.0 Obligations of State Members under international human rights law…………..7 3.0 Recognition of international human rights instruments/law in the new Constitution of Kenya (2010)..……………………………………………………………..10 4.0 Aspects of domestication of international human rights instruments in the new Constitution of Kenya – A Comparative Analysis…………………………12 5.0 Protection of rights of women and girls in the new Constitution of Kenya…..26 6.0 Protection of Guarantees of Rights and Fundamental Freedoms by the new Constitution of Kenya – Self Protecting Mechanisms………………………….29 References…………………………………………………………………………………………………..32 Acknowledgements……………………………………………………………………………………..33 About the author……………………………………………………………………………………….33 Annexes: Annex 1: List of Kenya’s ratification of various international and regional human rights treaties…………………………………..34 Annex 2: Terms and definitions……………………………………..……………….36 3 Abstract: The Bill of Rights in the new Constitution of Kenya (2010) gives guarantees for a wide range of rights and fundamental freedoms. This paper gives an in-depth analysis of the Kenyan Bill of Rights in relation to the whole Constitution and against the background of international human rights instruments. In relating the Bill of Rights to the other Chapters in the Constitution, it seeks to consolidate the gains made by linking diverse Articles that reinforce the guarantee of rights and fundamental freedoms expressed by each Article in the Bill of Rights. This is important since the Bill of Rights cannot be interpreted in isolation of other provisions in the whole Constitution. Briefly, it gives a glimpse of what constitutes international human rights law and instruments as well as the universal characteristics of human rights and how these aspects are captured in new Constitution of Kenya. The paper highlights Articles in the new Constitution that recognise the role of international instruments/law in Kenyan law. It also briefly looks at the international obligations of the State with regards to human rights and fundamental freedoms and how they are captured in the Constitution. Articles in international and regional human rights instruments that correspond to the ones in the Bill of Rights are analysed in order to bring out the aspect of domestication of various international human rights instruments through the new Constitution. The paper also accords a special analysis on guarantees of women rights expressed in diverse Articles and Chapters of the new Constitution of Kenya as a way of consolidating them since they are not harmonised under one Article in the new Constitution. Briefly, it also looks at tactics which the Constitution employs in protecting the rights and fundamental freedoms it guarantees from interference or infringement by either the State or nonstate actors including negative customs and traditions. The paper is analytical and academic in nature and is intended for use by human rights defenders and organisations as a tool for advocacy, lobbying, monitoring and training. References have been made to papers/documents sourced online. All human beings are born free and equal in dignity and rights. Article 1, Universal Declaration of Human Rights (UDHR), 1948. 4 1.0 International human rights law and instruments:1 International human rights law includes the legal provisions governing human rights as expounded in various international and regional human rights instruments.2 International human rights instruments constitute the total bulk of laws that are agreed upon by States with the aim of respecting, protecting, and fulfilling human rights for all. It includes treaties (draft texts of human rights treaties that are adopted by States Members of the relative organisation (UN/AU) for ratification e.g. ICCPR, ICESCR and ACHPR) and standards (agreements that act as guides of best practices to State Members of a particular organisation but are not legally binding, commonly referred to as Declarations (e.g. UDHR 1948 and the UN Declaration on the Rights of Indigenous Peoples 2007). States that ratify or accede to a treaty/convention/covenant undertake a commitment to fulfil the terms of the treaty. Declarations can not be ratified or acceded to and are therefore not legally binding. The instruments could be agreed upon at the international level (e.g. UN – ICCPR and ICESCR) or at regional level (e.g. Africa – ACHPR). 3 The most important human rights instruments relevant to Kenya and which have been considered in analysing the guarantee of rights and fundamental freedoms in the new Constitution include: International human rights instruments:  International Bill of Rights (IBOR) – The Bill comprises of:  Universal Declaration of Human Rights (UDHR, 1948).  International Covenant on Civil Political Rights (ICCPR, 1976).  International Covenant on Economic, Social and Cultural Rights (ICESCR, 1976).  Optional Protocols to the ICCPR – 1st Optional protocol to the ICCPR allowing individuals to report personal human rights violations (1976) and 2nd Optional Protocol to the ICCPR calling for the abolition of the death penalty (1991). 1 For further reading, please see: Amnesty International, Dutch Section, Special Programme on Africa, Haki Zetu: ESC Rights in Practice; Main Book, http://www.amnesty.nl/documenten/spa/Main%20Book%20part%20I%20version%2015062010.pdf 2 Definition sourced and slightly modified from: http://www.wordiq.com/definition/International_human_rights_law 3 For more information on different international and regional human rights treaties and information on ratification/accession by State Members, please visit: United Nations Treaty Collection, http://treaties.un.org/pages/Treaties.aspx?id=4 and AU: http://www.africaunion. org/root/au/documents/treaties/treaties.htm 5  Optional Protocol to the ICESCR allowing for individuals to report human rights violations with regard to ESC rights.  Charter for Elimination of All Forms of Discrimination Against Women (CEDAW, 1981).  Convention on the Rights of the Child (CRC, 1990).  International Convention on the Elimination of All Forms of Racial Discrimination (CERD, 1969).  Convention on the Rights of Persons with Disabilities (CRPD, 2008).  International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (CPRMW – Migrant Workers Convention, 2003).  International Convention for the Protection of All Persons from Enforced Disappearance (2010).  Rome Statute of the International Criminal Court (ICC Statute, 2002).  Convention relating to the Status of Refugees (CSR, 1954).  United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT, 1987).  UN Declaration on Rights of Older Persons (1991).  UN Declaration on Rights of Indigenous Peoples (2007).  The several ILO conventions and standards. Regional (African) human rights instruments:  African Charter on Human and Peoples’ Rights (African Charter – ACHPR, 1986).  African Charter on the Rights and Welfare of the Child (African Child Charter – ACRWC, 1999).  Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol – ACRWA, 2005).  African Union Convention on Preventing and Combating Corruption (2006).  African Union Convention for Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention – adopted in 2009).  African Youth Charter (AYC, 2009) 6 1.1 Human rights and their characteristics:4 Human rights are basic standards or entitlements without which people cannot live in dignity as human beings. They are attained at birth and are not granted by the State. Human rights are universal for all persons and have several main characteristics. They are: i) Inherent – This means that they belong to every person by virtue of birth. All human beings are born free and equal in dignity and rights. The new Constitution of Kenya captures this aspect in Article 19 (3) (a) which states that the rights and fundamental freedoms in the Bill of Rights belong to each individual and are not granted by the State. Article 28 also states that every person has inherent dignity that deserves to be respected and protected. ii) Universal – They belong to everyone. Article 27 (4) (5) of the new Constitution prohibits the state or any person from discriminating against a person, directly or indirectly, on any ground, including5 race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. iii) Inalienable – they cannot be taken away but can only be limited (e.g. lawful detention). Article 19 (3) c) of the new Constitution states that the rights and fundamental freedoms in this Constitution are subject only to the limitations contemplated in this Constitution as spelt out in Article 24. However Article 25 states four rights that cannot be limited at any time which include: freedom from torture and cruel; inhuman or degrading treatment or punishment; freedom from slavery or servitude; and the right to a fair trial; and the right to an order of habeas corpus.6 iv) Indivisible – All categories of rights are inter-connected and interdependent. The civilpolitical and the economic, social and cultural rights complement and supplement each other and enjoyment of any rights is dependent on the realization of all others. Article 20 (2) of the new Constitution seems to allude to the characteristic of indivisibility by stating that, ‘every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom.’ 4 For further reading please see: Amnesty International, Dutch Section, Special Programme on Africa, Haki Zetu: ESC Rights in Practice; Main Book, http://www.amnesty.nl/documenten/spa/Main%20Book%20part%20I%20version%2015062010.pdf 5 The word ‘including’ recognises that there are other prohibited grounds of discrimination e.g. property. 6 This Article conforms to Article 4 of ICCPR. 7 2.0 Obligations of State Members under international human rights law:7 Under international human rights law, States have obligations to respect, protect and fulfil the rights spelt out in any instrument that they have ratified/acceded to.8  Obligation to respect: That the State respects the rights of its citizens; may not interfere with people who are trying to provide for themselves; nor prevent access of resources necessary for their livelihood.  Obligation to protect: That the State has to ensure that non-state actors (e.g. civilians and private firms) do not interfere with access to essential resources neither commit human rights abuses.  Obligation to fulfil: That the State has the duty to ensure that everyone enjoys at least a minimum essential level of rights and on the basis of equality. This is known as the Minimum Core Obligation and has three elements i.e. facilitate, promote and provide.  Facilitate – That the State should take measures aimed at improving people’s access to and use of goods and services.  Promote – That the State should set up claims procedures and inform people of their rights and how to claim them. This should include human rights and civic education.9  Provide – That the State must provide goods and services if people, for reasons beyond their control, are unable to get them. The above three obligations are captured in Article 21 (1) of the new Constitution of Kenya which states that: 7 For further reading please see: Amnesty International, Dutch Section, Special Programme on Africa, Haki Zetu: ESC Rights in Practice; Main Book, http://www.amnesty.nl/documenten/spa/Main%20Book%20part%20I%20version%2015062010.pdf 8 Obligations of State Members further stressed in Article 2 of ICESCR and Council on Economic Social, Cultural Rights, General Comment No. 3. 9 In particular, Article 25 of ACHPR states that State Parties to the Charter have the duty to promote and ensure through teaching, education and publication, the provisions of rights guaranteed in it. 8 ‘It is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights.’ With regards to Economic, Social and Cultural rights, ICESCR, Article 2(1), spells out further obligations for the State Members as follows: Article 2(1): Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. (Emphasis added). This is also echoed in the UDHR, Article 22 which states: Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. (Emphasis added). These Articles gives rise to several obligations for State Members as follows:  Progressive realization : This means that the State should take steady and targeted steps so as to deliberately and effectively ensure that it fulfils it obligations towards achieving the highest level of enjoyment of rights. This includes prioritizing to ensure that its citizens attain minimum essential levels of each right (minimum core obligations). Article 21(3) of the new Constitution of Kenya captures this obligation by stating that: Article 21 (3): The State shall take legislative, policy and other measures including the setting of standards, to achieve the progressive realization of the rights guaranteed under Article 43 (Economic and social rights).  