Kenya National Human Rights Book 2011 EDITED2

THE THIRD ST THE THIRD STATE OF In the world of Human Rights Protection and enforcement, there are few issues as important as monitoring and accountability, hence a report such as this plays a crucial function in providing a snapshot- a bird’s eye view - HUMAN RIGHTS A of the state of human rights in Kenya in 2010. TE OF HUMAN RIGHTS REPOR REPORT Prof. J Oloka-Onyango, Director of the Human Rights & Peace Centre (HURIPEC) and former Dean of Law at Makerere University, Uganda.

It is laudable that this report devotes significant attention to economic and social rights. In Kenya public and policy discussions on access to electricity, water, education, food, health and housing are still not sufficiently linked to T -

the discourse on human rights. KNCHR will have made an important A Human Rights Assessment of contribution to the promotion of human rights in Kenya if it succeeds in reshaping the discussions on these rights.

Dr. Willy Mutunga Senior Counsel, Regional Representative, Eastern Africa Office, A HUMAN RIGHTS ASSESSMENT Ford Foundation. OF KENYA VISION 2030

K January 2008 - June 2010 eny a V ision 2030

Published by Kenya National Commission on Human Rights Ist Floor, CVS Plaza, Lenana Road P. O. Box 74359 - 00200, Nairobi Kenya Tel: +254 020 2717900/08 Fax: +254 020 271616 Email: [email protected]

Published by Kenya National Commission on Human Rights P.O. Box 74359 - 00200 Nairobi Kenya.

Excerpts from this report may be reproduced, provided that there is an acknowledgement to the Kenya National Commission on Human Rights THE THIRD STATE OF HUMAN RIGHTS REPORT AA HumanHuman RightsRights AssessmentAssessment OfOf KenyaKenya VisionVision 20302030 JanuaryJanuary 20082008 -- JuneJune 20102010

Kenya National Commission on Human Rights The Third State of Human Rights Report

FOREWORD

The KNCHR is to be commended for producing its Third State of Human Rights Report. The decision to assess the Kenya government's first Medium Term Plan (MTP) of the Vision 2030 is particularly important. Vision 2030, which now underlies all of the Kenya government's specific policy planning and implementation, has not received sufficient attention from those working on human rights in Kenya. Yet as the basis for the government's own policy commitments, it is a most appropriate basis for assessing whether the government is actually walking the talk.

Since its formation in 2003, the KNCHR has taken seriously its mandate of assessing government human rights performance. It has been particularly audible and visible with regard to civil and political rights. It is, therefore, laudable that this Third Report complements that important work by devoting significant attention to economic and social rights. In Kenya, public and policy discussions on access to electricity, water, education, food, water, health and housing are still not sufficiently linked to the discourse on human rights.

The KNCHR will have made an important contribution to the promotion of human rights in Kenya if it succeeds in reshaping the discussion on these rights. This is particularly opportune as Kenya has just promulgated a new constitution whose Bill of Rights integrates both the civil, political and economic, social and cultural rights.

Now that the country has a progressive Bill of Rights, the next phase in human rights focuses on implementation. From Kenya's experience of post-election violence in December 2007-January 2008, this phase will be most challenging. The KNCHR will provide an important service to Kenyans if it takes up the responsibility of clarifying the issues surrounding the implementation of these newly recognized rights. Moreover, it must continue playing its traditional watchdog role.

We also expect to see the KNCHR shining a light on neglected issues of famine, food insecurity, deaths from preventable diseases and extreme poverty among others. These are not just the problems of lack of resources in a poor country or poor financial decisions by individuals or ill luck. They have a basis in political and economic decisions by the government.

The work of exposing, naming and shaming violators of human rights must also continue. But groups such as the KNCHR will now be expected to go beyond the naming and shaming and provide government agencies with concrete tools and equip them with the skills to integrate human rights in their policy work.

(i) The Third State of Human Rights Report The Third State of Human Rights Report

As the first recipient of the KNCHR Milele Lifetime Achievement Award in 2004, I am SECTION 9: PUBLIC AWARENESS/INVOLVEMENT happy to note that the KNCHR has taken the initiative of providing policy advice and Information about service Effectiveness of measures Partners involved in assessment through the publication of this report. It is also important to remember by the ministry or agency taken implementation that the new constitution has also decentralized governance in Kenya. In tandem, human rights agencies must also decentralize their activities to county levels and 17. What measures have 18. How effective were 19. Who did you partner been put in place to raise these measures? with in implementing even further. awareness about the the

services rendered by your programs/interventions ministry or agency? in Section 4 above? List Finally, the KNCHR should strengthen its links with communities of Kenyans working any state agencies, to challenge injustices at these local levels. In a nutshell, KNCHR should spearhead the creation of a human rights state and society in Kenya. private sector and/or CSOs you may have partnered with. Dr. Willy Mutunga 1. 1. 1. Senior Counsel, Regional Representative, Eastern Africa Office, Ford Foundation 2. 2. 2. 20. How have members of the public been involved in your interventions?

21. How sustainable are the measures put in place to raise awareness about the services rendered by your ministry or agency as identified in question 17? SECTION 10: MONITORING Question Responses Remarks/explanation

22. Is there a monitoring Yes No plan that you follow in your ministry or agency? 23. Were there any difficulties experienced in monitoring and assessing the provision of you r services? If yes, explain.

24. Describe how your ministry or agency prepared its responses to this protocol and the difficulties experienced

SECTION 11: ADDITIONAL INFORMATION 25. Provide any other information relevant to the achievement of your interventions/operations

136 (ii) The Third State of Human Rights Report The Third State of Human Rights Report

PREFACE SECTION 7: BUDGETARY MEASURE S the human rights community to make There can be little doubt about the need to expose human rights violations: who sure that the violations of the past are 12. Provide informatio n on the budget allocations as per the table below (includes both internal

has been tortured, what is the state of not repeated. and external sources of funding)

media freedom in the country, and why Financial Estimated cost of Amounts Provisional Amounts not are our public hospitals so lacklustre in Year Projects (listed Allocated Expenditure spent (Kshs.) respecting and ensuring the realization While reporting violations is an in section 4 (Kshs.) (Kshs.) of the patient's right to the highest important element in the struggle to above) ensure improved respect for human possible standard of mental and physical 2008/2009 health? In the world of human rights rights, the methodology adopted in protection and enforcement, there are reporting them is also crucial. The few issues as important as monitoring approach adopted in this report is novel 2009/2010 and accountability. Hence a report such insofar as it ties the respect for human as this plays a crucial function in rights to the national economic 13. Was the budget adequate? If not, explain. providing a snapshot — a bird's eye view projections outlined in Kenya's Vision 14. What measures were instituted to address budget inadequacy? 15. Was there any over- or under- spending of the total revenue? If so, explain. — of the state of human rights in Kenya 2030. It also employs the three-pillar in 2010. framework which argues that it is necessary to review human rights SE CTION 8: WORKING WITH INTERNATIONAL OBLIGATIONS performance around an Economic, The report attests to the need to keep Social and Political perspective. Finally, QUESTION LISTING OF REMARKS accurate records about human rights INTERNATIONAL the report is also directed towards violations (and what has been done about AGREEMENTS engendering official actions. It is not for them) to ensure not only that those who 16. List any international 1. academic or historical value; it is action- read the report learn from the past but oriented. In this way, the report provides and regional 2. agreements/protocols/tr eaties 3. also that there is no repetition of that a holistic and comprehensive past. Therefore, this report performs the signed by the government 4. foundation on which a thorough-going that your ministry or agency function of providing an essential record assessment of the state of human rights referred to in implementing or indicator of the present state of human in the country can be undertaken, your programs in section 4

rights in present-day Kenya. National coupled with concrete suggestions on above Human Rights Institutions (NHRIs) need to what still needs to be done. give regular and comprehensive reports of the state of human rights in our individual countries, in order ultimately to Nevertheless, the exposure of human raise the bar of human rights protections rights violations per se is clearly in the East African Community (EAC) insufficient. Indeed, many are the region as a whole. reports which gather dust on the For Kenya, recording and reporting on the shelves, or find themselves confined to state of human rights is important in light the dust-heap of history. This is where of the post-election violence that rocked the Third State of Human Rights Report the country in 2008. Given the recent 2010 makes a difference. First, it is not developments relating to the summonses shy to give credit where such credit is issued by the International Criminal Court due. However, it criticizes and (ICC) against several prominent Kenyan condemns instances of human rights political leaders, a report such as this violation committed by the State, or by strikes a blow for the struggle against actors which the state should control (iii) impunity. It is testimony to the resolve of and sanction. In this respect, it adopts 135 The Third State of Human Rights Report The Third State of Human Rights Report

the posture of the constructive critic, allowing the state both to see the distance it

Group of Persons How their needs were Remarks has travelled away from violating the rights of its citizens, while cautioning that addressed there is still much more to be done. Persons living with 1. HIV/AIDS 2.

Children (include orphans, 1. Implicit in the report is also the idea that many human rights — especially those of ‘working’ children) 2.. an economic, social or cultural nature — need to be realized in a progressive

Poor aged persons (persons 1. manner. While such an approach is useful for this category of rights, and indeed is 60 years and above) 2. also the international standard in play, it is necessary to also consider and evaluate a violations approach. Hence, immediate action is warranted where there are IDPs 1. 2. discriminatory policies in place in regard to access to medicines, or in the Unemployed youth (and 1. implementation of Universal Primary Education (UPE). Likewise, it is unacceptable those who are actively 2. for the state to drag its feet in providing access to drinking water or to ensure seeking employment) adequate shelter when corruption and resource misallocation are the order of the Widows 1. day. Proactive measures such as Public Interest Litigation (PIL) or constitutional 2. references need to be deployed against the State or against other actors who believe that their actions are immune from sanction. In other words, the progressive realization standard should be deployed as an aid to support the SECTION 5: ADMINISTRATIVE ACTIONS TAKEN (e.g. via regulations, circulars etc) struggle for human rights, not as a crutch to excuse their violation.

General Measures Taken Measures relating to Effectiveness of measures corruption prevention taken The 2010 Report will be a powerful tool for intervention and advocacy on the 5. Identify and specify any 6. Identify and describe any 7. Briefly explain how Kenyan human rights scene during the year to come. But the ultimate test of impact administrative actions or measures that your ministry effective these measures will only be discernible if the report's main recommendations become accepted as measures that your ministry or agency introduced to have been? an integral part of the framework of governance and accountability in the first year or agency introduced to address and prevent of implementation of a new constitutional dispensation. For with the enactment of foster the achievements maladministration and /or stated in Section 4 above. corruption the new constitution, Kenyans now have a powerful instrument for the enforcement of all categories of human rights. The challenge which remains is to 1. 1. give life and meaning to the powerful words with which Article 1 of the Constitution 2. 2. begins: “All sovereign power belongs to the people of Kenya.”

Other Remarks

1 Prof. J. Oloka-Onyango SECTION 6: IMPLEMENTATION CHALLENGES Director of the Human Rights & Peace Centre (HURIPEC) and former Dean of Law Program / Challenges faced Unforeseen negative Measures Remarks at Makerere University, Uganda project outcomes taken to deal with challenges List the 8. What were the 9. Were there any 10. What 11. How has program or challenges unforeseen negative measures has your ministry project experienced in outcomes that arose your ministry or agency implemented the out of the or agency put ensured that implementation interventions/projects in place to such measures of these that you undertook address these are programs/projects e.g. displacements of challenges (in sustainable? people? questions 8 and 9)? 1. Prof. J. Oloka-Onyango has been Visiting Professor at a number of universities around the world and was a member of the United Nations (UN) Sub-Commission on the Promotion and Protection of Human Rights on which he also served as Special Rapporteur on Globalization and Human Rights. Currently he is a Trustee of the United Nations Voluntary Fund for the Victims of Torture. His areas of teaching interest and research 134 include International Human Rights Law, Refugee Law, Gender and the Law and Constitutional Law and History. (iv)

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ACKNOWLEDGEMENTS Beneficiaries (e.g. Male Female Regional reach (by Province) This report is the outcome of the and suggestions that were invaluable widows, youth) advice, contributions and support of in enhancing the quality of analysis of

many people. As a report required by this report. The team comprised Dr

the Kenya National Commission on Celestine Nyamu Musembi (Senior Human Rights Act of 2002, and one Lecturer, University of Nairobi, School that must obtain its raw material from of Law), Steve Ouma (doctoral responses and reports of various candidate, University of Western 4. How did the programmes and/or projects you provided in the table above address public bodies, it is an ever challenging Cape), Stephen Wainaina (Planning the needs of the following vulnerable/marginalized groups? assignment. Secretary, Ministry of State for Planning, National Development and Group How their needs were Remarks addressed We would like to thank the dedicated Vision 2030), and Paul Kuria (Deputy team of colleagues who had to work Director of Research, Population The rural poor 1. 2. extra time to research, write and revise Services International - Kenya). To all Poor persons living in Arid, 1. several drafts often under a lot of these colleagues, we say, Asante Semi A rid Land (ASAL 2. pressure. sana. areas) Persons living in informal 1. This special team comprised Jackline More than 20 people participated in urban settlements (also 2. referred to as slum areas) Madegwa, Lillian Wanjiku and Kevin our consultations and were helpful in Luyegu (who were interning at the thinking through the design of this Homeless persons (includes 1. persons living on the 2. Commission), Lucy Minayo (Senior report. Representatives from various streets, roadside and in IDP Human Rights Officer, Reforms and Ministries and other public camps) Accountability), Antonina Okuta (Senior institutions, CSOs and private sector Persons with disabilities 1. Human Rights Officer, Research and institutions responded to our call for 2. Compliance), Akademia Nanjala information and attended our Poor women (generally 1. those unable to access 2. (Human Rights Officer, Public Education consultations. public resources not only and Training), Maina Mutuaruhiu because they are women but (Principal Human Rights Officer, Special thanks too to the Institute for also because they are poor) Economic, Social and Cultural Rights) D evelo p m ent St u d ies ( I D S) , Refugees and asylum 1. and Commissioners Lawrence Mute University of Nairobi team of seekers (includes those with 2. refugee status and those researchers led by Dr Joseph Onjala and Winnie Lichuma. seeking refugee status) and Prof Winnie Mitullah, who did an Our resourceful team of peer reviewers exemplary job of field research into gave us constructive feedback, critiques how policies on water and sanitation (v) 133 The Third State of Human Rights Report The Third State of Human Rights Report

SE CTION 1: RESPONDENT'S DETAIL actually been operationalized, and with what effect and outcomes, from which we Name of the Ministry/Agency learnt a lot. We greatly appreciate the input of the Commission's Public Affairs and Contact Address Communications team led by Dan Okoth, and Mikewa Ogada of Adili Consulting, Name(s) of respondent(s) (in case of any clarification needed) who assumed the responsibility of editing and advising on the design of this report

Designation of respondent(s) in the to its present form. Ministry or Agency

Finally, we acknowledge the support of our colleagues at the KNCHR who SECTION 2: POLICY MEASURES contributed in many other valuable ways and who, while they played the important back office role, will nevertheless bear the collective responsibility of any errors of QUESTIONS RESPONSES commission or omission. 1. List the key policies instituted 1. relevant to your work at the 2. To our readers, we hope you gain something enduring from this report. Ministry/Agency during this period 3. of the current MTP. Christine Njeru, Human Rights Officer, Coordinating this Project, and Wambui Kimathi, Commissioner/Project Team Leader. SECTION 3: LEGISLATIVE MEASURES

2. List the legislative developments that took place during the reporting period which enhanced the achievement of your work/operations

Legislative Developments Status of the law (bill How has the legislative (i.e. new laws) awaiting enactment, passed development enabled you to but not in operation etc) realize your agency’s achievements? 1. 1. 2. 2.

SECTION 4: PROGRAMS AND PROJECTS

3. Provide information according to the table below on programmes and/or projects implemented during the reporting period based on present and past policies

Programs/projects (Interventions during 1. the period) 2. 3. Objectives of the interventions listed 1. above 2. 3.

Beneficiaries (these should be disaggregated by gender and regional reach and inclusion of vulnerable and marginalized groups) tabulated as provided in table below

Achievements over the period 1. 2. 3. 132 (vi)

The Third State of Human Rights Report The Third State of Human Rights Report

ANNEX III Kenya National Commission on Human Rights (KNCHR) TABLE OF CONTENTS

Foreword (i) State of Human Rights Report for Review of the Period - January 2008 to June Preface (iii) 2010

Acknowledgments (vi) Proposed Reporting Formats for Data Collection Table Of Contents (viii) 3rd State of Human Rights Report Protocols List Of Tables (ix) Acronyms (x) Executive Summary 1 The Kenya National Commission on human rights (KNCHR) is an independent National Human Rights Institution established under the Kenya National SECTION 1: INTRODUCTION 6 Commission on Human Rights Act, 2002. Its core mandate is to further the SECTION 2: REAFFIRMING THE HUMAN RIGHTS FRAMEWORK 15 promotion and protection of human rights in Kenya.

SECTION 3: METHODOLOGY AND STRUCTURE OF THE REPORT 18 Section 21(1) of the Kenya National Commission on Human Rights Act, 2002, SECTION 4: THE PRINCIPLE OF EQUALITY AND NON-DISCRIMINATION 21 requires the KNCHR to submit an annual report to the President and to the National Assembly which shall, according to Sec 21(2) “include an overall assessment by the SECTION 5: INTRODUCTION TO THE ECONOMIC PILLAR 24 Commission of the performance of the Government in the field of human rights Chapter 1: Access To Electricity 26 during the period under review”. Chapter 2: Right To Food 36 In fulfillment of this statutory requirement, much like the Auditor General uses Chapter 3: Right To Work 49 financial, procurement and other guidelines to determine compliance of state SECTION 6: INTRODUCTION TO THE SOCIAL PILLAR 57 bodies, the KNCHR, using the framework of Vision 2030, has prepared the ensuing guiding questions to enable it collect information from various government Chapter 4: Right To Education 58 ministries and agencies to elicit information against which it will compile the said Chapter 5: Right To Health 69 report. Chapter 6: Right To Water And Sanitation 79 Encouragingly, over the last few years, the government, through its “Huduma Bora Chapter 7: Right To Housing 89 ni Haki Yako' initiative and currently through the Medium Term Plan 2008-2012, has SECTION 7: INTRODUCTION TO THE POLITICAL PILLAR 99 set itself goals and outcomes against which objective progress on its commitment to human rights protection, promotion and fulfillment can be assessed. Through its Chapter 8: Right Of Access To Justice 100 effort to achieve Vision 2030 goals, the government has committed to taking Chapter 9: Right To Participate In Public Affairs 107 legislative, policy, programmatic, administrative and other measures to achieve progressive realization of human rights for all its citizens. SECTION 8: POSTSCRIPT 118 SECTION 9: CONCLUSION 120 It is such measures that the KNCHR will assess for their adequacy in achieving APPEXURES progressive realization of human rights. The assessment will be as good as the information submitted. We therefore are kindly requesting you to provide Annex I: Summary Of Recommendations 127 comprehensive information relevant to your area of work using the following Annex II: Progress Response Matrix From Ministries And Agencies 128 questions. Annex III: Report Protocols 132 (vii) Please Complete and return to KNCHR by 31 may 2010 131 The Third State of Human Rights Report The Third State of Human Rights Report

NGOs Was the Date of Comments LIST OF TABLES AND FIGURES report response LIST OF TABLES AND FIGURES received 1. Table 1.1: Access to electricity in Sub-Saharan Africa, 2009

Centre for Minority Rights Yes 20 April 2010 The report was submitted 2. Figure 1.2: Conditions for electricity access 3 years ago Development within the required time. (CEMIRIDE) 3. Figure 1.3: Affordability of electricity from National Grid 4. Figure 1.4: Reliability of electricity from grid The CRADLE Foundation Yes 27 May 2010 The report was submitted within the required time. 5. Table 3.1: Progress on achievement of MTP employment-related Centre on Housing Rights Yes 14 April 2010 The report was submitted targets for the period under review and Evictions (COHRE) within the required time. Economic and Social Yes 14 April 2010 The report was submitted 6. Table 3.2: YEDF allocations and Expenditure, 2006-2010 Rights Centre (HakiJamii) within the required time. 7. Table 3.3: Ministry of Labor Net Approved Expenditure 2007-2010

Institute of Economic Yes 7 May 2010 The report was submitted 8. Table 4.1: Achievements on flagship projects' implementation for Affairs within the required time. education sector Kenya Chapter of the Yes 8 June 2010 The report was received International Federation of after the deadline. 9. Table 5.1 Distribution of health facilities by province Women Lawyers (FIDA- Kenya) 10. Table 5.2: Wanjiku's breast cancer treatment costs

NB: 20 NGOs were requested to report but only 6 presented their reports 11. Table 6.1: Urban households by main source of water by province 12. Table 6.2: Affordability of different sources of water Corporations / Professional Was the report Date received Comments Associations received 13. Table 6.3: Reliability of different sources of water 14. Table 8.1: Implementation of judicial changes in the period 2008-

2010

Association of Yes 10 May 2010 The report was submitted Professional within the required time. Societies in East Africa (APSEA) East African Yes 20 April 2010 The report was submitted Breweries Ltd within the required time. (EABL)

National Yes The report was submitted Coordinating within the required time. Agency for Population and Development (NCAPD)

130 NB: 17 Corporations were requested to report but only 4 presented their reports (viii) The Third State of Human Rights Report The Third State of Human Rights Report ACRONYMS Ministry of Regional Yes 25 May 2010 The report was submitted Development Authorities within the required time.

ACHPR African Charter on Human and Peoples Rights No response ADR Alternative Dispute Resolution Ministry of Roads No despite followup ASAL Arid and Semi-Arid Lands No response CDF Constituency Development Fund Ministry of Transport No CEDAW Convention on the Elimination of All Forms of Discrimination Against despite followup Women Office of the President, No No response CRC Convention on the Rights of the Child Ministry of State for despite followup CSO Civil Society Organization Special Programmes ECDE Early Childhood Development Education Ministry of State for No No response ERS Economic Recovery Strategy Immigration and despite followup GDP Gross Domestic Product Registration of Persons GJLOS Governance, Justice, Law and Order Sector

GOK Government of Kenya Ministry of State for No 30 April 2010 No response HIV/AIDS Human Immunodeficiency Virus/Acquired Immune Deficiency Public Service despite followup Syndrome No response Ministry of Tourism No ICESCR International Covenant on Economic, Social and Cultural Rights despite followup ICCPR International Covenant on Civil and Political Rights Ministry of Trade and No ICT Information Communication Technology No response Industry despite followup IIEC Interim Independent Electoral Commission ILO International Labour Organization Ministry of Water and No No response

KACC Kenya Anti-Corruption Commission Irrigation despite followup KHPC Kenya Population and Household Census Ministry of Youth Affairs Yes KKV Kazi Kwa Vijana The report was submitted within the required time. KNCHR Kenya National Commission on Human Rights KPLC Kenya Power and Lighting Company Office of the Attorney Yes The report was submitted LATF Local Authority Transfer Fund General required time line. MDGs Millennium Development Goals

MTP Medium Term Plan Communications Yes 2 June 2010 The report received. NARC National Rainbow Coalition Commission of Kenya NGO Non-Governmental Organization NHIF National Housing Insurance Fund Kenya Institute of Yes 29 April 2010 The report was submitted Education NFOBI National Fibre Optic Backbone Infrastructure within the required time. NLAAP National Legal Aid and Awareness Programme Kenya Anti-Corruption No No response NSSF National Social Security Fund Commission despite followup NWM National Water Services Strategy OBA Output-Based Approach Interim Independent No No response REA Rural Electrification Authority Electoral Commission despite followup REP Rural Electrification Programme National Housing No No response UDHR Universal Declaration on Human Rights Corporation despite followup UN United Nations USD United States Dollar Public Sector Reforms and No No response WAB Water Appeal Board Performance Contracts despite followup WASREB Water Services Regulatory Board WEF Women's Enterprise Fund WHO World Health Organization (ix) WSTF Water Services Trust Fund YEDF Youth Enterprise Development Fund 129 The Third State of Human Rights Report The Third State of Human Rights Report

EXECUTIVE SUMMARY Ministry of Gender, No No response 1. The Third State of Human Rights Report, 2011, uses a human rights Children and Social despite followup Development perspective to assess the Kenya government's performance in implementing the first half of the Medium-Term Plan (2008-2012) of Ministry of Housing Yes 7 May 2010 The report was submitted within the required time. Kenya Vision 2030. The compilation of this report is a requirement of the Kenya National Commission on Human Rights Act, 2002, which requires Ministry of No No response Industrialization despite followup that the KNCHR conduct an annual assessment report on human rights progress. Ministry of Justice, No No response National Cohesion and despite followup Constitutional Affairs 2. This particular report focuses mainly on the realization of economic and social rights. The assessment is not so much an examination of progress Ministry of Local No No response on the basis of state obligations under international treaties. Rather, the Government despite followup report is an assessment of the government's performance based on its own stated priorities on human rights issues that are derived from Kenya No response Ministry of Lands No despite followup Vision 2030. The KNCHR has chosen to focus on Kenya Vision 2030 because it is the overarching framework for the Kenya government's Ministry of Labor No No response specific policy planning and implementation. Consequently, the despite followup indicators for progress, defined in the Medium-Term Plans (MTPs) have Ministry of Livestock and No No response been adopted and categorized according to the Economic, Social and Development despite followup Political pillars in Kenya Vision 2030. The report reviews the period from January 2008 to June 2010. Ministry of Medical No No response Services despite followup 3. The report's nine chapters focus on the following human rights issues. (a) Ministry of Nairobi No 7 April 2010 No response Economic Pillar: the right to access to electricity, the right to food and the Metropolitan despite followup right to work (b) Social Pillar: the right to education, the right to health, Development the right to water and sanitation and the right to housing (c) Political Pillar: the right to access to justice and the right to participation in public Office of the President, No 25 May 2010 No response affairs. Each chapter introduces the particular human rights issue under Ministry of State for despite followup review – its scope, substance and its legal and policy basis. Government's Provincial Administration performance targets are identified as the basis for assessing progress in and Internal Security level and quality of the realization of human rights. Subsequently, an Office of the Vice- No No response assessment of progress on implementation of the priorities and

President, Ministry of despite followup achievement of targets during the period is undertaken. Each chapter State for Home Affairs ends with actionable recommendations. Office of the Prime Yes 11 June 2010 The report was received Minister, Ministry of State after the deadline. for Planning and National 4. This report finds that there is generally a suitable policy environment for Development improved service delivery and the standards of living of Kenyans. During the period under review, the government has focused increasing

Ministry of Public Health Yes 18 May 2010 The report was submitted attention and resources in various initiatives aimed at enhancing and Sanitation within the required time. economic growth, social welfare development and democratization. There have been significant increases in budgetary allocations to various line ministries and government agencies concerned with the delivery of Ministry of Public Works No 6 May 2010 No response results under Kenya Vision 2030's three pillars. The report finds that these despite followup investments have empowered more and more Kenyans by bringing 128 services closer to them. Even so, the report finds that the basic rights of 1 The Third State of Human Rights Report The Third State of Human Rights Report

those who are classified as vulnerable and marginalized, have not been met. ANNEX II

5. The report also finds that there are still accountability challenges in relation HOW STATE AND NON-STATE to the management of initiatives under MTP 2008-2012. While the Kenya National Bureau of Statistics (KNBS) has done a commendable job in AGENCIES REPORTED PROGRESS generating statistics that can be used for policy planning, the data does not generally explain governance outcomes in terms of how they have * Report expected by May 31, 2010 concretely changed people's lives. In addition, the government's strategy for public communication of realized outcomes under the MTP 2008-2012 remains weak. Government Agency Was the Date of Comments report response received

6. The first section of the report assesses the realization of the access to electricity as an enabler of various other rights, the right to food and the right to work during the first MTP of Kenya Vision 2030 Economic Pillar. The Ministry of Agriculture Yes 25 May 2010 The report was submitted within required time. report concludes that access to electricity in Kenya has been expanded considerably in recent years by the Rural Electrification Fund (REF). Ministry of Cooperative Yes 30 April 2010 No response Substantial investments in electricity generation have also been made and Development and despite followup more innovative financing options have been developed to enable more and Marketing more Kenyans to get connected to the national grid. All the same, electricity No response Department of Defense No costs have increased and power supply is generally unreliable. Moreover, despite followup the report argues that electricity is an enabler that can enhances the realization of a broad range of human rights. Therefore, government, No response Ministry of Education, No despite followup through the Ministry of Energy, should facilitate the expansion of research into sustainable forms of electric power generation. Science and Technology No response Ministry of Energy No despite followup 7. Turning to the right to food, the report concludes that the government has Ministry of East African No 8 April 2010 No response put in place suitable policies and programmes to promote agricultural Cooperation despite followup production and to enhance food security. The flagship policy in this regard is the National Land Policy, which was adopted by the government in 2009, which streamlines land use and management in addition to providing for Ministry of Environment No No response equitable access to land for all people. Another programme that stands out and Mineral Resources despite followup in its potential to improve agricultural production is the Fertiliser Cost- Reduction Investment. Even so, the report finds that the government has Ministry of Fisheries No No response little control of increasing food prices which are being driven by volatility in Development despite followup the international pricing of oil products. The government, however, is yet to comprehensively address the challenge of food insecurity in arid and semi- Ministry of Finance No No response arid lands. In light of this, the report recommends that the government despite followup should take urgent steps to ensure that there is an effective mechanism and adequate funding to prevent deaths resulting from hunger. Ministry of Foreign Yes The report was submitted within Affairs required time.

8. The report finds that the government generally met its job creation targets Ministry of Forestry and No No response during the period under review. However, most of the jobs created were in Wildlife despite followup the informal sector and tend to be low-paying and hardly meet the 2 127 The Third State of Human Rights Report The Third State of Human Rights Report

ANNEX I threshold of decent work. Therefore, much more needs to be done to create more quality jobs to absorb the large numbers of youth joining the labour market each year. The report also finds that the government is SUMMARY OF overemphasizing the need for high economic growth rates and there is less attention paid on how to make economic growth more inclusive. Consequently, RECO MMENDATIONS the report makes a strong case for expanding social security coverage to more Kenyans.

