“The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings.” (Justice Mumbi Ngugi in William Musembi v Moi Education Centre (2014) eKLR)
Justice Ngugi’s statement captures the spirit of the constitution – placing the human dignity of individuals and communities at the centre of human rights.
As I mentioned in Part I, human dignity is both a human right in itself, and a guide to the interpretation of other rights. In the Breathalyser case, Justice Majanja explained that the “right to dignity is an interpretive principle to assist the further explication of the catalogue of rights and all rights have come to be seen as best interpreted through the lens of right to dignity.”
It is not surprising that most of the cases on human dignity have involved other substantive rights. The article on human dignity is stated in the most general of terms: “Every person has inherent dignity and the right to have that dignity respected and protected”. In the Friends of the Turkana case, Justice Nyamweya stated that it was evident that the “right to life, dignity and economic and social rights are all connected and indivisible, and it cannot be said that one set of rights is more important than another”.
Perhaps the case where the largest number of rights were discussed under the rubric of human dignity is Ibrahim Sangor (an eviction case) where Justice Muchelule listed among others, freedom from violence, torture (whether physical or psychological), access to water, sanitation, health and education, and being treated or punished in a cruel, inhuman or degrading manner.
When the right to human dignity is recited but not argued, as for example in the Breathalyser case, where it was merely stated the setting up of roadblocks was a violation of dignity, the court is, not surprisingly, likely to give short shrift to this plea, saying in that case that the mere inconvenience of the blocks is not a violation of a person’s right to human dignity.
It is good to see that many individuals and communities have been seeking the help of the judiciary in the protection of their dignity and other rights. Already, the courts have heard over 40 cases on human dignity.
Issues that have been litigated include: privacy, where the courts have often held the unwarranted disclosure of personal details without the person’s approval (described in one case as violation of “psychological integrity”), whether about HIV-Aids, surrogate motherhood, or commercial use of another’s photographs); protection of the dignity of an army officer who was faithfully carrying out instructions of his superior from harassment by other higher level officers; discrimination, on account of gender or pregnancy; detention or imprisonment for failure to fulfil a contract, at least where the person has no means to pay, including refusal of hospitals to release patients unless the entire bill is paid first; several cases relating to transgender issues, in particular the right to be recognised as either male or female, or indeed transgender in state instruments like ID cards or educational certificates; cases of indigenous communities anxious to maintain their traditional lifestyles as maintaining their beliefs and identity; protection of the rights of the disabled (particularly to employment), children, and the elderly; availability, implications and scope of DNA testing; and most frequently, the protection of the many rights of residents and their families in settlements and other areas threatened by their forced evictions.
Perhaps the most clear case of indignity is the physical humiliation of the person, of which the best example of it is the Murithi case where the plaintiff was arrested for no lawful reason, handcuffed, taken to hospital without permission or explanation and forced to sit on the floor of a small room.
Handcuffing his legs, assaulting him with a syringe to extract blood, forcing open his mouth and scooping fluid from his mouth was against freedom from torture, and cruel, inhuman and degrading treatment. His private parts were examined to establish his sex – most of this in the presence of the media and others.
In another case, of the defilement of young girls, Justice Makau examined the impact on the girls, as having lost their self-esteem, become self-doubtful, self-loathing, self blaming, and had low self-esteem.
Another court said: “Human dignity is that intangible element that makes a human being complete. It goes to the heart of human identity. Every human has a value. Human dignity can be violated through humiliation, degradation or dehumanisation”.
If these cases are any indication of what goes on in the country, it depicts a depressing state of affairs. It shows little sensitivity, on the part of the government or the non-state sector, to or respect for vulnerable individuals and minority communities.
It shows even less respect for constitutional values, particularly on part of state agencies, who love nothing more than harassing, beating and torturing fellow citizens.
In his moving judgement in the Ibrahim case, Justice Muchelule described the eviction in this way: “The Petitioners were evicted from unalienated public land, which they had occupied since the 1940s, and on which they had their residences. The eviction was violent and forceful as the police and the youths were using bulldozers, came in riot gear and used tear gas when the Petitioners sought to resist these actions.
The Petitioners were left without any alternative place to reside. They were left in the open without any shelter, food, water, sanitary facilities or health care.
The Petitioners were not accorded any opportunity to salvage any of their property, building materials and household goods before and after the demolitions.” This account is true of many other evictions, recorded in other judgements, and of course happens in many contexts that do not reach the courts or the media.
These judgements provide a clear exposition of the law, state and non-state obligations in respect of projected evictions, the rights of the residents, and the correct procedures for eviction (if justified). These and many other judgements are seldom followed, especially where the state is involved.
The Attorney General’s appearances in the cases are rare (and submissions requested by the court are seldom delivered). And even then, with little evidence of preparation, and tendency towards raising technical issues in contravention of the spirit of the constitution – and generally defending evictions.
Instead, his office should be alerting all state and non-state agencies of the law as explained by the judiciary, and urging compliance with it.
And remedies that the courts give in these and other cases are exceedingly hard to enforce, for which again the Attorney General must be held responsible.
If the reading of these cases was depressing, it had a bright side. The bright side was the care with which judges like Justices Musinga, Ngugi, Majanja, Lenaola, Ogundo, Korir, Muchelule, Nduma, and Nyanweya have carried out their difficult responsibilities — difficult only because of the hostility of the government to the constitution.
The commitment of these judges to the constitution is complete, consistence with the heavy responsibilities assigned to them by the constitution to be its ultimate interpreters and custodians.
They explain at length (and patiently!) the law on the subject, including international norms binding in Kenya, give evidence of having considered carefully the arguments of all parties, and always relate their decisions to the values, and the text of the constitution.
They demonstrate great sensitivity to human rights, and respect for individuals and communities and their well being, and fairness and social justice in the national context where disparities of income and opportunities widen by the day.
Their judgements are carefully crafted, the result of considerable research and reflection. In a short period they have developed very good jurisprudence on the constitution (as urged by the CJ Mutunga), which compares well with judgements from established and well regarded courts, as in India and South Africa.
The author is a director of the Katiba Institute. He is grateful to Faith Rotich of the Katiba Institute for her research assistance.