A Revolution of Human Rights in Kenya: Assessing the Enforceability of Socio-Economic Rights Under the Constitution of Kenya 2010

Abstract

The entrenchment of social and economic rights in the Constitution of Kenya 2010 signifies the states willingness to fulfill its obligation under international law by enhancing the realization of social and economic rights through a constitutional machinery. Article 43 of the current constitution enshrines socio-economic rights which, under Article 23, are enforceable by the courts in the event of their denial, infringement or violation. It is this enforceability of socioeconomic rights by the courts that has been subject of much criticism. For instance, are judges’ competent adjudicating social and economic rights? Judges are said to be incompetent in asking the government to allocate resources in a certain way; they do not have the training and information gathering tools required to decide whether funds have been spent the way they should have been spent and whether a particular individual got the resources the constitution entitles him to have.15 However, such criticisms alone should not form the sole basis for defeating the constitutional entrenchment of socio-economic rights. The aim of this paper is not to call for an absolute removal of socio-economic rights in the current constitution but rather to advocate for an alternative approach to enforcing these rights. Due to the complex nature of socio-economic rights, it is improper to leave the enforcement of these rights to the courts alone. The state should also play an active role in the enforcement of these rights as it is not the place of the courts to alter or inform government policies. This paper will therefore focus on an approach that is more flexible and does not infringe upon the principle of separation of powers. This will be important in the adoption and formulation of legislation and policies that are efficient, reliable and practicable in the realization of socio-economic rights.