Access to electricity Recommendation Responsible agency Steps to involve more potential consume rs, particularly the poor, in determining Rural Electrification Authority and Kenya 9. The second section of the report assesses the realization of the right to how they can also access affordable electricity. Power and Lighting Company Existing policies on rural electrification should be reviewed to determine the “ education, the right to health, the right to water and sanitation and the right to extent to which costs can be reduced for poorer households. There is need for more investment in research and development, particularly in Ministry of Energy housing. The report concludes that while the policy of free primary education the field of renewable energy sources. Right to food has made education available and accessible, the poor quality of education Recommended action Responsible agency contributes to disaffection among students and parents. Nonetheless, the An effectiv e programmatic mechanism should be developed to prevent deaths Ministry of Agriculture, Ministry of resulting from hunger. Special Programmes government has done a commendable job meeting some of the targets it set Expand feeding programs for vulnerable groups, particularly homeless people, “ who may be at risk of starvation. out under MTP 2008-2012. For instance, it has constructed and equipped 560 Invest in the research and application of technology of storage facilities should Ministry of Agriculture ; Kenya be increased to ensure that there is food for consumption during seasons of Agricultural Research Institute secondary schools in addition to expanding and rehabilitating existing ones. It drought and floods. Build cap acity of local level agricultural officers to monitor food quality and Ministry of Agriculture has also established a computer supply programme. Although important quantities in the market, the NCPB and other storage facilities. progress has been made in expanding access to education, the reports urges Right to work Recommendation action Responsible agency the government to invest more in improving the quality of education offered at Cure unconstitutional provisions in the Work Injury Benefits Act, 2007. Ministry of Labour; Attorney General Expand social security coverage by enforcing Legal Notice 159 of 2009 Ministry of Labour, National Social all levels. Security Fund Increase budgetary allocation to the Ministry of Labour to enable it to effectively Ministry of Labour; Ministry of Finance carry out its inspection function. Right to education 10. In relation to the right to health, the government is commended for its Recommendation action Responsible agency Invest more in improving quality of education offered at all levels. Ministry of Ed ucation; Kenya Institute of continuing efforts to expand healthcare coverage. Government statistics show Education Invest more in developing educational initiatives for children with special needs. “ that the number of health facilities rose 23 percent from 4,767 in 2004 to 6,190 Prevent and punish corruption in the education sector. Kenya Anti-Corruption Commission Right to health at the end of 2008. The government is also commended for its continuing Recommendation action Responsible agency Increase national healthcare spending to 15 percent (Abuja Declaration Ministry of Medical Services; Ministry of efforts to devolve health solutions to the constituency level, a trend which threshold) in 2nd half of the current MTP. Public Health and Sanitation; Ministry of begun in 2003. Further, access to healthcare services has been enhanced by Finance Cost a minimum, free healthcare package to be made available to each citizen. “ the initiation of direct financing of implementation units. The report concludes Invest in innovative uses of mobile phone technologies for healthcare Ministry of Medical Services; Ministry of management. Public Health and Sanitation; Ministry of that some 36 percent of health financing comes from households. It also finds Information and Communication that many Kenyans afflicted by terminal diseases, such as cancer which are Right to water and sanitation Recommendation action Responsible agency Scale up water and sanitation initiatives being piloted in informal settlements in Ministry of Water and Irrigation; Ministry expensive to manage, do not have the money to seek proper, regular Nairobi and Kisumu. of Public Health and Sanitation treatment. In response to this finding, the report urges the government to Provide more water points in ASAL areas to help reduce the time spent by Ministry of Water and Irrigation; Ministry children and women fetching water. of Development of Northern Kenya and initiate wide public consultations aimed at costing a minimum, free healthcare Arid Lands Develop incentives to encourage people households to fit water storage facilities Ministry of Water and Irrigation ; Ministry package for each citizen. in their homes and business premises. of Public Health and Sanitation Right to housing Recommendation action Responsible agency Pass and enact the Housing Bill, 2006. Ministry of Housing; Attorney General Right to access to justice 11. The report concludes that the government has made considerable progress in Recommendation action Responsible agency water coverage expansion during the period under review. It has put in place a Invest more in developing “floor -level” administrative interventions or Public Complaints Standing Committee; mechanisms in both the public and private sectors to resolve disputes and abuses. Kenya National Commission on Human strong legal and policy framework to oversee water sector reforms. However, Rights; Ministr y of Justice, National Cohesion and Constitutional Affairs the report also finds that many Kenyans living in rural areas do not have access Fast-track the adoption of the Draft National Policy and Action Plan on Human Ministry of Justice, National Cohesi on and Rights and implementation of the Report of the Task Force on Judicial Reforms . Constitutional Affairs; Judiciary to piped water in their homes. Equally, piping water to dwellings in urban Operationalize NLAAP and the ADR approaches. Ministry of Justice, National Cohesion and Constitutional Affairs; Judiciary informal settlements, where many Kenyans live, is hardly feasible and the Right to participation in public affairs and effective governance Recommendation action Responsible agency critical issue is whether water is accessible within a reasonable distance. In Develop a comprehensive framework on public participation to inform Ministry of Justice, National Cohesion and government interventions and interactions with the public. Constitutional Affairs; addition, many urban households still rely on water vendors. The report argues Fast-track passage of elections-related legislation. “ that one way of improving access to water might involve giving people 126 Fast-track passage of freedom of information legislation. Ministry of Information and Communication 3

The Third State of Human Rights Report The Third State of Human Rights Report

incentives to fit water storage facilities in their households and business 7. Musembi C.N. & Cornwall A., “What is the 'Rights-Based Approach' all premises. About?: Perspectives From International Development Agencies”, IDS Working Paper, 2004 12. Turning to the right to housing, the report concludes that there are many issues that interact to limit the realization of the right to adequate housing. 8. UN Office of the High Commissioner for Human Rights, The Right to These include unemployment, low and unreliable incomes, insecure land Adequate Housing (Art.11.1): Forced Evictions:. 20/05/97 Committee on tenure and high cost of building houses. The report finds that the terms of Economic, Social and Cultural Rights General Comment 7 accessing housing finance discourage many Kenyans from borrowing because of credit worthiness history and collateral demands by banks which 9. UN Office of the High Commissioner for Human Rights, The Right to only a few Kenyans match. Although government has increasingly paid more Participate in Public Affairs, Voting Rights and the Right to Equal Access to attention to the gaps in housing, more attention has been focused on urban Public Service (Art 25): 07/11/1996 Human Rights Committee General areas and less on rural areas where most Kenyans live. Therefore, the report Comment No. 25. recommends that the government should explore the potential of scaling up innovative housing financing initiatives, such as the Jamii Bora Housing 10. UN Office of the High Commissioner for Human Rights, The Right to Programme, which focuses on low-income earners. Adequate Housing (Art.11.1): 13/12/91 Committee on Economic, Social and Cultural Rights General Comment 4 13. The third section of the report assesses the realization of the right to access to justice and the right to participation in public affairs. The report concludes 11. UN Office of the High Commissioner for Human Rights, The Nature of State that the government's commitment to fast-tracking judicial reforms and Obligation (Art.2: 12/14/1990 Committee on Economic, Social and Cultural expanding access to justice has grown over the period under review; In fact, Rights General Comment 3 funding to the judiciary has doubled from Kshs. 1.48 billion in 2009 to Kshs. 3.1 billion in 2009. Nonetheless, there is still no holistic implementation plan 12. UN Office of the High Commissioner for Human Rights, Draft Guidelines: A for the myriad judicial reforms that have been proposed. As such none of the Human Rights Approach to Poverty Reduction Strategies, 2002 programmes identified in the MTP 2008-2012 have been achieved. Moreover, the report finds that the implementation of the ongoing Governance, Justice, Law and Order Sector Reform (GJLOS) Programme, 13. Ruddar, D, 1994, “Jobless Growth: Implications of New Economic Policies” which envisions far-reaching justice sector reforms, has been limited in Indian Journal of Industrial Relations, Vol. 29, No. 4 Apr., 1994 practice. The report recommends that access to justice stands to be enhanced by the operationalization of the National Legal Aid and Awareness 14. Water Services Regulatory Board, “Impact, A Performance report of Kenya's Programme (NLAA) as well as the introduction of alternative dispute Water Services Sub- Sector”, Issue No 3, 2010 resolution approaches. 15. World Bank, Africa's Infrastructure: A Time for Transformation, (Washington 14. Turning to the right to participation in public affairs, the report finds that this DC: WB, 2010) theme has received significant attention in Kenya's policy-making and policy-implementing processes during the reporting period. As a result, the report concludes that Kenyans now have far greater opportunities than ever before to bring governance institutions to account for their actions. This new reality will facilitate Kenya Vision 2030's aims of achieving sustained development. Even so, the most vulnerable in society will still need to engage with and take advantage of these opportunities to participate in governance. Consequently, the report urges the government to consider putting in place a comprehensive framework on public participation that will inform its interventions and interactions with the public. 4 125 The Third State of Human Rights Report The Third State of Human Rights Report

15. In terms of the methodology for compiling this report, the process began in Monitoring: Review Report[s], Jan-Aug 2010 (Nairobi: KNDR, 2010) April 2010 and was concluded before the end of that year. It draws on a comprehensive desk review of various relevant reports, information and data, 29. Tomasevski, Katarina, “Education Denied: Costs and Remedies (London: Zed including government reports on various programs. It also draws from three Books, 2003) different questionnaires which were administered to officials in relevant public agencies, selected corporate sector institutions and NGOs. KNCHR also 30. United Nations Environmental Programme, Kenya Atlas of Our Changing contracted the University of Nairobi's Institute for Development Studies (IDS) World (Nairobi: UNEP, 2009) to undertake a national-level public opinion survey on how government programmes focusing on expanding electricity, water and sanitation coverage are being implemented. The findings of the survey are complemented by data 31. United Nations Food and Agricultural Organization, World Food Summit – from ten focus group discussions that were also held in the different parts of Five Years Later, Mobilizing Political Will and Resources to Banish World the country. Hunger, (Rome: FAO, 2002)

32. United Nations Human Rights Council, Draft Report of the Working Group on 16. This report has benefited greatly from the comments and suggestions of four the Universal Periodic Review, May, 2010 (Geneva: UNHRC, 2010) external peer reviewers with expertise in human rights, experience in government planning exercises and research methods. 33. United Nations-HABITAT, UN-HABITAT and the Kenya Slum Upgrading Programme, Strategy Document, (Nairobi: UN-HABITAT, 2008)

34. Women's Enterprise Fund, Rapid Assessment Report, (Nairobi: WEF, 2009)

Articles and Papers 1. Brynard, P.A., “Realities of Citizen Participation in Bekker, K. (ed) Citizen Participation in Local Government (Pretoria: Van Schaik, 1996).

2. Dollar, D and Kraay A, “Growth is Good for the Poor. World Bank Policy Research”, Working Paper No.2615, 2001

3. Farer, Tom et al, “The Human Right to Participate in Government: Towards an Operational Definition”, American Society of International Law, Vol. 82, 1988

4. Islam, R, “The Nexus of Economic Growth, Employment and Poverty Reduction: An Empirical Analysis, Issues in Employment and Poverty”, Discussion Paper 14, 2004 (Geneva: International Labour Office)

5. Mitullah, W, Undated, “Challenges of Protecting Labour Rights in the Informal Economy in Kenya.” Institute for Development Studies (IDS), University of Nairobi

6. Moser, G, G. & Ichida, T, “Economic Growth and Poverty Reduction in Sub- Saharan Africa”, IMF Working Paper No. 01/112, 2001 124 5 The Third State of Human Rights Report The Third State of Human Rights Report SECTION 1 13. McKay, A & Vizard P, Human Rights and Poverty Reduction -Rights and THE THIRD STATE OF HUMAN economic growth: Inevitable Conflict or 'Common Ground?, ODI/ Rights in Action, 2005.

RIGHTS REPORT 14. Republic of Kenya, National Spatial Plan, 2010

INTRODUCTION 15. Republic of Kenya, The Report of the Task Force on Judicial Reforms, 2010

15 A state of human rights report aims at giving periodic feedback to 16. Republic of Kenya, The Final Report of the Committee of Experts, 2010 government and citizens alike on the progress or lack of it in the protection and fulfillment of human rights. The agency charged with this responsibility in Kenya is the Kenya National Commission on Human Rights (KNCHR), which 17. Republic of Kenya, 2009 Kenya Population and Housing Census, 2010 was established in July 2003. 18. Republic of Kenya, Millennium Development Goals Status Report for Kenya- 2009, 2009. 16 Governments everywhere have a moral, legal and political responsibility to protect the rights of their citizens by ensuring that their legal, administrative, policy and programmatic frameworks serve this ideal. Kenya is signatory to 19. Republic of Kenya, Sessional Paper No. 3 of 2009 on Land Policy for Kenya, various international human rights instruments which further obligates it to 2009 take specific measures to enhance the realization of human rights. Periodic assessment of how the government is meeting such obligations is necessary 20. Republic of Kenya The Report of the Independent Review Commission on the for holding it accountable, but importantly too, in helping it to focus on the General Elections of December 2007 in Kenya, 2008 human rights agenda. 21. Republic of Kenya, Vision 2030 First Medium Term Plan, 2008 17 While the state remains the primary duty-bearer for human rights, there are specific responsibilities borne by non-state actors such as the private sector as well as individuals. For example, under the Convention on the Rights of the 22. Republic of Kenya, Kenya Vision 2030: Popular Version, 2007 Child (CRC) parents have the responsibility of “upbringing and development of the child” (Article 18) while private sector institutions, for example, have 23. Republic of Kenya, First Annual Progress Report on the Implementation of the responsibility of respecting the rights of their employees. The human the First Medium Term Plan (2008-2012) of Kenyan Vision 2030, 2010 rights agenda is, therefore, effectively served when all such actors play their role. 24. Republic of Kenya, Sessional Paper No. 3 of 2004 on National Housing Policy for Kenya, 2004 18 In the last couple of decades, Kenya's human rights agenda has benefited from sustained civil society action, even though reaching the tipping point in 25. Republic of Kenya, Economic Recovery Strategy for Wealth and Employment terms of achieving sustainable structural change has been slow. The “change of, 2003 moment” has, therefore, spread out over a couple of decades and has been characterized by false starts in some areas, such as combating grand 26. Retirement Benefits Authority, Individual Retirement Benefits Schemes in corruption and improving police conduct, which are still major areas of Kenya, (Nairobi: RBA, 2007). concern for human rights. Other areas have had commendable administrative reforms such as tax payment and collection, which has seen the country's tax collection efficiency increase from a tax to GDP ratio of 20.7 27. Sen, Amartya, The Idea of Justice, (London: Penguin Publishers, 2009). percent in 2002 to 22.5 percent in 2010. Indeed, enhanced revenue collection enables greater funding in budgetary provisioning for critical 28. South Consulting, Kenya National Dialogue and Reconciliation (KNDR) 6 human rights areas such as health, water and education. Further, 123 The Third State of Human Rights Report The Third State of Human Rights Report

REFERENCES institutionalization of performance management in the Public Service has also increased government's effectiveness. Books and Reports 19. Rather than discouraging reform, this mixed bag of reforms has encouraged 1. Barro R, J, Martin X S, Economic Growth. (Cambridge: MIT Press, 2003). reformers to pursue change. It has also provided opportunities to those interested in frustrating change. In the buildup to the 2007 General Election, this mix of opportunities generated a level of citizen mobilization unseen 2. Creighton J.L., The Public Participation Handbook (San Francisco, USA: before as various political contestants competed for political power in the Jossey-Boss, 2005) general elections. The political and administrative system experienced immense pressure in the buildup to the elections, culminating in the disputed 3. HakiJamii Trust, The Right to Social Security in Kenya- The Gap Between presidential election results, and subsequently, politically-instigated violence International Human Rights and Domestic Law and Policy: A Report to across the country between late December 2007 and February 2008.2 Committee on Economic, Social and Cultural Rights (HakiJamii: Nairobi, 2007) 20. Paradoxically though, within this environment, the space for pushing for greater realization of human rights has been widened and the transformative 4. Hope R.K., The UNECA and Good Governance in Africa, (United Nations language of human rights and goals found their place in policy documents, Economic Commission for Africa, 2003) resource allocation decisions and in the design of public service programs.

5. Institute for Economic Affairs, Alternative Budget 2010/11 (Nairobi, 2010) Recent Human Rights-Related Developments 6. Kenya Institute for Public Policy Research and Analysis, Kenya Economic 21. In this section we point out key developments that have impacted the choices Report (Nairobi: IEA, 2009). the KNCHR has made in developing this report either in terms of providing the context, measures against which to assess government or in informing the analysis of progress. 7. Kenya National Bureau of Statistics, Kenya Demographic and Health Survey 2008-2009, (Nairobi: KNBS, June 2010) The Kenya National Dialogue and Reconciliation Process 8. Kenya National Commission on Human Rights, Growing Old in Kenya: 22. Following the political crisis triggered by the disputed 2007 presidential Making It a Positive Experience, (Nairobi: KNCHR, 2009). election results, and which caused the deaths of an estimated 1,300 Kenyans and displaced over 500,000 others, former UN Secretary General, Kofi Annan, led a Panel of Eminent Persons under the auspices of the African Union (AU) 9. Kenya National Commission on Human Rights, Occasional Report No. 2, The in talks to resolve the electoral outcome dispute which exposed the 'deep- Right to Food: An Assessment of Kenya's Implementation of the Relief Food seated and long-standing divisions' within Kenya. The Agreement on the Programme, (Nairobi: KNCHR, 2007) Principles of Partnership of the Coalition Government which resulted from these talks acted as a catalyst for renewed momentum which provided a 10. Kenya National Commission on Human Rights, The Human Rights means to “implement a coherent and far-reaching reform agenda” that was Dimensions of Corruption (Nairobi: KNCHR, 2006) subsequently encapsulated in the historic National Accord and Reconciliation Act, 2008. The agreement was signed on February 28 2008 by President 11. Kenya National Commission on Human Rights, The State of Human Rights Kibaki and Hon. Raila Odinga and witnessed by Kofi Annan and President Report 2003-2004 (Nairobi: KNCHR, 2005) Jakaya Kikwete of the United Republic of Tanzania.

12. King, J. An Activist's Manual on the International Covenant on Economic, Social and Cultural Rights (Law & Society Trust Center for Economic & Social Rights, 2003) 2. For more details see the Kenya National Commission on Human Right's On the Brink of the Precipice: A Human Rights Account of Kenya's Post- 2007 122 Election Violence, 2008 7 The Third State of Human Rights Report The Third State of Human Rights Report

23. With the coming into force of the National Accord and Reconciliation Act, 3 392. The report makes specific recommendations on each of the rights under Kenya's political power architecture began its unstoppable restructuring. of assessment. Across all sectors however, collection of data and statistics particular importance to the country's human rights agenda is a subsequent should be done with an aim of shedding light on how actual lives were agreement under the rubric of the Kenya National Dialogue and improved by various development projects. Inter-sectoral linkages in Reconciliation (KNDR), which, still under the stewardship of former human rights and governance terms are at present weak. The realization Secretary General Kofi Annan, spelt out so-called Agenda 4 Items - Long- of the rights examined in this report can only be achieved if these linkages term Issues and Solutions. In this agreement, signed by the representatives across policy sectors are recognized at planning, implementation and of the political parties that were participating in the dialogue, the Grand outcome measuring levels. Making such linkages would help address such Coalition Government bound itself to an implementation programme of cross-cutting challenges such as lack of relevant information to the public. reform in, among others, the following key areas: constitutional reform; institutional reform with particular attention to the Judiciary, the Police and the Civil Service; land reform; reduction of poverty and redressing of 393. The need for appropriate and legitimate human rights indicators for any regional inequalities.4 The fact that these agreements were time-bound future human rights assessments of a similar nature cannot be overstated. ensured that the anticipated reform assumed an almost self-propelling Future human rights assessment ought therefore to take seriously the momentum. Important components of these agreements are reflected in need to develop the broadest possible consensus between different public the Medium-Term Plans (MTPs) under review in this Report. policy actors and citizens generally, on the human rights indicators that are adopted to measure policy implementation progress. In doing so, the approach used to develop these kinds of indicators becomes critically Kenya Vision 2030 important. Moreover, indicators need to be as context-specific as they can 24. At the end of the implementation of the Economic Recovery Strategy for possibly be. Therefore, they ought to be sensitive to the provisions of Wealth and Employment Creation (ERS) 2003-2007, a new development national policy and legal frameworks such as the new constitution which framework, the Kenya Vision 2030 was formulated. This policy blueprint contains expansive human rights protections. whose overall aim is to transform Kenya into a newly industrializing “middle- income country providing a high quality of life for all its citizens by 2030” and which further aims to “create a cohesive, equitable and just society based on 394. The report concludes that in the period under review, significant progress democratic principles grounded in the existing rich and diverse cultures” was was made in human rights realization in Kenya. The new constitution formulated through a public consultative process and aims at taking a long- provides the opportunities to expand on these rights and consolidate what term view of Kenya's development (Republic of Kenya, 2010d: ix). The Kenya has been achieved. By providing this assessment, the KNCHR hopes to Vision 2030 goals are being implemented through five-year MTPs, each of encourage the Kenyan government to build on the achievements under which outlines priorities of various sectors and public agencies. Vision 2030. However, KNCHR also notes that more public participation is required in charting the future of the implementation of Vision 2030. Perhaps the medium term review should be modified to have some form of 25. In response to the country's development challenges, the Kenya Vision 2030 public participation. has three pillars, namely: Economic, Social and Political pillars, and several enablers and foundational programs such as additional power and electricity connectivity, ICT development, roads and transport development, land use rationalization and enhanced security.

26. With respect to human rights protection and fulfillment, the Kenya Vision 2030 makes several commitments whose implementation informs KNCHR's State of Human Rights Report. It commits to ensuring “economic development across all regions of Kenya, to build a just and cohesive society with social equity in a clean and secure environment”, and realizing “a

3. The National Accord and Reconciliation Act, 2008, provided for the formation of a new political architecture including a coalition government, and the establishment of offices of the Prime Minister and Deputy Prime Ministers. 8 4. See the Kenya National Dialogue and Reconciliation, Agenda 4 Items (March 2008), website last viewed on 9 November 2010 at www.dialoguekenya.org/doc/S_Pwith Matrix.pdf 121 The Third State of Human Rights Report The Third State of Human Rights Report

SECTION 9 democratic political system founded on issue-based politics that respects the rule of law and protects the rights and freedoms of every individual…” CONCLUSION (Republic of Kenya 2007a: 1).

27. Elsewhere, the Kenya Vision 2030 makes important commitments to 389. Through this report, the KNCHR set out to assess through a human rights prioritizing pro-poor programmes and paying particular attention to all approach the Kenya government's performance in implementing the vulnerable groups and regions that have hitherto suffered neglect. Further, first half of the Medium-Term Plan (2008-2012) of Kenya Vision 2030. the Kenya Vision 2030 commits to strengthening certain key enablers and The report has chosen to focus on some key rights within each of the foundational programmes, including infrastructure, energy, land reforms, three pillars of Vision 2030-the Economic, Social and Political pillars. It security and human resource development. It, therefore, encapsulates assesses progress on the right to access to electricity, the right to food, important human rights-related issues whose progressive implementation right to work, the right to education, the right to health, the right to is the subject of this Report. water and sanitation, the right to housing, the right to access to justice and the right to participation in public affairs. 28. Of particular interest to this report is the way issues of equality and non- discrimination are dealt with since inequality is well recognized as crucial 390. The assessment concludes that the government has established a to both social and political stability. Equality is arguably the most commendable policy infrastructure towards the realization of these important principle imbuing and inspiring the concept of human rights. rights. Vision 2030, which is the basis for policy planning in Kenya, The equality principle is crucial for the protection and promotion of human provides ample opportunities for the development of sector specific rights and calls for uniformity in treatment, while at the same time paying policies that can enhance the realization of human rights. With regard to attention to the disadvantaged. Equality, therefore, calls for similar the specific rights that were assessed in this report, the government has treatment of similarly situated individuals. This is what sometimes is developed policies that broadly signal the government's commitment to referred to as “positive equality”. However, the equality principle also calls working towards their realization. The government has also made for special attention to background conditions that call for different significant progress in setting up programmes to enhance economic treatment of individuals with certain characteristics so that the outcomes growth, improve social welfare and to expand democratic space. for all are equal in a substantive manner. This is what is referred to as Increased budgetary allocation and spending on key sectors has brought “affirmative action”. This involves giving the disadvantaged group preferential treatment in specific matters as compared to the rest of the services closer to Kenyans and contributed to a general improvement in population. However, it is important to note that the differentiation must their welfare. be based on reasonable and objective criteria.

391. The study however has identified several key issues that continue to 29. In implementation of the Kenya Vision 2030, it is noted that “no society can challenge the realization of the rights under focus. One of the gain the social cohesion predicted if significant sections of the population weaknesses in the government's programmes is that they lack a live in abject poverty.” Therefore, the Kenya Vision 2030 aims to create a deliberate and clear mechanism of improving those who are worst off in socially just and equitable society without extreme poverty to improve the society. While there is little doubt that expansion of electricity livelihoods of the poor. In Kenya, poverty and food insecurity are twin access has for instance improved the welfare of a large number of concerns characterized by the inability of the affected households to Kenyans, there is no deliberate attempt to address the energy needs of acquire sustainable livelihoods (Republic of Kenya, 2009b: 6). the poorest and most marginalized. This is a weakness that cuts across all the sectors. The report has also identified limitations in access to information by the public as a problem that cuts across all sectors. This is 30. From a human rights perspective, poverty can be described as the denial of a serious challenge given the centrality of information in development a person's rights to a range of basic capabilities such as the capability to be and in enabling the realization of all rights. nourished, to live in good health and to take part in decision making processes and in social and cultural life of the community (UN Office of the 120 9 The Third State of Human Rights Report The Third State of Human Rights Report

High Commissioner for Human Rights, 2002). In the language of rights, one 386. The principles of equality and non-discrimination are entrenched in the could say that a person living in poverty is one for whom a number of Bill of Rights. This means that the aim in the Kenya 2030 Vision of human rights remain unfulfilled. The Kenya Vision 2030 aims at dealing making special interventions for vulnerable groups will now be backed with these unfulfilled rights. by the force of the constitution.

31. It is such human rights-related issues in the Kenya Vision 2030 that gave it 387. The rights which inform the economic, social and political pillars as wide acknowledgment by the Human Rights Council's Working Group on discussed in this Report will henceforth be implemented in the context the Universal Periodic Review (UPR) in May 2010 when it considered of the Bill of Rights. Regarding the economic and social pillars, Article 43 Kenya's Universal Periodic Report.5 Several countries pointed at the Kenya establishes for every person the rights: to the highest attainable Vision 2030 focus on equity and social development programs as important standard of health; to accessible and adequate housing and reasonable for the realization of human rights (United 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. Nations Human Rights Council, 2010). 32. Notwithstanding the commendable focus on human rights-related issues, and the fact that economic growth is important in generating resources for 388. The themes in the political pillar covering access to justice, and public social provisioning, the Kenya Vision 2030 is weakened by its over-reliance participation are framed variously throughout the new constitution. on economic growth (set at 10 percent per annum) as the key driver of Under Article 10, Kenya's values and principles of governance include transformation. Such economic growth, if achieved, may generate negative the rule of law, democracy and participation of the people and externalities, including environmental concerns, and people displacement devolution of power; social justice, inclusiveness, equality, non- as huge energy and road infrastructure projects are undertaken, hence discrimination and human rights; good governance, integrity, widening the inequality gaps between the rich and poor. No strategy is transparency and accountability; and sustainable development. contemplated in the Kenya Vision 2030 for mitigating such problems. Relevant provisions in the Bill of Rights include Article 33 (freedom of Secondly, the definition of indicators for achievement lacks a strong human expression), Article 35 (access to information), Article 36 (freedom of rights component, making progressive realization difficult to account for. association), Article 37 (freedom of peaceful assembly etc), Article 38 (political rights), Article 39 (freedom of movement), Article 47 (right to fair administrative action), and Article 48 (right to access to justice). 33. Nonetheless, the government, through the Kenya Vision 2030 and the subsequent MTPs, delineates targets and measures from which its performance as far as protection and fulfillment of human rights can be assessed during the period under review. For the first time in Kenya's history, a blueprint with a long-term horizon of the country's vision is available. This offers a useful platform from which progress over time can be measured. This Report, therefore, uses the Vision 2030 framework and MTPs as the point of departure.

New Constitution (Constitution of Kenya, 2010) 34. Over the past 20 years, the country has gone through a period of searching for a new framework of governance arrived at through a consultative process involving not only political actors but also citizens, Non Governmental Organizations (NGOs) and the private sector. At a referendum held on 4 August, 2010, Kenyans voted 66.9 percent to 30.9 percent for a new constitution (2.40 percent votes were rejected), which

10 5. See http://lib.ohchr.org/HRBodies/UPR/Documents/Session8/KE/A_HRC_WG.6_8_L.7_Kenya.pdf, website last viewed on 12 January 2010. 119 The Third State of Human Rights Report The Third State of Human Rights Report

SECTION 8 democratic political system founded on issue-based politics that respects the rule of law and protects the rights and freedoms of every individual…” POSTSCRIPT (Republic of Kenya 2007a: 1).