Use maximum resources available: Every State Member is required to use maximum resources available and in an effective and accountable way, to ensure the attainment of maximum levels of enjoyment of rights for all. Resources include funds, people, skills, good management and other assets. This obligation is captured under Article 20 of the new Constitution of Kenya with regards to Economic and Social rights as follows: Article 20 (5): In applying any right under Article 43 (Economic and social rights), if the State claims that it does not have the resources to implement the right, a court, tribunal or other authority shall be guided by the following principles–– (a) it is the responsibility of the State to show that the resources are not available; 9 (b) in allocating resources, the State shall give priority to ensuring the widest possible enjoyment of the right or fundamental freedom having regard to prevailing circumstances, including the vulnerability of particular groups or individuals; and (c) the court, tribunal or other authority may not interfere with a decision by a State organ concerning the allocation of available resources, solely on the basis that it would have reached a different conclusion.  Seeking international assistance : This obligation requires a State Member to seek international assistance in cases where it does not have enough resources meet its obligations. Though the new Constitution of Kenya does not express this obligation, Kenya is a State Member to various international instruments that express it. In particular, ICESCR, Article 2(1) requires that States should seek international assistance and co-operation in order to progressively achieve Economic, Social and Cultural rights. Article 2(6) of the new Constitution of Kenya states that: ‘Any treaty or convention ratified by Kenya shall form part of the law of Kenya.’ This means that the State is constitutionally bound to seek international assistance if it does not have enough resources to meet its obligations.  Obligation to use all appropriate means including particularly the adoption of legislative measures: This requires that the State make appropriate laws and provide appropriate mechanisms for monitoring implementation including policies, action plans and strategies. The new Constitution of Kenya has many Articles requiring the National Assembly and the State to take legislative action to ensure the realization of rights and fundamental freedoms for all. In particular it calls for affirmative action for marginalized and vulnerable groups such as children, women, youth, persons with disabilities, workers and minorities and marginalized groups. Article 21 (3) of the Constitution states that: ‘The State shall take legislative, policy and other measures including the setting of standards, to achieve the progressive realization of the rights guaranteed under Article 43 (Economic and social rights).’ With regards to ensuring that the State fulfills its international obligations on human rights and fundamental freedoms, Article 21 (4) of the new Constitution of Kenya states that: ‘the State shall enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms.’ Article 132 (Functions of the President), 1 (c) (iii) requires that once every year, the President shall submit for debate a report to the National Assembly on the progress made in fulfilling the international obligations of the Republic. These include its obligations under international human rights and humanitarian law. Article 132 (5) also requires that, ‘the President shall ensure that the international obligations of the Republic are fulfilled through the actions of the relevant Cabinet Secretaries.’ 10 3.0 Recognition of international human rights instruments/law in the new Constitution of Kenya (2010): The State always has the duty of domesticating international laws within its territory. The new Constitution of Kenya explicitly recognises the role of international law in several Articles. In Chapter 1 (Sovereignty of the People and Supremacy of the Constitution) Articles 2(5) and 2(6) recognise the role of international law in domestic Kenyan law as follows: Article 2(5): The general rules of international law shall form part of the law of Kenya. Article 2(6): Any treaty or convention ratified by Kenya shall form part of the law of Kenya. With regards to human rights and fundamental freedoms, Chapter 4 (Bill of Rights), Article 21(4) states: Article 21 (4): The State shall enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms. The Articles above set the stage for monitoring the application of international human rights norms in Kenya and the subsequent change in both policy and practice. Other Articles that reflect or refer to international law include: Article 50 (Fair hearing), (n), states that ‘a person may not be convicted for an act or omission that at the time it was committed or omitted was not; (i) an offence in Kenya; or (ii) a crime under international law.’10 Article 51 (Rights of persons detained, held in custody or imprisoned), 3 (b) obliges Parliament to enact legislation that will (a) provides for the humane treatment of persons detained, held in custody or imprisoned; and (b) takes into account the relevant international human rights instruments.11 Article 58 (State of emergency) (6) (a) (ii) states that ‘any legislation enacted in consequence of a declaration of emergency may limit a right or fundamental freedom only to the extent that the legislation is consistent with the Republic’s obligations under international law applicable to a state of emergency.’12 10 This conforms to Article 15 of ICCPR. 11 For example, the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment: http://www.un.org/documents/ga/res/43/a43r173.htm 12 This conforms to Article 4 of ICCPR. 11 Article 132 (Functions of the President) 1 (c) (iii) requires that once every year, the President shall submit for debate a report to the National Assembly on the progress made in fulfilling the international obligations of the Republic. These include its obligations under international human rights and humanitarian law. 132 (5) also states that: ‘the President shall ensure that the international obligations of the Republic are fulfilled through the actions of the relevant Cabinet Secretaries.’ Article 145 (Removal of President by impeachment), (1) (b) states that a President may be impeached where there are serious reasons for believing that the President has committed a crime under national or international law. The same is repeated in Articles 150 (1) (b) (ii) for Removal of Deputy President, Article 152 (Cabinet) (6) (b) for removal of a Cabinet Secretary and Article 181 (1) (b) for Removal of a County Governor 12 4.0 Aspects of domestication of international human rights instruments in the new Constitution of Kenya – A Comparative Analysis. The table below is a summary of various provisions found in international human rights instruments that are now domesticated by the new Constitution of Kenya under various Articles in the Bill of Rights as analyzed. ‘Art.’ refers to corresponding Article in the instrument named (e.g. UDHR Art. 2). Where an international instrument is labeled ‘various articles’, (e.g. CEDAW – various Articles) it means that the instrument has many Articles related to the one in the Kenyan Bill of Rights or relates almost in its entirety. There are also linkages between the different Articles in the Bill if Rights to related Articles in other Chapters of the new Constitution of Kenya that strengthen the guarantee of different rights and fundamental freedoms. Article and Right in the Kenyan Bill of Rights (Chapter 4). Content of Article and related Articles in other Chapters in the Constitution of Kenya (2010). Related Articles in international human rights instruments. Article 26: Right to life This Article was one of the most contentious Articles during the campaigns for and against this new constitution. It guarantees the right to life, states that life of a person starts at conception and prohibits intentional deprivation of life. It prohibits abortion except on medical grounds in Clause 26 (4). This generated a lot of controversy with pro-life crusaders claiming that it makes abortion legal due to wording ‘medical profession’ rather than qualified doctor. The Article also leaves room for intentional deprivation of life of a person under clause 26 (3) which states that ‘a person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law.’ It is important to note that Kenya has not ratified the 2nd Optional Protocol to ICCPR which calls for the abolition of the death penalty. This provision may seem to contradict with the guarantee in 26 (1) which states that every person has the right to life. This is a debate that is going to deepen in the future as pro and anti death penalty groups seek its constitutionality. Even though no hangings have taken place in Kenya since 1987, the death penalty remains in the books and hundreds of people are waiting on Continued on next page… UDHR Art. 3; ACPHR Art. 4; ICCPR Art. 6; CRC Art. 6; Migrant Workers Convention Art. 9; African Child Charter Art. 5; African Women’s Protocol Art. 4. 13 the death row. The death penalty has been argued to be a form of torture or other cruel, inhuman or degrading treatment or punishment and may be argued to go against the spirit of Articles 25 (a) and 29 (f) which outlaw such treatment/punishment.13 Article 27: Equality and freedom from discrimination This Article is extensive in guaranteeing equal rights for all before the law and in prohibiting all forms of discrimination. In particular, 27 (3) states that: ‘women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.’ The Article also obliges the State to undertake legislative measures to address discrimination suffered by persons or groups in the past. It also requires the State to ensure that no elective or appointive body shall have more than two-thirds of its members from the same gender. This will effectively see increased participation of women in such bodies and public service. Under Freedom of expression, Article 33 (2) d) ii), advocacy of hatred that promotes discrimination or violence is prohibited. Article 60 (1) f) puts elimination of gender discrimination in law, customs and practices related to land and property in land as one of the key principles of land management. Article 250 (4) requires that appointments to Commissions and Independent Offices be guided by this Article and should reflect ethnic diversity of the people of Kenya. The same is required for composition of the Defence Forces (Article 241 (4), the National Police Service (Article 246 (4), the National Executive (Article 130 (2) and in allocation of political parties seats (Article 90 (2) (c). UDHR Arts. 1, 2, 7; ACPHR Arts. 2- 5, 28; CRC Arts. 2, 37, 39; ICCPR Arts. 2 – 4, 18, 20 (2); ICESCR Arts. 2, 3; CRPD Art. 5; African Child Charter Arts. 3, 26; Migrant Workers Convention Art. 7; Convention on Status of Refugees Art. 3; African Women’s Protocol– various Articles; CERDvarious Articles; CEDAW- various Articles. Article 28: Human Dignity This article states that human dignity is inherent and that it deserves to be respected and protected. Article 19(2) states that the purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities. UDHR Art. 1; ACPHR Arts. 4, 5; ICCPR Art. 10; CEDAW Preamble; African Women’s Protocol Art. 3; CAT various Articles. 