The quest for a new constitution has been long and gruelling. As its guiding star, Kenyans have pursued and desired a new dispensation as an instrument that shall lay the topography to improve their quality of life and free the potential of all citizens. Although the subject of Bill of Rights has never been contentious on the now two decades for a new constitution, the most recent version of the draft constitution as proposed by the Parliamentary Select Committee, has introduced a new twist on what was a rather settled matter. This draft departs from the initial version by creating differentiation between what is commonly referred to as first generation rights, the second and third generation of rights (social economic and cultural rights). The division, which is lacking in jurisprudence and practice, has introduced a hierarchy between these traditional categories of rights. The Bomas Draft had been explicit on the place of human rights and declared that “Every person has a right to: Health, education, housing, food and water.”

The statement does not create the entitlement to material conditions of human welfare that Kenyans have been yearning for. The particular significance of economic and social rights is grounded in the fact that they guarantee everyone the right to access not just the important components of an adequate standard of living but also to thing that are ordinarily regarded as basic necessities of life such as food, water, education and so on. For these reasons, we, the undersigned, ask that the Committee of Experts should accordingly rework section 40 of chapter 4 to explicitly state as follows: “Every person has the right to: Health, Education, Food, Water and sanitation, Social security and Housing and should further clearly recognise the rights of the youth, people with disability and the aged.”

The duty of the state to take all reasonable legislative and other measures within its available resources to achieve the progressive realisation of these rights, should only be considered after the rights have been unequivocally recognised. Courts can then decide whether such adequate measures have been taken or not.

Signed by:

Kituo Cha Sheria, HakiJamii, Jesuit Hakimani Centre, Pamoja Trust, Kenya Land Alliance, Eastern Africa Coalition on Economic Social and Cultural Rights, Muungano ya Wanavijiji, Nairobi Youth Human Rights Network, Kasarani Youth Congress, Nairobi People’s Settlement and Students Consortium for Human Rights Advocacy.