Article 46 of the Constitution on consumer rights is neglected. It is unusual to have consumer rights protected in a constitution – though more common recently. People tend to think of human rights as being about things like freedom of expression, fair trial, freedom of movement and socio-economic rights like housing, food and health.
There may also be a tendency to think of consumer rights as being the concern of people who have money, and not of wananchi generally.
What are consumer rights, anyway? Generally we are talking about people who use goods and services for personal and family use. Strong consumer protection would deal with issues like contaminated food, and water supplies, unreliable electricity and water supplies, now unreliable internet services, goods that are not what they were sold as, do not do the job they were supposed to do, including less than it says on the label, exorbitant interest rates, inadequate medical services. The list could be endless and almost everyone could identify with many of these.
Consumer protection is not new. The Food and Agriculture Organization says, “Assyrian tablets [over 2,000 years ago] described the method to be used in determining the correct weights and measures for food grains, and Egyptian scrolls prescribed the labelling to be applied to certain foods. In ancient Athens, beer and wines were inspected for purity and soundness, and the Romans had a well-organized state food control system to protect consumers from fraud or bad produce. In Europe during the Middle Ages, individual countries passed laws concerning the quality and safety of eggs, sausages, cheese, beer, wine and bread.”
Things are more complex these day – but one wonders whether modern government are better than those ancient ones.
Enforcement dilemma
If the quality of service or goods is protected by the criminal law, a system of inspectors is often needed (they are supposed to exist under the Kenyan Weights and Measures Act, for example).
But if an individual wants compensation because of faulty, harmful, ineffective, overpriced goods or services, there are often practical difficulties. The loss suffered by each individual may be fairly minor, and going to court may cost far too much to be worth it. Yet hundreds of people may have suffered, and those responsible may have made a lot of money out of breaking the law. Consumers may not even be able to identify who supplied the goods to them. It’s not often that you will get a case like that of the woman who sued in 1929 because she found a decomposed snail in her bottle of ginger beer, making her ill. Maybe there was no snail (the case never reached that point) but she took the case to the highest court in England and they said the manufacturer could be liable to her as the consumer, even though she had not bought the bottle personally – but only if they were negligent.
The constitution
How does the Constitution make a difference? It may not make much difference that human rights must be observed by us all, not just the government, because often courts insist on dealing with cases under ordinary law rather than going straight to the Constitution.
More important is that the state has a duty to respect, protect, promote and fulfil rights – all rights. The state (the government) has a duty to take positive steps to protect people’s rights. So if there is no law on a topic, or government takes no steps to enforce the law, they may be legally liable. So something that was a matter between private individuals and private companies and traders becomes a matter of state responsibility and liability. Sometimes it may be a bit complex to work out which government: counties regulate local medical services, markets, and “fair trading practices”.
Another important matter is that it is not only particularly affected people who can sue. Others can sue on behalf of those unable to do so (for example because it is not worth it to bring an individual action).
This is public interest litigation, sometime brought by NGOs for the public benefit. It would be possible to bring an action to try to get a court to order government to pass laws or take other measures to protect consumers.
A final point about Article 46 is that it deals with advertising, which must be fair, honest and decent.
What happened since 2010?
Government has taken some steps. We have the Consumer Protection Act (CPA). Just a few examples: if someone buys something on a buy-now-pay-later basis the seller cannot take back the goods once two-thirds of the price has been paid, without getting a court order. This is relevant to boda boda riders when the seller has taken the bike back when little remained to be paid.
If you get an estimate for work to be done, the final bill must not be more than 10 per cent above the estimate. A few types of contract (including for personal development like fitness, sports, dance training) may be cancelled by the consumer within a cooling off period of 10 days. There’s nothing on fair advertising.
The Competition Act was passed in 2010 – probably not as a result of the Constitution. It includes various provisions for consumer protection – some rather similar to the CPA.
The Acts, obviously, are of little value if neither consumers nor suppliers are aware of their provisions (or the latter, if aware, ignore them).
How seriously are they taken? Last year a parliamentary committee was told that the Consumer Protection Advisory Committee under the Act has no budget allocation and works under the control of the Ministry of Trade - and clearly feels and is regarded as ineffective.
So we have two Acts of Parliament, each with a body to support and enforce it – though rather different. The Competition Act has regulations but not relating to the consumer protection provisions even though these are required. The CPA has no regulations at all, although that Act uses the word “prescribed” – which means “must be in regulations”– 84 times.
There are, by the way, Consumer Protection Regulations under the Kenya Information and Communications Act – concerned with specific sorts of products and consumers.
Court cases
There have been some cases before the courts under Article 46 and the CPA. They tend to bear out the dilemma – most are brought by the wealthier. Several were by parents of children in expensive private schools about the schools’ Covid-19 measures. A couple of people complained that vehicles had been seized after they had paid most of the price – not boda bodas but a Mercedes in one case and several vehicles in another. One case involved an airline passenger downgraded from Business Class.
Not all cases are quite so remote from most people’s lives. One held that the interest payable on a loan by someone who defaults must not exceed twice the sum lent (the case was about a HELB loan). Another held that drinks bottles must give information about the nutritional content.
But, for consumer protection to mean anything for most people, we need quicker, cheaper and simpler ways of dealing with disputes. The Small Claims Courts, which can deal with small contract disputes, and do so quite quickly, are spreading across the country.
The Competition Authority has a dispute resolution system but again tends to cater for the well-heeled, as with a case against Family Bank that involved unconscionable conduct – and over one million shillings – or another against Kenya Airways.
To make Article 46 a reality – and for all Kenyans – we clearly need a rationalisation of the law, so it is consistent, clear and easily located. Law Reform Commission?
Food contamination is best dealt with by monitoring before goods are marketed. Many disputes may well be dealt with most effectively by alternative dispute resolutions mechanism, through traditional bodies, NGOs, even chiefs and others. But, first, people must know what their rights are.