13 The author believes that the death penalty is a gross violation of human rights by the State and should be abolished in Kenya and elsewhere. His views do not necessarily reflect the views of the reviewers or any organisation he works for or with. 14 Article 29: Freedom and Security of the Person This Article guarantees the right to freedom and security of person by prohibiting acts such as deprivation of freedom arbitrarily, detention without trial, torture, corporal punishment and cruel, inhuman and degrading treatment or punishment. Article 25 (a) (Fundamental rights and freedoms that may not be limited) also puts freedom from cruel, inhuman and degrading treatment as one of the rights that cannot be limited under all circumstances. Article 238 (b) requires that National Security organs shall undertake their duties in full compliance of the law, and with utmost respect for the rule of law, democracy, human rights and fundamental freedoms. UDHR Arts. 3-5, 9; ICESCR Art. 7; ICCPR Arts. 9, 10(1); CRC Art. 37; CAT 1, 2, 4; ACPHR Arts. 5, 6; CEDAW Art. 15; Migrant Workers Convention Art. 10, 16; African Child Charter Art. 16; CERD Art. 5; African Women’s Protocol Arts. 4, 5, 20. Article 30: Freedom from slavery, servitude and forced labour This Article outlaws slavery, servitude and forced labor. Freedom from slavery and servitude is also mentioned as one of the rights and fundamental freedoms that cannot be taken away at all times under Article 25(b). UDHR Art. 4; ICCPR Art. 8; ICESCR Art. 7; ACPHR Art. 5; ILO Convention No. 182 (Worst Forms of Child Labour Convention, 1999) Art. 3; Migrant Workers Convention Art. 11; African Child Charter Art. 15, CRC Art. 19. Article 31: Right to Privacy This Article guarantees the right to privacy for all. The rights include not to have home or property searched; possessions taken away; information relating to family of private affairs unnecessarily required or revealed; and privacy of their communication infringed. The rights under this Article may be limited with respect to members of Kenya Defence Forces and the National Police Service by Article 24 (1) (5a). However, Article 24 (1) states that: “A right or fundamental freedom in the Bill of Rights 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, taking into account all relevant factors …’ UDHR Art. 12; ACPHR Art. 14; ICCPR Art. 17; CRC Art. 16; Migrant Workers Convention Art. 14; African Child Charter Art. 10. 15 Article 32: Freedom of conscience, religion, belief and opinion The Article guarantees the rights to freedom of conscience, religion, thought, belief and opinion. It guarantees the right not to be compelled to act, or engage in any act that is contrary to the person’s belief or religion. Article 44 (3) also places a limitation on cultural practices by stating that: ‘A person shall not compel another person to perform, observe or undergo any cultural practice or rite.’ With regards to the State, Article 8 (State and religion) clearly stipulates that there shall be no State religion. UDHR Art. 18; ACPHR art. 8; ICCPR Art. 18; CRC Art. 14; Migrant Workers Convention Arts. 12, 13; African Child Charter Art. 9; CERD Art. 5. Article 33: Freedom of Expression The Article guarantees freedom of expression including freedom to seek, receive and impart information; freedom of artistic creativity; and academic freedom and freedom of scientific research. However it prohibits propaganda for war, incitement to violence, hate speech or speech that advocates for hatred or discrimination which is prohibited under Article 27. UDHR Art 19; ACPHR Art. 9; ICCPR Art 19, 20; CRC Art. 13; ICESCR Art. 15; African Child Charter Art. 7; CERD Art. 5. Article 34: Freedom of media This Article deals with freedom of the media including requiring that all State-owned media should be impartial and should afford fair opportunity for the presentation of divergent views and dissenting opinions. This is a major departure from past practices where Stateowned media outlets have been used by incumbent governments as propaganda machines for mis-informing the public and maligning any opposition. The Article establishes an independent regulatory body to regulate and monitor compliance to the standards it sets out. UDHR Art 19; ACPHR Art. 9; ICCPR Arts. 19, 20. Article 35: Right of access to information This Article guarantees the right to access of information held by the government or by an individual required for the exercise or protection of a right or fundamental freedom. This right could also be linked to Article 254 (1), which stipulates that all commissions created by this Constitution should submit reports every year to both the President and to Parliament. Article 229 (4) requires the Auditor General to audit and report the accounts of every public office, including the National and County governments every year. Article 232 (f) puts transparency and provision to the public of timely and accurate information as one of the core values and principles of the Public Service. Article 33 (Freedom of expression) (1) (a) also guarantees the right for all to seek, receive or impart information or ideas. The right to access of information held by the government is a major gain for Kenyans who have been denied information for years under Continued on next page… UDHR Art 19; ACPHR Art 9; ICCPR Arts 19, 20; CRC Art. 17; CRC Art. 17; CEDAW Art. 10 (g); African Women’s Protocol Art. 14 (e); CRPD Art. 1 (b); African Convention on Combating Corruption Art. 9. 16 the pretext of ‘classified’ information as practiced under the Official Secrets Act of 1968. This Act has been used for many years to cover up violations, abuses, abuse of office and grand corruption. Application of this Article will also lead to a departure from past practice where reports of commissions and tribunals are never released to the public. Article 35 (3) requires that the State shall publish and publicise any important information affecting the nation. Article 36: Freedom of association The Article guarantees the freedom of association for all. However, the rights under this Article may be limited with respect to members of Kenya Defence Forces and the National Police Service by Article 24 (1) (5b). For example, this article could be used to prohibit police from forming a trade union. UDHR Art. 20; ACPHR Art 10; ICCPR Art 22; CRC Art. 15; African Child Charter Art. 8, CERD Art. 5. Article 37: Right of assembly, demonstration, picketing and petition This Article gives right to every person, peaceably and unarmed, to assemble, demonstrate, picket and petition. This is a major gain for Kenyans who have been subjected to State terror for holding demonstrations against the State or influential persons. The Public Order Act (1950) gave the police and State organs sweeping powers to break up such demonstrations in the pretext that they threatened State security. The rights under this Article may be limited with respect to members of Kenya Defence Forces and the National Police Service by Article 24 (1) (5c). UDHR Art. 20; ACPHR Art. 10; ICCPR Art. 21; CRC Art. 15; CERD Art. 5. Article 38: Political rights This Article guarantees that every citizen is free to make political choices. It gives all Kenyans a constitutional right to participate in the way they are governed and in the political processes thereby strengthening the democratic process. Article 1 (1) states that all sovereign power belongs to the people of Kenya while 1 (2) states that the people may exercise their sovereign power either directly or through their democratically elected representatives. Article 4 (2) states that the Republic of Kenya shall be a multi-party democratic State founded on the national values and principles of governance referred to in Article 10. In Article 10 (2) (a), democracy and participation of the people are mentioned as part of the core national values and principles of governance. Further rights and principles guiding representation of the people are expounded in Chapter 7 (Representation of the people). In Chapter 8 (Legislature), Article 118 obliges parliament to ensure public access and participation during its business and Article 119 gives the right to every person to petition Parliament to consider any matter within its authority. Special right to participate in political processes for special and marginalized groups (workers, youth, women, persons with disabilities, minorities and marginalized communities) are stressed Continued on next page… UDHR Art. 21; ACPHR Art. 13; ICCPR Art. 25; CEDAW Arts. 3, 7, 14; CERD Art. 5; African Women’s Protocol Art. 9. 17 under Articles 97 (c) and 100. Under Article 104 (Right of recall), the electorate have the right to recall a member of the National Assembly or of the Senate before the end of the term of relevant House for non-performance. Article 232 (d) puts involvement of the people in the process of policy making as one of the values and principles of Public Service. Article 258 gives the right to every person to institute court proceedings claiming the Constitution has been contravened or is threatened with contravention. Under Fourth Schedule (Distribution of functions between the National Government and County Governments), Part 2 (14), one of the functions of the County Government shall be ‘ensuring and coordinating the participation of communities and locations in governance at the local level and assisting communities and locations to develop the administrative capacity for the effective exercise of the functions and powers and participation in governance at the local level.’ This is in the spirit of Articles 174 and 175 (Objects and principles of devolved government) which gives one of the objects and principles of devolution as enhanced participation and ensuring powers of self governance of the people in the exercise of the powers of the State and in making decisions affecting them. Article 39: Freedom of movement and residence Guarantees the freedom of movement within Kenya, right to leave and re-enter and right to reside anywhere in Kenya. This Article can be related to Article 40 (1) (b) (Protection of right to property) which states that every person has the right to own property in any part of Kenya. UDHR Art. 13; ICCPR Art. 12; ACPHR Art. 12; CEDAW Art. 15 (4); CRC Art. 10; CERD Art. 5; Migrant Workers Convention Art. 8. Article 40: Protection of right to property This Article gives the right to a person to own property either individually or in association with others in any part of Kenya. It prohibits parliament form enacting any law that would lead to arbitrary deprivation of property. It also demands for prompt and just compensation for any private property acquired by the State in public interest. It also obliges the government to support, promote and protect the intellectual property rights of the people of Kenya. This Article is linked to Article 11 ( Culture) which requires the State to promote the intellectual property rights of the people of Kenya and requires that Parliament enacts legislation to ensure that communities receive compensation or royalties for use of their cultures or cultural heritage and recognition and protection of indigenous seeds and plant varieties. Continued on next page… UDHR Art. 17; ACPHR Art. 14; ICESCR Art. 15; CEDAW Art. 15, 16; Migrant Workers Convention Art. 15; CERD Art. 5. 18 The interpretation of the word ‘property’ is given in Article 260 as: “Property” includes any vested or contingent right to, or interest in or arising from – (a) land, or permanent fixtures on, or improvements to, land; (b) goods or personal property; (c) intellectual property; or (d) money, choses in action or negotiable instruments. In consideration of the rampant culture of grabbing of public land and property for private use, the Article puts a caveat that rights to property do not extend to property that was unlawfully acquired. This Article is also subject to Article 65 which guides on ownership of land by non-citizens. Article 41: Labour rights The Article ensures the rights to fair labour practices, fair remuneration, to join or form trade unions, rights of employers and rights of trade unions. This right can be related to several other Articles in the new Constitution. Article 232 (h) puts representation of Kenya’s diverse communities as one of the core values and principles of the Public Service. Under Article 238 (d), recruitment by national security organs should reflect the diversity of the Kenyan people in equitable proportions. The special right for workers to participate in political processes is ensured in Article 97 (c). Article 236 (Protection of public officers) seeks to protect public officers from victimization or discrimination for having performed the functions of office in accordance with the Constitution or other law. Article 162 (2) a) gives Parliament the power to establish courts with the powers and status of the High Court to hear and determine disputes relating to employment and labour relations. The rights under this Article may be limited with respect to members of Kenya Defence Forces and the National Police Service by Article 24 (1) (5d). UDHR Art. 23; ACPHR Art. 15; ICESCR Arts. 6 – 8; CEDAW Art. 11; Migrant Workers Convention Arts. 25, 26; CERD Art. 5; African Women’s Protocol Art. 13; various ILO Labour Standards. Article 42:14 Right to clean and healthy environment The article guarantees the right to a clean and healthy environment. It is further strengthened in Chapter 5 (Land and environment), Article 69 (Obligations in respect of the environment) and Article 70 (Enforcement of environmental rights). The right to a clean and healthy environment is a major leap for Kenyans who have had to endure destruction, pollution and degradation of land and environmental resources for decades. Article 162 (2) b) gives Parliament the power to establish courts with the powers and status of the High Court to hear and determine disputes relating to the environment and the use and occupation of, and title to, land. ACPHR Art. 24; ICESCR Art. 12 (2b); African Women’s Protocol Art. 18; UN Principles on Older Persons (1991) Art. 5 14 This Article strengthens provisions in the Environmental Management and Co-ordination Act, 1999, and the Forests Act, 2005. 