THE MARRIAGE BETWEEN UNITED NATIONS UNIVERSAL DECLARATION OF HUMAN RIGHTS (UNUDHR) AND THE CURRENT CONSTITUTION OF KENYA
The UDHR was adopted and proclaimed by General Assembly resolution 217A (III) of 10 December 1948. On December 10, 1948 the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights the full text of which appears in the following pages. Following this historic act the Assembly called upon all member countries publicize the text of the Declaration and to cause it to be disseminated, displayed, read and expounded principally in schools and other educational institutions, without distinction based on the political status of countries or territories.
The Universal Declaration, it must be noted, is not a treaty. It was meant to proclaim a common standard of achievement for all Peoples and all nations rather than enforceable legal obligations. Nevertheless, partly because of an 18- year delay between its adoption and the completion for signature and ratification of the two Covenants, the Universal Declaration has acquired a status jurisdiction more important than originally intended. It has been widely used, even by national Courts, as a means of judging compliance with human rights obligations under the UN Charter.
Article 1 of the declaration states:
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
THE CONSTITUTIONAL FOUNDATIONS
Kenya had been using the same constitution that was left by the colonialists since independence in 1963 until a new one was adopted on 27th August 2010 during the promulgation. However, though
the two constitutions may seem to differ, most of the content in the old one is still contained in the new one.
On May 4 2010, citizens approved a new constitution in a national referendum, widely considered to be free and fair. Some of its elements entered into force immediately, but full implementation was expected to take several years. It was expected that if fully implemented, it would result in significant changes to the government’s structure, including greater checks on executive power, the elimination of a prime minister, greater devolution of power to the counties, and creation of a second legislative chamber. There were instances in which elements of the security forces acted independently of civilian control.
The constitution and the UN UDHR have been violated over the years by successive Kenyan regimes. Examples are shown below:
Chapter four of the constitution of Kenya is about the rights and fundamental freedoms of its citizens. Part one of the chapter regards the general provisions relating to the bill of rights. Article 25 states:
Despite any other provision in this Constitution, the following rights and fundamental freedoms
shall not be limited—
(a) Freedom from torture and cruel, inhuman or degrading treatment or punishment;
During the first post-independence presidency of Kenya, under President Jomo Kenyatta, state security forces harassed dissidents and were suspected of complicity. Since 2002, under the Mwai Kibaki presidency, politically motivated human rights violations have diminished, but other serious human rights abuses persist, a great many at the hands of security forces, particularly the police. The police force is widely viewed as the most corrupt entity in the country, given to extorting bribes, complicity in criminal activity, and using excessive force against both criminal suspects and crowds. Most police who commit abuses still do so with impunity. Prison conditions remain life threatening.
(b) Freedom from slavery or servitude;
(c) The right to a fair trial; and
(d) The right to an order of habeas corpus (latin:) We command that you have the body’, It is a legal action through which a prisoner can be released from unlawful detention, that is, detention Lacking sufficient cause or evidence.
In several murders of prominent personalities deemed as threats to his regime, including Pio Gama Pinto, Tom Mboya and J.M. Kariuki. MP and Lawyer C.M.G. Argwings-Kodhek and former KADU leader and Minister Ronald Ngala also died, in suspicious car accidents.
Article 26 of the constitution states that:
(1) Every person has the right to life.
In several murders of pro1minent personalities deemed as threats to his regime, including Pio Gama Pinto, Tom Mboya and J.M. Kariuki. MP and Lawyer C.M.G. Argwings-Kodhek and former Kadu Leader and Minister Ronald Ngala also died, in suspicious car accidents. On 5 March 2009, two of the human rights investigators involved in the investigations documented in the report, Oscar Kamau King’ara and John Paul Oulu, were assassinated. Their assassinations were attributed by non-governmental organizations to the security forces.
On 3 June 2007, two days after President Mwai Kibaki stated that Mungiki members “should expect no mercy”, about 300 Mungiki members were arrested and at least 20 killed. John Michuki, at the time Minister for Internal Security, publicly stated following the killings, “We will pulverize and finish them off. Even those arrested over the recent killings, I cannot tell you where they are today. What you will certainly hear is that so and so’s burial is tomorrow”.
(2) The life of a person begins at conception.
(3) A person shall not be deprived of life intentionally, except to the extent authorized by this
Constitution or other written law.