27. Elsewhere, the Kenya Vision 2030 makes important commitments to 381. This State of Human Rights Report was for the period January 2008 to prioritizing pro-poor programmes and paying particular attention to all June 2010. On 27 August 2010, the Constitution of Kenya 2010 came into vulnerable groups and regions that have hitherto suffered neglect. Further, force following a national referendum on 4 August 2010 when Kenyans the Kenya Vision 2030 commits to strengthening certain key enablers and overwhelmingly voted (with 66.91 percent support) to adopt the new foundational programmes, including infrastructure, energy, land reforms, constitution. security and human resource development. It, therefore, encapsulates important human rights-related issues whose progressive implementation 382. The new constitution establishes a radical reorganization of Kenya's is the subject of this Report. governance system and institutional architecture: it establishes an executive presidency checked by a bicameral Parliament, while power is 28. Of particular interest to this report is the way issues of equality and non- further shared between the national and county levels. The constitution discrimination are dealt with since inequality is well recognized as crucial also affirms the value system which forthwith will inform policy, to both social and political stability. Equality is arguably the most legislative and administrative actions by state organs. important principle imbuing and inspiring the concept of human rights. The equality principle is crucial for the protection and promotion of human 383. Most important for this report, the new constitution now includes a far rights and calls for uniformity in treatment, while at the same time paying more robust Bill of Rights. Apart from entrenching civil and political attention to the disadvantaged. Equality, therefore, calls for similar rights, it protects economic, social and cultural rights as well as group treatment of similarly situated individuals. This is what sometimes is rights, both of which the previous constitution did not protect. The new referred to as “positive equality”. However, the equality principle also calls constitution also establishes a far more robust framework to ensure for special attention to background conditions that call for different effective enforcement of the Bill of Rights when an individual or group treatment of individuals with certain characteristics so that the outcomes seeks remedies: this framework includes an independent Judiciary and a for all are equal in a substantive manner. This is what is referred to as strong National Human Rights Institution, the Kenya National Human “affirmative action”. This involves giving the disadvantaged group Rights and Equality Commission. preferential treatment in specific matters as compared to the rest of the population. However, it is important to note that the differentiation must be based on reasonable and objective criteria. 384. The new constitution also introduces a devolved system of governance, in particular the county governments and the Commission on Revenue Allocation, which has tremendous potential to focus national resources 29. In implementation of the Kenya Vision 2030, it is noted that “no society can much more equitably. The devolved system creates new opportunities gain the social cohesion predicted if significant sections of the population to resolve the problem of the exclusion of marginalized peoples and live in abject poverty.” Therefore, the Kenya Vision 2030 aims to create a regions in the country. In the long-term, it has the potential to redress socially just and equitable society without extreme poverty to improve communal and regional socio-economic and political imbalances which livelihoods of the poor. In Kenya, poverty and food insecurity are twin have spawned conflicts. concerns characterized by the inability of the affected households to acquire sustainable livelihoods (Republic of Kenya, 2009b: 6).

385. The assessments of the Kenya Vision 2030 made in this report obviously could not take account of the new constitution since its promulgation 30. From a human rights perspective, poverty can be described as the denial of happened outside the reporting period. Looking forwards though, the a person's rights to a range of basic capabilities such as the capability to be constitution will provide implementers of the Kenya Vision 2030 an nourished, to live in good health and to take part in decision making enhanced set of tools which should itself strengthen implementation of processes and in social and cultural life of the community (UN Office of the the economic, social and political pillars. 118 11 The Third State of Human Rights Report The Third State of Human Rights Report

High Commissioner for Human Rights, 2002). In the language of rights, one ! It introduced the Mobile Computer Laboratories Project. This was a could say that a person living in poverty is one for whom a number of Kshs. 6 million per constituency fund which was part of the 2009 human rights remain unfulfilled. The Kenya Vision 2030 aims at dealing economic stimulus package. Unfortunately this project failed with these unfulfilled rights. because the envisaged partnership between the government (providing capital support) and the Constituency Development Funds (providing operational support) did not work out. 31. It is such human rights-related issues in the Kenya Vision 2030 that gave it wide acknowledgment by the Human Rights Council's Working Group on the Universal Periodic Review (UPR) in May 2010 when it considered Conclusion 5 Kenya's Universal Periodic Report. Several countries pointed at the Kenya 377. The right to participation and effective governance in public affairs is key Vision 2030 focus on equity and social development programs as important to the realization of democratic governance. It received far greater for the realization of human rights (United entrenchment in Kenya's policy-making and policy-implementing processes during the reporting period. Kenyans have far greater Nations Human Rights Council, 2010). opportunities than ever before to bring governance institutions to account for their actions. These new realities will facilitate Kenya Vision 32. Notwithstanding the commendable focus on human rights-related issues, 2030's aims of achieving sustained development. Nonetheless though, and the fact that economic growth is important in generating resources for the most vulnerable in Kenyan society will still need to engage with and social provisioning, the Kenya Vision 2030 is weakened by its over-reliance take advantage of these opportunities to participate in governance. on economic growth (set at 10 percent per annum) as the key driver of transformation. Such economic growth, if achieved, may generate negative externalities, including environmental concerns, and people displacement Recommendations as huge energy and road infrastructure projects are undertaken, hence 378. The government should put in place a comprehensive framework on widening the inequality gaps between the rich and poor. No strategy is public participation to inform its interventions and interactions with the contemplated in the Kenya Vision 2030 for mitigating such problems. public. This framework should incorporate principles of the rights-based Secondly, the definition of indicators for achievement lacks a strong human approach to development in addition to specifying indicators, outputs rights component, making progressive realization difficult to account for. and outcomes for the achievement of the right. Public institutions should create space for individuals and communities to provide ideas 33. Nonetheless, the government, through the Kenya Vision 2030 and the and feedback relating to their governance. Participation by the public in subsequent MTPs, delineates targets and measures from which its parliamentary committees is critical and a law enabling public performance as far as protection and fulfillment of human rights can be participation should be legislated. Parliament should look into the assessed during the period under review. For the first time in Kenya's running of committees to see how public participation can be improved. history, a blueprint with a long-term horizon of the country's vision is available. This offers a useful platform from which progress over time can 379. Recommendations made by IREC with regard to consolidating electoral be measured. This Report, therefore, uses the Vision 2030 framework and related bills, and comprehensive legislation on hate speech needs to be MTPs as the point of departure. fast-tracked particularly as the country gears itself for the general elections scheduled for 2012. The KNCHR has already prepared draft New Constitution (Constitution of Kenya, 2010) legislation against hate speech which could be used as a basis for hate speech legislation. The Ministry of Justice, National Cohesion and 34. Over the past 20 years, the country has gone through a period of searching Constitutional Affairs should lead this process. for a new framework of governance arrived at through a consultative process involving not only political actors but also citizens, Non Governmental Organizations (NGOs) and the private sector. At a 380. Access to information legislation should be enacted expeditiously. The referendum held on 4 August, 2010, Kenyans voted 66.9 percent to 30.9 Ministry of Information and Communications should lead this process. percent for a new constitution (2.40 percent votes were rejected), which

12 5. See http://lib.ohchr.org/HRBodies/UPR/Documents/Session8/KE/A_HRC_WG.6_8_L.7_Kenya.pdf, website last viewed on 12 January 2010. 117 The Third State of Human Rights Report The Third State of Human Rights Report

Encouraging Public Access to Information and Data was promulgated on 27 August 2010.6 374. During the reporting period, the State's commitment to encourage public access to information and data played itself out at several levels. 35. While this historical development falls outside of the period under review, The government had already in 2006 passed the National Information it is important to acknowledge that with the passage of this constitution, and Communications Technology Policy. But despite committing itself to Kenya now has a constitutional framework that has not only widened the pass a law on access to information, this had still not happened in June Bill of Rights to include economic, social and cultural rights (Article 43), it 2010. Draft legislation prepared by a civil society network had been has also provided various other measures aimed at outlawing all forms of presented to Parliament in 2007 but the government did not prioritise it discrimination (Article 27), provided for the right to access information on the legislative calendar that year. The Independent Review (Article 35) and made the Kenya National Human Rights and Equality. Commission ('Kriegler Commission') in 2008 again recommended that freedom of information legislation should be passed as a matter of urgency; but by 2010 this has not been done. Commission one of the 15 constitutional and independent offices 36. It is to be expected that with this human rights-friendly framework, future State of Human Rights Reports shall find greater respect and fulfillment of 375. Access to information by the public was boosted by actions from human rights for Kenyans. different ministries. For example, misuse of decentralised funds such as the Local Authorities Transfer Fund (LATF) had become legendary. The erstwhile dearth of information on the budgeting process within local Census Report authorities was stemmed somehow, particularly since 2007 when the 37. In the same month of August 2010, the 2009 Kenya Population and Ministry of Local Government directed all Councils to read their budgets Housing Census Report (Republic of Kenya, 2009a) was released. Of note is on the last Thursday of June. According to the minister, the aim of this that the theme of this 5th Census Count since independence was 'Counting directive was to provide residents with the opportunity to hold their our people for the implementation of Vision 2030.' According to the elected representatives to account and to monitor the implementation Minister of State for Planning, National Development and Vision 2030, this of programmes and budgets. The minister noted that: theme was “pertinent in order to respond to the greater demands for statistical information for monitoring the implementation of Kenya's (Those) budget days are open events in which residents, the business current development goals and other global initiatives such as the community, civil society and other local stakeholders are entitled to Millennium Development Goals (MDGs)” (Republic of Kenya 2010d: iii). participate. Women, youth and the disadvantaged are particularly encouraged to attend (Daily Nation, 24 June 2010). 38. In assessing the state of human rights, the data and information in the KPHC is invaluable in determining the potency of the MTPs in terms of 376. The government also committed itself to enhance the quality of and focus, resource allocation and priorities identified. Together with the expand the reach of information and data services available to Kenyans. Kenya Vision 2030 and the MTPs, they constitute important sources of Towards this end, it took the following key actions during the reporting information for the report by the KNCHR. period: ! It invested in fiber optic networks to provide cheap connectivity to the rest of the world. The undersea fiber optic cable, the East African Marine System (TEAMS) landed in Kenya during 2009, while the National Fiber Optic Backbone Infrastructure (NOFBI) was put in place. A key aim for improving the fiber optic network was to lower the cost of doing business in Kenya. It was said that it would be cheaper and faster to access data under the new arrangement. ! It introduced the Digital Villages Project designed to interconnect the whole country. 116 6. Independent Interim Electoral Commission (IIEC) 2010 Final Referendum Results, viewed on December 6, 2010, at www.iiec.or.ke 13 The Third State of Human Rights Report The Third State of Human Rights Report

SECTION 2 Political Parties 371. Political parties are a critical component of Kenya's' electoral system and a vehicle for political representation. Nonetheless, over the years REAFFIRMING THE HUMAN RIGHTS political parties were incapable of providing democratic space to their membership, lacked transparency in choosing their leaders and were F R A M E W O R K ethnically aligned. They also had poor party nomination processes, lacked identifiable party membership, lacked respect for laws, lacked transparent funding mechanisms and regulations and blatantly violated “Human rights are not just for law-abiding citizens and the best among the the Electoral Code of Conduct. wananchi. Human rights are also for the worst among us – including those on death row after being convicted of heinous crimes, or those on trial for horrendous acts of terrorism” – Ali Mazrui, (KNCHR, 2005) 372. The Political Parties Act, 2008, came into force on 1 July, 2008 to seek to address some of the problems facing political parties. There have been some achievements with regard to the operationalization of the Act 39. The overall objective of a state of human rights report is to provide an particularly in relation to the funding mechanisms therein. With its assessment of government performance on human rights during a operationalization, political parties had to abide by criteria aimed at particular period. It is conceptualized in the mode of an internal auditor's doing away with parties based on ethnicity, for instance. In addition, function which seeks to enable an institution to progressively continue to registered political parties were able to access the Political Parties Fund strengthen its systems to become an effective deliverer of services. The which was deemed an important element in the process of promoting KNCHR sees itself as the Kenya government's Auditor General on human accountability and transparency in the management of affairs of rights. political parties. 40. In 2005, two years after its establishment, the KNCHR released its First State of Human Rights Report, which was an assessment of the 373. Kenya's 10th Parliament had greater opportunities to enable performance of government for the year 2003-2004. The report, as the participation of citizens in comparison to its predecessor Houses. This title suggests,7 pointed out the deficits, critiques and suggested Parliament began to use a new set of Standing Orders which introduced recommendations for improvement of systems for the delivery of novel mechanisms for ensuring greater participation and interventions aimed at enhancing the realization of human rights for all accountabilities of the country's public institutions. Part XXIII of the people in Kenya. Standing Orders establishes the framework under which Members of Parliament may present petitions from the public to Parliament. Order 41. Since issuing the Report, the Commission has learnt a lot that has led to re- 201 defines a petition as 'a written prayer to the House by a member or looking at the approach, design and process of compiling the Report. While members of the public seeking redress of a grievance' (National the Kenya National Commission on Human Rights Act, 2002, requires an Assembly, 2008). Under Order 202, this may be submitted to the House annual assessment report, we recognize the challenges associated with on a private bill and any matter connected with business before the undertaking annual assessments to determine the performance of House or any matter of general public interest. While no assessment of government. First, legal, policy and programmatic interventions take this tool's effectiveness has been made, it will be a further valuable way longer than a year to show tangible results against which progress can be of increasing the accountability of institutions. Live coverage of assessed. Second, definition of areas of priority for each operational year parliamentary proceedings on radio and television was also by the government is crucial in assessing the commitment of government introduced.81 This kind of transparency in parliamentary processes is to the realization of human rights for all people. likely to facilitate citizens' ability to make informed decisions on the quality of leaders they send to Parliament to represent their interests. 42. Owing to these considerations, the second Report was initiated in 2007 focusing on a neglected area of human rights, but one that would have a bearing on all Kenyans. The Report focused on the theme of “growing old”

7. The report is titled: Kenya National Commission on Human Rights, 2005, The State of Human Rights Report, 2003-2004, Deficits, Critiques and 14 Recommendations. 81. Pursuant to Standing Order 34 on Broadcasting of House Proceedings and the First Schedule on Broadcasting and Coverage 115 The Third State of Human Rights Report The Third State of Human Rights Report

incitement and section 77 on subversive activities. and examined a range of human rights issues that government as a duty- bearer, citizens and other non-state actors should focus on to make growing old a positive experience rather than a pauperizing one that 368. Under the KNDR, one of the commitments made by the principals progressively undermines that realization of human rights (KNCHR, 2009). related to consolidation of national cohesion and unity. The result was the creation of the National Cohesion and Integration Commission (NCIC) established under an Act of Parliament with the main mandate of 43. Valuable lessons were gleaned from these two reports: (a) that a human consolidating peace and integrating the various communities that live rights analysis that has immediate actionable value is important and is in the country through promoting the elimination of all forms of more likely to find buy-in among policy makers and implementers and (b) discrimination on the basis of ethnicity or race and promoting that a human rights report that analyses progress from an ideal standards arbitration and conciliation to ensure racial and ethnic harmony. viewpoint risks becoming a human rights reader, rather than a report Pursuant to this mandate, the NCIC has been working with the National geared towards eliciting policy response. These two lessons have been Steering Committee on Peace Building and Conflict Management to critical in re-thinking the approach for this third Report. build the capacities of communities to manage political conflict. The NCIC has already begun identifying strategies for addressing some of 44. In this third report, the Commission has sought to take advantage of the these practices but the absence of relevant laws will constrain progress first lesson by making the analysis focused on government priorities and in this regard. The NCIC also worked with other departments of commitments on specific initiatives – which should make the feedback government in the run-up to the referendum to protect against use of relevant and applicable, while also using the human rights framework and hate speech. These steps have been taken to protect rights ancillary to approach as the basis of our analysis of progress. In this, we are persuaded the enjoyment of the right to participation and effective governance in by Amartya Sen's argument that we all know that the world “falls short of public affairs, including the right to freedom of expression. being just…” but that we recognize that “there are clearly remediable injustices around us” which we can work on progressively to eliminate (Sen, 2009: vii). Further, Sen's argument that 'advancing' rather than 369. It will be necessary for NCIC to focus on the dangers of xenophobia to 'perfecting' global democracy and global justice, important aspects of encourage a pluralistic society. An emerging concern is the question of human rights, can “inspire and influence practical actions” (Sen, 2009: vii). citizenship rights with its practical implications of the “outsider” and “indigenous” discourses in a multi-ethnic country like Kenya. Though the Kenyan Constitution recognises the rights of every citizen to live and 45. In making these revisions, a re-reading of KNCHR's constitutive act, the own property anywhere, it co-exists with the socio-political reality that Kenya National Commission on Human Rights Act, 2002, was undertaken. membership to an ethnic community grants access to certain rights, The Act states that the KNCHR was formed with the objective of “providing particularly with regard to land ownership in certain communities. for better promotion and protection of human rights…” Further, in Sec 21 Further, while the post-independence African state de-racialised the (2) it requires the KNCHR to submit an annual report that “shall include an sphere of civic rights, ethnic citizenship and more specifically, clan overall assessment by the Commission of the performance of government membership remained the only means through which poor people in the field of human rights during the period under review”. could access land. The right to own property often comes into collision with rights granted by ethnic citizenship. This is what frames the 46. The various underlined words were important in designing the approach discourses of the “foreigner-indigenous” or “outsider-indigenous” in taken in responding to this mandate: 'better' means causing improvement places like Rift Valley, the Coast and Nairobi, particularly in Eastleigh against the status quo. “Performance of government” means assessment regarding the Kenyan Somali community. against known indicators and measures, while “during the period under review” recognizes that promotion and protection is a continuous 370. Finally, the NCIC law to combat hate speech remains focused only undertaking. against ethnicity. It is necessary that a law be passed to which all protected grounds of discrimination, including gender, disability and Important questions must, therefore, be asked: others, will be protected from suffering hate speech. (a) How is the status quo to be read?

114 15 The Third State of Human Rights Report The Third State of Human Rights Report

(b) How are the sites of improvement to be delineated? 364. The IIEC introduced electronic voter registration in 22 of the 210 (c) How is the movement from the status quo to 'better' protection and constituencies. Citizens were able to confirm their registration status promotion to be determined, measured and reported? through SMS technology. The IIEC has been able to implement some of the recommendations made by the IREC with regard to introduction of electronic transmission of results.79 In preparation for the referendum, 47. While the first report focused on key thematic areas in civil and political referendum rules were gazetted establishing the framework that would rights as well as economic and social rights, its point of departure was allow the participation of citizens in the process. largely organized around the Commission's mandate provided in Sec 16 (1) (f) to “act as chief agent of Government in ensuring the Government's compliance with its obligations under international treaties and 365. A critical challenge which Kenya Vision 2030 and the KNDR sought to conventions on human rights”. The assessment was, therefore, done by address related to the effective participation of citizens in governance examining progress on the basis of state obligations under international processes. For instance, a key imperative in terms of effecting voting treaties. What this meant was that the benchmarks were too high and, in rights or even policy-making is an empowered citizenry able to exercise many instances, would require progressive interventions undertaken to choices and give input to relevant processes from an informed view. realize the stipulated outcomes. For example, under various international During the review period, participation of citizens in the referendum conventions, governments have the obligation to ensure that women and process was a key concern. In that regard, the organs established to men enjoy the right to equal participation. Measuring the extent to which facilitate the review process were among others guided by principles this obligation is met may, given the status quo, seem a futile exercise; requiring that the people of Kenya are provided with an opportunity to measuring against what government has committed to do, for example, actively, freely and meaningfully participate in generating and debating achieving 30 percent inclusion of women in all public appointments may proposals to review and replace the constitution. provide a better measure from which improvement can be assessed and feedback on failure or success given against a stated performance target. 366. The Committee of Experts on Constitution Review (CoE) was required to avail opportunity for all cadres of citizens to participate in the review 48. Another important realization in re-designing the approach for this report process, while incorporating the views collected through earlier was that obligations on the part of the state are best appreciated by its constitutional review processes, including the Constitution of Kenya citizens from a social contract perspective i.e. what citizens understand as Review Commission (CKRC). This participation was ensured through the deliverables their government signs onto especially when they renew public forums that saw the CoE visit all the regions in the country for such contracts with every successive election. This gives more purposes of collecting and collating views, through provision of civic concreteness to the analysis of government performance than when education by the CoE as well as the participation of the Parliamentary approached from the ideal standards stated in the major human rights Select Committee on Constitutional Review. The resultant Harmonized conventions. For example, during the writing of the first report, it was Draft Constitution incorporated elements of public participation in more important for Kenyans to assess whether the National Rainbow governance processes in ways such as making provision for the right to Coalition (NARC) government delivered on its promise of free primary 80 recall members of parliament among others. education or the creation of 500,000 jobs per annum than whether or not some human rights convention required it or not. Politicizing the analysis this way contextualizes the demands for human rights in a way that Dealing with the Problem of Negative Ethnicity mobilizes and empowers citizens to keep government focused on delivery 367. The violence that rocked the country following the disputed 2007 of services rather than on the rhetoric of human rights. presidential elections was partly informed by negative ethnicity perpetuated by political leaders and the media during campaigns in the 49. Further, this approach recognizes that human rights must serve the ends of run up to the elections. Cases of hate speech were reported during that social justice in order to be meaningful. This means keeping focus on the period and these resulted in the eviction of thousands of people from social, political and economic basis of inequality and disadvantage in order their homes. There was an inadequate legal framework to address hate to fulfill and realize human rights. For example, in a developing country speech, though this could be inferred in section 96 of the Penal Code on such as Kenya, focus on poverty reduction cannot be over-emphasized.8

8. Poverty is defined as a human condition characterized by sustained or chronic deprivation of resources, capabilities, choices, security and power necessary for the enjoyment 79. This technology was piloted in the Bomachoge by-elections and thereafter in the Matuga by-elections. of an adequate standard of living and other civil, cultural, economic, political and social rights. For details see the 3rd UN Conference on less developed Nations Report on 14- 80. Article 131 of the Harmonized Draft Constitution of Kenya, Published on 17th November 2009 by the Committee of Experts on Constitutional 16 20 May 2001; A/CONF.191/BP/7 p.3-4 Review Pursuant to Section 32(1)(a)(i) of the Constitution of Kenya Review Act of 2008. 113 The Third State of Human Rights Report The Third State of Human Rights Report

usher in Kenya's new constitution in August 2010.77 Because interventions for dealing with such bases of inequality and disadvantage are politically defined, it then becomes important to assess goals defined and set through a similar process. Electoral Reforms 361. In terms of institutional reforms, the main focus was on the electoral management body. Election management was a key consideration 50. Consequently this report's assessment of the government's performance is under the KNDR. IREC established under the KNDR framework was predicated on the government's own priorities and measures even as we mandated to among other issues consider the constitutional and legal point out the gaps between such measures and international human rights framework governing elections to identify any weaknesses or standards. The value of this report must be seen in various perspectives, inconsistencies and consider the structure and composition of the chief amongst which is its ability to engender official response in terms of Electoral Commission of Kenya (ECK) in order to assess its corrective actions taken by the primary duty bearer – the state. It is also a independence. The recommendations made through that process reservoir of analytical information on human rights that can galvanize civic included radical reform of the Electoral Commission of Kenya, creation action in support of human rights from other actors. of a new voter's register and adoption of a new voter registration system. The ECK was replaced by the Interim Independent Electoral 51. It is this idea of “engendering official action(s)” that is most crucial in such a Commission (IIEC) – established under section 41A of the Constitution report. Rather than compiling a generic report typical of any NHRI of Kenya. anywhere, this exercise provides the KNCHR with the opportunity to provide a report that assesses progress based not only on international 362. The IIEC was required to, among other issues, reform the electoral standards but most importantly on national goals that the government has process and the management of elections in order to institutionalize committed itself to. Feedback based on expected international standards free and fair elections; establish an efficient and effective secretariat; but far removed from national goals is unlikely to resonate with policy register voters afresh and create a new voter register; develop a makers in meaningful ways. This approach, which seeks to monitor modern system for the collection, collation, transmission and tallying of progress based on stated objectives and desired outcomes complements electoral data; and promote voter education and a culture of the now public service-wide performance contracting which requires every democracy. To enable it achieve its mandate, its commissioners were public body to identify the results they will deliver each year. Further, this appointed through a rigorous and competitive process that subjected kind of report not only contributes to debates that should help us as a itself to public scrutiny. Candidates were interviewed by the country to clarify our priorities as a people, but also as a tool that can assist Parliamentary Committee on Legal Affairs and Administration of government, Parliament and civil society in developing a critical Justice; the names of shortlisted candidates were forwarded to the understanding about the implementation of human rights. National Assembly, and thereafter approved names sent to the President who in consultation with the Prime Minister ultimately 52. Consequently the Third State of Human Rights Report assesses government selected nine. A new secretariat was set up and directors, managers and performance based on stated priorities on human rights issues derived from constituency election coordinators were recruited therefore making the Kenya Vision 2030. The indicators for progress, defined in the Medium- the election management process accessible to the public at the Term Plans (MTPs) have, therefore, been adopted and categorized constituency level. according to the Economic, Social and Political pillars in the Kenya Vision 2030. The report reviews the period from January 2008 to June 2010.9 363. A new voter's register was created following 45 days of registration in which more than 12.6 million voters' details were captured.78 The IIEC received Kshs. 1.2 billion from the Ministry of Finance to start the voter registration process with the government supposed to raise a further Kshs. 5.6 billion from the supplementary budget (KNDR, 2010).

9. This start date of period under review was chosen to coincide with the beginning of the new administration following the 2007 general elections 77. These were the Committee of Experts, the Parliamentary Select Committee, the National Assembly and the Referendum. 112 78. Figures accessed at IIEC website: http://www.iiec.or.ke/sites/default/files/statistics-1_0.pdf on 12 November 2010 17 The Third State of Human Rights Report The Third State of Human Rights Report

SECTION 3 ! Reviewing, streamlining and operationalizing the National Assembly (Standing Orders) in order to enrich the quality of parliamentary debates and the subsequent outputs of these debates; METHODOLOGY AND ! Parliament's Research Centre would be strengthened, recording of proceedings through Hansard production would be digitized and live coverage and electronic voting would be introduced; STRUCTURE OF REPORT ! Ensuring that issues of devolution, local governance, decentralization of decision making at all levels, recall of MP's, and equitable delineation of constituency boundaries; 53. This review was undertaken beginning from April 2010 and concluded ! Reviewing the entire legal, regulatory and institutional policy regime for just before the end of the same year. A team constituted of seven engagement between government and non-state actors; members of staff and three Commissioners shared various responsibilities for compiling the Report following the steps described ! Enacting the Freedom of Information Bill to enhance access to public below. An initial desk review of relevant reports including government information (in the domain of government and other public bodies); reports on various programs was undertaken. Prior to this, the team ! Establishing a policy, legal and regulatory framework that allows constant developed three different instruments for collecting data from public review of all devolved funds, especially CDF and LATF, to ensure the agencies, selected corporate sector institutions and NGOs. These allocation and management of resources; and establishing an instruments were pre-tested with the relevant stakeholders in May 2010. institutional framework that allowed the review of the devolved funds to After revising the questionnaires, they were then sent to various ensure effective allocation and management of resources; institutions and feedback received starting from June to the end of 10 ! Finalizing, enacting and operationalizing the Local Government Bill; August. ! Enhancing participation by civil society and private sector by initiating and funding civic education programmes and promoting civic action 54. The KNCHR also contracted the University of Nairobi's Institute for programmes; Development Studies (IDS) to undertake field research during the period ! Developing a broad civic education curriculum at formal and informal June to September 2010 to determine how policy programs get level, in schools and outside schools. implemented. The two areas chosen for this focus were the right to water and sanitation and access to electricity. These two areas were picked to reflect their particular economic and social impact in terms of health 358. In addition to the commitments made under the Medium Term Plan, (water and sanitation) and productivity (electricity). To gauge public and further or related targets were set up under the Kenya National Dialogue expert opinion on the implementation of policy programs in these areas, a and Reconciliation (KNDR) process particularly to the extent that they 11 national field survey comprising a sample size of 1,200 households across related to consolidation of national healing and integration. the eight provinces in Kenya was undertaken in September 2010. Ten focus group discussions were also held in the different regions to complement the survey. 359. The commitments made by the government under the first Medium Term Plan of Kenya Vision 2030 were to be undertaken between 2008 and 2012. Therefore, by the end of the reporting period limited progress 55. In order to ensure a high level of quality and technical soundness of the had been made particularly relating to enactment of necessary Report, a group of four external peer reviewers with expertise in human legislation. There was nevertheless progress witnessed in certain areas. rights, experience in government planning exercises and research methodology provided guidance and critique at the various stages of compiling the Report. Constitutional Review 360. A review law was passed by Parliament subsequent to which organs of constitutional review were established and proceeded to undertake 10. For details on responses, see appendix (i) 11. The survey drew a sample representing a cross-section of the Kenyan population in both urban and rural areas. This was attained by strictly applying stratification and random review of the Constitution. This resulted in the referendum which would selection methods at every stage of the sampling process as well as applying sampling with probability proportionate to population size (PPPS). The study drew a national probability sample of 1,200 cases randomly selected to allow for inferences to the national populations with an average margin of sampling error of no more than plus or minus three (3) percentage points at a confidence level of 95 percent. The sample design was based on a clustered, stratified, multi-stage, probability sample design. Moreover, the 18 sample size was determined by the availability of financial resources 111 The Third State of Human Rights Report The Third State of Human Rights Report

requires the state to have in place comprehensive laws and policies that facilitate and do not fetter access to this right by creating opportunities Challenges, Limitations and Difficulties to exercise the right to vote and to be elected, for instance. This duty 56. The biggest challenge was not only the poor response from various bodies, further requires the state to treat people equally and not to interfere but also the late submission of reports (see Appendix i). Another challenge with or impair declared rights. lay in sorting out the large volume of reports from various government bodies on the plans/progress on various aspects of programs under 355. The duty to protect, in the case of the right under review, requires the implementation during the review period, especially where such reports state to ensure for instance that activities of organized gangs do not had different information on the same issues. fetter citizens' ability to exercise their franchise. 57. Coupled with the above challenge is the limitation and difficulty associated 356. Under the obligation to fulfill, the state will be required to facilitate civic with assessing myriad government initiatives in a single report. There are and voter education through provision of adequate financial resources. initiatives that will clearly be missed out, while others will be over- To fulfill this obligation also, it would be expected of a state to take scrutinized. The KNCHR makes no pretences that this report covers measures to remove obstacles to the enjoyment of these rights. everything. We have, however, attempted to identify the key efforts of government during the period under review that constitute important drivers for the enjoyment of human rights. Assessing Achievement of Targets 357. During the period under review, the government set several targets for Structure of the Report itself in the first MTP of Kenya Vision 2030. These targets were to be achieved through various flagship projects and were aimed at promoting 58. The report maintains the structure of the Kenya Vision 2030 in terms of the genuinely competitive and issue-based politics buttressed by credible sequencing of the three pillars. Each section representing a pillar provides electoral processes, and developing a people-centered and politically- a brief write-up spelling out the broad scope of the rights reviewed and the engaged open society. Three main programmes were identified to rationale for the selection of these rights. The first section, therefore, facilitate the projects. These were the legal, ethics and constitutional contains the assessment relating to the economic pillar, which includes: reform programme; the legislation and oversight programme; and access to electricity, the right to food and the right to work. This is followed electoral/civic processes. The government set out two broad by the social pillar assessment which looks at the right to education, the undertakings: policy and legal reform measures; and institutional reform right to health, the right to water and sanitation and the right to adequate measures. Specific commitments made by the government in those two housing. Finally, an assessment of the political pillar, which looks at the broad areas of engagement included: right of access to justice and the right to participate in public affairs. The postscript ties up the report and reflects on important developments that took place outside of the review period, i.e. after June 2010. ! Consolidating and finalizing the Elections Bill to enhance the legal and regulatory framework pertaining to elections; ! 59. In preparing each chapter of the report the following steps we Enacting an electoral commission law in order to build confidence in followed: the election management body and reviewing other relevant laws; ! ! Key human rights issues under each of the three Kenya Vision 2030 Implementing the policy and administrative recommendations of pillars were identified; the Independent Electoral Review Commission (IREC); ! ! This was followed by a brief introduction of the rights issue/theme Improving the participation of women and other disadvantaged under review – its scope, substance, constitutional, legal and groups through drafting legislation such as the Equal Opportunities international basis; Bill, and an Affirmative Action Bill, amending the Persons with ! Disabilities Act; and stringently enforcing existing legislation as well For each of these rights/themes, the targets set by the government as implementing the United Nations Declaration on the Elimination were identified as the basis for assessment of progress, of Violence Against women (UNDEVAW) and the Convention on the comprehensiveness and appropriateness in enhancing the protection Elimination of all forms of Discrimination against Women (CEDAW); of human rights; 110 19 The Third State of Human Rights Report The Third State of Human Rights Report

! Subsequently, an assessment of progress on implementation of the public affairs and the mechanisms for ensuring effectiveness in priorities and achievement of targets during the period was governance. The process elements therefore include aspects of undertaken; accessibility – the extent to which citizens are able to interact with ! The challenges related to the right/theme under review and a critique government at the lowest levels; the levels of transparency therefore of the performance of government followed and, finally; facilitating access to information; the extent to which citizens are involved in accountability processes; and finally the aspect of ! Recommendations – actionable and specific enough – directed to the empowerment through information. relevant duty bearer(s).