19 Article 43: Economic and Social Rights The title for this Article is rather wide and encompasses many other rights guaranteed in separate Articles. The Article actually deals with the Right to an adequate standard of living for persons and families. These rights include right to adequate food, clothing, shelter, clean and safe water, education, health and social security. An Equalisation fund for marginalized areas is set aside under Article 204 as an affirmative action towards Economic and Social rights. This fund is for purposes of providing basic services including water, roads, health facilities and electricity but is set to lapse in 20 years from the effective date unless Parliament extends it for a fixed period of years as per Article 204 (6) and (7). Under Article 232 (c), responsive, effective and equitable provision of services is cited as one of the core values and principles of the Public Service. The rights under this Article may be limited with respect to members of Kenya Defence Forces and the National Police Service by Article 24 (1) (5e).15 UDHR Arts. 22, 25; ICESCR Arts. 9, 11, 12; CEDAW Arts. 10, 12-14; Migrant Workers’ Convention Art. 25; ACPHR Arts. 16, 17, 26-28; CRC Arts. 4, 24; CRPD Art. 24; African Child Charter Arts. 11, 14; CERD Art. 5; African Women’s Protocol – various Articles. Article 44: Right to language and culture This Article deals with the rights to language, the right to participate in cultural life of choice and rights to form or join cultural and linguistic associations. Under Chapter 2 (The Republic), Article 11 recognizes culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation. Article 11 also requires the State to promote all forms of national and cultural expressions. It also obliges Parliament to enact legislation that will ensure that communities receive compensation or royalties for use of their cultures or cultural heritage. Article 11 also recognizes and protects ownership of indigenous seeds and plant varieties. Under Article 238 (c), respect for the diverse cultures of the communities within Kenya is cited as one of the core principles of the national security organs. Under Article 159 (Judicial authority), 2 (c), promotion of alternative forms of dispute resolution, including traditional dispute resolution mechanisms, is noted as one of the guiding principles of courts and tribunals in exercising their judicial authority. Continued on next page… UDHR Art. 27; ICESCR Art. 15; ICCPR Arts. 1, 27; CEDAW Art. 13; CRC Arts. 29-31; Migrant Workers Convention Art. 31; African Child Charter Art. 12; CERD Art. 5; UN Declaration on Indigenous Peoples Rights (2007) Arts. 12, 14. 15 However, Article 4 of ICESCR states that: ‘The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.’ Kenya has acceded to ICESCR and the limitations of Economic and Social rights to members of the defence forces and the police may go against the spirit of this Article. 20 However, negative cultural practices are outlawed by the Constitution under Chapter 1 (Sovereignty of the people and supremacy of this Constitution), Art. 2 (4) states: ‘Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid’. This is also echoed in Article 53 (Specific application of rights of children) (d) and Article 55 (Youth) (d) which protect children and the youth from harmful cultural practices respectively. Article 159 (3) outlaws any traditional dispute resolution mechanism which contravenes the Bill of Rights; is repugnant to justice and morality; or is inconsistent with the new Constitution or written law. With regards to the State, Article 7 (National, official and other languages) gives Kiswahili as the national language and Kiswahili and English as the official languages. However, Article, 7 (3) (a) obliges the State to protect and promote the diversity of languages of the people of Kenya. Article 45: Right to family This Article recognizes the family as the natural and fundamental unit of society. It guarantees the right to marry and found a family for consenting adults and of opposite sex. This Article generated a lot of debate during referendum campaigns with the opposing faith-based and conservative side claiming that it did not explicitly outlaw samesex- marriages. It recognizes all marriages concluded under different systems including traditional, religious and personal or family law. In Chapter 3 (Citizenship), Article 13 (3) states that citizenship is not lost through marriage or the dissolution of marriage while Article 16 allows for dual citizenship. This will mean that one retains citizenship even after marriage to a non-citizen. Article 14 (1) confers automatic citizenship to children born in such marriages. UDHR Art. 16; ACPHR Art. 18; CEDAW Arts. 5, 9, 16; ICCPR Art. 23; ICESCR Art. 10; CRC Arts. 5, 8, 18; African Child Charter Art. 18; CERD Art. 5; African Women’s Protocol Arts. 6, 7, 20, 21. Article 46: Consumer rights This Article guarantees the rights of consumers to goods and services of reasonable quality, information about them, compensation for loss or injury arising form defects in goods or services and protection of health, safety and economic interests. Under the Fourth Schedule, Part 1 (14), consumer protection is the duty of the National Government. This Article can be linked to Article 33 (Freedom of expression) which guarantees the right to seek and receive information and Article 35 (Right to access information) which guarantees the right to access to information required for the exercise or protection of a right or fundamental freedom. Its spirit is reflected in provisions on right to information guaranteed under international human rights instruments. UDHR Art 19; ACPHR Art 9; ICCPR Arts 19, 20; CRC Art. 17; CRC Art. 17; CEDAW Art. 10 (g); African Women’s Protocol Art. 14 (e); CRPD Art. 1 (b); 21 Article 47: Right to fair administrative action This Article accords every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. This Article maybe interpreted to imply that the government should ensure efficient delivery of services. It also gives the right to persons to challenge any administrative action that may adversely affect their basic rights and fundamental freedoms. Article 232 (1) puts responsive, prompt and effective provision of services as one of the core values and principles of Public Service. Article 59 establishes the Kenya National Human Rights and Equality Commission as a Body Corporate whose mandate includes to receive complaints of abuses of rights from individuals.16 UDHR Art. 8; ICCPR Art. 3. Article 48: Access to justice The Article obliges the State to ensure access to justice for all persons and to ensure that any fee charged should not be an impediment to accessing justice for those who cannot afford. This is a major gain for Kenyans considering that one of the greatest hurdles towards accessing justice has been the cost of legal aid. The principles guiding courts in exercising judicial authority under Article 159 (Judicial Authority) include; 2(a) justice shall be done to all irrespective of status; 2(b) justice shall not be delayed; 2(d) justice shall be administered without undue regard to procedural technicalities; and, 2 (e) the purpose and principles of this Constitution shall be protected and promoted. Article 170 (Kadhi’s Courts) creates Kadhi’s Courts to cater for interests of Muslim faithful in ‘determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.’ This Article generated a lot of heated debate during the campaigns preceding the national referendum on the new Constitution with sections of the Christian fraternity claiming that putting these courts in the Constitution elevated one religion over others. UDHR Art. 8; ACPHR Arts. 3, 7; ICCPR Art. 14 (3d); CRC Arts. 37 (d), 40; Migrant Workers Convention Arts. 17, 18, 24; African Women’s Protocol Art. 8; African Child Charter Art. 17; CRPD Art. 12. Article 49: Rights of arrested persons The Article is extensive in laying down the rights of arrested persons. Rights under this Article may be limited with respect to members of Kenya Defence Forces and the National Police Service by Article 24 (1) (5f). Continued on next page… UDHR Arts. 10, 11; ACPHR Art. 7; ICCPR Art. 14; CRC Art. 40; Migrant Workers Convention Arts. 17, 18, 24; African Child 16 There are several complaints mechanisms under different government ministries and departments in Kenya through which individuals can lodge complaints when their rights are infringed upon. Examples include the Public Complaints Standing Committee (The Office of the Ombudsman), Kenya Anti-Corruption Commission (KACC), National Environmental Management Authority (NEMA), Kenya Bureau of Standards (Kebs) and the National Cohesion and Integration Commission (NCIC). 22 Charter Arts. 17, 30. Article 50: Right to a fair hearing This Article strengthens the provisions of Article 49 by spelling out the rights of an accused person. Under Article 25 (c), the right to a fair trial is listed as one of the rights and fundamental freedoms that cannot be limited at all times. Article 159 (Judicial authority), 2 (a) (b) demands that justice shall be done to all irrespective of status and shall not be delayed. UDHR Arts. 10, 11; ACPHR Art. 7; ICCPR Arts 9-16; Migrant Workers Convention Art. 18; African Child Charter Art. 17. Article 51: Rights of persons detained, held in custody or imprisoned This Article guarantees the rights and fundamental freedoms of persons detained, held in custody or imprisoned. It obliges Parliament to enact legislation that provides for humane treatment of such persons and that takes into account the relevant international human rights instruments. It gives the right to petition for an order of habeas corpus for a person who is detained or in custody. This is one of the rights and fundamental freedoms that cannot be limited under Article 25 (d). UDHR Arts 5-7; ACPHR Arts. 3-5; ICCPR Art. 10. Article 52: Specific Application of Rights Under Article 52, the new Constitution of Kenya (2010) offers special application of rights, for greater certainty, to the following groups of persons: Article 53:17 Children’s rights This Article constitutionalises the rights of the child. In particular it accords the child parental care and protection even if the mother and father are married or not. It outlaws harmful cultural practices that affect the welfare of children. Under Article 260 (Interpretations), the interpretation of the word ‘child’ is given as anyone below the age of 18. Under Article 21 (3), children are mentioned as a vulnerable group within society. In Chapter 3 (Citizenship), Article 14(4) states that ‘a child who is, or appears to be, less than eight years of age, and whose nationality and parents are not known, is presumed to be a citizen by birth’ while Article 15 (3) allows for application for citizenship for a child who is not a citizen but is adopted by a citizen of Kenya. Article 14 (1) confers instant citizenship to children born in marriages in which one spouse is a citizen of Kenya. Kenya has ratified the UN Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child and ILO Convention No. 182 (Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour). UDHR Arts. 5, 15, 26; ICCPR Arts. 8 (1) (2) (3a), 14(4), 24; ICESCR Arts. 10(3), 13; ACPHR Arts. 4, 5, 16-18; CEDAW Arts. 5, 16 (2); CRPD Art. 7; Migrant Workers Convention Arts. 29, 30; African Women’s Protocol Art. 13 (g); CRCvarious Articles; African Child Charter – various Articles; ILO Convention No. 182 – various Articles; 17 This Article strengthens the provisions made in the Children’s Act, 2001 that domesticated CRC and the African Child Charter. 