Abstract
On 27 August 2010 Kenya adopted a transformative Constitution with the objective of fighting poverty and inequality as well as improving the standards of living of all people in Kenya. One of the mechanisms in the 2010 Constitution aimed at achieving this egalitarian transformation is the entrenchment of justiciable socio-economic rights (SERs), an integral part of the Bill of Rights. The entrenched SERs require the State to put in place a legislative, policy and programmatic framework to enhance the realisation of its constitutional obligations to respect, protect and fulfill these rights for all Kenyans. These SER obligations, just like any other fundamental human rights obligations, are, however, not absolute and are subject to legitimate limitation by the State. Two approaches have been used in international and comparative national law jurisprudence to limit SERs: the proportionality approach, using a general limitation clause that has found application in international and regional jurisprudence on the one hand; and the reasonableness approach, using internal limitations contained in the standard of progressive realisation, an approach that has found application in the SER jurisprudence of the South African Courts, on the other hand. This article proposes that if the entrenched SERs are to achieve their transformative objectives, Kenyan courts must adopt a proportionality approach in the judicial adjudication of SER disputes. This proposal is based on the reasoning that for the entrenched SERs to have a substantive positive impact on the lives of the Kenyan people, any measure by the government aimed at their limitation must be subjected to strict scrutiny by the courts, a form of scrutiny that can be achieved only by using the proportionality standard entrenched in the article 24 general limitation clause.
Highlights
NW OragoIn promulgating a new Constitution on 27 August 2010, Kenya ushered in a new and progressive constitutional dispensation aimed at enhancing substantive equality, democracy, good governance and the protection of human rights and fundamental freedoms
This is encompassed in the preamble of the 2010 Kenyan Constitution, which expresses the commitment of the Kenyan people to nurturing and protecting the well-being of all, as well as to recognising the aspirations of Kenyans to be governed by the values of human rights, equality, freedom, democracy, social justice and the rule of law.[1]
Due to the possibility of the illegal use of limitation clauses to detract from the full protection of rights, the prevailing practice in international law is for the restrictive interpretation of limitation clauses and the undertaking of a proportionality test to ensure that limitation clauses are adopted in a democratic manner and are aimed at enhancing the general welfare of the society as a whole
Summary
Well as to promote social welfare,[4] has adopted a substantive (redistributive) concept of equality,[5] and has entrenched justiciable socio-economic rights (SERs). To enhance the practical application of this approach, the article proposes that Kenyan courts adopt a three-stage constitutional analysis method for the adjudication of SER disputes instead of the traditional two-stage constitutional analysis method adopted for the constitutional adjudication of civil and political rights (CPRs) This approach envisages the analysis of the nature, scope and content of the entrenched SERs and a determination of their violation or denial in a specific case at the first stage; an analysis of their delimitation by the internal qualifiers engendered in the adoption of the standard of progressive realisation for the fulfilment of most of the entrenched SERs at the intermediate (second) stage; and the undertaking of a proportionality test using the general limitation clause entrenched in article 24 of the Constitution at the third stage.
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