352. The legal framework of the right to participation and effective governance 60. In carrying out this analysis, the conventional framework around which in public affairs is enunciated in various normative sources. The UDHR in state obligations for human rights is understood, i.e. – respect (not to take Article 21 protects the right of everyone to take part in the government any action that may undermine human rights), protect (ensuring that third of his or her country through freely chosen representatives; and to equal parties do not interfere with anyone's enjoyment of human rights) and access to public service. On its part, the ICCPPR provides for the right to fulfill (taking steps towards enhancing the realization of human rights) was participation and effective governance in public affairs which entails applied in assessing the progress being made towards greater protection taking part in the conduct of public affairs directly or through freely of human rights. chosen representatives. CEDAW spells out the need to ensure the participation of women in public affairs including their participation in 61. The analysis has also attempted to remain faithful to the human rights elections and in public policy formulation and implementation. The framework of analysis that examines progress from three levels. These are ACHPR, under article 13, replicates the provisions of the ICCPR by the structural (existence of laws, policies, ratification of international providing for the right of every citizen to participate in government covenants), process (that examines the programmatic interventions and either directly or by choosing representatives. approach used) and outcome (that examines the extent to which the real situation of people's enjoyment of rights has been positively changed). 353. At the national level, there are several laws that facilitate the enjoyment of the right: Section 15 of the National Assembly and Presidential Elections Act, 1969, which expressly provides for the right to vote for every person whose name is entered on a register of electors for a particular constituency. Section 17 of the Political Parties Act, 2008, provides for the right of citizens to participate in the country's political and public life. The right to participation and effective governance in public affairs is interlinked with other rights including: the right to freedom of expression, the right to peaceful assembly, and the right to freedom of association. To this end, Section 5 of the Public Order Act (Cap 56) is important as it prescribes rules for regulating public meetings and processions. The provision requires any person intending to hold a public meeting or procession to notify the authorities.

State Obligations 354. The duty to respect requires the state to avoid placing unnecessary hurdles that restrict the enjoyment of the right to public participation and effective governance by its people. In that regard, the state is required to ensure inclusiveness in the enjoyment of this right. All categories of citizens must be able to access this right unless on account of reasonable restrictions they are barred from such access. This 20 109 The Third State of Human Rights Report The Third State of Human Rights Report

Scope and Legal-Policy Sources of the Right to Participate in Public SECTION 4 Affairs 349. There are four stages of participation: preference revelation; policy choice; implementation; and monitoring assessment and THE PRINCIPLE OF EQUALITY AND accountability (UN Office of the High Commissioner for Human Rights, 2002). Preference revelation requires that before policies are formulated, people are enabled to determine their preferences. Policy NON-DISCRIMINATION choice entails ensuring all categories of the population participate in the priority setting agenda. Though implementation of policies is a preserve of the state in the context of participation, the state is required “All human beings are born free and equal in dignity and rights” – Article 1 of the to put in place structures that promote the involvement of citizens in Universal Declaration on Human Rights the execution of policies. Monitoring and assessment is the final stage of participation. Individuals are able to weigh the success or failure of policies in order that the state and other duty bearers are held 62. Various national surveys from the 1990s onwards have pointed out that accountable for their obligations. there are sharp inequalities in the levels of access to education, jobs, credit, land and markets among different groups of people.12 Inequalities among people appear to be sustained by the historical patterns of 350. The concept of participation in public affairs presupposes the discrimination on the grounds of ethnicity, gender and political affiliation recognition and observance of conditions essential for the exercise of among others. this right such as freedom of expression, assembly and association. Further, participation in public life is a right available to all without distinction. Participation as a principle of the rights-based approach to 63. The government has acknowledged that inequality is an issue of concern development requires every person to take part in and access that must be addressed if Kenya is to achieve sustainable economic and information relating to the decision-making processes that affect their political stability. This idea is embedded further in Kenya Vision 2030 seeks wellbeing. This participation should be inclusive and not promote to create an equitable and just society. In fact, inequality and poverty discrimination. The rights-based approach provides a framework within reduction are cross-cutting themes in the three pillars- Economic, Social which to move towards a genuine inclusive and democratic process of and Political pillars- of the first MTP of Kenya Vision 2030 covering the popular involvement in decision-making over the resources and period 2008-2012. It identifies key policy actions, reforms and institutions that affect people's lives (Musembi and Cornwall, 2004: programmes and projects to be implemented with the overall objective of 11). It is therefore a people-centered development approach intended realizing higher and sustainable growth of the economy in a more to strengthen their trust in politics and public administration and to equitable environment accompanied by increased employment provide broader bases of decision-making for political and opportunities. administrative decision-makers. 64. From a human rights perspective, this creates a nexus between the 351. The right to participation and effective governance in public affairs is not government's approach in the Kenya Vision 2030 and the human equality only concerned with participation in political processes. It is also linked and non-discrimination are central. A human rights based approach to other social processes. Thus, there are substantive and process or demands that we pay special attention to those who face most discrimination rights-based approach to development, to which the procedural aspects to the right. The substantive element is concerned principles of equality and non-discrimination are central. A human rights with the outcomes, particularly the extent to which citizens are actually based approach demands that we pay special attention to those who face enabled to participate in public life. The focus is therefore on the extent most discrimination in accessing economic, social and political resources. to which structures in the socio-political environment directly and This means not just paying attention to the condition of the poor but also indirectly promote the participation of citizens in public affairs and therefore the realization of effective governance. The process or the most vulnerable among the poor. procedural aspects focus on the quality of participation. In particular, they interrogate the extent to which citizens are holistically involved in

108 12. See Welfare Monitoring surveys of 1990s and the Kenya Integrated Household Budget Survey of 2005-2006 21 The Third State of Human Rights Report The Third State of Human Rights Report CHAPTER 9 65. The Kenya Vision 2030 and its MTP note that sustainable economic growth, poverty reduction and equity will only be achieved in a stable macro and fiscal environment (Republic of Kenya, 2010d). Foundations for Kenya RIGHT TO PARTICIPATE IN PUBLIC Vision 2030 are anchored on macroeconomic stability; continuity in governance reforms; enhanced equity and wealth creation opportunities AFFAIRS AND EFFECTIVE GOVERNANCE for the poor; and infrastructure among others. Kenya Vision 2030 states that social cohesion will be threatened where significant sections of the society live in abject poverty. Introduction 345. Participation in government and public life is a basic tenet for establishing 66. Kenya Vision 2030 includes equity as a recurrent principle in all the pillars. legitimacy in a democracy and is essential to facilitate the enjoyment of It proposes that the government's programmes/projects will be done in an other human rights. Bynard (1996) defines democracy as a form of all inclusive participatory manner. It gives special attention to investment government organized in accordance with the principles of popular in arid and semi-arid (ASAL) districts, communities with high incidence of sovereignty, political equality, popular consultation and majority rule. poverty, unemployed youth, women and all vulnerable groups. The Participation in public affairs is normally encouraged in democracies to devolved funds under the Kenya Vision 2030 are to be deployed in a more efficient and transparent manner, which is expected to play a key and enhance the quality of decision-making and the implementation of policies enhanced role in correcting existing economic and social inequities. and programmes.

67. One of the aims of the three pillars of Kenya Vision 2030 is to promote 346. The discussions in this chapter will analyze the extent to which the equality by eliminating discrimination. The social pillar seeks to build a just government has provided an enabling environment for public participation and cohesive society with social equity in a clean and secure environment, by its citizens. while the political pillar stresses issue-based politics that respect the rule of law and protect the rights and freedoms of every individual in Kenya in order to achieve the Millennium Development Goals (MDGs). The 347. The right to participation is important to a life of dignity because it empowers economic pillar seeks to improve the prosperity of all Kenyans through an people to shape the course of their lives. Participation in public affairs serves economic development programme covering all regions. two purposes: first, ensuring accountability in government and, second, empowering individuals (Farer et al, 1988: 505-518). 68. Kenya Vision 2030 proposes various interventions; structural reforms and regional development initiatives, all aimed at reducing poverty and 348. Empowerment ensures that citizens will not be mere objects of state inequality. The vision aims to create a cohesive, equitable and just society interventions and policies but will be part and parcel of the decision-making based on democratic politics grounded on the existing rich and diverse processes. Democracies that encourage public participation witness better cultures and traditions. policy outcomes. In addition, participation empowers individuals and communities and they are able to develop capacities for improving their lives. Further, principles of good governance are promoted. The United The Principles of Equality and Non-Discrimination Nations Economic Commission for Africa (Hope R.K., 2003) defines good 69. Equality is central to the concept of human rights. At its heart is the idea governance as the existence of efficient and accountable political, judicial, that all individuals are of equal worth and deserve equal treatment. Formal administrative, economic and corporate institutions, as well as “entrenched equality that does not take into account how different individuals are rules that promote development, protects human rights, respects the rule of situated in terms of power and access to resources will not however satisfy law, and ensures that people are free to participate in, and be heard on, the concept of human rights. These disadvantages mean that formal decisions that affect their lives” (Hope R.K., 2003). Good governance allows equality will yield unequal outcomes for different individuals. One strategy that various societies have designed to address the shortcomings of formal for full, free and open participation in politics and political processes, equality is that of affirmative action. The logic behind affirmative action including: the right to stand for office, respect and support for political programmes is the recognition that institutions, tolerance for dissent and difference and fundamental civil liberties and human rights.

22 107 The Third State of Human Rights Report The Third State of Human Rights Report

340. In May 2009, the government appointed the Task Force on Judicial Reforms some individuals suffer from certain structural disadvantages that require which identified a broad range of required judicial reforms. In its final special considerations beyond formal equality guarantees. report, the Task Force recommended far-reaching measures to address the backlog of cases, including increasing the numbers of judicial staff and the 70. In human rights, the principle of non-discrimination applies to a list of non- use of ADR disciplines (Republic of Kenya, 2010f). Other proposals included 73 exhaustive categories such as sex, race, and ethnicity. The principle of non- automating court processes, opening courts on weekend and on a 24-hour discrimination complements that of equality. basis, and introducing Small Claims Courts.74 In its final report, the Task Force also identified the uneven geographical distribution of courts as a hindrance to equal access to justice.75 The Task Force therefore Inequality in Kenya recommended that court stations and mobile courts should be established 71. An audit of the Kenya 2030 Vision undertaken by the Society for in marginalized areas.76 International Development (SID, 2010) found that inequality exists across the following dimensions: First there is vertical (interpersonal) inequality largely driven by unequal access to education, jobs, credit, land and 341. In mid-2010, the government embarked on improving and expanding markets. An additional dimension of vertical inequality is the inequality aspects of the judiciary's physical infrastructure. Court houses in many between sexes driven by the above factors, but also by formal and informal parts of the country have been undergoing renovations. In mid-2010, the legal structures. There is horizontal inequality which refers to the judiciary validated an elaborate ICT Policy which has ushered in an differences across regions rooted in the economic history of the country. ambitious, ongoing project which aims to digitize 30 million judicial records. Horizontal inequality is evident in the patterns of distribution of The Court of Appeal has since been using videoconferencing to hear cases, infrastructure such as schools, roads, and health centers. Unequal thereby broadening its reach and reducing its operational costs. distribution approaches took root under the colonial rule and continued into the postcolonial period. At independence, some regions were ahead of others. Favoritism of individuals based on ethnicity in employment, Recommendations education or credit opportunities perpetuates this pattern. Inequality 342. The government should deflect pressures on the national court system by along the rural-urban divide, regardless of region, also persists. focusing more attention on the development of “floor-level” administrative interventions or mechanisms in both the public and private sectors to 72. On being elected in 2003, the NARC government set out to widen the resolve disputes and abuses. democratic political space and promised to address the problems of poverty, insecurity, poor health conditions, corruption and bad governance. Through its ERS (2003-2007) the government stimulated 343. The government should fast-track the adoption of the Draft National Policy economic growth from 0.6 percent to over seven percent in 2007. and Action Plan on Human Rights as well as the implementation of the recommendations of the Task Force on Judicial Reforms within the current MTP. 73. The Kenya Vision 2030 MTP 2008-2010, the successor to the ERS, noted that inequality challenges have persisted in spite of the economic growth. These are characterized by high rates of unemployment among the youth, 344. The Ministry of Justice, National Cohesion and Constitutional Affairs should high levels of poverty and inequality in regional development and income operationalize NLAAP, while the Rules Committee of the judiciary should distribution. begin to implement the new ADR framework. The Right to Equality and Non –Discrimination 74. The right to equality and non-discrimination runs through all the implementation of the programmes/projects in the Kenya Vision 2030 as a guiding principle. The right to equality and non-discrimination is deemed important in ensuring that the Kenya Vision 2030 delivers on its aims. 73. The use a network-based software solution which controls and essentially simplifies the court processes. In the Kenyan situation, the proposed automation includes use of tele- Kenya Vision 2030 will be assessed on the extent to which it delivers on presence technology to conduct court sessions through networked screens (circuits); telecommunication links for distant court stations, imaging of court records, web portal for judicial information, an Integrated Financial Management Information System (IFMIS), and an Integrated Personnel and Payroll Database. 74. Ibid, page 119 these principles. 75. In Northern Kenya, for example, the task force noted that courts are situated as far as 500 kilometres away from users, see ibid, page 86 76. Including Manila, Masalani, Bute, Laisamis, Marimanti, Kyuso, Wote, Chaka Lokitaung, Lokichar, Wamba, Kesses, Kapsowar, Kabiyet, Chemolingot, Eldama Ravine, Rumuruti, 106 Lokitaung, Lumakanda, Kapsokwony, Budalangi, Amogoro, Kosele and Mbita. 23 The Third State of Human Rights Report The Third State of Human Rights Report

SECTION 5 Table 8.1: Implementation of judicial changes in the period 2008-2010

Strategy Planned Performance Achievements Variance TTHHEE EECCOONNOOMMIICC PPIILLLLAARR Activities Indicators Establish Small Establish Number of None Not actualized OOFF VVIISSIIOONN 22003300 Claims Courts (within pilot claims small courts reachable distance) courts in established; Kibera, Legal aid Meru, systems Introduction Malindi, developed; Nakuru, Number of 75. The goal of the Economic Pillar of Kenya Vision 2030 is to create the right Bungoma briefs

conditions for Kenya's annual GDP growth rate to rise to an average of 10 Introduce ADR Incorporate ADR Draft rules on ADR yet to percent over the initiative's lifetime, 2008-2030. This is an ambitious target. If Kenya achieves it, the country would join an exclusive club of only ADR in the incorporated ADR completed be four countries in the world that have sustained such high growth rates over judicial in the judicial incorporated; extended periods of time. system; system; No staff Train staff Number of None trained

76. What does a 10 percent average GDP growth rate, over 22 years, mean in on ADR staff trained human rights terms? Such a high GDP growth rate, compounded over on ADR nearly a quarter century, can create enormous reservoirs of national

wealth, which have the potential to radically transform people's living Review and demystify Amend and Friendly Draft rules Rules not yet standards. Without a doubt, advancing human rights requires significant rules of practice and simplify rules in place developed by operational and sustained public investment. Therefore, fast growing economies are procedure in all cour ts rules of rules committee zed uniquely resourced to achieve quicker, more robust human rights to enhance access to practice and outcomes. justice procedure 77. If the desired GDP growth rate of 10 percent is sustained over the lifetime Source: Kenya Judiciary Strategic Plan 2009-2012. See www.judiciary.go.ke of Kenya Vision 2030, Kenya's current per capita GDP of USD 760 would double by 2018 (KIPPRA, 2009). So far, only four countries have increased 339. Launched in 2008, the NLAAP aims to improve access to justice in Kenya, their per capita GDP by several factors over several decades (Barro and especially among the poor and marginalized. Before Kenya's first Salai-Martin, 2003). For example, between 1960 and 2000 Taiwan government-funded legal aid scheme, the High Court only appointed pro- achieved an average growth rate of six percent, increasing per capita GDP bono advocates for persons accused of capital offenses. In civil matters, one by a factor of 13, from USD 1430 in 1960 to USD 18,730 in 2000. Other could make an application to sue as a pauper. NLAAP set out six legal aid pilot countries that have sustained GDP growth rates of five percent or more, project sites in Eldoret, Homa Bay, Kisumu, Mombasa, Nairobi and Thika. over comparable periods of time, are Singapore, South Korea and However, the program has been relying on the legal aid initiatives developed Botswana. by various civil society organizations.72 It is yet to hire its own staff, relying mainly on the capacities of legal aid organizations. 78. Many studies show the existence of a positive relationship between economic growth and poverty reduction. For instance, one critical study found that a 10 percent increase in per capita GDP leads to a one percent increase in life expectancy, a three to four percent decline in infant

mortality rates, and about a four percent increase in the rate of primary 72. These organizations included Kituo Cha Sheria, Public Law Institute, Kenya Section of the International Commission of Jurists (ICJ), Law Society of Kenya (LSK), Federation of Women Lawyers (FIDA) Kenya, Cradle-The Children's Foundation, Legal Resources Foundation (LRF) and Christian Legal Aid Education and Research. 24 105 The Third State of Human Rights Report The Third State of Human Rights Report

337. New ADR rules were developed by the Rules Committee of the High school enrollment (Gary and Toshihiro, 2001). Court. While the rules are yet to be operationalized, they stand to enhance the realization of the right of access to justice.69 The rules also propose to amend section 59 of the Civil Procedure Act (revised 2009) to 79. Nevertheless, the reality of jobless growth has shown that high GDP introduce four new sections which would provide for reference to growth rates cannot by themselves end poverty. This phenomenon is mediation and other dispute resolution methods. The amendments, if evident in both developing and developed economies alike. If economic effected, would give the court and the disputing party's discretion to growth is to be transformative, it must be inclusive. Consequently, utilize ADR methods in expediting dispute resolution. The rules also national policies and programmes have to promote equitable economic provided for structured mediation processes, catering for both private relations between individuals and groups in society. Within this logic, mediation and court-annexed mediation. The proposed amendment of states have a fundamental human rights duty to create the right Order 45 of the Civil Procedure Act (revised 2009) would cater for court- conditions for rapid, sustained and equitable economic growth. mandated mediation after the filing of the suit and the close of 70 pleadings. Further, Amendments to Order 59 of the Civil Procedure Act 80. The Economic Pillar of Kenya Vision 2030 provides a variety of strategies (revised 2009) would provide for structured private mediation processes 71 for improving economic growth, and ultimately, the fuller realization of and their recognition by the court. economic and social rights. Six strategic priorities are set out to drive growth: expanding tourism; increasing value-addition in agriculture; 338. The rules also compel all courts and adjudicating authorities to require building a more inclusive wholesale and retail trade sector; increasing case management in civil and criminal matters. Case management would manufacturing for the regional market; and expanding the scope of introduce a system which would enable parties to track the progress of business process off-shoring and financial services. their cases through the justice system. In the meantime, case backlog continues to be a serious problem in the judiciary. There is currently a shortage of 300 professional staff, although plans were underway to hire Targets set out in the Economic Pillar are: 50 new magistrates before the end of 2010 ! Increasing employment; ! Strengthening the informal sector; ! Placing more agricultural land under irrigation; ! Enhancing access to affordable fertilizer; ! Improving governance in land registries; ! Undertaking pension reform.

81. This section discusses advancements and challenges in the realization of the targets in the economic pillar. It focuses on the realization of access to electricity, which is an important rights enabler, the right to food and the right to work.

69 The rules propose to amend section 77 of the previous constitution to facilitate fair hearings and give due regard to substantive justice as opposed to procedural technicalities.69 The constitution would then enjoin courts and other adjudicating authorities to promote and encourage reconciliation, mediation, arbitration and other ADR methods in the settlement of disputes. 70. The court would be required to hold a scheduling conference within 21 days of close of pleadings to give parties directions on referral to mediation. The court would have discretion to order that it will conduct the mediation itself or refer the suit to the Mediation Registrar for allocation 71. The proposed section 59D gives the court power to enforce private mediation agreements as long as they are in writing and facilitated by qualified mediators upon registration in the court registry. Proposed section 59 B would establish an accreditation committee for approving mediators to be listed with the Mediation Registrar. Such accreditation 104 committee would have the responsibility of supervising the regulation, training, certification, accreditation and disciplining of mediators listed with mediation registrar. 25 The Third State of Human Rights Report The Third State of Human Rights Report SECTION 5 CHAPTER 1 Crime Victims' Compensation Scheme; ! Improving the functions of legal and judicial institutions by adopting AACCCCEESSSS TTOO a sector-wide approach to recruitment, training, planning, management and implementation of programs and activities in the EELLEECCTTRRIICCIITTYY justice sector; ! Strengthening and harmonizing co-ordination and linkages among stakeholders at the national level; and Introduction ! Developing a comprehensive continuing professional training policy.

82. Access to adequate and reliable forms of energy is a critical enabler for sustainable economic growth and improved standards of living. Energy 334. The government seems to be committed to fast-tracking judicial development is therefore an important national priority for emerging reforms. Indeed, funding to the judiciary has doubled from Kenya economies. In particular, affordable and reliable electricity is critical for Shillings 1.48 billion in 2009 to Kenya Shillings 3.1 billion in 2009. enhancing economic productivity and for lighting homes. However, there is still no holistic implementation plan for the myriad judicial reforms that have been proposed. As such none of the

programmes identified in the medium-term plan was achieved in the 83. The enjoyment of a range of rights, including the rights to education, period under review and the pace of progress was slow. health and freedom of information, are partly dependent on access to energy, particularly electricity. Expensive electricity restricts potential growth in industries such as manufacturing, which are critical sources of 335. The access to justice component of MTP 2008-2012 is being job growth. implemented in tandem with the government's ongoing access to justice initiatives, in particular the Governance, Justice, Law and Order Sector Reform (GJLOS) programme.67 GJLOS's medium term strategy for 84. In 2008 an estimated 85 percent of Kenyans did not have access to the years 2005/2006 to 2008/2009 partly focused on improving access electricity (International Energy Agency, 2008). While electricity and to justice, especially for the poor and marginalized individuals and petroleum products are the primary energy sources for commercial use, groups. When GJLOS was conceptualised, it was anticipated that it wood fuel and biomass provide energy for the majority of domestic users, would lead to far reaching reforms in all the legal and justice sector particularly in informal settlements and rural areas. Notably, wood fuel institutions. However, in practice, the implementation has been limited and biomass account for about 68 percent of all energy used by Kenyans. (International Legal Assistance Consortium and International Bar Petroleum and coal account for 22 percent and nine percent, respectively. Association Human Rights Institute, 2010). Renewable sources, such as solar and wind power, constitute about one percent (Republic of Kenya, 2007a). 336. Thus, none of the foregoing bills were enacted in the period under review. For instance, the Judicial Service Bill and the Small Claims Courts 85. Kenya's Vision 2030 recognizes the need for increased investment in Bill were drafted in 2009 but by June 2010 neither one had been electricity generation to improve the country's prospects for economic 68 presented to Parliament for debate. growth (Toboso, 2010). It also commits the government to generate cheaper electric power and increase consumption efficiency.

86. In recent years, the government has renewed its efforts to expand rural electrification in order to address rural-urban disparities in access to electricity. This assessment focuses on the implementation of the Rural Electrification Programme (REP).

67. This is a sector-wide, cross-institutional reform program launched in 2003, led by the government and supported by more than 15 international development partners with the aim of carrying out reforms in various sectors relating to governance, justice, law and order. 68. With the promulgation of the new constitution that re-structured the judicial system, established a new Judicial Service Commission and provided for the Vetting of Judges and Magistrates to serve in the Judiciary, the Judicial Service Bill became one of the priority bills which were gazetted. The bill was however not tabled in parliament and is currently 26 awaiting establishment of the Commission on the Implementation of the Constitution, which will oversee implementation of the provisions of the constitution. 103 The Third State of Human Rights Report The Third State of Human Rights Report

implementing an access to justice project in collaboration with the Luo Council of Policy and Legal Framework for Access to Electricity Elders, which focuses mainly on the disinheritance of widows and orphans 87. Kenya's national energy law and policy is articulated in the Energy Act, in the context of the HIV/AIDS pandemic. It has also referred a land dispute 2006, and Sessional Paper No. 4 of 2004 on Energy. The Energy Act, 2006, to the Njuri Ncheke, the Ameru's council of elders, for alternative dispute establishes the Rural Electrification Programme Levy Fund (REPLF) to 66 resolution. “support the electrification of rural areas and other areas considered economically unviable for electrification by licensees”. It also establishes the Rural Electrification Authority, tasked with the management of the State Obligations Fund and development of the rural electrification master plan. Further, 332. Human rights-compliant states have to take positive steps to enhance the there is an Energy Regulatory Commission (ERC) charged with regulating realization of the right of access to justice: the energy sector's activities, including generation, transmission and ! Respecting the right of access to justice requires states to ensure the distribution as well as environmental concerns. ideas of equal access to justice and equality before the law are reflected in domestic law; 88. Launched in 1973, the REP sought to stimulate economic growth in rural ! Protecting the right of access to justice requires states to cultivate high areas and control rural-urban migration by expanding access to electricity levels of transparency, competence and impartiality in the justice sector. to rural business and domestic users.13 More than three decades later This may include equipping the judiciary with modern technologies and however, most people living in rural Kenya do not have access to changing court procedures to make them less complex and accessible to electricity. more people; and ! Fulfilling the right of access to justice requires states to provide equal Many reasons have been put forward including: access to legal services to all by, for example, providing legal aid services. Fulfilling this right also includes promoting the use of informal justice ! Poor management and unequal distribution of resources; systems and non-adversarial alternatives to legal justice, such as ADR. ! High cost of network extension; Information must also be availed and awareness created in the public ! Weak power transmission and distribution infrastructure; about service delivery in the justice sector. ! Low consumer densities;

Assessing the Achievement of Targets State Obligations 333. The MTP 2008-2012 identifies several challenges to the rule of law. They include an inadequate constitution, outdated laws and policies, ineffective 89. Both the UDHR and the ICESCR obligate states to take all necessary steps justice and dispute resolution mechanisms and low levels of public to progressively improve standards of living. By enhancing access to confidence in governance and rule of law institutions. To address these electricity, states enhance their citizens' potential to more fully realize challenges, the MTP identifies several structural and legal programs as the their economic and social rights. focus areas for the period 2008-2012: ! Passing the Small Claims Courts Bill, the Private Prosecutions Bill, the 90. In its initiatives to ensure that the goal of electrification is realized by Legal Aid Bill, the Court of Petty Sessions Bill, the Alternative Dispute everyone, the state should be guided by key indicators on the extent to Resolution (ADR) Bill, the Judicial Service Bill, the Contempt which its programmes meet human rights standards. The following of Court Bill and amending the Evidence Act (revised 2009), the Land indicators are particularly important. Disputes Tribunal Act (1990) and the Community Service Orders Act ! Accessibility: the state is obligated to ensure that its citizens have (1998); access to electricity without discrimination on any grounds. Those ! Establishing an institutional framework for the proposed Small Claims who are disadvantaged in access, such as rural populations, should Court system, the National Legal Aid and Awareness Programme be given particular attention in electrification programmes. (NLAAP), the ADR mechanism and the National Prosecution Policy and

102 66. Salome Kanyiri vs. Erastus Muwiri Ruteere, Njuri Njeke (2009), Suitland, Kiirua/Nkando/523 13. The REP is funded through a five percent levy, the Rural Electrification Programme Levy Fund (REPLF), which is charged to all electricity users nationwide. 27 The Third State of Human Rights Report The Third State of Human Rights Report

implementation of various initiatives aimed at expanding access to justice ! Affordability: the state should ensure that electricity costs are to more Kenyans. affordable for the average citizen; ! Quality: this means that electricity services must be reliable, safe 327. In Kenya Vision 2030, the government acknowledges the importance of and adequate as per the standards of the industry and; this right to access and sets out one of its strategic objectives as the need to ! Sustainability: this requires that considerations should be built into increase access and quality of services available to the public by reducing the electrification programme to ensure that the service will be barriers to accessibility. In its medium-term goal for 2012, the government available well into the future without jeopardizing current or future commits itself to implement policy, legal and institutional changes that will generations. promote and sustain fair, affordable and equitable access to justice.