23 Article 54:18 Rights of persons with disabilities This Article gives special recognition to persons with disabilities in order to preserve their dignity. It guarantees the rights to be treated with respect and in particular demands that they be referred to in a manner that is not demeaning. This is a major gain for persons with disabilities who have had to withstand stigma and derogatory terms for centuries.19 Clause 2 of this Article requires that the State shall ensure the progressive implementation of the principle that at least five per cent of members of elective and appointive bodies are persons with disabilities. Persons with disabilities are recognised as a vulnerable group within society by Article 21 (3). Chapter 7 (Representation of the people). Article 81(c), requires that the electoral system shall allow fair representation of persons with disabilities. Article 97 (c), reserves 12 special seats in the National Assembly some of which should go to disabled persons. Article 100 (b) (Promotion of representation of marginalised groups) obliges Parliament to enact legislation to promote representation of persons with disabilities in Parliament. Article 177 (1) (c) requires that persons with disabilities be represented in the County Assemblies. Under Chapter 2, (The Republic), Article 7 (3b) obliges the State to promote the Kenya Sign language, Braille and other communication formats and technologies accessible to persons with disabilities. Article 232 (i) puts affording equal opportunities for appointment, training and advancement for persons with disabilities in the Public Service as one of its values and principles. The interpretation of the word disability is offered in Article 260 (Interpretation) as ‘any physical, sensory, mental, psychological or other impairment, condition or illness that has, or is perceived by significant sectors of the community to have, a substantial or longterm effect on an individual’s ability to carry out ordinary day-today activities’. Kenya ratified the Convention on the Rights of Persons with Disabilities in 2008. UDHR Arts. 2, 7, 25 (1); ICCPR Arts. 2 (1), 26; ACPHR Arts. 4, 18 (4); CRC Art. 23; African Child Charter Art. 13; African Women’s Protocol Art. 23; CRPDvarious Articles Article 55: Rights of the youth This is a unique application of special rights directed at the youth. It obliges the State to take measures, including affirmative action programmes to ensure the youth have access to education and Continued on next page… African Youth Charter – various Articles 18 This Article strengthens provisions in the Disability Act, 2003. 19 For further reading on stigma faced by persons with albinism, please read: Muthee Thuku: Myths, Discrimination and the Call for Special Rights for Persons with Albinism in sub-Saharan Africa, http:// www.goldenalbinism.com/blog/a-must-read-paper/ 24 training, to participate in political, social and economic spheres, access employment and that they are protected from harmful cultural practices and exploitation. Under Article 260 (Interpretation), ‘youth’ is interpreted as a person who has attained the age of 18 but has not attained the age of 35. Youth are recognized as a vulnerable group under Article 21 (3). Article 97 (c) reserves 12 seats nominated by parliamentary political parties and which some of them should go to the youth while Article 100 (c) obliges Parliament to enact legislation to promote representation of youth in Parliament. Article 177 (1) (c) requires that County Assemblies have youth membership. Article 56:20 Rights of minorities and marginalized groups This Article obliges the government to put in place affirmative action programmes for minorities and marginalized groups in order to allow them to participate in governance, provide special opportunities, develop their cultural and linguistic heritage and ensure access to water, health services and infrastructure. Under Article 10 (National values and principles of governance) protection of the marginalized is part of the core national values and principles of governance. State organs are obliged to address the needs of members of minorities, marginalized groups and particular ethnic, religious and cultural communities under Article 21 (3). In Chapter 7 (Representation of the people) Article 91 (1) (e) requires that political parties respect the right of all persons to participate in political processes including minorities and marginalized groups. Article 100 (d) (e) obliges Parliament to enact legislation to promote representation of ethnic and other minorities and marginalized communities in Parliament. In Chapter 11 (Devolved government), Articles 174 (e) and 177(1) (c) puts protection and promotion of the interests and rights of minorities and marginalized communities as part of the key objects of devolution. The right of minorities to participate in the County Assembly is also expressed under Article 197 (2) (b) (County assembly gender balance and diversity). Article 250 (4) requires that appointments to Commissions and Independent Offices be guided by Article 10 (National values and principles of Continued on next page… UDHR Arts. 2, 21, 27; ICCPR Arts. 25, 27; ICESCR Arts. 1, 15; ACPHR Art. 22; CRC Art. 30; ILO Convention 169 Art. 2; UN Declaration on the Rights of Indigenous People (2007) – various Articles. 20 With respect to the realisation of rights for groups such as minorities, the elderly, the disabled and children, it is worth noting that Treaty Bodies emphasise the need to collect disaggregated data on the prohibited grounds of discrimination. Examples include: CESCR: General Comment(GC) 13 on Art.13 on the right to education; GC14 on Arts 11 and 12 on the right to water; GC 14 on the right to health; CERD General Recommendation XXIX on Article 1; and CEDAW, General Recommendations 9 and 17. 25 governance) and should reflect ethnic diversity of the people of Kenya. The same is required for composition of the Defence Forces (Article 241 (4), the National Police Service (Article 246 (4), the National Executive (Article 130 (2) and in allocation of political parties seats (Article 90 (2) (c). With regard to Public Finance, Article 203 (1) (h) puts it that one of the criteria for determining budgetary allocations is the need for affirmative action in respect of disadvantaged areas and groups. An Equalization Fund for marginalized areas is set aside under Article 204. This fund is for purposes of providing basic services including water, roads, health facilities and electricity. Article 227 (2) (b) puts, ‘the protection or advancement of persons, categories of persons or groups previously disadvantaged by unfair competition or discrimination’ as one of the considerations that should be factored in the procurement and disposal of public goods and services. Article 232 (h, i) puts representation of Kenya’s diverse communities and affording equal opportunities for appointment, training and advancement for members of all ethnic groups in the Public Service as part of its core values and principles. The interpretations of who constitutes a ‘marginalized community’ and ‘marginalized group’ are given in Article 260 (Interpretation). A marginalised group is defined as ‘a group of people who, because of laws or practices before, on, or after the effective date, were or are disadvantaged by discrimination on one or more of the grounds in Article 27 (4)’ However, an interpretation for the word ‘minority’ is not given. Article 57: Rights of older members of the society This Article guarantees the rights of older members of the society. It accords them the rights to participate in affairs of the society; to pursue personal development; to live in dignity and be respected; and to receive reasonable care and assistance from their families and the State. Under Article 260 (Interpretation), the interpretation of the term ‘older member of the society’ is given as a person who has attained the age of sixty (60) years. Article 21 (3) obliges state organs and all public officers to address the needs of older members of society as one vulnerable group within society. This Article can also be linked to Article 43 (1) (e) which guarantees every person the right to social security. UDHR Art 25 (1); ACPHR Art 18 (4); African Child Charter Art. 31; African Women’s Protocol Art. 22; UN Principles on Older Persons (1991) – various Articles. 26 5.0 Protection of rights of women and girls in the new Constitution of Kenya: The new Constitution of Kenya variously mentions women and girls as a disadvantaged group of persons but does not have a special Article for women under Article 52 (Specific application of rights). However, women’s rights are heavily protected in various Articles that also reflect the domestication of international human rights instruments in particular CEDAW and the African Women’s Protocol. The struggle for women rights in Kenya has been long. The status of women rights have, and remains, low due to various factors such as discrimination, low level of participation in sociopolitical fields, economic-disempowerment, oppressive cultural practices, low levels of education, lack of access to property and general poverty. The new Constitution is a major boost in guaranteeing rights for women and girls. The principles of equality between genders and nondiscrimination are well captured and women are covered under all the Articles mentioned above guaranteeing equal rights for all, non-discrimination and equality before the law. However there are several Articles that can be used in claiming, defending and protecting women’s’ rights and ensuring affirmative action in order to raise their social, economic, civil, political, and cultural status. Below are some of the main Articles that may be invoked in claiming and defending women’s rights under the new Constitution of Kenya. Article 28 (Human Dignity) explicitly states that: ‘Every person has inherent dignity and the right to have that dignity respected and protected.’ This applies for both men and women. Article 27 (Equality and freedom from non-discrimination) guarantees non discrimination against women by both the State and individuals as follows: Article 27:(3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. (4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. (5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4). Under Chapter 1 (Sovereignty of the people and supremacy of this Constitution), Article 2 (4) states: ‘Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission of this Constitution is invalid.’ Article 60 (1) f) puts elimination of gender discrimination in law, customs and practices related to land and property in land as one of the core principles of land management. With respect to children and youth, Article 53 (Specific application of rights of children) (d) and Article 55 (rights of youth) (d), also outlaw any harmful cultural practices that affect the welfare of children and youth. These Articles are a major boost for women and girls whose rights have been violated, abused or denied in the pretext of outdated cultural practices such as lack of right to own property and inherit, 27 female genital circumcision/mutilation, spousal physical/mental abuse, culture of widow inheritance, traditional child marriages and denial of right to an education. Under Article 10 (National values and principles of governance) human dignity and equality for all are named as an integral part of the core values and principles of governance as follows: Art. 10 (2b) Human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised; This is a guarantee for the inherent dignity of all, including women, as part of national values and principles. Under Article 21 (3), women are recognized as one of the vulnerable groups within the society whose needs ought to be addressed by State organs as follows: Article 21 (3) All State organs and all public officers have the duty to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities. (Emphasis added) Article 100 (Promotion of representation of marginalized groups) also recognizes women as a marginalized group and obliges Parliament to enact legislation to promote their representation in Parliament alongside youth, persons with disabilities and other minorities. Article 27 (6) obliges the government to take legislative and affirmative action programmes and policies to redress the disadvantage suffered due to past discrimination. This is bound to help women a lot since they have been disadvantaged for long. Article 27 (6) To give full effect to the realisation of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination. (Emphasis added). Under Article 260, affirmative action is defined as: ‘any measure designed to overcome or ameliorate an inequity or the systemic denial or infringement of a right or fundamental freedom.’ Article 27 (8) seeks gender balance in elective and appointive bodies by obliging the State to ensure that no more than two-thirds of the members of such bodies shall be of the same gender. Article 27 (8): In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender. This is also stressed as a principle in the electoral system under Article 81 (b) and repeated in Articles 175 (c), 177 (b) and 197 (1) on principles of devolved government and membership of County Assembly. Under Chapter 8 (Legislature), Article 97 (1) (b) reserves 47 special elective seats in the National Assembly for women while Article 98 (1) (b) reserves 18 seats for women in the Senate to be nominated by political parties. Article 100 (a) obliges Parliament to enact 28 legislation to promote representation in Parliament of women alongside other marginalized groups. Article 232 (i) puts affording equal opportunities for appointment, training and advancement for both men and women in the Public Service as one of its core values and principles. Article 45 (3) (Family) states that: ‘Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.’ This is further strengthened in Chapter 4, (Land) Article 68 (c) (iii) and (vi) which obliges the State to enact legislation to protect matrimonial property as follows: Article 68 (c) (iii): to regulate the recognition and protection of matrimonial property and in particular the matrimonial home during and on the termination of marriage. Article 68 (c) (vi) to protect the dependants of the deceased persons holding interests in any land, including the interests of spouses in actual occupation of land. This is a major reprieve for many women who have or are faced with cultural problems where upon divorce or death of a spouse they are forced to leave empty-handed despite years of investing in the relationship. Under Chapter 3 (Citizenship), Article 16 allows for dual citizenship while Article 13 (3) states that citizenship is not lost through marriage or the dissolution of marriage. Under Article 59 (Kenya National Human Rights and Equality Commission), gender mainstreaming is mentioned as one of the duties of the commission as follows: Article 59 (2b): to promote gender equality and equity generally and to coordinate and facilitate gender mainstreaming in national development; This Article is closely tied to Equality and freedom from discrimination, Article 27 (8) and is going to see more women participation in the political, social, economic and cultural spheres. The Articles above reflect various Articles in international and regional human rights instruments that seek equality and non-discrimination for women especially the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) and the African Women’s Protocol. 29 6.0 Protection of Guarantees of Rights and Fundamental Freedoms by the new Constitution of Kenya – Self Protecting Mechanisms. In the Preamble of the new Constitution, one clause spells out one aspiration of Kenyans as follows: ‘…recognizing the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law…’ It is this aspiration that the Kenyan Bill of Rights in the new Constitution seeks to fulfill and which it does to a great extent not seen before in Kenya’s history. During the typing of the proposed new Constitution at the Government Printer prior to the referendum, forces opposed to the new constitutional order inserted the words ‘national security’ in Article 24 (1) (d) in the Bill of Rights so that it read: “The need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice ‘national security’, the rights and fundamental freedoms of others.” This insertion would have taken away the rights gained under the Bill of Rights as had been seen under previous regimes that used ‘national security’ (as was in the colonial Public Order Act, 1950), as an excuse of stifling any opposition. However an alarm was raised and the insertion was expunged. The new Constitution is not only extensive in setting up guarantees of rights but also seeks to protect them from interference by both the State and non-state actors. There are many Articles that seem to work towards protecting the rights guaranteed therein. Explicitly, Article 19 (3) (a) states that the rights in the Bill of Rights ‘belong to each individual and are not granted by the State.’ This underscores the characteristic of inherency and that rights and fundamental freedoms are not privileges or tokens from the State. The Bill of Rights recognises all the categories of rights i.e. civil, political, economic, social and cultural spheres. Under Chapter Two (The Republic), Article 10 (2) (National values and principles of governance), recognises human dignity and human rights as part of the pillars of governance. Article 1 (1) (Sovereignty of the people) states that ‘all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.’ Article 2 (3) states that ‘the validity or legality of this Constitution cannot be challenged by or before any court or other State organ.’ These are self-locking mechanisms which are strengthened by Chapter 16 (Amendment of this Constitution), Article 255, 1(e) which puts the Bill of Rights as one of the Chapters that can only be amended through a national referendum. That way it protects the rights and fundamental freedoms it guarantees from being tampered with by Parliament, the Executive or Judiciary. Article 12 (Entitlements of citizens) (1) (a), states that every citizen is entitled to ‘the rights, privileges and benefits of citizenship, subject only to limits provided or permitted by this Constitution.’ Article 19 (Rights and fundamental freedoms) is strong in protecting rights and fundamental freedoms by stating as follows; 30 1. The Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies. (2) 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. (3) The rights and fundamental freedoms in the Bill of Rights— (a) belong to each individual and are not granted by the State; (b) do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised or conferred by law, except to the extent that they are inconsistent with this Chapter; and (c) are subject only to the limitations contemplated in this Constitution. Article 25 lays down four rights and fundamental freedoms that may not be limited at any time as follows: Article 25: Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited––(a) Freedom from torture and cruel, inhuman or degrading treatment punishment; (b) Freedom from slavery or servitude; (c) The right to a fair trial; and (d) The right to an order of habeas corpus. The new Constitution also lays down the procedures for any acts of limitation of rights and fundamental freedoms (Article 24). This Article states, in part, that: ‘a right or fundamental freedom in the Bill of Rights 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, taking into account all relevant factors.’ Article 58 (State of emergency) (6) (a) (ii) declares that any legislation enacted in consequence of a declaration of a state of emergency must be consistent with the Republic’s obligations under international law applicable to a state of emergency. Even after a declaration of a state of emergency, Article 58 (7) clearly states that: ‘A declaration of a state of emergency, or legislation enacted or other action taken in consequence of any declaration, may not permit or authorise the indemnification of the State, or of any person, in respect of any unlawful act or omission.’ This means that the State or any person, who commits violations or abuses of rights even during a state of emergency, should face the due process of law. Article 20 (Application of Bill of Rights) (1) states that the Bill of Rights applies to all law and binds all State organs and all persons. Article 20 (2) states that: ‘Every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom.’ Article 3 (Defence of this Constitution), (1), obliges every person to respect, uphold and defend this Constitution. 31 Article 27 (Equality and freedom from discrimination) prohibits the State and all persons from discriminating, directly or indirectly, against any person on any basis including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. In Chapter 1 (Sovereignty of the people and supremacy of this Constitution), Art. 2 (4) outlaws negative cultural practices by stating: ‘Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid’. Article 159 (3) outlaws any traditional dispute resolution mechanism which contravenes the Bill of Rights; is repugnant to justice and morality; or is inconsistent with the new Constitution or written law. Harmful cultural practices are also outlawed in Article 53 (Specific application of rights of children) (d) and Article 55 (Youth) (d) with regard to the protection of the welfare of children and youth respectively. Article 22 (Enforcement of Bill of Rights) empowers every person to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or is threatened. Such a person may also be acting on behalf of another person; as member of a group; or as a person acting in public interest. An association acting in the interests of its members also has similar right. Under Article 238 (b), utmost respect for the rule of law, democracy, human rights and fundamental freedoms is put as one of the core principles of the national security organs. Article 244 (c) (d), requires the National Police Service to comply with constitutional standards of human rights, fundamental freedoms and respect for human dignity. Article 159 (Judicial authority) 2 (e), requires courts and tribunals exercising judicial authority to ensure that ‘the purpose and principles of this Constitution shall be protected.’ Article 259 (Interpretation of this Constitution), (1) (b) states that this Constitution shall only be interpreted in a manner that ‘advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights.’ Article 40 prohibits Parliament from enacting any law that permits the State or any person to arbitrarily deprive a person of property or to limit or in any way restrict the enjoyment of rights under the Article on the basis of any of the grounds specified or contemplated in Article 27 (4) (Equality and freedom from discrimination). Article 59 in the Bill of Rights establishes the Constitutional office of the Kenya National Human Rights and Equality Commission (KNHREC) which is a Body Corporate under Chapter 15 (Commissions and independent offices). The commission shall be in charge of overseeing the human rights situation and investigating on cases of violations and abuses in the country. It shall operate independently. Article 19 (3) b) leaves the door open for further rights and fundamental freedoms that may not be spelt out in the Bill of Rights by stating that ‘the rights and fundamental freedoms in the Bill of Rights do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised or conferred by law, except to the extent that they are inconsistent with this Chapter.’ 