Ø SLAVERY SERVITUDE AND FORCED LABOUR
The new and Independent Constitutions are so equivocal on the freedom from Slavery servitude and forced labour, thus chapter 4 (30) of the new constitution is to the effect that a person shall not be held in slavery or servitude and shall not be required to perform forced labour.[1] On the other hand, the old constitution has provides such a freedom in the following terms in accordance with Article 73:
(1) No person shall be held in slavery or servitude.
(2) No person shall be required to perform forced labour.
(3) For the purposes of this section “forced labour” does not include -
(a) labour required in consequence of the sentence or order of a court;
(b) labour required of a person while he is lawfully detained that, though not required in consequence of the sentence or order of a court, is reasonably necessary in the interests of hygiene or for the maintenance of the place at which he is detained;
(c) labour required of a member of a disciplined force in pursuance of his duties as such or, in the case of a person who has conscientious objections to service as a member of an armed force, labour that that person is required by law to perform in place of such service;
(d) labour required during a period when Kenya is at war or an order under section 85 is in force or in the event of any other emergency or calamity that threatens the life or well-being of the community, to the extent that the requiring of the labour is reasonably justifiable, in the circumstances of a situation arising or existing during that period or as a result of that other emergency or calamity, for the purpose of dealing with that situation; or
(e) labour reasonably required as part of reasonable and normal communal or other civic obligations.
When having a close look at both the articles, one can deduce that the authors of the new constitution had no intention of altering the wordings of the independent constitution, but eventually decided to limit the extensions of Article 73(3)[2] that outlines the situations in which the freedom won’t be applicable, Article 30[3] is silent on these exceptions.
Ø RIGHT TO PRIVACY
This provision of the new constitution of Kenya entrenched in Article 31 is a new development in the Laws of Kenya; it was never in the Lancaster constitution. It guarantee the right to privacy in the following words:
Every person has the right to privacy, which includes the right not to have—
(a) their person, home or property searched;
(b) their possessions seized;
(c) information relating to their family or private affairs unnecessarily required or revealed; or
(d) the privacy of their communications infringed.
This right is directly concocted to other rights and freedoms such as human dignity, freedom of association and freedom of speech. According to Dr. Morris K. Mbondenyi[4], “ Article 31 stipulates three types of privacy rights, namely, (i) Personal/Bodily, (ii) territory and (iii) informational. Personal or bodily privacy concerns the protection of the person against invasive procedures such as drug testing and cavity searches. Territorial privacy, on the other hand, concerns the setting of limits on intrusion into an individual’s domestic and other environments such as the workplace or public place. Information Privacy involves the establishment of rules governing the collection and handling of personal data such as credit information and medical record.”
Ø FREEDOM OF THE MEDIA
This is another strong provision of Chapter 4 of the new Constitution. There was no article on the media rights in the previous Bill of Rights Chapter. The media rights have never been respected in Kenya for a long period of time as this is evidenced by harassment journalists and media houses by either individuals or a group of persons. A prime example of this harassment can been seen in the manner in which the first lady Lucy Kibaki stormed the Nation Media building on the 4th of May 2005 in protest at the paper’s portrayal of her and her family. This prompted one of the editors to write, “We wish to express our profound disgust at the conduct of First Lady... All these antics by Lucy Kibaki happened on a day that the free press was marking World Press Freedom Day. We would like to remind the First Lady that Kenya's journalists have not been, and shall not be, cowed by her outrageous conduct... The independence of the press as enshrined in the Constitution must be upheld and cannot be derided by the inimical actions of Lucy Kibaki.[5] This shows that although the previous Constitution had provision on the media right, it was not upheld and was frequently violated by the mighty and other influential parties. Harassments like the above prompted the Media stakeholders to protest for the enactment of the legislation that strengthens the media freedom. However their efforts bore fruits when, in 2007, the parliament enacted the Media Act_ AN ACT of Parliament to provide for the establishment of the Media Council of Kenya; for the conduct and discipline of journalists and the media; for the self-regulation of the media and for connected purposes ENACTED by the Parliament of Kenya.[6]
Ø ACCESS TO INFORMATION
Article 35 of the new constitutions is categorical that every citizen has the right of access to: - information held by the State; and information held by another person and required for the exercise or protection of any right or fundamental freedom. The same article is to the effect that every person has the right to the correction or deletion of untrue or misleading information that affects the person. The State shall publish and publicize any important information affecting the nation. Structurally and precisely, the old constitution was not organized in this effect; instead, it was just perceived impliedly that it was a citizen’s to access information without being entrenched in the constitution.[7]
Ø POLITICAL RIGHTS
Chapter 4 of the new constitution in its Article 38 stipulates that: 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.
(2) Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for—
(a) any elective public body or office established under this
Constitution; or
(b) any office of any political party of which the citizen is a member.
(3) Every adult citizen has the right, without unreasonable restrictions—
(a) to be registered as a voter;
(b) to vote by secret ballot in any election or referendum; and Freedom of association, Assembly, demonstration, picketing and petition, Political rights.
(c) to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.
The above stipulations, however, resemble the provisions of Articles 79 and 80 in the independent constitutions, where freedom of expression and freedom of Assembly and Association are outlined to the same effect respectively. The only point of divergent from the independent constitution is the clarity and precision brought by the new constitution as it vividly prescribes the political rights of the citizenry.[8]
The above rights are exercise in accordance with Cap 10_ Political Parties of the Laws of Kenya. Accordingly, Article 17 of this Act provides that: Subject to the provisions of this Act and of any other written law every citizen who has attained the age of eighteen years has the right to participate in political activities which are intended to influence the composition and policies of the Government; and to join any political party of his own choice.[9]
Ø RIGHT TO CLEAN AND HEALTHY ENVIRONMENT
Every person has the right to a clean and healthy environment, which includes the right[10]—
(a) to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in Article 69; and
(b) to have obligations relating to the environment fulfilled under Article 70
This right was missing in the independent constitution and it serves in compliance with international standards on international on right to environment. Philipe Sands, in his book, argues that:[11]
Man has the fundamental right to freedom, equality and adequate conditions of life in an environment of a quality that permits a life of dignity and well-being and he bears a solemn responsibility to protect and improve the environment for present and future generations
As emphasize above, the right to clean and healthy environment is part of the inalienable rights of each and every human being!
[1] Article 30(1) and (2) of the new Constitution
[2] See Independent Constitution of Kenya,1963
[3] 2010 constitution of Kenya
[4] Dr Mbondenyi is the Head of the Africa Nazarene Law School, this work is adopted from his forthcoming Chapter on The Bill of rights in the book he is co-authoring with PLO LUMUMBA, who is the current head of the Kenya Anti-Corruption Commission (KACC).
[5] http://news.bbc.co.uk/2/hi/africa/4512435.stm (Last Updated: Wednesday, 4 May, 2005, 10:30 GMT 11:30 UK
[6] Act No. 3 of 2007 – Media Act
[7] Terry Njoya, Citzens’ Rights in Kenya: Nairobi, KLB (1996) P.45
[9] See Cap 10 of 2007_ Political Parties, the Laws of Kenya
[10] Article 42 of the new constitution of Kenya
[11] P. Sands, (1994, P.294), Principles of International Environment Law: London, Cambridge University Press
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