Access to Electricity Scope and Legal-Policy Sources of the Right of Access to Justice 91. The majority of people in Africa do not have access to electricity. The World 328. There are two dimensions to the right of access to justice: procedural Bank estimates that Africa requires USD 41 billion to build a sustainable access to justice (having a fair hearing before a tribunal) and substantive energy sector infrastructure (World Bank, 2010). While development access to justice (receiving a fair and just remedy for a violation of one's partners could raise a significant share of this amount, most of it would rights). According to General Comment No. 32 of the UN Human Rights have to be borne by African countries themselves. Committee on Article 14 of the International Covenant on Civil and Political Rights (ICCPR): 92. The table below shows the disparities in access to electricity between the rural and urban populations in Sub-Saharan Africa countries. It will be Article 14 encompasses the right of access to the courts in cases of recalled that only 15 percent of Kenyans have access to electricity. determination of criminal charges and rights and obligations in a suit at Furthermore, the table shows just about half of the urban population and law. Access to administration of justice must effectively be guaranteed in all only five percent of the rural population has access to electricity. such cases to ensure that no individual is deprived, in procedural terms, of his or her right to claim justice. A situation in which an individual's attempts to access the competent courts or tribunals are systematically frustrated de jure or de facto runs counter to the guarantee of article 14, paragraph 1.

329. Furthermore, General Comment No. 32 provides that in the formal judicial system, access to justice presupposes the existence of efficient justice dispensation systems, awareness and understanding of the law, availability of information pertinent to one's rights and equality before the law. Other key elements are the accessibility of the judicial system, affordability of adjudication, timely processing of claims and timely enforcement of judicial decisions.

330. Besides the ICCPR, the right of access to justice finds expression in various normative sources, including the UHDR and the ACPHR.

331. Access to justice was traditionally seen as access to the formal courts or the availability of legal assistance. However, courts are not the primary mechanism through which people resolve disputes. Access to justice encompasses administrative and informal justice as well as alternative 28 dispute resolution (ADR) mechanisms. Indeed, KNCHR has been 101 The Third State of Human Rights Report The Third State of Human Rights Report

CHAPTER 8 Table 1.1: Access to Electricity in Sub-Saharan Africa, 200914

RIGHT OF ACCESS TO JUSTICE Country Electrification rate (%) Population without electricity It is a fundamental principle of any democratic society that all those living within it (millions) have equal access to a justice system where they can expect a determination of their Tot al Urban Rural rights. Without adequate access to the justice system, protection of human rights is Angola 26.2 38.0 10.7 12.9 compromised. (Winford, 2006) Benin 24.8 48.0 8.5 7.0

Botswana 45.4 68.0 12.0 1.0 Introduction Burkina Faso 10.0 25.0 6.3 13.8 Cameroon 29.4 45.0 9.0 13.4 Congo 30.0 39.5 15.0 2.7 323. When human rights are violated, victims should be able to seek redress Cote d'Ivoire 47.3 78.0 18.0 10.4 through an impartial and independent review process. By protecting and promoting citizens' right to access to justice states send the message that DR Congo 11.1 25.0 4.0 57.0 public officials and agencies will be held accountable for human rights Eritrea 32.0 86.0 5.0 3.4 violations and other crimes. In fact, the depth and quality of a democratic E thiopia 15.3 80.0 2.0 68.7 society partly depends on how well its systems address human rights Gabon 36.7 40.0 18.0 0.9 problems. Ghana 54.0 85.0 23.0 11.0 Kenya* 15.0 51.3 5.0 32.8 Lesotho 16.0 44.0 6.0 1.7 324. The idea of accessibility is broad and goes beyond mere physical accessibility Madagascar 19.0 53.0 5.0 16.4 of legal institutions. It encompasses opening up formal and informal justice systems to disadvantaged groups by addressing issues of affordability, Malawi 9.0 25.0 5.3 13.0 cultural appropriateness such as language, social acceptability and Mauritius 99.4 100.0 99.0 0.0 relevance of applicable norms and processes. Other elements are the Mozambique 11.7 21.0 6.3 19.3

degree of fairness, simplicity, timeliness and efficiency (Ngondi-Houghton, Namibia 34.0 70.0 13.0 1.4 2006). Nig eria 46.8 69.0 26.0 80.6 Senegal 42.0 74.7 18.0 7.4

325. While important reforms are being implemented in Kenya's justice system, it South Africa 75.0 88.0 55.0 12.0 will take several years for it to overcome the challenges it faces. There Sudan 31.4 47.5 19.0 27.0

continue to be perceptions of partiality and corruption in the judiciary. Tanzania 11.5 39.0 2.0 36.8 Accessing the court system is financially expensive. For the minority which Togo 20.0 42.0 4.0 5.4 can afford it, court processes are inefficient, causing long delays in cases and Ug anda 9.0 42.5 4.0 29.1

other procedures. Zambia 18.8 47.0 3.3 9.9 Zimbabw e 41.5 79.0 19.0 7.8

326. Moreover, public confidence in the judiciary was greatly undermined Other Africa 17.0 37.0 8.0 84.3

following the outright rejection of the judiciary as an impartial and Sub-Saharan Africa 28.5 57.5 11.9 587.2 independent arbiter to resolve the disputed 2007 presidential election Source: IEA World Energy Outlook, 2010 results. In recognition of this serious challenge, Agenda Item IV of the National Dialogue and Reconciliation Accord prioritized the urgent need for comprehensive judicial reforms. Among the ongoing reforms is the

100 14. The comprehensive table is available at http://www.iea.org/weo/database_electricity/electricity_access_database.htm, website last viewed on 25 October, 2010). 29 The Third State of Human Rights Report The Third State of Human Rights Report

SECTION 7 93. Under the MTP 2008-12, the government planned to broaden the REP to cover 460 trading centres, 110 secondary schools, youth polytechnics and health centres among other public facilities in rural areas around Kenya by INTRODUCTION TO THE the year 2012 (Republic of Kenya, 2010d). If these targets are met, access to electricity in rural areas would increase to 12 percent coverage by 2012. POLITICAL PILLAR

94. According to the progress report on the implementation of the MTP 2008- 318. Kenya is a country in democratic transition. Over the past two decades its 2012, about Kshs. 24 billion was spent in 2007/8 on the financing of rural political system has gradually progressed from authoritarianism to electrification projects. By 2009 a total of 607 electrification projects had democracy. As the 2007/2008 post-election crisis demonstrated, our been completed through collaborative efforts between the REA and the democratic institutions still require much strengthening to become effective Kenya Power and Lighting Company - KPLC (Republic of Kenya, 2010d). mediators of political conflicts.

95. As a result electricity supply is now available to an additional 1,104 market 319. The Political Pillar of Kenya Vision 2030 aims to transform Kenya into a centres, 1,206 public schools, 329 health facilities, 35 coffee factories, 155 democracy that is “issue-based, people-centered, result-oriented and tea-buying centres and 186 government administrative facilities (Republic accountable to the public” (Republic of Kenya, 2007a: 22). Kenya Vision 2030 of Kenya, 2010d). The government estimates this expansion will connect is premised on the idea that the realization of the economic and social 10,000 new domestic consumers to the national grid. objectives of the strategy depends on the depth and quality of Kenyan democracy.

96. According to a 2010 KNCHR survey more than a half (about 52 percent) of Kenyans believe that access to electricity has improved over the past three 320. The Political Pillar acknowledges that effective political governance is a years even though less than a half of Kenyans (about 44 percent) are aware critical driver for economic and social change. It sets out seven principles about REP and its benefits. that should underpin governance systems and practices in a democracy: ! The rule of law; ! Equality of all citizens; Figure 1.2: Conditions for Electricity Access 3 Years Ago ! Respect for human rights; ! Sovereignty of the people; ! Viable political party system; ! Public participation in governance; ! Separation of powers; and ! Decentralization.

321. In August 2010, Kenyans voted in a new, democratic constitution which had been in the making for two decades. Consequently, the foundation for effective political governance and the protection and promotion of civil and political rights in Kenya is now stronger than it has ever been.

322. This section assesses advancements and challenges in the realization of the targets of the political pillar over the period 2008-2010. It focuses on the realization of the right to access to justice and the right to participation in Source: KNCHR Survey on Implementation of Electricity Reforms (2010) 30 public affairs. 99 The Third State of Human Rights Report The Third State of Human Rights Report

settlements – is not secure and can, therefore, not be used as collateral. Moreover, forced evictions and conflict-related displacements continue Affordability of Electricity to compound vulnerabilities of the low-income and marginalized 97. The cost of electricity in Kenya is high relative to countries such as Egypt groups. The central question in addressing these issues must be: Is there and South Africa. Consequently, many Kenyan households, in poor a threshold below which no Kenyan should find himself or herself'? And urban areas and rural areas, are unable to afford electricity. High if so, what is that threshold and what should be done to uplift Kenyans electricity costs can be partly attributed to Kenya's reliance on living below this threshold? hydropower generation (dam-generated electric power) which is vulnerable to changing rainfall patterns. Since 2007 low rainfall levels Recommendations have adversely affected the water catchments that feed into Masinga Dam, Kenya's main reservoir for the Seven Forks Hydro-Electric Power 315. There is a lack of affordable housing, particularly for the urban poor. The Plant. This occasioned a 35 percent reduction in production of hydro- government ought therefore to explore the potential of scaling up electricity from 2007/9. innovative housing finance initiatives such as the Jamii Bora Housing Programme to promote access to adequate housing.65 Under the initiative, low-income home buyers can get a loan of Kshs. 150,000 98. In turn, diesel generators have been used to supply more power onto th (approximately 1,875 USD), payable in 10-15 years at 8.5 percent national grid. Over the past decade however, the price of diesel has risen interest per annum to purchase a two bedroom unit in Kaputiei in steadily alongside rising international prices of crude oil. The high and Kajiado District near Nairobi. They are required to reasonable monthly increasing costs of generating electric power through diesel generators loan repayments of about Kshs. 2,500 (32 USD) per month. have in turn been passed on to consumers. Doing business, particularly for electricity-driven industries such as manufacturing, has remained 316. In furtherance of the provisions of Sessional Paper No. 3 of 2003 on expensive. National Housing Policy the government should urgently complete the enactment of the Housing Bill, 2006, and ensure that it includes 99. The government has taken steps to make electricity more accessible and provisions and regulations that encourage financial institutions to lend affordable. It has initiated the Umeme Pamoja (Lighting Together) shorter-term loans to the poor and low income households for initiative, which is designed to encourage potential customers in the progressive construction of habitable homes. same neighbourhood, particularly in rural areas, to team up and apply jointly so as to reduce individual cost.15 Umeme Pamoja is a partnership 317. The ministries of Housing and Lands should ensure that security of between KPLC and Equity Bank, which gives out “Stima” (Electric Power) tenure, a key component of housing, is acquired by those who live for loans to individuals and groups to pay to get connected to the national prolonged periods in a particular habitat. In Brazil, for example, Article grid.) 183 of the Brazilian constitution provides that those who are squatters in an urban areas of up to 250,000 (m2), for an uninterrupted period of 100. Stima loans target customers living within a 600-metre radius of a KPLC at least five (5) years and using it as a family home, shall acquire domain transformer. Customers pay 20 percent of the total connection fee of it, provided that they do not own any other urban or rural property. upfront and the balance is payable over a 12 to 36 months period at an annual interest rate of 15 percent. Alternatively, customers living farther away from KPLC transformers are eligible for “group loan schemes” which they apply to jointly with others in order to reduce connection costs.

101. KPLC is also putting in place a deferred payment scheme which would allow all customers to pay connection costs which would be added to their monthly electric bills over a period of time. Under this

65. See http://www.jamiibora.org/kaputei.htm 98 15. For details see www.kplc.co.ke/fileadmin/user_upload/kplc09_files/.../brochure_eng.pdf , website last viewed on 6 April 2011. 31 The Third State of Human Rights Report The Third State of Human Rights Report

arrangement, customers would pay 50 percent of the connection costs 311. During the period under review, the housing situation was further made upfront and the balance, interest-free, over a 12 to 24 months period. worse by the 2007 post-election violence. Statistics shows that some 663,921 people were displaced and about 78,254 houses destroyed 102. Although more and more households in rural areas have been country-wide (Republic of Kenya, 2010f). Moreover, because of the connected to the national grid by initiatives such as the Stima loan, the infrastructural and environment restoration projects, thousands of new customers have tended to be relatively affluent people. Many other Kenyans were evicted from road reserves and forests including Kenyans, particularly in poor urban and rural areas are likely to remain Mau Forest without any eviction impact assessments being carried out 64 ineligible for credit facilities because they do not have regular monthly hence generating more vulnerability for the affected. incomes. Clearly, much more still needs to be done to connect poorer households. 312. However, the provision of houses for the Internally Displaced Persons (IDPs) was a priority for the government during the period under review. 103. KNCHR's survey and focus groups discussions found that the cost of According to the Ministry of Special Programmes, the government's getting connected to the national grid was unaffordable for most people. commitment was to construct 9,395 houses to support self-help groups Even among the households that are connected, use of electricity is (Republic of Kenya, 2010f). According to the brief, Kshs. 951,850,000 had mainly confined to lighting and powering small appliances in order to been disbursed to the eight provinces for purposes of construction of avoid incurring high monthly bills. However, about 40 percent of houses estimated to cost Kshs. 25,000 per unit. The brief further connected households reported that electric power was affordable (see indicated that the government allocated two 1/4 acres of land each to Figure 3). Focus group participants noted that KPLC has developed 798 households out of 6,802 IDP households. Partner agencies pledged innovative products and services that have lowered costs in recent years. 43,792 houses, out of which 28,939 had been constructed by the time of But they also noted that many households are still unable to afford doing this Report. While many problems related to the resettlement of connection costs. IPDs still remain, clear steps aimed at restitution for IDPs have been undertaken.

Figure 1.3: Affordability of Electricity from National Grid Budgetary Allocations 313. According to the Institute for Economic Affairs (IEA), spending on physical infrastructure development has increased from nine percent in 2004/2005 national budget to about 22 percent in 2007/2008 national budget (IEA, 2010). This sector, the IEA observes, which includes roads, housing and energy was allocated a budget representing about 41 percent of total external funding in 2009/2010, the largest Medium- Term Expenditure Framework (MTEF) sector beneficiary. However, the percentage going towards projects directly benefiting the homeless and people living in inhabitable conditions was not clear.

Conclusion 314. Multiple layers of issues interact to constrain the realization of the right to adequate housing – unemployment, low and unreliable incomes, Source: KNCHR Survey on the Status of Reforms in the Electricity Sector (2010) insecure land tenure and high cost of building houses. Terms of housing finance discourage many Kenyans from borrowing because of credit worthiness history and collateral demands by banks which only a few Kenyans match. Ownership of land in the areas most in need – informal

64. See UNCHR, Kenya: Education woes for Mau Evictees at http://www.unhcr.org/refworld/docid/4ce683491a.html , website last viewed on 8 December 2010. 32 97 The Third State of Human Rights Report The Third State of Human Rights Report

309. There is however growing demand for housing units in urban areas occasioned by by rapid urbanization. Party because of this, the MDG Reliability of Electricity No. 7, target 11 of achieving 'significant improvements in the slum 104. Power disruption tends to be common in Kenya because electricity is dwellers while deterring new ones by 2015' is unlikely to be met as generated mainly by dams which are vulnerable to rainfall fluctuations. In more and more people take up residence in informal settlements. recent years, Kenya has experienced longer and more frequent droughts Moreover, public officers, especially police n officers and prison staff, which have lowered the output of hydro-electric plants. Poor rainfall has continued to live in deplorable conditions that are far below the resulted in greater reliance on expensive diesel fuel to supply more power to required standards. Several construction projects were initiated during the national grid. the period under review. They include 280 housing units being built on a public-private partnership (PPP) basis between the government and investors in Shauri Moyo; the construction of 22 apartments on 105. According to KNCHR's survey, about 30 percent of households do not have Kileleshwa Road in Kileleshwa Nairobi; and advanced plans to reliable power supply. Focus group discussion participants also pointed out redevelop houses in Ngong, Machakos, Athi River and Nyeri for civil that power supply was regularly disrupted by voltage fluctuations, surges, servants. brown-outs and outages that last for several days in some cases. Many survey respondents complained of irregular and inaccurate billing. Others complained of long connection turnaround times that have in some 310. The neglect by local authorities over the years has resulted in the failure instances compelled customers to bribe KPLC officials for quicker results. to match urban housing production with the demand for housing for low-income households in urban areas. This has created an entry for private sector housing production, leading to high costs and reduced affordability for low-income earners. According to the Kenya Vision 2030 First Annual Progress Report, only an estimated 6,000 housing Figure 1.4: Reliability of Electricity from Grid units were produced every year for low-income residents, amounting to 20 percent of the housing units. The demand for adequate housing is expected to “rise steadily as those aged 20 and below will reach adulthood and start family life” (Republic of Kenya, 2010d: 128). While various plans have been outlined to, among others, increase PPPs in housing development, increase access to finance for low-income households by 30 percent, and produce 200,000 housing units by 2012, the targets are unlikely to be met unless local authorities and private players take deliberate steps to close the gap between supply and demand for housing. 63

Source: KNCHR Survey on Reforms in the Electricity Sector (2010

96 63. Ibid., p129-130. 33 The Third State of Human Rights Report The Third State of Human Rights Report

Sustainability Provision of Physical and Social Infrastructure 106. Kenya's installed electricity generation capacity generates about 1,000 306. The goal of adequate housing cannot be realized without the availability megawatts (MW) of electric power each year (World Bank, 2010). According of basic infrastructure such as water, electricity, roads, sewerage and to the World Bank projection estimated, Kenya would have to expand the other public utilities such as schools and hospitals. A huge number of installed capacity by 10 percent annual over a four-year period to generate Kenyan urban dwellers do not have access to any of these facilities. 1,508 MW. If Kenya is to continue relying on hydro-electric power, then it More than 70 percent of those living in urban areas live in settlements must conserve its water towers in order to create the right conditions for with limited access to water and sanitation, housing and security of more rainfall. The ongoing national effort which started in 2009 to conserve tenure.62 In a clear case of government's failure in its obligation to the Mau Forest (Kenya's main water tower) is a step in the right direction. protect, private developers in the housing sector have failed to respect the Physical Planning Act in relation to provision of public utilities in areas where houses are developed. In many urban areas, housing 107. Kenya has been assessing opportunities of tapping into various region-wide development has far outstripped the provision of water, electricity and electric power grids that leverage the high output of countries such as the sewage systems. Democratic Republic of Congo, Ethiopia and Uganda. In 2010, the government demonstrated seriousness in pursuing nuclear power generation by appointing the Nuclear Electricity Project Committee to 307. However, during the period under review, some positive steps have assess Kenya's options. Ultimately, the government intends to generate at been taken. According to MTP 2008-2012, the government committed least 7,000 MW of electricity from nuclear sources by 2030. The committee itself to install physical and social infrastructure in informal settlements has since received about Kshs. 300 million to develop a comprehensive road in 20 urban areas to formalize informal settlements, permit 16 map for nuclear energy production. construction of permanent houses and attract private investment. According to the Kenya Vision 2030 First Annual Progress Report, the program made progress in the provision of infrastructure within the 108. Frequent vandalism and theft of electric power cables and transformers informal infrastructure and facilitated capacity building for settlement poses a threat to the integrity and sustainability of current and future communities and local authorities in the management of various investment in electric power generation. This problem is readily apparent to projects. The government reported the construction and completion of the KPLC and an initiative, Mulika Mwizi (Illuminate and expose the thief), 600 housing units in Kibera, Langata decanting site and ongoing has been launched to encourage the public to report theft and vandalism cases. construction of 400 housing units at Mavoko to cater for the high, middle and low income groups. During the year 2008-2009, the government also initiated and completed a water and sewerage project 109. There seems to be an emerging commitment from government to exploring in Kiandutu informal settlement in Thika. and scaling up the use of renewable energies. A consortium of local and international investors came together to develop the Lake Turkana wind power which will provide 300 MW of clean power to Kenya's national Increased Housing Units electricity. The ambitious project stands to shore up Kenya's current total 308. Some 17 percent of households, most of which are in rural areas, have installed power by 30 percent. The wind farm will begin to operate in June their shelters constructed from grass, makuti or mud, while 79 percent 2011 and should be working at full capacity by July 2012. have corrugated iron sheets, tiles and concrete as their roofing material (Republic of Kenya, Kenya National Bureau of Statistics, 2009). This shows clear disparities that most likely point at existence of extreme Conclusion poverty for the former group. However, the Kenya Vision 2030 110. Access to electricity in Kenya has been expanded considerably in recent estimates show that the quantity and quality of low-income housing is years by the REF and KPLC, and the trend holds promise for improved living better in rural areas than in urban areas. standards. Substantial investments in electricity generation have been made, and more are contemplated. Innovative financing options have been

62. UNHABITAT, UN-HABITAT and the Kenya Slum Upgrading Program, Strategy Document at http://www.unhabitat.org/pmss/getElectronicVersion, 16. Funding for the Nuclear Electricity Project Committee was announced by the Ministry of Energy on 19 December 2010. 34 website last viewed on 11 November 2010. 95 The Third State of Human Rights Report The Third State of Human Rights Report

that should be progressively pursued, the challenges in the housing developed to enable more Kenyans to get connected to the national grid. sector demonstrate the inadequacy of the interventions so far undertaken. Recommendations 111. While the Umeme Pamoja project has benefited many Kenyans, both REA Assessing Achievement of Targets and KPLC should take steps to involve more potential consumers, 303. According to Kenya Vision 2030, the government has committed itself to particularly the poor, in determining how they can also access affordable provide its citizens with adequate and decent housing in a sustainable electricity. Emphasizing customer participation in decision-making can environment. In its endeavor to achieve this, the first MTP committed to also promote accountability of service providers. undertake a number of projects: ! The preparation of a national land-use plan in order to facilitate better 112. To reduce the present, high costs of connecting households to electricity, urban planning; the government should consider reviewing existing policies on rural ! Installation of physical and social infrastructure in slums in 20 urban electrification to determine the extent to which costs can be reduced for areas; poorer households. ! Construction of 200,000 housing units annually by 2012; ! Establishment of housing technology centres in each constituency to 113. The Ministry of Energy and its partners need to invest more in research and increase access to decent housing by promoting location-specific development, particularly in the field of renewable energy sources. building materials and low-cost housing; ! Facilitating provision of secondary mortgage finance corporation to increase access to housing finance; and ! Enacting the Housing Bill of 2006.

Establishment of a Strong Legislative Framework 304. The National Housing Policy of 2004 provides a road map under which the legislative framework in the housing sector can be improved. The policy aims at facilitating the enactment of several pieces of legislation within the housing sector. Some of the goals the policy sets out to achieve regarding the housing legislative framework include the enactment of the Housing Act to, among other things, strengthen the role of the Director of Housing in coordinating, guiding and facilitating housing and human settlements development; to rename the existing Housing Act to be the National Housing Corporations Act; and review the Rent Restriction Act and the Landlord and Tenants Act to make them conducive for investment in rental houses. Even so, the majority of urban Kenyans live in rented houses with rent falling outside the jurisdiction of the Rents Restriction Act and the Rent Restriction Tribunal.

305. The Kenya Vision 2030 First Annual Progress Report indicated that the bill for the proposed Housing Act had been forwarded to the Attorney General for finalization. The pace for achieving this target of strengthening the legal framework has been slow. 94 35 The Third State of Human Rights Report The Third State of Human Rights Report

SECTION 5 State Obligations CHAPTER 2 298. The obligation to respect requires states to refrain from interfering directly or indirectly with the enjoyment of the right to adequate housing. The obligation to protect requires states to prevent third parties from interfering with the right to adequate housing. The TTHHEE RRIIGGHT TO FOOOODD obligation to fulfill requires states to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures to fully realize the right to adequate housing including direct provision in “The right to food is the medicine of a world sick of hunger, Prof. Olivier de cases where people are involuntarily displaced from their homes. Schutter (UN Special Rapporteur on the Right to Food, 2010) 299. Article 2(1) of ICESCR obligates states to take steps, individually and through international assistance and co-operation, especially economic Introduction and technical, to the maximum of its available resources, to achieve progressively the full realization of the rights recognized in the present 114. The right to food is also an enabling right, key to the enjoyment of other Covenant by all appropriate means. States must therefore show that rights such as the right to life. The Committee on Economic, Social and they are making every possible effort, within their available resources, Cultural Rights in General Comment No. 12 has noted that the right to food is to better protect and promote the right to adequate housing. According inextricably linked to the enjoyment of other rights. The right to food to the article, states are obligated to: demands not only the provision of food, but also the guarantee of its ! Take legislative and judicial, administrative, policy, economic, social sufficiency and nutritional value. and educational measures to ensure the objective achievement of legislative steps. 115. Agriculture, particularly in a country like Kenya, is linked to food security. If ! Ensure that progressive steps towards full realization of the rights are the interventions within the agricultural sector are realized, there are taken. stronger guarantees on the promotion of food security as well as the provision of employment opportunities and raw materials for other industries. The challenge in the achievement of the Millennium 300. The ICESCR further requires state parties to guarantee the rights in the Development Goals (MDGs), particularly MDG1 on the eradication of covenant without any discrimination. This therefore means that the extreme poverty and hunger, has been attributed to poverty and high food state in its endeavor to provide adequate housing for everyone should prices (Republic of Kenya, 2010d). Households experiencing extreme ensure that persons with disabilities, women, children, orphans, and poverty will often not have a sustainable livelihood which in turn impacts persons living with HIV/AIDS are given equal consideration. negatively on the country's economic growth. 301. At the legislation level aspects of the right to adequate housing are 116. Agriculture contributes 24 percent of Kenya's Gross Domestic Product (GDP). enshrined in different laws. None of these laws however deal In recognition of this, the government has put in place policies and comprehensively with the issues of housing as a right. programmes to promote agricultural production. The Ministry of State for 302. The National Housing Policy of 2004 recognizes the linkages between Planning, National Development and Kenya Vision 2030 first MTP 2008- adequate housing and dignity, security, and privacy of persons; and 2012, also provides that agriculture, which is a key sector with great poverty reduction through employment generation, raising incomes, potential for growth, is not only a direct contributor to over a quarter of the improved health and increased productivity. The policy further country's GDP but is also a source of livelihood for the majority of Kenyans. recognizes the role of the government in facilitating the provision of The Kenya Vision 2030 stipulates government interventions in the adequate shelter and a healthy living environment at affordable cost to agricultural sector, which include “innovative, commercially oriented and all socio-economic groups in Kenya for purposes of fostering sustainable modern agriculture, livestock and fisheries sector” (Republic of Kenya, human settlements (Republic of Kenya, 2004). Whereas this policy paper 2007a: 13). encapsulates the expected elements of the right to adequate housing 36 93 The Third State of Human Rights Report The Third State of Human Rights Report

correspondence, nor attacks upon his or her honor and reputation. The 117. The government interventions in the agricultural sector are thus main international instrument on the right to housing is the ICESCR expected to generate an additional Kshs. 80-90 billion increase in the which in Article 11 recognizes the right of everyone to an adequate GDP. The interventions also envisage a growth rate in agricultural standard of living for the individual and his or her family, including production to seven percent by 2013, which is anticipated to translate adequate food, clothing and housing, and to the continuous into food security for the country, creation of employment opportunities improvement of living conditions. and increases in income particularly for small-scale farmers (Republic of Kenya, 2009f). It is expected that such outcomes would free Kenyans from hunger at all times. 294. At the national level, the first housing policy formulated in 1966-67 as Sessional Paper No.5 on Housing Policy directed that the government should provide the maximum number of people with adequate shelter Scope and Legal-Policy Sources of the Right to Food and healthy environment at the lowest cost possible by encouraging 118. The scope of the right to food entails accessibility of food, its safety and mobilization of resources for housing development through aided self- nutritional value among other considerations. The Committee on help and co-operative efforts. Economic, Social and Cultural Rights has stated in General Comment No. 12 that the right to adequate food requires “the availability of food 295. The housing sector is regulated by several pieces of legislation: The in a quantity and quality sufficient to satisfy the dietary needs of Housing Act (Cap 117) makes provisions for the operationalization of the individuals, free from adverse substances, and acceptable within a National Housing Corporation and makes provisions for allocation of given culture”; and “the accessibility of such food in ways that are loans and grants of public moneys for the construction of dwellings. The sustainable and that do not interfere with the enjoyment of other Rent Restriction Act (Cap 296) makes provisions for restricting of rent, human rights” (UN Committee on Economic, Social and Cultural Rights, fixing standard rent in relation to low-cost dwelling-houses, and for 1991). other purposes incidental to or connected with the relationship of landlord and tenant of a dwelling-house. The Landlord and Tenants Act (Cap 301) is another source of regulation pertaining to housing which 119. It is not enough, therefore, just to ensure that people do not starve. makes provision with respect to certain business premises for the There is an additional onus on the government to ensure that the food protection of tenants of such premises from eviction or from provided meets four key standards. The first relates to the adequacy of exploitation. the food, which is tied to the quality, quantity, nutritional level and cultural acceptability of the food available at the market and household levels. Good nutrition is particularly crucial in the early years of life in 296. The adoption of the Sessional Paper No.3 of 2003 on National Housing order to promote not only human growth but also mental development Policy for Kenya on the right to adequate housing paved way for a and is key in curbing maternal mortality and infant mortality. According process of formulating a comprehensive Housing Act to enable the to the FAO Director General Jacques Diouf “with a child dying every six regularization of the housing sector. The goal of the policy is to facilitate seconds because of undernourishment - related problems, hunger adequate shelter and a healthy environment at an affordable cost to remains the world's largest tragedy and scandal.”17 different socio-economic groups in Kenya.61

120. The scope of the right further draws on the need for equality in distribution. 297. Another important policy document is the Sessional Paper No. 3 of 2009 Equality and non-discrimination is core in the implementation of policies, on National Land Policy which seeks to address the critical issues of land administrative and legislative measures. It has been observed that the administration, access to land, land use planning, unplanned gravity of the food crisis in parts of Kenya is as a result of underlying issues of proliferation of informal urban settlements, outdated legal framework, inequity, marginalisation and inadequate policy and institutional institutional framework and information management with special arrangements (KNCHR, 2007). To this end, the Kenya government has attention on security of tenure for all those entitled to it. The policy adopted the National Food Security Policy, aimed at improving food security recognizes the need for security of tenure for all Kenyans in regards to in Kenya and creating an environment that enables individuals to feed land and property and provides a road map in the planning of national, regional urban and peri-urban areas for spontaneous settlements.