In the KNCHR’s Cry of Blood — Report on Extra-Judi ‘ I Killings and Disappearances published in September 2008, the KNCHR reported these in their key finding stating that the forced
disappearances and extrajudicial killings appeared to be official policy_ In November 2008, Wikileaks brought wide international attention to the cry of blood . In the report, the KNCHR’s first key finding was that, the evidence gathered by the KNCHR establishes patterns of conduct by the Kenya Police that may constitute crimes against humanity.
(4) Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.
Every year, about 380,000 Kenyan women die of abortion-related complications. This occurs due to unprofessional, quirk doctors in backstreet locations, and the reliance of untrained midwives to handle the procedure.
Article 27 of the constitution states:
(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
(3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
Violence and discrimination against women are rife. The abuse of children, including in forced labor and prostitution, is a serious problem. Female genital mutilation (FGM) remains widespread, despite 2001 legislation against it for girls under 16. The abuse of women and girls, including early marriage and wife inheritance, is a factor in the spread of human immunodeficiency virus/acquired immune deficiency syndrome (HIV/AIDS).
Article 28 of the constitution states:
Every person has inherent dignity and the right to have th dignity respected and protected.
Between 1989 and 1991, Kenya saw one of the worst human rights violations in its history. Moi accused advocates of multiparty politics of subversion, and thereby got a fresh excuse for detaining a new generation of his critics. A number of the champions of multiparty politics–John Khaminwa, Raila Odinga, Mohammed Ibrahim, Gitobu Imanyara, Kenneth Matiba and Charles Rubia–among others, were detained under inhuman conditions and without trial.
Apart from police and penal system abuses, infringernents of rights in the course of’ legal proceedings are widespread, despite recent pressure on judicial personnel. Freedoms of speech and of the press continue to be compromised through various forms of harassment of journalists and activists.
29 Every person has the right to freedom and security of the person, which includes the right not to be—
(a) deprived of freedom arbitrarily or without just cause;
(b) detained without trial, except during a state of emergency, in which case the detention is subject to Article 58;
Detentions and political trials, torture, arbitrary arrests and police brutality reminiscent of the colonial era had become common during Moi’s tenure. He perceived human rights generally as alien and Euro centric conceptions inconsistent with African values and culture. He viewed the pro-democracy and human rights advocates in Kenya as unpatriotic, disloyal, and ungrateful individuals influenced by what he calls foreign masters.
(c) Subjected to any form of violence from either public or private sources;
(d) subjected to torture in any manner, whether physical or psychological;
The emergence of the little known clandestine London based movement, Mwakenya, set the stage for more widespread human rights violations by his Administration. In 1986 alone, 100 people were arrested and detained for their alleged association with Mwakenya, the movement started by some Kenyans in Europe who had fled Moi’s oppression, demanded, inter alia, social justice and respect for human rights. Even though Moi made a big issue out of the movement, there was no tangible evidence of a well organized group in the country that threatened Kenya’s national security and which would have warranted the massive arbitrary arrest, torture, and detention without trial of the suspects.
Under former president Daniel Moi, security forces regularly subjected opposition leaders and pro-democracy activists to arbitrary arrest, detention without trial, abuse in custody, and deadly force.
38. (1) Every citizen is free to make political choices, which includes the right—
(a) to form, or participate in forming, a political party;
(b) to participate in the activities of, or recruit members for, a political party; or
(c) to campaign for a political party or cause
A few years after taking over the presidency, Moi began to exercise his style of authoritarianism by detaining a number of Kenyans critical of his government. The extent to which detention had been consistently used as an instrument for suppressing Moi’s out spoken opponents in the 1980s and 1990s was enormous. Some of these detainees were former or sitting MPs arrested for demanding, among other things, the introduction of multiparty politics.
After the university staff union was banned, University of Nairobi faculty members, Willy Mutunga and Katana Mukangi, were detained for what Moi called “over-indulgence in politics”. This was just the beginning of the crackdown on Kenyans by his administration in the 1980s, Apart from detaining the UASU leaders, the passports of lecturers considered to be critical of his rule were seized.
Kenya made some progress in 2003, when it set up a national human rights institution, the Kenya National Commission on Human Rights (KNCHR), with a mandate to ensuring Kenya’s compliance with international human rights standards. Also, parliament passed the Children’s Act to ensure the protection of minors, as well as the Disability Act, outlawing discrimination against the disabled.