32 References: 1. Africa Union, OAU/AU Treaties, Conventions, Protocols, Charters, http://www.africa-union.org/root/au/documents/treaties/treaties.htm 2. Amnesty International, Dutch Section, Special Programme on Africa, Haki Zetu: ESC Rights in Practice; Main Book, http://www.amnesty.nl/documenten/spa/Main%20Book%20part%20I%20version%201506 2010.pdf 3. Definition of international human rights law, http://www.wordiq.com/definition/International_human_rights_law 4. New Constitution of Kenya (2010) http://www.kenyalaw.org/Downloads/The%20Constitution%20of%20Kenya.pdf 5. OHCHR Library, List of Kenya’s Ratification of Various International Human Rights Treaties, http://lib.ohchr.org/HRBodies/UPR/Documents/Session8/KE/KSC_UPR_KEN_S08_2010_Ke nyaStakeholdersCoalitionforUPR_Annex3.pdfWord IQ, 6. Ratification Index, http://www1.umn.edu/humanrts/research/ratification-index.html 7. UNICEF, Introduction to the Convention on the Rights of the Child, Terms and Definitions, http://www.unicef.org/crc/files/Definitions.pdf 33 Acknowledgements: The author would like to express deep gratitude to the following persons for their input or support during the writing of this paper: M/s Mercy Njoroge (a constitutional lawyer, currently the Co-ordinator of Election Observation Group, ELOG, Kenya); M/s Gillian Nevins (a writer who worked as a researcher with Amnesty International for over 25 years); and Mr. Njuki Githethwa (a committed Kenyan human rights defender and a community media consultant – currently the Vice-Chair, Kenya Community Media Network – KCOMNET), for reviewing the paper for form and content. M/s Gillian Nevins for English editing. Reverend J. K. Gathaka, currently the Executive Director of Ecumenical Centre for Justice and Peace (ECJP – Kenya), for support given during the reviews. M/s Wambura Mando for layout and design. About the author: Muthee Thuku – The author is a consultant trainer on Monitoring, Documenting and Reporting human rights violations and abuses in Africa with Amnesty International (Dutch Section), Special Programme on Africa (SPA). He is also a trainer on documenting human rights violations on database with the Human Rights Information Documentation Systems (HURIDOCS) International. He is also the current Director of Center for Research and Advocacy in Human Rights (CERARights), a budding local organization based in Nanyuki, Kenya. He has trained in several African countries. Among his papers are, This Forest is Ours (Carnegie Council, Cultural Rights Dialogue, 2005); Mapping for Human Rights (AI/SPA, 2007); and Myths, Discrimination and the Call for Special Rights for Persons with Albinism in Sub-Saharan Africa (2011). He also has researched and written monographs on topical issues on Culture, Traditional Peace Making and Environment. 34 ANNEX 1: LIST OF KENYA’S RATIFICATION/ACCESSION OF VARIOUS INTERNATIONAL AND REGIONAL HUMAN RIGHTS TREATIES:21 Kenya – Admission to UN – 16.12.1963 United Nations Charter – Universal Declaration of Human Rights (UDHR). International Covenant on Civil and Political Rights (ICCPR) – Accession 1972. International Covenant on Economic, Social and Cultural Rights (ICESCR) – Accession 1972. Convention on Discrimination Against women (CEDAW) – Accession 1984. AU Convention on Charter of Peoples and Human Rights (ACPHR) – Accession 1992. International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) – Accession 1972. Convention of the Rights of the Child (CRC) – Ratification 1990. Optional Protocol on the Involvement of Children in Armed Conflict – Ratification 2002. Optional Protocol to CRC on Prostitution and Pornography – Signature 2000. African Charter on the Rights and Welfare of the Child (African Child Charter) – Ratification 2000. African Convention on Preventing and Combating Corruption – Ratification 2007. 21Table sourced, slightly modified and updated from: http://lib.ohchr.org/HRBodies/UPR/Documents/Session8/KE/KSC_UPR_KEN_S08_2010_KenyaStakeholdersCoalitionfo rUPR_Annex3.pdf 35 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights – Ratification 2004. ILO Convention 138 on Employment Age – Ratification 1979. International Convention for the Protection of All Persons from Enforced Disappearance – Ratification 2007. ILO Convention No. 182 Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour – Ratification 2001. Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (supplementing the United Nations Convention against Trans-national Organized Crime) Palermo Protocol – Accession 2005. Convention relating to the Status of Refugees (CSR) – Accession 1966. Optional Protocol to CSR relating to the Status of Refugees – Accession 1981 International Convention on the Rights of Persons with Disabilities (CRPD) – Ratification 2008. International Convention on the Elimination of Racial discrimination (ICERD) – Accession 2001. Convention Against Torture (CAT) – Accession 1997. Rome Statute of the International Criminal Court – Ratification 2005. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol) – Signature July 11, 2003. AU Convention for Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention). – No Action as of July 2010. African Youth Charter (AYC) – Signature, 2008. 36 ANNEX 2: TERMS AND DEFINITIONS:22 Definitions of Key Terms: Accede/Accession: ‘Accession’ is an act by which a State signifies its agreement to be legally bound by the terms of a particular treaty. It has the same legal effect as ratification, but is not preceded by an act of signature. The formal procedure for accession varies according to the national legislative requirements of the State. To accede to a human rights treaty, the appropriate national organ of a State – Parliament, Senate, the Crown, Head of State or Government, or a combination of these – follows its domestic approval procedures and makes a formal decision to be a party to the treaty. Then, the instrument of accession, a formal sealed letter referring to the decision and signed by the State’s responsible authority, is prepared and deposited with the United Nations Secretary-General in New York. Adoption: ‘Adoption’ is the formal act by which the form and content of a proposed treaty text are established. Treaties negotiated within an international organization like the United Nations are usually adopted by a resolution of a representative organ of the organization whose membership more or less corresponds to the potential participation in the treaty in question (the United Nations General Assembly, for example). Article: International legal instruments generally include a Preamble (stating the reasons for and underlying understandings of the drafters and adopters of the instrument) and a series of ‘articles’, which lay out the obligations of those States choosing to be bound by it and procedural matters involving the treaty. The term ‘provision’ is often used as an alternative when referring to the content of particular articles. Charter: The term ‘charter’ is used for particularly formal and solemn instruments, such as the treaty founding an international organization like the United Nations (‘The Charter of the United Nations’). Convention: A ‘convention’ is a formal agreement between States. The generic term ‘convention’ is thus synonymous with the generic term ‘treaty’. Conventions are normally open for participation by the international community as a whole, or by a large number of States. Usually the instruments negotiated under the auspices of an international organization are entitled conventions (e.g. the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations in 1989). Declaration: The term ‘declaration’ is used for various international instruments. International human rights declarations are not legally binding; the term is often deliberately chosen to indicate that the parties do not intend to create binding obligations but merely want to declare certain aspirations. However, while the 1948 Universal Declaration of Human Rights for example was not originally intended to have binding force, its provisions have since gained binding character as customary law. Deposit: After a treaty has been concluded, the written instruments which provide formal evidence of a State’s consent to be bound are placed in the custody of a depository. The texts of the Convention on the Rights of the Child and its Optional Protocols designated the Secretary-General of the United Nations as their depository. The depository must accept all notifications and documents related to the treaty, examine whether all formal requirements are met, deposit them, register the treaty and notify all relevant acts to the parties concerned. 22 Sourced from: UNICEF, Introduction to the Convention on the Rights of the Child, : http://www.unicef.org/crc/files/Definitions.pdf 37 Entry into Force: A treaty does not enter into force when it is adopted. Typically, the provisions of the treaty determine the date on which the treaty enters into force, often at a specified time following its ratification or accession by a fixed number of states. For example, the Convention on the Rights of the Child entered into force on 2 September 1990—the 30th day following the deposit of the 20th State’s instrument of ratification or accession. A treaty enters into force for those states which gave the required consent. Optional Protocol: The term ‘protocol’ is used for an additional legal instrument that complements and add to a treaty. A protocol may be on any topic relevant to the original treaty and is used either to further address something in the original treaty, address a new or emerging concern or add a procedure for the operation and enforcement of the treaty—such as adding an individual complaints procedure. A protocol is ‘optional’ because it is not automatically binding on States that have already ratified the original treaty; States must independently ratify or accede to a protocol. The Optional Protocols to the Convention on the Rights of the Child concern the involvement of children in armed conflict and the sale of children, child prostitution and child pornography. Ratify/Ratification: ‘Ratification’ is an act by which a State signifies an agreement to be legally bound by the terms of a particular treaty. To ratify a treaty, the State first signs it and then fulfils its own national legislative requirements. Once the appropriate national organ of the country – Parliament, Senate, the Crown, Head of State or Government, or a combination of these – follows domestic constitutional procedures and makes a formal decision to be a party to the treaty. The instrument of ratification, a formal sealed letter referring to the decision and signed by the State’s responsible authority, is then prepared and deposited with the United Nations Secretary-General in New York. Signature: ‘Signature’ of a treaty is an act by which a State provides a preliminary endorsement of the instrument. Signing does not create a binding legal obligation but does demonstrate the State’s intent to examine the treaty domestically and consider ratifying it. While signing does not commit a State to ratification, it does oblige the State to refrain from acts that would defeat or undermine the treaty’s objective and purpose. State party: A ‘State party’ to a treaty is a country that has ratified or acceded to that particular treaty, and is therefore legally bound by the provisions in the instrument. Treaty: A ‘treaty’ is a formally concluded and ratified agreement between States. The term is used generically to refer to instruments binding at international law, concluded between international entities (States or organizations). Under the Vienna Conventions on the Law of Treaties, a treaty must be (1) a binding instrument, which means that the contracting parties intended to create legal rights and duties; (2) concluded by states or international organizations with treaty-making power; (3) governed by international law and (4) in writing. Treaty Body:23 A treaty body is a body set up to monitor how State Members to a certain treaty puts its provisions into practice e.g. the Committee on Economic, Social and Cultural Rights (CESCR) monitors the implementation of ICESCR while the African Commission on Human and Peoples Rights (African Commission) monitors the implementation of ACHPR. These definitions are adapted from The Concise Oxford Dictionary of Current English (8th edition), Clarendon Press, Oxford, 1990 and United Nations Treaty Collection, Treaty Reference Guide, 1999, available at http://untreaty.un.org/English/guide.asp. 23 The definition of ‘Treaty Body’ was added by the author of this paper. This paper is a free access document. Acknowledgements are due when quoted