92 61. Ibid, 17. See FAO Media Centre t http://www.fao.org/news/story/en/item/45210/icode/, website last viewed on 2 November 2010. 37 The Third State of Human Rights Report The Third State of Human Rights Report

themselves. on the Right to Adequate Housing, the UN Committee on Economic, Social and Cultural Rights provides that the full enjoyment of other rights which include freedom from expression, freedom of association, freedom of 121. The second component relates to the availability of food which as the residence and the right to participate in public decision making is Committee on Economic, Social and Cultural Rights has noted should be of indispensable if the right to adequate housing is to be realized. The quantity and quality sufficient to satisfy the dietary needs of individuals. The Committee further notes that the right not to be subjected to any arbitrary third component relates to its quality and thus the need for food to meet the or unlawful interference with one's privacy, home and family constitutes a essential nutritional needs required by the individual's body. Finally, the very important dimension in defining the right to adequate housing. The food should be safe which means that it should be free of adverse 18 concept of adequate housing cannot exist unless certain factors are taken substances and should be edible. Moreover, the term food should be into account in determining whether particular forms of shelter can be understood to include not only solid foods but also the nutritional aspects of considered as constituting adequate housing. clean drinking water, the latter being an essential part of healthy nutrition and also essential in food preparation. 292. Some of the factors to consider in assessing adequacy of housing include the following: 122. It is important also to note that while the right to adequate food and the ! right to be free from hunger are commonly used interchangeably, the two Security of tenure: the right to housing is not adequate if its occupants do concepts are distinct from each other. The concept of adequacy relates to not have a degree of security of tenure that guarantees legal protection the quality and quantity of the food as outlined above, while freedom from against forced evictions and other threats. Tenure takes a variety of forms hunger has been interpreted by the FAO to mean the minimum daily including rental accommodation, cooperative housing, lease, owner nutritional intake that ensures the bare survival of the individual.19 occupation and so on. ! Availability of facilities and infrastructure: Adequate housing requires facilities such as water, electricity, sanitation, security and access to health 123. The right to food is well elaborated in various international as well as facilities. According to the UN General Comment No. 4 on the Right to regional instruments. Further, domestic legislation reaffirms the global Adequate Housing, an adequate house must contain facilities essential for recognition of the right to food. Article 11 (1) of the ICESCR requires that health, nutrition, security and comfort. “State Parties to the present Covenant recognize the right of everyone to an ! adequate standard of living for himself and his family, including adequate Accessibility: Housing must be accessible to those entitled to it. food.” Further, paragraph 2 of that article also recognizes “the fundamental Vulnerable and disadvantaged groups such as women, persons with right of everyone to be free from hunger”. The ICESCR also stresses the need disabilities, persons living with HIV/AIDS and orphans, should be able to for state parties to take appropriate measures to combat disease and access housing without any form of discrimination. malnutrition. ! Habitability: Adequate housing must be habitable in that it protects its inhabitants from damp, rain, cold, heat, wind and vermin or other threats to health. 124. Other core human rights conventions with right to food provisions are the ! Protocol to the African Charter on Human and Peoples Rights on the Rights Location: Housing should be located in areas that are accessible to other of Women in Africa, CEDAW and CRC. social services such as workplaces, health centers, schools, banks, markets and so on. ! Affordability: Housing should be affordable to all. States should ensure 125. According to General Comment No. 12, the right to food is realized when that the percentage of housing related costs is in general, commensurate “every man, woman and child, alone and in community with others has with income levels. Middle income and low income earners should be physical and economic access at all times to adequate food or means for its procurement” (UN Committee on Economic, Social and Cultural Rights, able to afford decent housing. 1991: paragraph 6). The right to food also ensures the enhancement of the more general right to an adequate standard of living as provided for in the 293. The right to adequate housing is included in several international binding instruments. Article 12 of the UDHR protects everyone from 18. FAO, The Right to Food in Theory and in Practice at http://www.fao.org/Legal/rtf/booklet.pdf , website last viewed on viewed on 2nd November, 2010). arbitrary interference with the individual's privacy, home, family, 38 19. FAO: The Right to Food in Emergencies at http://www.fao.org/docrep/w9990e/w9990e05.htm, website last viewed on 27 October 2010. 91 The Third State of Human Rights Report The Third State of Human Rights Report

287. The demand for adequate housing in Kenya is on the rise with an estimated ICESCR. The right requires that steps are taken to eradicate poverty which is 20,000-30,000 housing units constructed each year, contrasted with the a consequence of hunger which in turn impedes productivity. need for at least 150,000 housing units (Republic of Kenya, 2004). 126. At the national level the agriculture sector is governed by 131 pieces of 288. The Social Pillar of Kenya's Vision 2030 Medium-Term Plan (MTP) recognizes legislation and policy statements which either expressly or impliedly provide some of the challenges in the housing sector, including lack of adequate, for the right to food, including the constitution which provides for the right affordable and decent housing; low level of urban home ownership; and to life which can broadly be interpreted to include the right to food.20 There is expensive and inappropriate dwelling units like slums (sic) and squatters. the Agriculture Act (Cap 318), which not only defines agriculture as including The MTP also recognized the effect of the 2007 post-election violence the cultivation and use of land for husbandry, but also seeks to promote and which left many homeless and internally displaced. maintain “a stable and efficient agricultural industry capable of producing such part of Kenya's food and other agricultural produce as in the interest of Kenya” as provided in section 4. Others are the Poverty Reduction Strategy Scope and Legal-Policy Sources of the Right to Accessible and Adequate Paper (2005); the Food Security and Nutrition Strategy Draft (2008) and the Housing Agricultural Sector Development Strategy (ASDS) 2009-2018. 289. The UN Special Rapporteur on the Right to Adequate Housing has adopted a working definition of the right to adequate housing as “the right of every woman, man, youth and child to gain a secure home and community in State Obligations which to live in peace and dignity”.57 Adequate housing has been recognized 127. Guideline 3.1 of the FAO Voluntary Guidelines to support the progressive as housing that conforms to basic standards with regard to security of realization of the right to adequate food in the context of national food tenure, availability of services, materials, facilities and infrastructure.58 It is security provides that states in consultation with stakeholders should “adopt therefore a right which contains freedoms, entitlements and more than just a national human-rights based strategy for the progressive realization of the having four walls and a roof. The right to adequate housing further protects right to adequate food.”21 This requires the adoption of a national right to against forced evictions since individuals are entitled to a form of security of food strategy to cater for the challenges relating to hunger and malnutrition. tenure. It further provides that such a strategy would “help to promote awareness, empowerment and participation within the country and enhance the consultation and interaction between the government and civil society 290. Even though the right to adequate housing is an entitlement that should be organizations”.22 guaranteed by the government, it should be noted that its realization does not mean that the state is obligated to build houses for the entire population. Rather, the right to housing binds states to take measures that 128. State obligations under the right to food are three fold and entail the are needed to prevent homelessness, prohibit forced evictions, address obligation to respect, protect and fulfill. These obligations involve discrimination, address the rights of the marginalized, ensure security of governments taking measures that ensure: 59 tenure for all and ensure that every individual enjoys adequate housing. ! Individuals enjoy the right to food by promoting accessibility to food States are therefore meant to make immediate effort within their available and guarantee its security. It also entails the enactment and resources to realize the right to housing and these steps should be taken 60 enforcement of legislation that ensures that the right to food is not without any delay. Such steps include ensuring that markets do not violated. increase vulnerability of low income and marginalized groups in ways that ! undermine their capacity to provide for this right. Non-interference by third parties with individual enjoyment of the right to food. It requires improvement of right-holders' access to and utilization of resources and means to ensure livelihood. This includes 291. The right to adequate housing is interdependent with other rights crucial for land reforms through review of legislation and policies that inhibit the preservation of human dignity and privacy. In General Comment No. 4 access to productive agricultural land and ensuring peace and a

57. Kothari M., UN Special Rappoteur on the Right to Adequate Housing commentary on the right to adequate housing in Kenya. 20. This article was repealed by the New Constitution article 43 which provides for the right of every person to be “free from hunger, and to have 58. Human Rights Education Associates, The Right to Housing, viewed on 11 November 2010, at http://www.hrea.org/index.php?doc_id=411 adequate food of acceptable quality.” 59. Office of the United Nations High Commissioner for Human Rights, UNHABITAT, The Right to Adequate Housing, Fact Sheet No. 21, website last 21. Voluntary Guidelines to support the progressive realization of the right to adequate food in the context of national food security at visited on 11 November 2010, at http://www.ohchr.org/Documents/Publications/FS21_rev_1_Housing_en.pdf http://www.fao.org/docrep/meeting/009/y9825e/y9825e00.HTM, last viewed on 1 November 2010. 90 60. Ibid, 22. Ibid., 39 The Third State of Human Rights Report The Third State of Human Rights Report SECTION 6 conducive environment. CHAPTER 7 ! Engagement in activities that will ensure individuals have access to food and that they make use of the resources at hand to facilitate availability of food. Governments should take steps to progressively RIGHT TO ACCESSIBLE AND ADEQUATE realize the right to food. In emergency situations the state obligation shifts from a facilitative role to an obligation to provide food for HOUSING people. “Housing is an outward sign of status and affects the health and well-being of the 129. The right to food, therefore, means that the government should engage surrounding community. Probably only those who have experienced how hard it is to measures that tackle hunger, food insecurity and malnutrition. This also have personal and family stability or land a job without a home, how hard it is to keep entails protection of this right from being violated while also availing up with schoolwork in an overcrowded apartment, how much the sheer pressure to resources and investing in measures that ensure that the right to food is make the rent can overwhelm the rest of one's life…” Charles Hartman, Fannie Mae not breached. Notably, while it is the obligation of the government to Foundation.55 ensure access to adequate food, through ensuring respect and protection of the right, it is, however, the primary role of the individual Introduction to meet their own food needs and that of the government to create a conducive environment (FAO, 2002). 284. The right to accessible and adequate housing is a basic right that is instrumental to other rights, including the rights to health, human dignity, privacy and security. Despite the centrality of this right, many people in the Assessment of Achievement of Targets world and in Kenya are homeless or live in inhabitable dwellings. Further, 130. In the years under review 2008-2010, the government committed itself others are rendered homeless through 'development'-related to undertake several initiatives within the agriculture, livestock and displacements and evictions and conflicts. fisheries sectors as stipulated in the Vision 2030 and reiterated in the first MTP. These initiatives are aimed at enhancing food security and promoting the right to food. This report focuses on four of the initiatives 285. The ICESCR affirms the right to an adequate standard of living for everyone, to assess the status of implementation and to highlight the measures thereby according a variety of rights, including the right to adequate food, clothing, housing and the continuous improvement of living conditions for taken by the government and to determine the extent to which these the individual and his or her family. measures ensure progressive realization of the right to food while promoting food security. These are: ! The enactment of the Consolidated Agricultural Reform Bill 286. Lack of adequate housing in many parts of the world impacts the ! enjoyment of other human rights. Despite increased international Fertiliser Cost-reduction investment attention on this right, many people still live in health-threatening ! Land Use Master Plan conditions in overcrowded informal settlements while others are forcibly 56 ! Arid and Semi-Arid Lands (ASAL) Development Project evicted from what they call home. In its General Comment No. 4 on the Right to Adequate Housing, the UN Committee on Economic, Social and Cultural Rights has further noted that problems of homelessness and 131. These interventions were aimed at the enhancement of food security inadequate housing continue to exist with over 100 million persons left and nutritional status; increase in productivity and output in agriculture; homeless and over one billion inadequately housed. This has undermined enhancement of access to farm inputs and credits, the promotion of the enjoyment of related rights to human dignity and privacy. market access and product development as well as the promotion of sustainable land use and environmental conservation. Based on the above interventions, the agricultural sector has had various achievements within the period under review. These include: reduced 55. See Fannie Mae Foundation, 1998, Charles Hartman, 'A Case for a Right to Housing', in House Policy Debate, Vol. 9 Issue 2, p229, viewed on fertilizer prices, distribution of free farm inputs, increased food December 8, 2010, at http://ppc.uiowa.edu/uploaded/Hartman%20--%20Case%20for%20a%20Right%20to%20Housing.pdf 56. United Nations High Commissioner for Human Rights, UN HABITAT, The Right to Adequate Housing, Fact Sheet No. 21, viewed 10 August 2010, 40 http://www.ohchr.org/Documents/Publications/FS21_rev_1_Housing_en.pdf 89 The Third State of Human Rights Report The Third State of Human Rights Report

Conclusion production and food security, increased agro-processing, enhanced 279. In the past decade, the government has made important progress in market information to farmers and improved extension services. expanding water coverage. Various government reports show the progress made in water coverage expansion during the period under The Enactment of the Consolidated Agricultural Reform Bill review. However, there is no concrete analysis provided about the impact that water sector reforms have had on people's lives. Budgetary 132. One of the key initiatives of the government was to review the legal allocations to the water sector also increased during the period under framework aimed at ensuring harmonization and rationalization of review to stand at Kshs. 18.5 billion in 2008/2009, up from Kshs. 4.5 contradictory, overlapping and obsolete provisions, which have had a billion in 2004/2005. negative effect on food provision, availability and cost. These laws include the Agriculture Act (Cap 318), Agriculture Produce (Export) Act (Cap 139), Agriculture Produce Marketing Act (Cap 320), and the Crop Recommendations Production and Livestock Act (Cap 32). It is also influenced by other 280. There have been commendable efforts to improve access to water and legislation including Public Health Act (Cap 242), Food Drugs and sanitation in some informal settlements in Nairobi and Kisumu. These Chemicals Substances Act (Cap 254) and the Meat Control Act (Cap 356). efforts should be scaled up countrywide. The review of the 131 pieces of legislation in the agriculture sector laws was intended to increase efficiency of operations while at the same time 281. In the drier areas such as the Northern East Province, greater attention setting up a dispute resolution mechanism. should be focused on reducing the time spent by children and women fetching water. The Ministry of Development of Northern Kenya and 133. During the period under review, the Government established a Thematic Arid Lands should coordinate such interventions. Working Group on Legal and Regulatory Reforms to facilitate harmonization of the laws. The laws have also been collated and bound 282. Kenya has a poor water-harvesting culture which leads to the wastage of for ease of review and procurement of a legal consultant approved by large amounts of rain water. Government ought to consider giving Treasury. people incentives to fit water storage facilities in their households and business premises. Perhaps it could provide a subsidy to people willing to fit them. 134. In addition, the Strategy for Revitalizing Agriculture (SRA) 2004-2014 was replaced by the Agricultural Sector Development Strategy (ASDS) 2009-2018 which seeks to provide a conducive policy and institutional 283. Efforts by the Ministry of Environment to reclaim and conserve water towers and catchment areas should continue to be given special attention.

88 41 The Third State of Human Rights Report The Third State of Human Rights Report

environment aimed at increasing agricultural productivity. One key 274. Kenya Vision 2030 observes that developing sustainable water supply is achievement of the SRA was the establishment of the Agricultural partly dependent on the country's ability to restore and protect its five Sector Coordination Unit (ASCU), an inter-ministerial unit, tasked with main water towers. Government has also acknowledged the need to tackling the “fragmentation of the responsibilities between different improve water harvesting and storage among households. However, 23 agriculture and rural development-related ministries.” there was no progress report on the target's achievement. The government also aimed to increase forest cover to three percent 135. The SRA was also instrumental in enhancing growth in the agricultural (Republic of Kenya, 2010d). Deforestation has affected large tracts of sector. The ASDS, unlike the SRA, is aligned to the first MTP and is thus land in the Mau Forest Complex, Kenya's key water tower. In South West aimed at delivering the 10 percent annual economic growth rate Mau, for instance, human activities and forest fires have reduced the envisaged under the Kenya Vision 2030 through the incorporation of forest cover by some 64 percent. the proposed agricultural policy. It also takes into account the Comprehensive Africa Agriculture Development Programme (CAADP) that recognizes the contribution of agriculture towards the acceleration 275. In 2010, the Interim Coordinating Secretariat on the Mau Forest of economic growth. Complex started a Kshs. 7.5 billion exercise which involved carrying out evictions in order to rehabilitate 23, 000 hectares (about 10 percent of the size of the forest). The final phase of the rehabilitation of the Mau 136. In its first state of human rights report (2003-2004), the KNCHR Forest Complex begins in January 2011 and targets about 61,000 commended the government for having acknowledged the handicaps hectares of land. created by the proliferation of many laws targeting the agricultural sector and noted the government's proposal for harmonization. Delays in the harmonization of legislation have had a detrimental effect on Sanitation Facilities agricultural development and farmers have had less return on their 276. Many parts of Kenya lack sanitation infrastructure and where the produce and have been subject to a multiplicity of taxes and poor infrastructure exists, it is poorly operated and maintained which leads to services, occasioned by the rigid and prohibitive regulatory framework. pollution of water resources. Most water service providers do not Corruption and poor governance has resulted in the collapse of some manage on- site sanitation facilities like pit latrines. This is partly institutions within the sector. This has been attributed to among others attributed to lack of investments in sewerage and treatment systems the lack of a harmonized legal framework to increase operational which tend to be expensive. The sewerage/waste management efficiency and establish a dispute resolution mechanism. component of water projects have not generally been emphasized (WASREB, 2010). 137. The efforts under way to ensure harmonization of legislation should be speeded up to avoid fragmentation of interventions and also ensure that government activities towards food security are streamlined. This will 277. During the period under review, the government planned to enhance ensure mainstreaming of checks and balances in the acquisition and sanitation coverage to 40 percent of urban households and six percent distribution processes in the respective governmental departments and of rural households. In the period 2008-2009, water supply and ministries. sewerage systems have been rehabilitated and expanded to cater for some one million people in six towns, namely Kehancha, Kitui, Machakos, Maua, Ruiru and Siaya. Fertiliser Cost-Reduction Investment 138. During the years under review, one of the challenges experienced in the 278. Environmental concerns and poor drainage are problems that are still agricultural sector was the “fluctuating cost of crude oil, fertilizers and agro-chemicals” resulting in the rise in production costs (Republic of being experienced. The KNCHR survey found that 29 percent of and 24 Kenya, 2010d: 58). It is such challenges that the government had sought percent of urban households reported having poor drainage and waste to curb when it put in place the fertilizer cost-reduction investment management systems, respectively. More than 50 percent of the rural households reported that they only had access to pit latrines.

42 23. Agricultural Sector Coordination Unit website at http://www.ascu.go.ke/about%20us-ascu.cfm, website last viewed on 5 November 2010 87 The Third State of Human Rights Report The Third State of Human Rights Report

Table 6.2: Affordability of different sources of water initiative which seeks to put in place procedures for effective fertilizer distribution and warehouse facilities as well as build the capacity of Figure 6: Affordability of different sources of water farmers and their organizations to produce more effectively and 90 80 efficiently. 70 60 50 40 139. Kenya's agricultural sector comprises both small-scale and large-scale 30 20 farming geared towards food production and also provides over 80 10 24 0 percent of employment opportunities. The small-scale industry is particularly relevant for persons living in rural areas who derive their livelihoods predominantly from agriculture related activities. The government has put in place the Agribusiness and Information Management Programme with two key projects, the Fertilizer Strategy and the National Agriculture Accelerator Programme operational in 38 districts providing inputs to small-scale farmers. Affordable Unaffordable Don’t know Source: KNCHR Survey on Implementation of Water Sector Reforms (2010) 140. The government through the National Cereals and Produce Board (NCPB) successfully commenced the bulk procurement of various fertilizers and injected these into the market. An additional achievement to note is the reduction in fertilizer prices per bag, for example reduction Reliability and Sustainability of Water Services of 50 kilogramme bag from Kshs. 6,400 to Kshs. 2,500 (Republic of Kenya, 273. KNCHR's survey found that about 50 percent of households have 2010d: 57). Further, there were increased efforts toward the unreliable water supply. Nearly all water sources, including piped and enhancement of knowledge and skills of farmers through training and non-piped sources, including boreholes, springs, rain water and other knowledge sharing. In addition, the government issued farmers in surface sources were judged to be unreliable. Focus group discussion different parts of the country with an assortment of seeds and availed participants in Kisii complained that local authorities and water service credit facilities. providers continued to regularly charge residents for what they termed “erratic water supply”. 141. If effectively implemented, the fertilizer cost-reduction incentive would have a positive impact on shoring up food security across the country. Figure 5: Reliability of Sources of Water The success story of Malawi's fertilizer subsidization initiative that 90 80 resulted in the change in economic status of Malawi from a maize 70 recipient to donor country is worth highlighting. 25 60 50 40 30 20 10 0

Unreliable Reliable Don’t know

Source: KNCHR Survey on Implementation of Water Sector Reforms (2010) 24. A detailed analysis of food production in Kenya is available in the Bayer Crop Science Supporting Small Scale Farming in Kenya: The Green World Food Chain Partnership Project Report at http://www.bayercropscience.com/BCSWeb/CropProtection.nsf/id/GreenWorld/$file/KENYA_greenworld_web.pdf, website last viewed on 3 November 2010. 86 25. Jomo Frank; 'Malawi needs alternatives to subsidized fertilizer – experts' at www.africafiles.org/article.asp?ID=16931, website last viewed on 12th January 2011. 43 The Third State of Human Rights Report The Third State of Human Rights Report

presence of pit latrines leads to a lot of underground seepage which causes outbreaks of waterborne diseases such as cholera.

Case Study: Improving Food Security in Malawi Affordability of Water As recent as 2005, five million Malawians - about half the population of the country wallowed in acute food shortage that sent some to their early graves. But like a miracle, two years after 271. The government has the obligation to ensure that water and sanitation the 2005 famine, the country has turned the corner, harvesting maize, the country's staple facilities are affordable to all persons. The WSTF has been supporting food, in its abundance. water and basic sanitation development in poor parts of the country, particularly in the rural areas and semi urban settlements. From a food beggar, the country is now a donor, donating some of its maize to hunger-stricken Lesotho and Swaziland while selling tens of thousands of tonnes of its surplus maize to neighboring Zimbabwe. 272. Affordable water services remain out of the reach of many households From 2006 farmers have been receiving coupons to allow them purchase a 50-kilogramme because they rely on water vendors whose services tend to be expensive bag of fertilizer at a subsidized price of USD 7 rather than the retail price of almost USD 29. because they factor in the cost of physically delivering the water. The Coupled with good climatic conditions, the programme became an instant success, with KNCHR survey found that about 30 percent of households interviewed 54 farmers recording two tonnes of yields from a hectare as compared to the traditional 700 were unable to afford to buy water regularly. Households in informal kilogrammes. In 2007 the country registered a record surplus of maize in recent history. settlements are particularly affected. The respondents reported that the cheapest options for obtaining water was fetching water from water A report by the Ministry of Agriculture indicates that Malawi registered a maize surplus of 1.3 bodies (77 percent of respondents) and harvesting rain water (63 million tonnes, a 22 percent increase over the 2006 production and 73 percent higher than percent of respondents). In general, households which buy water from the average for the past five years. Buoyed by its success, the Malawi government has water vendors tend to expose themselves to various health risks as they intensified the subsidy programme, spending on the same about USD 71 million this year from rarely are aware about the source of the water. USD 62 million spent in 2006.

54. As a part of the process of developing this study, the KNCHR also contracted the University of Nairobi's Institute for Development Studies (IDS) to undertake field research during the period June to September 2010 to determine how policy programs on the right to water and sanitation and access to electricity are being implemented. To gauge public and expert opinion on the implementation of policy programs in these areas, a national field survey comprising a sample size of 44 1,200 households across the eight provinces in Kenya was undertaken in September 2010. 85 The Third State of Human Rights Report The Third State of Human Rights Report

Sustainability 142. While it is notable that there are measures to reduce fertilizer costs, 266. The WSTF has during the period under review funded several water farmers cannot enjoy such initiatives where they are unable to access projects aimed at increasing access to clean water and sanitation credit facilities to purchase the fertilizers. Many of the farmers in Malawi especially for the previously neglected populations living in urban take cognizance of the affordability of the fertilizer as the factor leading informal settlements. Under their Urban Project Cycle (UPC) the WSTF towards their high production, hence while the Ministry of Agriculture aim of improving access to affordable water and sanitation in high prides in the reduction of fertilizer costs it is still considerably high if the density and low income urban settlements including informal same was compared to Malawi for example. settlements made commendable gains during the review period. The project, using low cost technology saw the trial run in 2009 reach 150,000 143. In its 2010 assessment report, the Ministry of State for Planning and people in the Lake Victoria North Water Catchment area. Scaling up it up National Development and Vision 2030 noted that the escalation of at a per capita investment cost of Kshs. 800 (approximately USD 10) per fertilizer prices remained a challenge despite the prize of seeds being person served provides the possibility of enabling the achievement of contained. Further, farmers faced 'low availability of capital and access rapid coverage of poor Kenyans and consequently making good progress 53 to affordable credit', which resulted in low productivity since farmers are towards meeting MDG No. 7. unable to access credit due to the high interest rates.

267. While such projects have the potential to run sustainably, other water 144. In addition, the lack of adequate storage facilities has resulted in the institutions face major sustainability challenges. The regional water wastage of food, particularly perishable foods such as maize. Food service boards continue to rely on government financing, even though it insufficiency and drought conditions experienced by some regions was expected that they would be self-sustaining within five years of their continue to be a challenge to government's food distribution efforts, establishment. particularly in light of the poor infrastructure and lack of strategies by the government to ensure that food is transported from food surplus 268. In general, the water services sector faces difficult challenges which regions to food deficit regions. affect its capacity to improve service provision. Many have poor corporate governance practices. For instance, local politicians continue Land Use Master Plan to sit on some of the regional water boards, opening them up to political interference. Additionally, managers running different water service 145. Land is an emotive issue in Kenya and has been the cause of many provision bodies have been faulted for not being transparent and deaths, social tensions. Land is also the main asset in agricultural accountable (WASREB, 2010). production. Therefore, under this initiative the government proposed to develop a National Land Use Master Plan with the Agriculture Land Use Master Plan. 269. In another target, the government is aimed to increase the number of rural households that have access to water from a protected source to 48 percent. As part of its initiatives to make this a reality, the government 146. The Master Plan is aimed at ensuring efficient land utilization, taking into proposed to build 24 medium-sized, multipurpose dams. Five such dams account the limited availability of land for agricultural production. Kenya are currently being constructed in Kitui, Kajiado, Koibatek, Machakos has a total area of about 587,000 square kilometres of which 11,000 and and Marsabit districts (Republic of Kenya, 2010d). Feasibility studies are 576,000 square kilometres are water and land mass, respectively. Only also being undertaken to inform the potential construction of two large about 16 percent of the land is of high and medium agricultural potential multipurpose dams in Nandi and along River Nzoia. largely because it receives adequate and reliable rainfall.

