December 10 2019 marks the 71st anniversary of the Universal Declaration of Human Rights (UDHR), a document that was signed and adopted in
Paris in 1948 by United Nations (UN) member states. Considered a “milestone document,” the Declaration is universal in nature, signifying that the rights and freedoms specified within apply to communities and peoples of all countries and backgrounds. Accordingly,
Article 1 states, “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
The Declaration itself was drafted in the
aftermath of World War II. In this context, the
preamble states, “Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind…Whereas it is essential to promote the development of friendly relations between nations.” The preamble discusses the social and historical necessity for creating and abiding by the principles outlined in the UDHR. In cooperation with the United Nations, member states mutually pledged to enforce and promote universal protection for an individual’s right to live with freedom, equality, dignity, justice and peace.
From the right to education, to the right to be free from torture, the Declaration consists of a preamble and thirty articles that explicitly define human rights and fundamental freedoms as a way of setting “a common standard of achievement for all peoples and all nations.” Although not legally binding, many treaties, legal frameworks and national constitutions consist of the rights set out in the UDHR. Whether respected or not by adopting governments remains a point of contention.
Similar to the standards stated in the UDHR, the
2010 Kenyan Constitution Bill of Rights in chapter four describes human rights and fundamental freedoms equally guaranteed to each Kenyan. Reformed from the previous Constitution, five fundamental freedoms especially stand out and form the backbone for protecting each Kenyan individual and community’s inherent right to dignity, justice, and equality. They are as follows: The Right to Life, the Right to Equality and Freedom from Discrimination, the Right to Freedom and Security of the Person, the Prohibition of Slavery, Servitude and Forced Labour, and the Freedom of Conscience, Religion, Belief and Opinion. Rights to health, sanitation, food security, environment and access to safe water are also protected.
The Kenyan Constitution stresses justice and freedom of thoughts, actions and communication. It is meant to link the state with its citizens, where the former must not only uphold the rights they swear to protect, but also recognize and enforce peoples’ authority to voice their concerns and take remedial measures. A country whose constitution observes the rights and freedoms specified in the UDHR, as the Kenyan Constitution does, is one whose government vows to respect and enact democratic practices, actively engage with civil society, and undoubtedly guarantee civil liberties.
According to
AKU Vice Provost, Dr. Alex Awiti, "While Article 10 of the Constitution frames national values and principles of governance, all of us, ordinary citizens and the men and women who serve in government, have failed to uphold them." AKU East Africa Insitute’s 2016 Kenya Youth Survey Report found that 73 percent of youth claim that fear of retribution prevents them from standing up for what they believe is right. 50 percent believe in doing whatever it takes to earn an income as long as one doesn’t end up in jail. As 35 percent of youth approved of giving or taking bribes, 30 percent believe corruption is profitable.
However, the responsbility to act with morality does not belong solely to Kenyan citizens. in order to lead a free society guided by constitutional law, the government itself cannot violate rights themselves at the expense of Kenyans.
Recent literature on human rights and democracy in Kenya has stressed the national and county government’s hand in creating a politically stifled, and socio-economically divided society. As the Kenyan economy faces turmoil and the government continues to increase taxes, citizens are finding it harder to access basic rights, like water, food, healthcare and housing. From legislating misguided government policies that unnecessarily limit freedoms, to excessive corrupt behaviour (missing
funding meant for education), one source says that as a result of misguided power and inequality,
“politicians and others in leadership positions are taking advantage of the people’s helplessness and are engaging in massive corruption and looting of public coffers.”
Kenya’s judges and civil society have been integral in recognizing and enforcing rights laid out in the Constitution; with positive national results. According to an
Amnesty International Kenya survey,
“70 per cent of Kenyans believe human rights have improved since the Constitution. Fifty percent have stood up for their own rights and 30 per cent for the rights of others.”
Fundamental freedoms may be clearly described in the national Constitution, but if even the most basic of rights are no longer respected or guaranteed, “democracy,” “dignity,” and “equality” simply become illusory concepts.
The first step to tackling this is holding the government accountable and demanding real, tangible reform. Democratic discourse and mobilisation throughout Kenya must come to the fore, as we utilize the nation’s strong Constitution and milestone documents like the Universal Declaration of Human Rights to teach Kenyans how to claim the rights and freedoms they are guaranteed both universally and legally.
Ashnar Dholakia is an EAI research assistant conducting research on water, sanitation, and hygiene within the context of urban informal settlements.
