Not only is the Bill of Rights the longest Chapter, but the drafters designed the Constitution to be firmly based on human rights.
This is something we can see most clearly from the inclusion of this concept as one of the national values in Article 10, the land and environment chapter, and the chapter on national security.
A human rights angle can tell us something about the attitude of the rulers towards the ruled. As the Constitution says, “Rights and fundamental freedoms belong to each individual and are not granted by the state”.
You have rights because you are human. The state is required to respect your rights, and to go further to protect them from assault by others, to promote and encourage respect for rights, and when necessary to take the necessary steps to fulfil the rights — such as providing decent conditions for prisoners, or water for the people. Benefits like this — if they exist — should not be viewed as gracious gifts of rulers to their subjects, still less as charity, but recognition of the full humanity and dignity of the people.
A right is legitimate; it is yours, it is an important part of what enables you to stand tall and insist “I am a citizen” — using the word to mean not so much an ID holder but a free and equal member of the community that is Kenya.
It is not, of course, to be expected that party manifestos would deny rights. “Thirdway Alliance commits to protecting human rights of all Kenya’s [sic – people?]”. Jubilee recognises rights in the context of women’s rights, and the right to water. And it insists: “Every Kenyan should feel confident that the legal and justice systems will support and protect them, and that every Kenyan is equal before the law.”
NASA has a chapter on socioeconomic rights.
SOCIOECONOMIC RIGHTS AND THE MANIFESTOS
The social concerns of both Jubilee and NASA have considerable overlap — particularly in health and education. The media have commented that both make promises about secondary education. Jubilee says, “In the next five years, we will: Work towards achieving a 100% transition from primary to secondary school by providing free education in all public primary and public day secondary schools.” NASA promises to make secondary education free immediately.
Both put emphasis on universal healthcare. Jubilee focuses on the NHIF mechanism, promising to provide health cover through the NHIF to all expectant mothers for a year around delivery, expand it to everyone over 70 and that by 2022, more than 13 million Kenyans will have the insurance cover. NASA seems to envisage a change in the system, relying on public funding and a “minimal basic health insurance contribution by citizens”. No one tackles hot potatoes like the right not to be denied emergency medical care, or reproductive health.
Here you can, of course, see some differences of party political ideology. But my specific interest is in rights: Do the parties have “rights-based approaches”?. Both health and education are among the rights guaranteed in Article 43 of the Constitution:
43.( 1 ) Every person has the right
(a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;
(b) to accessible and adequate housing, and to reasonable standards of sanitation;
(c) to be free from hunger, and to have adequate food of acceptable quality;
(d) to clean and safe water in adequate quantities;
(e) to social security; and
(f) to education.
NASA does recognise these as rights; Jubilee does not use that language (except about water).
Both include housing among its programmes (another Article 43 right — as NASA points out). Both promise 500,000 affordable houses in five years through public/private cooperation.
It should not be impossible (South Africa achieved 700,000 in five years) — but it would be a miracle: The Ministry of Lands said last year that Kenya produced 50,000 homes a year as opposed to a need of 250,000. And, most interestingly perhaps, Jubilee includes water — and does so as a right.
“Water must be a right, not a privilege,” it says — but this is an odd way of putting it. Water is a right: Government has the duty to do what is needed to ensure that everyone enjoys that right if they cannot do so for themselves. It is also essential to health.
Countries that have adequate supply of clean water for all, and associated sanitation (also an Article 43 right) do not have cholera.
First of all, gender. Both NASA and Jubilee recognise the importance of gender equality. Achieving equal treatment of women (and other groups) is one of the seven pillars of NASA’s programme. It wants to pass constitutional amendment to “address the gender balance issue” — presumably, the two-thirds rule in Parliament.
Jubilee does not mention this last point, or its failure to use its parliamentary majority to achieve it. Nor does either confront the dismal failure of male dominated politicians, on any side, to craft law that will achieve the constitutional promise fully. The only solution that has stood any real chance of acceptance is the adoption of the county assembly technique at the national level: Top-up women from party lists. This means most women members will be from party lists, misleadingly called “nominated”, viewed as not quite “real” legislators, with no constituencies.
Jubilee does devote considerably more attention to women than NASA — though claiming credit, where it is not due, such as one-third women in county assemblies (guaranteed by the Constitution) and nearly half of magistrates being women (the work of the judiciary). They do promise adherence to the two-thirds rule in appointments, strengthening scientific and technical training for women, and strengthening the law on women’s property rights.
One of Thirdway Alliance’s pillars (pillars are apparently absolutely de rigeur for manifestos!) is “to include the excluded”, including persons with disabilities, “minority communities such as the Bajuni, the Makonde and many others who are often forgotten”. Jubilee, of course, claims responsibility for making major changes in the situation of the Makonde and the Nubians (two communities sorely neglected by all Kenyan governments in the past).
NASA recognises how some other communities have been marginalised, though their solution is unsatisfying. They speak of the need for “official status” of 10 communities (the 45th to 54th “tribes”?). They are on stronger ground when insisting on everyone being treated fairly, including in terms of citizenship rights, and of affirmative action to ensure inclusive government. They also speak of promoting all Kenya’s indigenous languages.
NASA mentions supporting Kenyan sign language, while inclusive government includes persons with disability. Jubilee promises NHIF insurance to families with children with disability.
Manifestos are, of course, mainly platitudinous collections of good intentions. No doubt if any was fulfilled by the elected government, the rights and freedoms of Kenyans would be improved. Parties know that what most concern people are livelihood issues (jobs, food, education, health, etc.).
Rights and freedoms such as expression, assembly and political action get little attention. Important sections of the community like persons with disability and marginalised communities (and women in the case of NASA) get little enough attention, while the residents of informal settlements and the poor generally get some, especially over housing and health. Jubilee is concerned with strengthening the police, while NASA does mention extrajudicial killings and the need for restorative justice, but the rights of prisoners do not figure.
NASA (or its manifesto-writing team) shows some reasonable understanding of socioeconomic rights under the Constitution. Its concept of the citizenry does seem to be more rights-based than that of Jubilee.
There is little evidence that manifestos have played any role in government policies in the past. Do party leaders even read their party manifestos, sometimes written by consultants?
Manifestos are, however, the one chance that voters have of understanding what policies parties might pursue if elected. Indeed, if parties have no intention of pursuing them, what a fraud they would be perpetrating in the voters!