270. In some water scarce parts of the country, communities have combined 147. The government adopted Sessional Paper No. 3 of 2009 on Land Policy resources to in order to dig wells. In Kisii, the high water tables and the for Kenya to address the land-based challenges. The government has done commendably well in the adoption of the Sessional Paper. The policy reflects the AU declaration on land issues and challenges in Africa which seeks to ensure that domestic policies “ensure that land laws 84 53. See www.unhabitat.org/bestpractices/2010/mainview.asp?BPID=2337, website last viewed 6 April 2011. 45 The Third State of Human Rights Report

provide for equitable access to land and related resources among all land Accessibility users including the youth and other landless and vulnerable groups such 26 263. Under the MTP 2008-2012, the government aimed to expand piped as displaced persons.” water coverage to 65 percent of urban households. The KNCHR survey found that 54 percent of urban households interviewed reported having 148. The Sessional Paper aims at curbing such challenges as inequitable access to piped water. Households with access to piped water are able to distribution of land in Kenya. Thus far, the Land Reforms Transformation access water frequently, perhaps everyday or at least a few times a week. Unit (LRTU) has been formed and tasked with the planning, management Easy access to water improves sanitation. Expanding piped water and guidance of land transformation. The Ministry of Agriculture has coverage also frees up time and energy that women and girls would have also developed draft concept papers on the National Land Use Policy and had to spend fetching water. Plan. Although there has been a lot of ground work carried out, not much has been undertaken with regards to the realization of this initiative during the period under review, hence the difficulty in assessing 264. The 2009 National Population Census plotted the diversity of water achievements. sources among rural and urban households in Kenya. As the table 6.1 below shows, piped water is the main source of water for most households in the Nairobi, Central and Coast provinces. Boreholes and Arid and Semi-Arid Lands (ASAL) Development Project wells are the most accessible sources of water in the Rift Valley, Eastern, 149. Communities living in arid and semi-arid parts of the country are often North Eastern, Nyanza and Western provinces. the most vulnerable to food insecurity due to “recurring natural disasters of drought, livestock diseases, animal and crop pests, and limited access 265. Water is considered safe if it is obtained from the following sources: to appropriate technologies, information, credit, and financial 27 piped water, boreholes, protected springs, and protected wells. In services”. Further, poor planning has in the past resulted in redirection 2005/2006, about 57 percent of households had access to 'safe' sources of resources to interventions whose impact is not sustainable. In order to of water. In 2008/2009, the number of households with access to 'safe' tackle the issues of marginalization in ASAL areas, the government has sources of water rose to about 63 percent (Republic of Kenya, 2010d). put in place the ASAL-based rural livelihood project to address issues of productivity and market access as well as orphan crop seed bulking and distribution (Republic of Kenya, 2010d). In addition, the government Table 6.1: Urban households by main source of w ater by province enhanced the ASAL programme which is an initiative that has been in place since the 1980s, through the formation of the Ministry of Northern Province Pond or Lake Stream Spring, Piped Piped Rain Water Other Dam Wells and water to Vendor Kenya Development and Arid and Semi-Arid Lands. The ministry has put in place programs for enhancing food security and tackling the challenge Boreholes dwelling Nairobi 352,821 97,925 1,893,004 3,106,622 602,884 2,023,745 95,279 573,088 22,586 of marginalization in arid and semi-arid areas. Central 18,864 433 318,207 306,997 112,253 374,841 31,794 60,858 495 Coast 58,394 1631 52,049 186,084 55,457 283,378 4,310 86,412 3,484 150. Under the Kenya Vision 2030, the government has committed to exploit agricultural potential in arid and semi-arid areas by putting an additional Ea stern 51,312 1,829 370,309 399,692 60,338 305,832 9,399 84,729 1,398 600,000 - 1,000,000 hectares in Tana and Athi River basins under North 50,830 264 15,964 160,951 4,908 31,322 7,750 30,594 10,078

irrigation. Irrigation is useful in reducing dependence on rain-fed Eastern agriculture. It also enables the country to exploit the potential that exists Rift Valley 92,332 8,922 627,174 776,795 110,753 377,462 25,715 112,290 5,693 in ASAL areas which comprise the largest part of this country. Thus far, Nyanza 72,920 79,225 355,835 538,197 15,649 85,899 11,219 28,821 522

the government has undertaken a feasibility study and prepared a Western 5,408 5,522 152,121 667,177 12,822 50,068 3,401 7,327 229 cabinet memorandum towards the engagement of investors from Iran, China and Japan who have so far showed an interest in investing through Source: the Republic of Kenya, 2009, Kenya Population and Housing Census, Volume 2. the public-private partnership (PPP) model put in place by the

26. African Union Declaration on Land Issues and Challenges in Africa accessible at http://www.unhabitat.org/downloads/docs/AssemblyDecisionLand.pdf, website last viewed on 18th September 2010. 27. Remarks of Lalji Diamond Chairman, Cereal Millers Association, on “The Current Food Situation in Kenya: Challenges and Opportunities” made during a presentation on 18th September, 46 2009. See http://www.tegemeo.org/Responding-Food-Kenya-5.asp, website last viewed on 18 December 2009. 83 The Third State of Human Rights Report The Third State of Human Rights Report

261. Besides ensuring that water and sanitation facilities are accessible, government to enhance investment (Republic of Kenya, 2010d). affordable, sustainable and available, the state is expected to ensure that it respects these obligations by ensuring that it does not take actions that exclude people directly or indirectly enjoying water and 151. Kenya has in the past lacked a coherent pastoral development policy. sanitation services. The state must protect people from interference by Pastoralist development issues have historically been lumped together third parties who impede access to or endanger the quality of water and with other policies such as those for agriculture and tourism. This is sanitation services. The state is also obligated to take all other necessary despite the fact that ASALs host about 70 percent of the national measures- policy, legislative and administrative- to fulfill the right to livestock population with an estimated value of about Kshs. 70 billion water. (Republic of Kenya, 2006). In recognition of the enormous economic potential in livestock production, the ASAL programme aims to improve pastoral productivity by conservation of the environment, domestic Assessing the Achievement of Targets animal genetic resources and other biodiversity as well as improving 262. In the past decade, the government has strengthened the policy, legal and markets and providing social services to mobile pastoralists. institutional framework for the management and use of water resources. The legal and policy framework includes the Water Act, 2002, the Resource Allocation National Water Services Strategy and the Pro-Poor Implementation Plan for Water Supply and Sanitation. Several institutions, including Ministry 152. Budgetary allocations to a ministry are an indicator of the priority levels of Water and Irrigation, Water Services Trust Fund (WSTF), Water Appeal the government accords to the core concerns of the ministry. The Board (WAB) and Water Services Regulatory Board (WASREB), have been Ministry of Agriculture is mandated to ensure agricultural production put in place to oversee water sector reforms. Over the MTP 2008-2012, and enhance food security. During the period under review the the government aimed s at realizing the targets listed below: approved development expenditure for the ministry reduced from Kshs. 6,231,066,500 in the 2008/2009 financial year to Kshs. 4,048,430,000 in the 2009/2010 financial year. The ministry has attributed this reduction ! Improved access to safe water by in budgetary allocation to scarce resources. ensuring that 65 percent of urban households have access to piped water Conclusion ! That 48 percent of rural 153. It is commendable to note the various efforts that the government has households have access to water put in place to enhance food security in arid and semi-arid lands. In from a protected source addition, feeding programs in schools continued but there were no such programmes targeted at vulnerable people, particularly homeless ! That there is increased water people. The question of disparities in the enjoyment of the right to food storage and harvesting capacity remains a key challenge that the government should address by putting with a target of up to 13 cubic in place measures to ensure equality in the realization of the right to meters per capita food. Large populations continue to be food insecure, particularly in the ! That there is increased sanitation arid and semi-arid lands (ASAL) areas which are perennially affected by and that 40 percent of urban drought and famine. At the end of 2009, the government estimated that households have individual or drought had placed an estimated 10 million persons were at risk of shared access to toilet facilities starving. During the period under review some ## deaths from hunger were recorded. ! That six percent more of rural households have individual or shared access to toilet facilities Recommendations ! That for sustainability, the state shall increase forest cover by ensuring 154. The government should take urgent steps to ensure that there is an that the proportion of land area covered by forests rises to 3 percent effective mechanism and adequate funding to prevent deaths resulting from hunger. Therefore as a matter of urgency, the government needs to 82 47 The Third State of Human Rights Report The Third State of Human Rights Report

areas in a timely manner. State Obligations 259. States parties to the IESCR have an obligation to make the right to water 155. The government ought also to develop and place more resources into a reality for everyone. States therefore have to develop programmes feeding programs for vulnerable groups, particularly homeless people, and manage water resources in ways that ensure that everyone, who may be at risk of starvation. without discrimination on any ground, has access to sufficient, safe, acceptable, physically accessible and affordable water supply for both personal and domestic uses. In fact, through the Millennium 156. The government should invest in the research and application of Declaration Goal No. 7 world governments have committed themselves technology of storage facilities that are suitable to different regions, to “[halving] by 2015 the proportion of people without sustainable particularly those susceptible to drought conditions. This will also ensure access to safe drinking water and sanitation”. that there is food for consumption during seasons of drought and floods. 260. General Comment No. 15 of the Committee on Economic, Social and 157. The Ministry of Agriculture should also build the capacity of its officers and Cultural Rights set out five parameters- availability, accessibility, at the local level to be able to monitor food quality and quantities in the affordability, acceptability, sustainability and quality- that can be used market, the NCPB and other storage facilities. to assess the extent of realization of the right to water. ! Availability: each person should have at least 20 litres of water continuously available for their personal and domestic needs, while sanitation facilities should be open for use at all times; ! Accessibility: Water and sanitation facilities should be accessible to everyone without discrimination. Therefore, water and sanitation facilities must be within, or in the immediate vicinity of each household, educational institution, work-place and public place. Fetching water should not exceed thirty minutes, and the distance to- and-from the source should be less than one kilometre (GTZ, 2009). Information on water issues should also be freely available to everyone; ! Affordability: the costs of water and sanitation services should not reduce a person's capacity to purchase other essential goods and services, and should not exceed five percent of the household income. Governments must therefore have some authority to intervene if and when prices charged by water service providers increase; ! Acceptability: water provision and sanitation facilities must be culturally acceptable. Depending on the culture, personal privacy may be a priority, or it may or may not be necessary to have separate public facilities for women and men or girls and boys in public places; ! Sustainability: water sources should be protected and managed in a way that assures current and future generations' access; ! Quality: water must be safe to drink, while toilets must be hygienic and environmentally safe.

48 81 The Third State of Human Rights Report The Third State of Human Rights Report

! 48 percent of rural households accessing water from a protected SECTION 5 source; CHAPTER 3 ! Increasing water storage capacity to 13 cubic meters per capita; ! Enhancing sanitation coverage to 40 percent of urban households THE RIGHT TO WORK (individual/shared facilities); ! Increasing access to toilets in rural areas by six (6) percent; and Introduction ! Increasing forest cover to three (3) percent.

158. Work provides people with the means to cater for their material needs. In Scope and Legal-Policy Sources of the Right to Water this way, work is critical for the realization of many other rights, including 256. There are various international instruments, declarations, standards as the rights to food, water and shelter. International human rights law well as domestic legislation and policies which provide for the right to obligates governments to take effective steps to facilitate the progressive water and sanitation. Article 11(1) of the IESCR recognizes the right of realization of the right to work. everyone to an adequate standard of living. The right to water is seen here as instrumental for improving living standards. General Comment No. 15 of the Committee on Economic, Social and Cultural Rights 159. In practical terms, the right to work entitles individuals to be employed or observes that: self-employed in activities that support their livelihoods. It encompasses more than just the creation of jobs, and includes the ideas of decent working conditions, workers' representation and social security. The An adequate amount of safe water is necessary to prevent death from gross number of jobs created, their quality and the extent to which the dehydration, reduce the risk of water-related diseases and provide for poor have access to employment are crucial determinants of how much consumption, cooking, personal and domestic hygiene requirements. the right to work is enjoyed.

257. Other core human rights conventions with right to water provisions are 160. Africa needs to create about 1.1 billion jobs between 2011 and 2040, CEDAW and CRC. Further, WHO has issued safety standards for drinking more than both China and India will have to create over the same period water. In 2008, the UN Human Rights Council appointed an Independent (Africa Investor, 2011). Expanding employment coverage is critical for Expert on Human Rights Obligations Related to Safe Drinking Water and economic growth and poverty reduction. Evidence suggests that Sanitation to advise on the nature of the right to water and sanitation. countries with high rates of employment have tended to succeed in Further, in July 2008, the UN General Assembly declared access to clean reducing poverty significantly (Islam, 2004). water and sanitation a human right. 161. Most of these jobs will have to target the youth who make up a 258. Moreover, Kenya's water management legislation and policy have disproportionate number of the unemployed in Africa, particularly in undergone far-reaching reforms guided by the Water Act, 2002, and key urban areas. The youth (aged 15-30) make up 72 percent of Kenya's policies including the National Water Services Strategy (NWSS) and the unemployed population (UNDP, 2009). It is therefore unsurprising that National Water Management Strategy (NWMS). poverty, which affects an estimated 47 percent of Kenya, is closely associated with high levels of unemployment (World Bank, 2009).

Scope and Legal-Policy Sources of the Right to Work 162. Elements of the right to work are codified in both international and Kenyan law. Article 23 and 24 of the UDHR sets out the substance of the right to work, including principles on individual's freedom to choose their work, protection against unemployment, equal-pay-for equal-work 80 49 The Third State of Human Rights Report The Third State of Human Rights Report SECTION 6 regardless of gender or other grounds of difference, social protection, CHAPTER 6 freedom to join trade unions and the right to rest and leisure. The ICESCR contains the same protections and goes further by legally obligating state parties to enforce citizen's right to work. RIGHT TO WATER AND SANITATION

163. The broad menu of International Labour Organization (ILO) conventions are also aimed at facilitating the realization of the right to work. Eight of Introduction the more than 100 conventions are particularly important: 252. In emerging economies, industrial commercial uses has also been ! Convention No.29 on Forced or Compulsory Labor; and agricultural productivity are inadequate. Significant sections partly driven by access to reliable of the country's sanitation ! Convention No.98 on Application of Principles to Organise and supplies of water. Water scarcity management infrastructure are Bargain Collectively in Kenya has been a major cause of in disrepair which poses a ! Convention No.100 on Equal Remuneration for Work of Equal Value poverty, and even conflict in some potential environmental threat ! Convention No.105 on Abolition of Forced Labour parts. The level of available, (Republic of Kenya, 2010d). renewable fresh water is 647 cubic Consequently the Kenya Vision ! Convention No.111 on discrimination in Employment and meters per person against the 2030 goal for the water sector Occupation global standard of 1, 000 cubic aims at ensuring “water ! Convention No.138 on Minimum Age of Employment metres per person (KWAHO, availability and access to all by ! Convention No.182 on Eradication of the Worst Forms of Child 2009). As a result, less than half of the year 2030' through a mix of Labour the Kenyan population has access strategies including increasing to clean, safe water. Just about 40 supply in all urban areas, ! Convention No.87 on Freedom of Association and Protection of the percent of the rural population expanding rural water supplies Right to Organise has access to clean, safe water and expansion in sewerage (Republic of Kenya, 2007b). The coverage. To deliver this, the 164. Other core human rights conventions with right to work provisions are rate is 60 percent in urban areas, vision lays emphasis too on ICCPR, ACHR, CEDAW, CRC, CRPD and CERD. The latter four have right to with even lower levels- 20 ensuring there is an effective work provisions that are specific to women, children, persons with percent- in urban informal institutional framework. disabilities and racial minorities. settlements. 255. In the MTP 2008-2012 water 165. The Constitution (now repealed) provided some protections on the right 253. Adequate sanitation coverage is development targets emphasize to work. Its Bill of Rights required the state to restrain itself from also a critical determinant of the the need to improve access to undertaking measures which could interfere with people's ability to quality of public health outcomes. water and adequate sanitation in work. It also defined the freedom of assembly to include the freedom to Nearly 50 percent of the incidents both urban and rural areas. This form or belong to a trade union and prohibited slavery and forced labour. of water borne illness affecting chapter reviews the key water people are attributed to poor development targets that the sanitation and hygiene conditions government has set out during 166. Kenya's employment-related legislation includes provisions which (KWAHO, 2009). At the end of the period under review: further enable the right to work. There are at present six key laws: the 2009, sanitation coverage was 68 ! Improved access to safe Employment Act, 2007; the Labour Institutions Act, 2007, the Labour percent and 29 percent for urban water by ensuring that 65 Relations Act, 2007, the Occupational Safety and Health Act, 2007 and and rural areas, respectively. p e r c e n t o f u r b a n the Work Injury Benefits Act, 2007. households have access to piped water; 50 254. Water supply for agricultural and 79 The Third State of Human Rights Report The Third State of Human Rights Report

rolled out 64 health facilities in three districts in North Eastern Province and State Obligations two informal settlements in Nairobi. However, there is no indication given 167. International human rights law obligates states to respect and protect and about how many women have benefited from the facilities. fulfill their citizens' human rights. Respecting the right to work requires states to restrain themselves from taking actions, such as banning trade Recommendations unions, which restrict workers' freedom. Protecting the right to work 249. Improved health outcomes require increased public spending on healthcare. requires states to ensure that the workers' rights are not violated by non- Consequently, the Ministry of Medical Services, the Ministry of Public Health state actors, such as private employers. Fulfilling the right to work requires and Sanitation and the Ministry of Finance need to take steps to ensure that states to invest in initiatives, such as public works programs or employment national healthcare spending hits the 15 percent Abuja Declaration guarantee schemes, as means of ensuring progressive realization of the threshold in the second half of the current MTP. right to work. Kenya can take a variety of steps to advance the enjoyment of the right to work: 250. In the second half of the current MTP 2008-2010, the government ought to ! Legislative measures: Enacting legislation that protects economic consider costing a minimum, free healthcare package for individual Kenyans. and social rights; The package might guarantee maternal care, paediatric care and ! Administrative measures: innovating systems that compel immunization services and the provision of essential drugs. Further, wide government bodies and other employers to respect economic and public consultations should be an integral part of the developing the social rights; proposed minimum, free healthcare package. ! Judicial measures: expanding judicial remedies for violations of 251. Community-based solutions and action, rather than institutional based workers' rights; solutions, should primarily deliver this minimum package. A three-pronged ! Policy measures: developing economic and social policies that strategy, to be piloted in a few regions during the next MTP, is proposed. First, control inflation, encouraging employers to pay higher wages and community-based health officers should be employed and trained to expanding social security coverage and technical training provide primary healthcare services at the village level. Community opportunities; healthcare systems should make better use of mobile phone technologies to inject efficiencies in local healthcare management. Mobile clinics should be availed to expand healthcare coverage to remote areas. Assessment of Achievement of Targets 168. The Economic Pillar of Kenya Vision 2030 identifies the need to reserve high levels of unemployment to end poverty and enhance economic growth. Below are some government's employment-related targets that received attention during the period under review:

78 51 The Third State of Human Rights Report The Third State of Human Rights Report

Table 3.1: Progress on achievement of MTP employment-related targets for the 244. Without a doubt, few ordinary Kenyan women can afford this expensive period under review treatment regimen. Although breast cancer is affecting increasing numbers of Kenyan women, dedicated treatment facilities are mainly found in Targets Achievements Nairobi. Most women have therefore not learned basic self-examination Development of Human Resource Data Preparations for National manpower survey techniques for early detection of breast cancer. Cervical cancer has also base tools for the survey and proposal for resource been identified as growing cause of death among women, but inexpensive mobilisation developed services such as pap smear testing are not available at most health centres. Productivity improvement, measurement Formulation of National Productivity Policy and promotion underway. Productivity improvement exercise Reducing Preventable Diseases undertaken in 7 model companies. 50 245. Preventable diseases continue to be the leading cause of morbidity in Kenya productivity technical service providers trained (Republic of Kenya, 2010d). Malaria and respiratory diseases account for Strengthening linkages between industry 41,734 Trade test examinations administered, more than 50 percent of all reported outpatient cases. By widening bed net and Institutions 8959 students placed on industrial attachment coverage, for example, the government has significantly reduced malaria- against a target of 8000. 5154 students trained in related deaths. Partly as a result of such preventive interventions in relation various industrial skills. Process for development to malaria and other diseases, the under-five mortality rate reduced from of industrial policy initiated. 49 115 per 1000 in 2003 to 74 per 1000 in 2008. The success of the malaria To increase the number of industrial 10994 labour disputes resolved out of 11825 control programme is partly attributed to its use of community-based care disputes settled from 55 percent in received. Industrial court finalised 264 cases out givers, which widened healthcare coverage. According to a McKinsey (2010) 2007/2008 to 60 percent in 2008/2009 of 500 received. research, the use of community-based care givers reduces the costs of To develop 60 additional Micro and Rehabili tation of 73 MSE worksites started. health services, thereby contributing to improved health outcomes. Small Enterprises in 2008/2009. Upgrading and refurbishment of 5 industrial training centres. Resource Allocation Employment informa tion system website 246. Public spending on healthcare has increased steadily in the past decade, developed, 4689 job seekers placed through from Kshs. 14.9 billion in 2002/2003 to Kshs. 41.2 billion in 2009/2010.50 public employment services However, healthcare budgetary allocations have declined slightly, from seven to 6.5 percent. While spending has nearly tripled during the past Policy, Legal and Institutional reforms Labour market institutions established - National decade, the country's population has increased by about 25 percent over labour board, General wages council, Agricultural the same period. Even so, Kenya is yet to meet the terms of the Abuja Wages Council, Rules for the Industrial Court, Declaration on HIV/AIDS, TB and Other Related Infectious Diseases, which National Council for Occupational Safety and commits African states to spend at least 15 percent of their annual national Health, and the Occupational Safety and Health budgets on healthcare.51 Fund. Industrial Tr aining Amendment Bill approved by Conclusion Cabinet Task force established to review the legal status 247. Commendably, the locus of health solutions has since 2003 been devolved of the Productivity Centre to the constituency, thereby improving access to healthcare services. Draft National Occupational Safety and Health Policy prepared 248. Although the government has provided various progress reports on Productivity policy initiated healthcare development, the information fails to explain healthcare Draft Child Labour Policy prepared outcomes in concrete terms. Moreover, public communication of realized 52 Draft Diaspora Policy prepared outcomes has been weak. For example, the Output Based Approach (OBA) Draft Micro and Small Enterprise Bill was

prepared and discussed with stakeholders. 49. See President's Malaria Initiative (PMI), www.fightmalaria.gov/countries/profiles/kenya-profile.pdf, website last viewed on 5 November 2010). 50. See Kenya Government Ministry of Finance Budgets, 2002/2003 and 2009/2010. 51. For a discussion on the health sector allocations see, GTZ Health Sector Program Kenya, Kristian and Rosbach, Estimated Government Spending 2010/2011 Source: Information compiled from Republic of Kenya (2010), First Annual Progress Report on the Implementation of the Kenya Health Sector Budget Analysis, at www.gtzkenyahealth.com (viewed on November 5, 2010). First Medium-Term Plan (2008-2012) of Kenya Vision 2030. 52. This is an approach that aims at enabling poor, vulnerable women of reproductive age access quality reproductive health and gender based violence services through the 52 application of a voucher system. 77 The Third State of Human Rights Report The Third State of Human Rights Report

specialists.48 As a result, cancer patients have to finance their own treatment because most private health insurance policies exclude cancer. Clearly, the case Job Creation Targets study shows for the poor uninsured Kenyan, cancer treatment is simply out of reach. 169. In 2008, KNBS estimated that about 1.9 million Kenyans were in wage employment in the formal or 'modern' sector, while a larger majority was employed in the agriculture sector. 28 Under the MTP 2008-2012 of the Kenya Cast study Wanjiku (name changed to protect patient's identity) was diagnosed with breast cancer in Vision 2030, the Kenyan government aims to facilitate the creation of about 29 September 2009. She sought treatment immediately at the private Nairobi Hospital for a six- 500,000 jobs per year. Although the government projected that 425,000 month period. jobs could be created in 2008, this target was surpassed with 467,300 jobs created (Republic of Kenya, 2008c). However, most of these jobs were created in the informal sector, are low-paying and have weak contractual Table 5.2: Wanjiku's breast cancer treatment costs and social protections. Item of Expenditure Kshs. USD 170. In March 2009, the government launched the ambitious Kazi Kwa Vijana (1 USD = Kshs. 80) Programme (Jobs for the Youth) which aims to employ 200,000 to 300,000 Doctors’ Fees 159, 199 1, 990 Kenyan youth in public works initiatives. By the end of December 2009, the government had created about 41,000 jobs under the programme. 30 Hospitalization 210, 040 2, 626 Laboratory Tests 13, 450 168 171. Vision 2030 highlights the urgency of broadening employment and income- Medicines 626, 978 7, 837 generating opportunities of the youth and women. In 2008-2010, the government implemented two entrepreneurship development initiatives - Surgery 175, 000 2, 188 the Youth Enterprise Development Fund (YEDF) and the Women's Enterprise Radio Therapy 203, 000 2, 538 Fund (WEP). YEDF provides business development loans to young people Total 1, 387, 567 17, 345 aged 18 to 35 to enable them to form viable businesses that can create jobs.

Source: Wanjiku's medical records shared with KNCHR 172. The government has so far invested Kshs. 2.6 billion in YEDF. In June 2010 YEDF reported that it has trained 150,000 youth in entrepreneurship skills and awarded loans to at least 6,000 more.31 YEF has been institutionalized further by being designated as a state corporation.

28. See Kenya National Bureau of Statistics website at http://www.knbs.or.ke/knbsinformation/pdf/Facts%20and%20Figures%202009.pdf, website last viewed on 20 March 2011. 29. It is instructive to note that in the year before the period under review, sections of Kenya's labour law were reviewed in order to improve work conditions, worker's protections and employee-employer relations. The amended laws were: the Employment Act, 2007, repealed the Employment Act (Cap 226); the Labour Institutions Act, 2007, repealed the Regulation of Wages and Conditions of Employment Act (Cap 228) and the Trade Disputes Act (Cap 234); the Labour Relations Act, 2007, repealed the Trade Unions Act (Cap 233); the Occupational Safety and Health Act, 2007, which repealed the Factory and Other Places of Work Act (Cap 514); and the Work Injury Benefits Act, 2007, which repealed the Workmen's Compensation Act (Cap 236). (The Work Injury Benefits Act, 2007, was however ruled unconstitutional by the High Court.) 30. These are the most recent statistics posted in the Office of Prime Minister's website under which the KKV Programme falls. See http://www.kkv.go.ke/index.php?option=com_content&view=category&layout=blog&id=67&Itemid=97. There is no other publicly available evaluation of the programme. 76 48. Information provided by the Chief Medical Specialist at the Cancer Treatment Center at Kenyatta 31. See YEDF website at www.youthfund.go.ke/index.php?option=com_docman&task..., website last visited on 20 March 2011. 53 The Third State of Human Rights Report The Third State of Human Rights Report

Table 3.2: YEDF Allocation and Expenditure, 2006-2010 239. As the table shows, the distribution of healthcare facilities across the country raises questions of equity in access, quality of care and Financial Year Allocation (Kshs.) Amount Released (Kshs.) availability. For example, Nairobi with a population of 3.1 million has a 6.5 percent share of the country's health facilities, while Coast Province, 2006/2007 1,000,000,000 850,000,000 with about the same population- 3.3 million- has 11.6 percent of the 2007/2008 750,000,000 725,000,000 total share. Nairobi however boasts superior services and many more qualified personnel. In fact, 50 percent of all Kenyan physicians are 2008/2009 500,000,000 499,914,170 based in Nairobi (CARE International, 2009). 2009/2010 550,000,000 540,750,000 240. Private actors own 52 percent of all health facilities in the country, while Total 2,700,000,000 2,615,664,170 48 percent are government run. This imbalance further restricts access to healthcare services because private facilities charge fees. The mere Source: Brief on the Youth Enterprise Development Fund, 30 June 2010, YEDF existence of health facilities does not necessarily translate into equitable access to healthcare. Access to critical services, such as skilled 173. Less than half of women, approximately 40 percent, do not access to birth attendants stands at just 18 percent (Republic of Kenya, 2009a). credit, while a similar percentage can only access informal credit sources. WEF is therefore a timely initiative launched by government in 2007 to contribute to the economic empowerment of Kenyan women. 241. Moreover, the target of restructuring the National Health Insurance By 30 June 2010 some Kshs. 1.09 billion had been loaned to women for Fund (NHIF) to incorporate more contributors, including informal sector business development, through various financial institutions. Over workers, was not met even though planned pilot studies for outpatient 205,900 women have benefited from the WEF. 32 Individual women can cover were undertaken. The failure by government to undertake proper stakeholder consultations and provide information to the public about apply for loans of up to Kshs. 50, 000 at an annual interest rate of eight 47 percent. Organized women's groups are eligible for interest-free loans. the initiative saw it become the subject of a legal suit. This failure WEF has made loans to 4,200 women's groups (Women's Enterprise shows how the lack of public participation in policy making can erode Fund, 2009). This is however a relatively small figure compared to the the legitimacy of well-intentioned initiatives. vast number of women's groups in the country. For instance, Kajiado District alone has nearly 6,000 women's groups (Women's Enterprise Affordable Healthcare Fund, 2009). 242. Some of the government's public health measures, such as supplying drugs to constituency health centers, are progressive steps towards the Social Protection realization of the right to health. Even so, 36 percent of health financing 174. Kenya lacks a comprehensive framework for social protection. The comes from households (Republic of Kenya, 2010d). Many Kenyans existing pension schemes are largely limited to formal sector workers. In afflicted by terminal diseases such as cancer are unable to pay for the 2007, pension coverage was estimated to be about 15 percent of the expensive treatment regimens. Moreover, the sophisticated medical labour force (HakiJamii, 2007). The NSSF has 2.9 million registered technology required to diagnose and manage such illnesses is generally members but only about one million are active contributors. unavailable outside cities. Nevertheless, in 2008 the Minister for Labour issued Legal Notice 159, the National Social Security Fund (Commencement of Contributions) 243. In fact, Kenyatta National Hospital (KNH) is the only public hospital that Order 2009, which now requires all employers with at least one offers cancer treatment. However, the Cancer Treatment Centre's employee to remit social security contributions to the NSSF. Broadening facilities are inadequate and overstretched. There is a two-month social security protection coverage has two positive, long-term benefits waiting list for all new cancer patients. A further 40 new cancer patients for those seeking coverage and society generally. First, it gives visit the centre each week even though it has a small number of individuals the hope of growing old with some relative comfort assured

32. See Ministry of Gender, Children and Social Services website: http://www.gender.go.ke/index.php/Women-Enterprise-Fund- WEF/intro-women- 47. The Central Organization of Trade Unions (COTU), a board member of the NHIF went to court to challenge the new fees the latter intended to charge enterprise-fund-wef.html, website last visited on 20 March 2011. as part of improving universal coverage. 54 75 The Third State of Human Rights Report The Third State of Human Rights Report

health and the availability of clean water and sanitation facilities.46 by social security transfers. Second, economic dependency of older generation on the younger, working generation is lessened thereby allowing the latter to spend more on themselves and their younger Access to Healthcare families. 237. Since the introduction of the Constituency Development Fund (CDF) in 2003, more local health facilities have been constructed and equipped in many parts of the country. Government has also encouraged private Resource Allocation sector actors to invest in healthcare. The Annual Health Sector Statistics 175. Government investment in job creation and the labour environment Report 2008 shows that the number of health facilities rose 23 percent generally has a direct impact on enhancing the realization of the right to from 4,767 in 2004 to 6,190 at the end of 2008. As a result there are now work and also rights at work. The Ministry of Labour is at the centre of 16 health facilities per 100,000 population and 11 health facilities per the government's efforts to develop and enforce labour laws, maintain 1,000 square-kilometres. industrial peace, provide industrial training and promote safety and health of employees. The ministry also develops and coordinates 238. Furthermore, access to healthcare services has been enhanced by the implementation of policies and strategies for human resource initiation of direct financing of implementation units in both the Ministry development, micro and small enterprise sector and productivity of Medical Services and the Ministry of Public Health and Sanitation. improvement. During the period under review, each of the 210 constituencies identified one pilot health facility which would receive direct financing. 176. Although Kenya Vision 2030 highlights the importance of highly-skilled, Nevertheless, many still cannot provide the core services outlined in the productive human resources, it does not pay sufficient attention to the WHO Global Strategy 2000. There is also a lot of variance in the capacities centrality of the Ministry of Labor in creating the conditions for the of healthcare facilities across the country. realization of rights at work. The Ministry of Labor is seriously understaffed, having less than a third of the specialists it requires to Table 5.1 Distribution of health facilities by province 33 enforce labour laws and workers' rights. Between 2007 and 2010, the No. of Ministry of Labour's budget increased modestly by an average of nine Provinces Health Type of Health Facility percent per year which probably explains why it has not recruited new Maternity staff since 1994... The ministry is not rated as being a part of the priority Health & nursing Medical sector identified in the 2009 Budget Strategy (Republic of Kenya, Facilities Hospital centre Dispensary home clinic Other 2009d). Given the centrality of its mandate in enabling the realization of Cen tral 1172 52 66 381 21 599 53 Coast 726 41 42 252 18 366 7 a broad array of rights, the ministry should receive more funding to play Eastern 986 71 99 569 18 223 6 its enforcement role more effectively. Nairobi 405 43 68 132 19 107 36 North Eastern 221 22 9 122 7 61 0 T able 3.3: Ministry of Labour Net Approved Expenditure 2007-2010 Nyanza 731 85 137 412 25 70 2 Rift Valley 1612 100 208 1025 27 233 19 Ministry of Labour : Net Approved Expenditure Western 390 36 75 199 16 59 5 2007/2008 2008/2009 2009/2010 Total 6243 450 704 3092 151 1718 128 Recurrent expenditure 864,516,059 927,171,700 1,117,941,900 Source: Ministry of Public Health viewed on 3 November 2010, www.publichealth.go.ke Development expenditure 347,773,731 399,712,200 337,088,000

Total 1,212,289,790 1,326,883,900 1,455,029,900

Source: Republic of Kenya- Estimates of Recurrent Expenditure of the Governmnet of Kenya ( Various)

46. In its first State of Human Rights Report, 2004-2005, the KNCHR pointed out that the government needed to increase spending on preventive healthcare relative to curative healthcare. In 2002-2004 for instance, about 50 percent of the healthcare budget focused on curative services. 74 Only 5.3 percent was used for preventive approaches. (See KNCHR, 2005, p. 88-89 para 257). 33. Information from the Ministry of Labour on file at KNCHR. 55 The Third State of Human Rights Report The Third State of Human Rights Report

233. With respect to the right to health, the UN Committee on Economic, Conclusion Social and Cultural Rights has recommended that states must ensure 177. While it seems job creation targets were met, much more needs to be done access to: to create more jobs to absorb the large numbers of youth joining the labour market each year. At any rate, most of the jobs created were in the ! Health facilities, goods and services on a non-discriminatory basis; informal sector and tend to be precarious. ! Minimum essential food which is nutritionally adequate and safe; ! Shelter, housing and sanitation and an adequate supply of safe Recommendations drinking water; 178. The government also needs to implement and effectively enforce the set of ! Essential drugs. labour laws that were amended in 2007. Unconstitutional provisions in the Work Injury Benefits Act, 2007, should be cured. 234. The UN Special Rapporteur on the Right to the Highest Attainable Standard of Health has also made recommendations about states' 179. Social security ought to be expanded to as many Kenyans as possible, roles enhancing the realization of the right to health. According to the particularly category four workers who make up the majority of workers. Special Rapporteur a national health system should have: Therefore, the NSSF should also take full advantage of Legal Notice 159, ! An adequate system for collecting disaggregated health data to the National Social Security Fund (Commencement of Contributions) monitor the realization of the right to health; Order 2009 to broaden social security coverage to more workers. ! Resources and facilities to produce a sufficient number of well- trained health professionals and workers who enjoy good terms 180. The budgetary allocation to the Ministry of Labour should be increased in and conditions of employment; order to enable it to effectively carry out its inspection function. ! A system for developing right-to-health impact assessments; ! Effective, transparent and accessible mechanisms of accountability; and ! Mechanisms for ensuring public participation in healthcare policy making processes.

