The Bill of Rights - Part II

by Samuel Marete

Dear readers, a mix-up on my part meant that in Tuesday’s article I omitted to discuss some crucial Articles in the Bill of Rights.

1. Economic and social rights (Article 43)

This article states that every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care; to accessible and adequate housing, and to reasonable standards of sanitation; to be free from hunger, and to have adequate food of acceptable quality; to clean and safe water in adequate quantities; to social security; and to education.

It further states that a person shall not be denied emergency medical treatment, and that the State shall provide appropriate social security to persons who are unable to support themselves and their dependants.

If wrongly implemented, this is a frankly dangerous article, notwithstanding the provisions of Article 20. I say this for two reasons:

1. Heavy social security, in my own view, is counter-productive. When we decide as a nation to go the route of providing for those who cannot find work, what we shall inevitably end up doing is producing, and providing for, those who will not find work. Kenya, of all countries, is least prepared for this. Our citizenry is too partial to handouts, too fond of getting a free ride from the nebulous Big Brother that is Government, for this to make sense at this stage of our development. Singapore’s model suggests that this will not be right at any stage of our development (Singaporean policy is to avoid social security like the plague it is). If Government resources must be used to help the people, let them be used to create employment. Excessive social security is a shortcut, and as with many “shortcuts”, we will find that if we use it we will not arrive at the desired destination as a citizenry.
2. Article 20 states that a 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. Notwithstanding this article, the State will be prone to numerous suits in which it must defend itself for not providing what to me appears to be an overwhelming amount of social security; burden of proof will be on the State to prove that it does not have the resources to ensure its citizens have access to these rights. From a purely practical point of view, this is less than desirable. The other side of the coin, however, is that if the lawsuits force the State to be more efficient in its distribution of resources, an important goal will have been achieved.

2. Language and culture (Article 44)

Article 44(3) states that a person shall not compel another person to perform, observe or undergo any cultural practice or rite. Forced circumcision/female genital mutilation is going to be criminal under the new Constitution.

3. Rights of arrested persons (Article 49)

Some very sensible provisions have been included under this article. Article 49 (1) (f) states that an arrested person must be brought to court not later than twenty-four hours after being arrested; or, if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day. Article 49(2) goes on to state that a person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months.

Hopefully, the police will no longer be able to threaten a weekend in jail for not carrying your driver’s license, failing to wear a seatbelt or not carrying a national identity card.

Enjoy your weekend.

Next (for real): The Executive

Posted by Mzalendo Editor on April 29, 2010

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