The Preservation of Human Dignity and Enforcement of Economic and Social Rights Bill, 2015 (The Dignity Bill)
Sponsor: Mombasa County Senator: Hassan Omar Omar Quote:“This Bill will see that every person has access to the highest standards of health, accessible and adequate housing, is free from hunger, have access to clean, have social security and education,” said Omar.
Purpose of the Bill
The Bill seeks to provide a framework to give effect to Article 43 of the Constitution which sets out the economic and social rights that accrue to every person. By giving effect to these rights, the Bill would ensure the preservation of the dignity of all persons and communities in line with Article 19(3) of the Constitution. The Bill also seeks to provide a framework that would facilitate the enforcement of these rights.
Human rights are inalienable rights that are inherent in every person by virtue of being a human being. The economic and social rights as contained in the Constitution reflect the rights as set out in the International Covenant for Economic, Social and Cultural Rights to which Kenya is a signatory and which Kenya was, upon ratification, required to domesticate.
Article 21(1) and (2) of the Constitution imposes an obligation on the State and every State Organ to observe, respect, protect, promote and fulfill the rights and fundamental freedoms set out in the Bill of Rights. Further, the State is required to take legislative, policy and other measures, including the setting of standards aimed at ensuring that the rights guaranteed under Article 43 of the Constitution are progressively realised.
Overview of the Bill.
The Bill provides for:
Obligations of the National and County Governments
The Bill imposes an obligation on the National and County Governments, to the extent of their constitutional mandate, to among other things,
Ensure the availability, accessibility, adaptability and acceptability of services that would facilitate the realization of the economic and social rights.
Put in place adequate infrastructure that would be necessary to meet their obligations in realizing the economic and social rights.
Adopt comprehensive strategic plans that ensure the protection and promotion of economic and social rights;
Prioritize the allocation of resources to ensure that the economic and social rights are realized while taking into account the special needs of marginalized persons within the respective counties, and
Avoid actions that would limit the economic and social rights that are conferred under the Constitution except as provided under Article 24 of the Constitution. The Kenya National Commission on Human Rights, in consultation with the Cabinet Secretary responsible for devolution and the Council of County Governors, is required to set out the minimum standards that county governments are required to meet in carrying out their obligations.
Role of the Kenya National Commission on Human Rights
The Bill confers on the Kenya National Commission on Human Rights the responsibility with regard to matters pertaining to implementation of and the enforcement of the provisions of the Bill. Under the Bill, the Commission is required to exercise its oversight role in realization of economic and social rights in the manner stipulated under the Bill.
The Bill further requires the Commission to prepare an economic and social rights index. The index is to be used to gauge the realisation of economic and social rights in every County. The Commission is further required to publish and publicize the economic and social rights index in each County.
County Strategic Plans
The Bill imposes an obligation on every county government to prepare, with the approval of the respective county assembly, a county strategic plan for the realization of economic and social rights of the residents within the respective county. The Bill further requires that a county government adopt, in its strategic plan, plans that respond to the unique needs and issues affecting the County. The strategic plan is to be incorporated in the county integrated development plan prepared pursuant to section 108 of the County Governments Act.
The principle objective of a county strategic plan is to ensure that a county government is able to ensure the availability, accessibility, acceptability, adaptability and quality of goods and services delivered within the county which are necessary for the realization of economic and social rights as set out under the Constitution.
Reporting of Progress
The Bill requires the National Government and each county government to submit an Annual report on the progress made in the realization of economic and social rights to the Kenya National Human Rights Commission, the Senate, the National Assembly, the relevant County Assembly, the Commission on Revenue Allocation and the Intergovernmental Budget and Economic Council.
The Bill expressly requires that the Senate considers the reports and makes appropriate recommendations to the respective county governments and the National Government. Further, each county executive committee member responsible for finance is required, in the budget statement to the County Assembly to include measures aimed at ensuring the fulfillment of Article 43 of the Constitution and activities for that year and any progress achieved at availing these to the residents of the county.
Application of the Equalisation Fund
The Bill further seeks to provide a framework for the application of the Equalisation Fund for the promotion of economic and social rights amongst the marginalized communities. The Bill requires the Commission on Revenue Allocation to
The Bill requires the Commission on Revenue Allocation to analyze the economic and social circumstances in each County for the purpose of determining the criteria by which to identify Counties in which marginalized areas are found and which are eligible for a conditional grant. In doing so, the Commission is to be guided by the criteria set out in the Second Schedule to the Bill, the level of development in the area, the standards of delivery of services and basic goods necessary for the realization of economic and social rights and the levels of poverty and infrastructural development in the county.
Consequences of the Bill
The Bill will provide the much needed framework for the implementation of Article 43 of the Constitution. By imposing specific obligations on the National and County Governments, the Bill will make economic and social rights more justifiable and will enable Kenyans to hold the National and County Governments to account for their obligations in ensuring the realization of the economic and social rights.
The Bill will also improve the manner in which the Equalisation Fund is shared amongst marginalized counties.
Pursuant to standing order 130(1) of the Senate Standing Orders, the Standing Committee on Legal Affairs and Human rights shall facilitate public participation and shall take into account the views and recommendations of the public when the committee submits its report to the Senate.
Further, pursuant to standing order 134(1) of the Senate Standing Orders, the Committee was required to submit its report to the Senate within thirty (30) calendar days of the committal of the Bill to the Committee, therefore, by Friday, 17th July, 2015. Did you participate?
Any further comments on the Bill may be submitted to the Office of the Clerk of the Senate, 1st Floor, Main Parliament Buildings, Nairobi, Kenya, through P.O. Box 41842-00100, Nairobi, Kenya or email: firstname.lastname@example.org.
Despite the existence of these provisions of the Constitution and international law, the realization of economic and social rights has often been tied to the availability of resources. As a result, these rights are rarely seen as being inherent in a person by virtue of being a human being. Large gaps, therefore, exist in terms of service delivery and availing the necessary goods that would ensure the realization of these rights. This has led to a situation
in which urgent intervention through policy, legislation and other action is required to compel both the National and county governments to meet their obligations under the Constitution, existing legislation and international treaties and agreements. This Bill is one such intervention that is intended to ensure the realization of economic and social rights in Kenya.