Sex Workers and HIV/AIDS

Sex workers, along with other key affected populations (KAPs) such as men who have sex with men (MSM) and people who inject drugs (PWID), are often considered at risk of HIV. UNAIDS defines sex workers as: Female, male and transgender adults and young people who receive money or goods in exchange for sexual services, either regularly or occasionally. Sex work varies between and within countries and communities. Sex work may vary in the degree to which it is more or less “formal” or organized, and in the degree to which it is distinct from other social and sexual relationships and types of sexual-economic exchange. 1 Although sex workers are one of the groups most affected by HIV, they are also one of the groups most likely to respond well to HIV prevention campaigns. Proof of this can be seen in countries such as Cambodia, the Dominican Republic, India and Thailand, where reductions in national HIV prevalence have been helped by initiatives targeting sex workers and their clients. – See more at: http://www.avert.org/sex-workers-and-hivaids.htm#sthash.qA4pe8Al.dpuf

Social and legal factors

Sex workers are often stigmatised, marginalised and criminalised by the societies in which they live, and in various ways, these factors can contribute to their vulnerability to HIV.

Even though sex work is at least partially legal in many countries, the law rarely protects sex workers. Around the world, there is a severe lack of legislation and policies protecting sex workers who may be at risk of violence from both state and non-state actors such as law enforcement, partners, family members and their clients. 11

For example, a sex worker who is raped will generally have little hope of bringing charges against their attacker. The lack of protection in such cases leaves sex workers open to abuse, violence and rape, creating an environment, which can facilitate HIV transmission. 12

Non-governmental organisations report that almost two thirds of the countries they work in have laws that make it difficult for them to work with sex workers. 13 In some countries, police use the possession of condoms as evidence that somebody is involved in sex work, further impeding sex workers’ efforts to protect themselves.

– See more at: http://www.avert.org/sex-workers-and-hivaids.htm#sthash.qA4pe8Al.dpuf

Protecting and Promoting the Rights of Sex Workers in Busia County

Sex workers are some of the most marginalized people in Kenya often harassed by police and clients and forced to put them at enormous risk in order to earn a living for themselves and their families. We at Survivors Organization in Busia County believe that sex workers rights are human rights and act accordingly.
In partnership with Open Society Institute Foundation and American Jewish World Service, Survivors is working to reduce harassment and discrimination against sex workers. We work directly with sex workers to educate them on how human rights laws as well as Kenyan laws apply to them and support them to mobilize and act on issues of concern, aiming to create a more productive and less antagonistic relationship between themselves and both police.

Sexually Transmitted Diseases Overview (STDs)

Sexually transmitted diseases (STDs, venereal diseases) are among the most common infectious diseases in Africa today. STDs are sometimes referred to as sexually transmitted infections, since these conditions involve the transmission of an infectious organism between sex partners. More than 20 different STDs have been identified, and about 19 million men and women are infected each year in the Africa, according to the CDC (2010). Depending on the disease, the infection can be spread through any type of sexual activity involving the sex organs, the anus, or the mouth; an infection can also be spread through contact with blood during sexual activity. STDs are infrequently transmitted by other types of contact (blood, body fluids or tissue removed from an STD infected person and placed in contact with an uninfected person). However, people that share unsterilized needles markedly increase the chance to pass many diseases, including STD’s (especially hepatitis B), to others. Some diseases are not considered to be officially an STD (for example, hepatitis types A, C, E) but are infrequently noted to be transferred during sexual activity. Consequently, some authors include them as STD’s, while others do not. Some lists of STD’s can vary, depending on whether the STD is usually transmitted by sexual contact or only infrequently transmitted. STDs affect men and women of all ages and backgrounds, including children. Many states require that Child Protective Services be notified if children are diagnosed with an STD. STDs have become more common in recent years, partly because people are becoming sexually active at a younger age, are having multiple partners, and do not use preventive methods to lessen their chance of acquiring an STD. Seniors show a marked increase in STDs in the last few years as many do not use condoms. People can pass STDs to sexual partners even if they themselves do not have any symptoms. Frequently, STDs can be present but cause no symptoms, especially in women (for example, chlamydia, genital herpes or gonorrhea). This can also occur in some men. Health problems and long-term consequences from STDs tend to be more severe for women than for men. Some STDs can cause pelvic infections such as pelvic inflammatory disease (PID), which may cause a tubo-ovarian abscess. The abscess, in turn, may lead to scarring of the reproductive organs, which can result in an ectopic pregnancy (a pregnancy outside the uterus), infertility or even death for a woman. Human papillomavirus infection (HPV infection), an STD, is a known cause of cancer of the cervix. Many STDs can be passed from a mother to her baby before, during, or immediately after birth. Because the method of becoming infected is similar with all STDs, a person often obtains more than one pathogenic organism at a time. For example, many people (about 50%) are infected at a single sexual contact with both gonorrhea and chlamydia.

Depending on the disease, STDs can be spread with any type of sexual activity. STDs are most often caused by viruses and bacteria. The following is a list of the most common STDs, their causes. Additionally, there are other infections (see STDs with asterisk mark*) that may be transmitted on occasion by sexual activity, but these are typically not considered to be STDs by many investigators:

Always use a condom when having sexual intercourse.

Busia Unveils Plans to Fight HIV and Stigma

BUSIA county has unveiled a plan to eliminate stigmatisation and discrimination of teachers living with HIV-Aids.

The Journey to Zero campaign will educate teachers on the need to promote co-existence between them and their HIV positive counterparts.

The plan, whose implementation runs until 2019, will create awareness on the importance of timely testing, access to treatment, care and support for teachers living with the virus.

During the launch participants agreed that HIV-Aids affects the country’s workforce and its spread needs to be urgently addressed.

“We cannot continue burying our heads in the sand expecting things to change,” Busia Governor Sospeter Ojaamong’s wife Judithsaid at Amagoro Primary School on Friday said.

“We must come together in the fight against HIV-Aids if we want to succeed. Pulling together will enable us make a change.”

Busia is ranked among counties with the highest HIV-Aids prevalence rates.

The latest National Aids Control Council report ranks the county among the top ten counties with the highest prevalence rates standing at seven per cent.

The national prevalence rate is six per cent.

Magdalene Mwele, a Wellness Programmes Assistant Coordinator at TSC said the Teachers Service Commission has registered an increase in the number of teachers openly declaring their HIV-Aids status and who are were now beneficiaries of the various programmes the commission has for HIV positive teachers.

“The continued partnership between TSC and Kenya Network for HIV positive teachers has resulted in a steady increase of teachers who have visited the commission and voluntarily disclosed their HIV status,” she said.