All human beings are born free and equal in dignity and rights. This is enshrined in the declaration that states committed to promote and protect in 1948.
Yesterday the world marked 70 years since the Universal Declaration of Human Rights (UDHR) document was adopted by the United Nations General Assembly in Paris. Kenya ratified the declaration in 1990 and later promulgated a new constitution with an expanded bill of rights in 2010.
The two standards were hoped to have ended the political and social history of police brutality, arbitrary arrests, illegal detentions, extrajudicial killings, torture and trampling on civil liberties that have punctuated Kenya's history.
Kenya has come a long way, says Irũngũ Houghton. He is the executive director of Amnesty International Kenya.
In 1948, when the universal rights were adopted, Irungu says all Kenyans were subjects of the Queen, forced to wear passbooks around in their necks and had no freedom on where to live, what to say or who to vote for.
“Today we are citizens backed by one of the most progressive constitutions in the world. The State of Human Rights opinion poll demonstrates how far we have come. More than 65 per cent of Kenyans feel Kenya has improved since the adoption of Universal Declaration of Human Rights,” he said.
Their findings, he said, show that even though 50 per cent of Kenyans are happy with the current constitution, they feel the rule of law and justice is not applied equally for all.
“The law applies differently, depending on your class and how corrupt you are. The poorer you are, the more likely you are to die from the lack of affordable healthcare or an unlawful police killing,” he said.
“As Amnesty, we are not asking Kenyans to celebrate the Universal Declaration of Human Rights but to commit to its enforcement. None of us is safe and dignified, as long as there is a Kenyan somewhere that is suffering discrimination, a lack of services or whose life is threatened,” he added.
BETTER BUT NOT DYNAMIC
Constitutional law expert Prof Yash Pal Ghai on his part said UDHR did not have much effect during colonial rule, even after Independence. He said the Independence constitution had a Bill of Rights that was hard to invoke, as many violations could not be challenged.
“The Jomo Kenyatta and Daniel Toroitich arap Moi regimes were very hostile to people's rights, and it was almost impossible to get a remedy for violations, except for a few instances towards the end of Moi's regime,” Ghai said.
“The then CJ had refused to pass the law under which action could be taken against the government for relevant law.”
Today the situation is better, though not dynamic, he said, adding that under the international instrument on Economic, Social and Culture Rights, some attention has been given to education, health and housing.
Ghai, a former chair of the constitution of Kenya Review Commission, said the 2010 Constitution has had a major impact on rights.
Not only does it have a lengthy Bill of Rights, introducing many rights ignored before, but it also makes binding the general rules of international law and declares binding any treaty or convention ratified by Kenya (making it easier to implement it), he said.
Among great milestones worth celebrating are the fact that the constitution now establishes an extensive network of rights binding the government; the judiciary has now done much to enforce people's rights; the civil society makes use of the system to promote and protect human rights; and individuals and organisations have become aware of their rights and began to take action to promote and protect them.
Independent Medico Legal Unit executive director Peter Kiama said IMLU is one of the achievements of the 70 years' anniversary. He said the UDHR document is now a gold standard, inspiring adoption of a human rights framework globally.
The boss of the agency that marked its 25 years anniversary last week said the inspiration is in the form of domestication of the provisions. For example, the domestication of national laws that protect civil and political rights, as well those that protect economic, social and cultural rights.
It has been global standards for countries who want to walk the path of democracy, making them develop laws that safeguard the rule of law.
“Our 2010 Constitution is heavily inspired and guided by the universal declaration. Our National Police Service Act 2011, too, in terms of protection of the right to life and freedom of movement and assembly,” Kiama said, adding that it has also guided interaction between the state and citizens.
He said UDHR places responsibility for safeguarding protecting and promoting rights on the state and confers those rights to citizens, opening conversation between citizens and the state.
“However, there is a lot to be done. As we celebrate, this is an incomplete journey, as there are many gaps that need to be filled, especially protecting the most vulnerable in our communities,” Kiama said.
CRIMINAL NEGLIGENCE
Despite Kenya not being part of the founders of the declaration in 1984, George Kegoro said the country's civil and political rights adopted in the 1990s were informed by the declaration, and that the 2010 Constitution has brought social and economic rights. Kegoro heads the Kenya Human Rights Commission.
“In terms of rules, we are well on course. The challenge now lies in the soft issue of the political culture that creates ethnic and class divisions, causing discrimination and internal conflicts,” he said.
“This has undermined the Constitution and all the aspirations of the universal declaration. However, we have done relatively well, in that now people can make demands on the government.”
Muslim for Human Rights chairman Khelef Khalifa was more critical.
“There's nothing to celebrate this 70th anniversary of International Human Rights Day in Kenya. Overall, we're worse than before the ratification of the declaration due to rampant state excesses against civilians,” he said.
The worse, he said, is manifested in rampant state-sanctioned extrajudicial killings and enforced disappearance, as well as normalised slum police executions, arbitrary arrests, torture and harassment.
“We are yet to learn the value of life since Independence. The promulgation of the new constitution gave us hope that the Bill of Rights would protect us from excessive use of force by police. However, that seems to a mirage,” he said.
The biggest disappointment, he said, is civil societies' failure to hold the government to account. Khalifa blamed the Independent Policing Oversight Authority and the Kenya National Commission on Human Rights for being "too timid and afraid" to tackle officers' abuse of citizen rights.
“Most of us prefer theoretical boardroom solutions. The culture of fear has gripped us to a point where we're more concerned with our safety and salaries than fighting for people's rights,” he said.
The Muhuri boss said his organisation and other like-minded human rights defenders are on course to sue the Inspector General of Police Joseph Boinnet for "criminal negligence" over deaths of protesters during his time in office.
“He ordered or failed to order police from using live ammunition against peaceful protesters and failure to institute an investigation against the culprits. We'll sue him in his personal capacity once he retires from service,” Khelef said.
Irungu said each human rights violation is an opportunity to educate and encourage people to act on their rights.
“If we responded to every assault, injury and even death, this country would be very different. We normalise the abnormal and hope that by adapting, the problems will go away. They will not. In fact, they will multiply,” he said.