Assessing the Achievement of Targets 235. At the start of the review period, the government divided the then Ministry of Health into the Ministry of Public Health and Sanitation and the Ministry of Medical Services. Functional reorganization, necessitated by the split of the ministry, delayed the achievement of some healthcare targets. The targets spelt out in the MTP 2008-2010 are only as good as they are capable of improving the health of Kenyans by expanding access to primary healthcare, improving quality of treatment and preventing disease. Human rights-compliant interventions need to be planned with these parameters in mind.

Policy and Legislative Frameworks 236. In general, Kenya's health policy framework is human rights-compliant. In a variety of health-related policy documents, the state expresses its commitment to making health 'accessible.....affordable…equitably' available to all. It also prioritizes the most vulnerable members of society. Kenya's health policies also acknowledge the link between 56 73 The Third State of Human Rights Report The Third State of Human Rights Report 230. Acknowledging the Declaration of Alma-Ata,44 which emphasized the SECTION 6 need for states to formulate national policies, strategies and plans of action for their national health systems, both the Ministry of Medical Services and the Ministry of Public Health have developed, and are SOCIAL PILLAR OF VISION 2030 implementing multi-year strategic plans. Partly, the plans are influenced by the WHO Global Strategy for Health for All Year 2000. The 2nd National Health Sector Strategic Plan 2005-2010 and the Health Introduction Information System Strategic Plan 2009-2014 are among the plans that were being implemented during the period under review. 181. The Social Pillar of Kenya Vision 2030 aims to transform people's lives by addressing the structural issues that have caused and sustained poverty and 231. The previous constitution, which was in force during the period under inequality. In the first decade after independence, Kenya's economy grew review, did not have any specific provision on the right to health. steadily. However, in the 1980s several local and external factors converged However, section 43 of the new constitution provides for economic and to increase poverty, reversing the growth trend. Kenya has not fully social rights, including the right of everyone to the “highest attainable recovered its footing since. Partly, the World Bank led Structural Adjustment standard of health”. There exists a broad range of legislation with Programmes (SAPs) of 1980s, which were supposed to reduce Africa's provisions that promote health: growing international debt crisis, led Kenya and other African countries to ! Malaria Prevention Act, 1929; divert funding from core social programs, such as education and health, to 34 ! Public Health Act; debt servicing. From 2003 onwards however, the Kenya government took ! Children's Act, 2001; important steps to revamp social services, particularly in the education and health fields. ! Narcotic Drug and Psychotropic Substances and (Control) Act. 1994; ! Food Drug and Chemical Substances Act, 1992; ! Environment Management and Coordination Act, 2000; 182. The goal of the Social Pillar of Kenya Vision 2030 is to create “a just and a ! cohesive society that enjoys equitable social development in a clean and HIV and AIDS Prevention and Control Act, 2006; secure environment”. It emphasizes the importance of investing directly in ! Tobacco Control Act, 2007; people in order to improve human rights conditions, education, health care, water and sanitation, housing and a sustainable environment. It urges State Obligations affirmative action measures to facilitate access to resources on an equitable 232. International human rights law obligates states to respect and protect basis. It also prioritizes the need to reduce poverty and deliver essential and fulfill their citizens' human rights. Respecting the right to health services to historically vulnerable and marginalized groups. requires states to restrain themselves from taking actions that can harm their citizens' health. Protecting the right to health may require states to 183. This section assesses advancements and challenges in the realization of the regulate private sector health providers in order to ensure they adhere targets of the social pillar. It focuses on the realization of the right to to health standards and codes. Fulfilling the right to health may require education, the right to health and the right to water and sanitation. states to put in place measures that ensure full immunization coverage for children. 45

44. The Declaration of Alma-Ata of 1978 is a major milestone in public health. It identified primary health care as the key to the attainment of the goal of Health for All. See more details on the Declaration at www.who.int/social_determinants/tools/multimedia/alma/ata/en/index.html, website last viewed on 25 April 2010. 45. The obligation to respect calls to on the state to refrain from interfering with the enjoyment of the rights, protect means that the state should prevent violations of these rights by third parties while obligation to fulfill requires the state to take appropriate legislative, administrative, 34. Internal IMF and World Bank reviews acknowledge that 20 years of SAPs were unsuccessful in alleviating poverty. 72 budgetary, judicial and other actions towards the full realization of these rights 57

The Third State of Human Rights Report The Third State of Human Rights Report SECTION 6 CHAPTER 4 226. Article 12.1 of the IESCR obliges states parties to recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health conducive to living a life of dignity. Other RIGHT TO EDUCATION conventions with right to health protections are the ACHPR, CEDAW, CRC and CERD.

“Education is indispensable for effective political participation and for enabling 227. The right to health entails enjoying access to treatment (curative) and individuals to sustain themselves. It is the key to preserving language and religion; it preventive services (e.g. health promotion and education, and clean is the foundation for eliminating discrimination.”Katarina Tomasevski in Education and safe environments). The right to health is underpinned by the idea Denied. that a healthy population is a prerequisite for sustainable development. The realization of the right to health is interlinked with education, access to adequate housing, safe drinking water, sanitation, nutrition Introduction and social security. 184. Education is both a human right and in itself an indispensable means of 228. The five parameters of availability, accessibility, affordability, realizing other human rights (UN Committee on Economic, Social and acceptability and quality are frequently used to assess the extent of Cultural Rights, 1999: paragraph 1). Education creates a 'voice' through 43 realization of the right to health. Availability points to the existence of which rights can be claimed and protected. It is the key to unlocking other functional public and private healthcare facilities and systems. Health human rights. Access to education helps to develop skills and capacity facilities and services must be accessible to everyone without and gives people the ability to access information. As an empowering discrimination on any grounds. Health facilities must also be affordable right, education is a primary vehicle by which economically and socially to all. Acceptability of healthcare services requires providers to adhere marginalized adults and children can lift themselves out of poverty and to medical ethics, respect gender difference, cultural diversity and the obtain the means to participate fully in their communities. principle of confidentiality. Quality health facilities and services require highly trained public health and medical personnel and sophisticated 185. As an enabling right, the right to education brings about better health and equipment and systems. employment opportunities and empowers women and girls to demand their rights. Because of this enabling quality, the right is linked to other 229. The World Health Organization (WHO) Global Strategy for Health for All rights – like the rights to health, food, work and the right to participate in Year 2000 declares that that ”there is a health baseline below which no decision making. individuals in any country should find themselves.” States are therefore expected to develop and implement programs that focus on: 186. The Dakar Framework for Action, adopted at the World Education ! Maternal and child health care, including family planning; Conference Forum in Senegal in 2000, contains a clear statement ! Immunization against the major infectious diseases; reaffirming education as a fundamental human right and underlines the ! importance of the rights-based government action in achieving Appropriate treatment for common diseases and injuries; Education for All (EFA) goals.35 The six goals identified by the international ! Supply of adequate safe drinking water and basic sanitation; community and which are relevant for planning in education include: ! Provision of essential drugs; expansion of early childhood care and education, provision of free and ! compulsory primary education for all, promotion of learning and life skills Preventive health education; and for young people and adults, increasing adult literacy by 50 percent ! Promotion of good nutrition. especially for women, achieving gender parity by 2005 and gender equality by 2015 and improving the quality of education.

43. WHO Fact Sheet No 323 August 2007: “The Right to Health”. See www.int/mediacentre/factsheets/fs323/en/index.html, website last viewed on 3 November 2010. 58 35. The Dakar Framework of Action can be found at http://www.unesco.org, website last viewed on 5 December 2010 71 The Third State of Human Rights Report The Third State of Human Rights Report

set out during the period under review: 187. This chapter assesses the extent to which the government is progressively realizing the right to education as set out in the Kenya Vision 2030 ! Scaling up of delivery of operational plan for the years under review. The assessment has used the targeted health services, in government's progressive assessment reports on the Vision and the particular to recover from the Ministry of Education implementation plans. The Ministry of Education effects of the post election failed to respond to the KNCHR's protocol that sought information on the violence with specific focus on implementation process. immunization, malaria and TB services; Scope and Legal-Policy Sources of the Right to Education ! 188. The right to education is directed to the full development of the human Scaling up efforts towards management of new or re-emerging health personality and the sense of its dignity. Education can enable individuals to threats. Controlling cholera, H1N1 influenza (swine flu), polio outbreak participate effectively in a free society and promote understanding, and measles, and mitigating impacts of any epidemics arising tolerance and friendship. The Committee on International Covenant on particularly in relation to drought and El Niño flooding; Economic, Social and Cultural rights has in General Comment No. 13 on the ! Rolling out the process of establishing a model health centre in each right to education elaborated that this right can be best understood in constituency; terms of the inter-related dimensions of availability, accessibility, ! Recruiting 20 nurses per constituency; acceptability and adaptability (UN Committee on Economic, Social and Cultural Rights, 1999). ! Supplying essential drugs to the model health centers in each constituency; ! Availability means that functioning educational institutions and ! Completing the restructuring of the National Hospital Insurance Fund to programmes in sufficient numbers must be provided progressively. establish a mandatory health insurance scheme; Availability embodies both the obligation to the government to ensure establishment of schools and further to ensure that free and ! Completing the new Health Policy Framework to guide the sector compulsory education is available to all school-age children towards supporting the attainment of Kenya Vision 2030 and; (Tomasevski, 2003: 51). ! Initiating direct financing of implementation units in both Medical and ! Accessibility means that educational institutions and programmes have Public Health ministries. to be accessible to everyone without discrimination, especially the most vulnerable. Physically, education must be accessible and within 224. This assessment draws from government reports and information reach and must be economical and affordable. Whereas primary provided to KNCHR by the Ministry of Medical Services and the Ministry education should be free for all, secondary and tertiary education is of Public Health. required progressively to be affordable, with the aim of making it free. ! Acceptability requires that the form and substance of education, Scope and Legal-Policy Sources of the Right to Health including curricula and teaching methods, have to be acceptable and of good quality. 225. The scope of the right to health is elaborate in various international instruments and national policies and laws. The UDHR and IECSR are ! Adaptability means education has to be flexible so that it can adapt to particularly important standards. Article 25 of the UDHR provides that: the needs of changing societies and communities and respond to the needs of students within their diverse social and cultural settings and to respond to the best interest of the child. Adaptability also requires Everyone has the right to a standard of living adequate for the health safeguards for all human rights within education as well as enhancing and well-being of himself and of his family, including food, clothing, human rights through education. housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. 70 59 The Third State of Human Rights Report The Third State of Human Rights Report SECTION 6 189. The right to education is affirmed in key global human rights treaties. CHAPTER 5 The UDHR in article 26, as well as the ICESCR in Article 13, recognize the right to education. In its General Comment No. 13, the Committee on Economic, Social and Cultural Rights has clarified on the meaning and scope of this right. The Convention on the Rights of the Child (CRC) THE RIGHT TO HEALTH provides for the recognition of the right of the child to education, and the state obligation to make primary education compulsory and available free to all and to make secondary and higher education “The fundamental problem (with healthcare in Africa) is a pervasive lack of access to accessible. primary health care.” McKinsey Quarterly, June 2010

190. At the regional level, the African Charter on Human and Peoples Rights Introduction (ACHPR) emphasizes the right to education. The importance of education to the empowerment of women has been underscored by 219. Poor health can contribute to poverty as people affected by sickness the Protocol to The African Charter on Human and Peoples Rights on the over prolonged periods tend to be dependent. They are more likely to Rights of Women in Africa. have poorer educational backgrounds and fewer livelihood opportunities. 191. At the domestic level, the Education Act, 2001, obligates the state to ensure the promotion and development of education. This is a relevant 220. While states can hardly guarantee good health to their people, they are local instrument that seeks to enhance and promote education in obligated to create the right conditions to improve their citizens' health. Kenya. Kenya has also enacted the Children Act, 2001, which The 'right conditions' can be created by expanding access to health- domesticates the CRC. related information, providing safe drinking water and adequate sanitation as well as clean, healthy environments and safe working State Obligations conditions. 192. The state has obligation in relation to the right to education to fulfill each of the essential features of the right to education. A state will 221. One of Kenya's major development challenges is the public health respect the availability of education by not closing private schools; system's relatively limited coverage. Only 40 percent of Kenyans live protect the accessibility of education by ensuring that third parties within four kilometers of a functional health facility.411 Another 40 including parents and employers, do not stop girls from going to school; percent are too poor to afford basic healthcare. and fulfill the acceptability of education by taking positive measures to ensure that education is culturally appropriate for minorities and indigenous peoples, and of good quality for all and also facilitate 222. In response, Kenya Vision 2030 seeks to make quality healthcare adaptability of education by designing and providing resources for services affordable to the majority of Kenyans. It urges the need for curricula which reflect the contemporary needs of students in a more investments to improve the capacity of the national healthcare changing world. State Parties are required to: system. It also stresses the importance of devolving healthcare funding and management to give greater responsibility for healthcare delivery ! 42 Prioritize the introduction of compulsory, free primary education and to to hospitals, health centers and dispensaries. take progressive steps towards realization of secondary and higher education for all; ! 223. In the MTP 2008-2012 healthcare development targets emphasize the Establish minimum educational standards which all educational need for increasing investment in preventive healthcare. This chapter institutions are required to adhere; reviews the key healthcare development targets that the government has ! Immediately provide the right to education without discrimination of any kind;

! Take steps to assist the disadvantaged category within the community 41. “Strategy for Accessible, Affordable and Quality Healthcare in Kenya”, February, 2010 at http://nesc.go.ke/Meetings/publications/2010FebVol4_Policy%20Brief%20healthcare_Muia.pdf, web last viewed on 3 November 2010. 60 access education; 42. For details see the Annual Operational Plan 5 “Reversing the Trends, The Second National Health Sector Strategic Plan of Kenya”. 69 The Third State of Human Rights Report The Third State of Human Rights Report

217. Besides, the government has a duty to be more vigilant and put in place ! Take deliberate, concrete steps toward full realization of the right to clear monitoring and evaluation systems that will immediately detect education. corruption and misappropriation of funds meant for realizing the right to education. Acts of corruption should not be tolerated and the culprits Assessment of Achievement of Targets must immediately be prosecuted and barred from holding any public 193. In 2003, the Kenya government committed itself to provide free office. primary education to everyone. The measure saw the enrollment of primary school children increase drastically. It is estimated that about 218. The government needs to invest more in developing educational 1.2 million additional pupils had enrolled in 2003 and by 2004, the number had climbed to 7.2 million of which 84 percent were of primary initiatives that are aimed at improving facilities and the learning 36 experience for children with special education needs as well as children school age. The attainment of universal participation in education is living (and learning) in poor and marginalized areas. highly dependent on the quality of education available. According to Sessional Paper No. 1 of 2005 on A Policy Framework for Meeting the Challenges of Education, Training and Research in Kenya in the 21st Century, the government is to put in place measures that would ensure access, equity and quality in education.

194. The policy paper states the government's main goal as to achieve basic quality education, including two years of pre-primary education, eight years of primary education and four years of secondary/vocational education. The policy paper outlines some of the policy measures meant to be undertaken by the government in the different sub-sectors in order to achieve quality education.

195. During the period under review, the government set to undertake the following five flagship projects: ! Constructing and fully equipping 560 Secondary schools and expanding and rehabilitating existing ones; ! Recruiting 28,000 additional teachers; ! Establishing a computer supply programme; ! Building at least one boarding primary school in each of the ASAL districts and; ! Establishing a voucher system programme in five poorest districts.

36. United Nations, We Can End Poverty: 2015 Millennium Development Goals, Goal 2, Achieve Universal Primary Education, Fact Sheet, 68 http://www.un.org/millenniumgoals/pdf/MDG_FS_2_EN.pdf, website last viewed on 10 May 2010. 61 The Third State of Human Rights Report The Third State of Human Rights Report

challenges. Quality and sustainability has been a matter of concern. 196. According to the First Annual Progress Report on the Implementation of Teacher shortage has been experienced in most parts of the country. the First Medium-Term Plan (2008-2012) of Kenya Vision 2030, the Most classrooms are overcrowded and this has led to increased government's progress in realization of the set targets in the education registration in private schools since the quality of education in public sector are as summarized in the table below: schools is in question. If not monitored closely, the policy would fail to provide the set goals of making education free and accessible to all including the poor. One of the targets was to recruit 28,000 additional teachers. The process was hampered by a court case that halted the Table 4.1: Achievements on flagship projects' implementation for education sector process for a considerable period. A human rights-based approach to Medium-Term Annual Target and Achievements Cumulative Comments/Remark s education would call for consultations to have taken place before the Output/outcome Achievements Targets July 2008 -June target was set. The sector failed to establish the required consultations 2010 in good time and thus subjected the enrolled pupils to learning under Indicator Baseline Baseline Target Achievement difficult conditions that continuously violated their right to education in Value year 2009/10 1009/10 2007 terms of quality. Constructing and No. of 2007 140 200 200 Target exceeded. fully equipping Schools The sector disbursed 560 secondary funds schools and to 200 secondary 214. In the period under review, the Ministry of Education suffered a setback expanding and schools for with the reported case of corruption of its officials that led to rehabilitating rehabilitation misappropriation of USD 1 million of donor support funds from United existing ones /construction of centres Kingdom's Department for International Development (DFID). This of excellence money was disbursed to the Ministry of Education directly for a period Recruitment of No. of 6000 2007 6000 - 6000 Tar get not met due of four years. The UK government has since suspended funding to the 28,000 additional teachers to court injunction 40 teachers sector. Establishment of No. of 2007 300 230 230 The target was met. a comput er teachers Training supply trained of ICT champions 215. The misappropriation of funds by the ministry officials amounts to programme No. of ICT 2007 30 30 30 and champions teachers has set a systemic violation of the right to education. The consequence of Trained good platform for corruption and misappropriation of funds will have a profound effect on implementation of the programme funding for free primary education as the resources earmarked to help Constructing and No. of 2007 Rehabilita Disbursement Disbursement Target was met. the needy are no longer available. Indeed, the government of Kenya's rehabilitating of schools tion of 30 of funds for of funds for Construction failure to protect the donor funds disbursed to the education sector for at least one boarding rehabilitation rehabilitation of ongoing boarding primary schools of 37 existing 37 existing purposes of realizing the right to education is a violation of the right to

school in each LCB primary LCB primary education. constituency in schools in schools in ASAL districts ASAL areas ASAL areas Construction of No of 2007 420 Disbursed 3.5 Disbursed 3.5 Recommendations (420 schools), 2 schools m to all the m to all the 420 model primary 420 schools schools 216. Since 2003, Kenya has vastly expanded access to education through the schools in each Free Primary Education (FPE) Programme, which has enabled constituency Establishment of No. of 2007 2007 5 districts Consultations Consultations Target not met. increasingly larger numbers of children to go to school. In fact, during a voucher system districts conducted conducted Sector the period under review government spending on education averaged a programme of still putting in place commendable 24 percent of the national budget, only two percentage five poorest modalities for districts implementation points shy of the benchmark set out by Dakar Framework of Action 2000 (Republic of Kenya, 2009d). While important progress has been made, Source: Compiled from the First Annual Progress Report on the Implementation of the First-Term Plan (2008-2012) there is still need for greater investment to improve the quality of education offered at all levels.

62 40. See Comments by the DFID Development Secretary at http//www.dfif.go.uk/mediaroom/new-stories 2010, site last viewed on 12 January 2011. 67 The Third State of Human Rights Report The Third State of Human Rights Report

Progress in Implementation 197. As noted from the progress review report above, the education sector 210. As already stated, it is the government's obligation to make education continued to deepen its reforms and realign them so as to achieve the available, accessible, acceptable and adaptable. In order to achieve the goals set in the Kenya Vision 2030 (Republic of Kenya, 2010d). This was right to education, provision of free and compulsory education for all is aimed at realizing the long term policy initiatives that include the key. This is in keeping with the 2000 Dakar World Education Forum that attainment of Millennium Development Goals (MDGs) and the set goals affirming governments' commitments to achieve education for Education for All framework through implementation of free primary all. The dimensions39 of the rights-based approach to education include education as well as secondary education programmes. the right to: ! Access education that include availability and equality in Early Childhood Development (ECDE) opportunity; 198. Early childhood care is aimed at the physical, cognitive and social ! Quality education that has a broad relevant and inclusive development of the child before they enter the primary level.37 It curriculum, rights-based learning and assessment and a child contributes to good childhood development while preparing the child friendly, safe and healthy environment; and to accommodate one level of education to the next. Kenya has however ! A learning environment that respects identity, participation and reported low enrollment rates of children at early childhood education integrity centres. Most parents prefer to enroll their children directly to the primary level thereby negatively affecting retention and quality.

211. Fairly good progress has been made in delivery of the targets set by the 199. During the period under review, the government planned to integrate education sector. However, as indicated in the KNCHR's first SHRR, Early Childhood Development and Education (ECDE) into primary definition of education targets and indicators must be specific, clear and education aimed at improving its management and increasing access to measurable. In these terms, the set targets by the education sector are ECDE and enhancing retention at the lower primary level. The results poorly defined. As much as the construction of classrooms and indicate that there was an improvement with Net Enrolment Rates rehabilitation of the existing secondary schools and building one (NER) increasing from 42.1 percent to 43.1 percent for boys and 41.1 boarding school in each constituency in the ASAL districts is necessary, percent for girls in 2007 to 43.0 percent in 2008.38 However, although this only meets the needs-based criterion as opposed to assessing every the Ministry of Education proposed to take over payment of salaries for region's needs based on priority and rights. The choice of targets fails to the ECDE teachers, it is reported that funds were unavailable, and demonstrate this. therefore, the integration was not undertaken. ECDE is still funded by households and private sector. 212. From the progress report of the first MTP, the sector attributed failure to meet some of the set targets to unavailability of resources. While this Primary Education may be true in terms of the actual allocation of resources, this attribution of failure on the part of the education sector leans more 200. In the first State of Human Rights Report by KNCHR 2003-2004, it was towards poor policy choices than towards availability of resources. The noted that with introduction of free primary education, the sector should have prioritized its intervention in line with the available government was able to enhance many aspects of the obligations of resources and in terms of where benefit would accrue to the most improving access to education since poverty at household level had vulnerable and needy. As much as failure to provide education may be locked out a large number of children desirous of accessing education attributable to poverty, an assessment of the same exposes denials and (KNCHR, 2005). The overall enrolment rate increased, although abuse of human rights. It is the duty of the government to safeguard the different regions recorded disparities in access to free primary right to education. education.

201. In the period under review the Ministry of Education planned to 213. Kenya's commitment to offer free primary education has faced enhance the Free Primary Education Programme (FPE). It was noted

39. See UNESCO, “A Human Rights-Based Approach to Education for All: A Framework for the Realization of Children's Right to Education and Rights within 37. See Kenya Education Sector Support Program Document, paragraph 2.4, Ministry of Education Science and Technology. th 66 Education” at htpp://unesdoc.unesco.org/images/00151, last viewed on 12 January 2011. 38. Ibid. 63 The Third State of Human Rights Report The Third State of Human Rights Report

that the Gross Enrolment Rate (GER) increased from 108.9 percent in that there are insufficient institutions that match and complement each 2007 to 109.8 percent in 2008. The GER for boys and girls increased from other. The government has, however, established policies whose 111.8 percent and 106 percent in 2007 to 112.2 percent and 107.3 implementation will ensure sustained transition rates from primary to percent in 2008, respectively. The NER increased also from 91.6 percent secondary schools. Some of these policies include integrating secondary in 2007 to 92.5 percent in 2008. The NER for North Eastern Province education as part of basic education, developing day secondary schools increased from 27 percent in 2007 to 31.9 percent in 2008, with NER for in order to reduce costs for parents and subsidizing secondary school boys and girls increasing from 33.1 percent and 20.8 percent in 2008, fees. respectively. 206. The government has also been providing targeted in-structural materials 202. Despite the efforts taken, gender parity in some regions remains a to needy secondary schools, establishing two centres of excellence in challenge. The ASAL areas still lack the necessary infrastructure to allow each district -one for boys and one for girls- to serve as role models and to full access to basic primary education. The ministry also recorded increase national schools in the country and providing support for the challenges in reaching children in remote areas, in addition to citing development of secondary schools in marginalized areas. weak implementation structures and the lack of adequate funding. The textbook-pupil ratio improved from one textbook to 10 pupils in 2003 to one textbook to three in 2007 and further to two in 2008 and 1:1 in 2009. 207. The KESSP has set out strategies to be undertaken by the government in This is tremendous effort aimed at making primary education accessible implementing these policies. These include the provision of targeted and of quality for all. support for development of infrastructure in areas where parents are unable to provide such support, support of boarding schools in ASAL areas, regular reviews and rationalization of secondary school levies and Adult Literacy fees, recognition and support of children with talent, increased 203. In this regard, the major goal of Kenya Vision 2030 for the years 2008- bursaries and promotion of the development of more day schools. Some 2012 is to increase adult literacy rates from 61.5 percent to 65 percent. of the ongoing projects that have been carried out by the government Some of the programs set out in the Kenya Vision 2030 for the years include increasing secondary school bursary funds, rehabilitating 2008-2012 include expanding and increasing adult training; improving schools in poor communities and providing more teachers in all public the quality and efficiency of adult education program; reviewing the secondary schools. legislative framework on adult and continuing education; creating and sustaining a literate environment and promoting e-learning for out of 208. The government has reported on some of the projects which it has school youth and adult. undertaken for the year 2008/2009 in order to increase and sustain transition rates from primary to secondary schools. It has implemented 204. The Kenya Education Sector Support Programme (KESSP) has ongoing a programme under which tuition fees in secondary schools are waived. programs in the sector for purposes of addressing the issue of adult Through this initiative, the government has reported an increase in illiteracy. Some of these programs include basic literacy, post literacy, enrollment rates in secondary schools from 1.18 million students in non-formal education and community training and development. 2007 to 1, 328,964 in 2008. The transition rate from primary to However, the Kenya Vision 2030 First Annual Progress Report for 2008- secondary school increased from 59.6 percent in 2007 to 59.9 percent in 2012 has not reported any progress in this subsector. 2008. The set target for the year 2008/2009 was, however, not met due to the increased number of final-year primary school candidates which do not match the vacancies for admission into secondary school. Transition from Primary to Secondary School 205. If education has to be meaningful, it must equip the learners with certain 209. Despite efforts by the government to improve primary to secondary levels of quality education and training (KNCHR, 2005). The 2003 school transition rate, there is still room for more work to be undertaken government's commitment of free primary education saw rapid to cope with the numbers of pupils who fail to get vacancies for enrollment of children into primary schools. However, the government admission in secondary schools. failed to address the enrolment of children in other levels of education such as secondary schools and colleges or universities. This then means 64 65