CHAPTER 17

HUMAN RIGHTS AND THE BILL OF RIGHTS IN KENYA

This Chapter may be cited as Ben Sihanya (forthcoming 2022) “Human rights and the Bill of
rights in Kenya,” in Ben Sihanya (2022) Constitutional Democracy, Regulatory and
Administrative Law in Kenya and Africa Vol. 1: Theory, Structure, Method and Systems, Sihanya
Mentoring & Innovative Lawyering, Nairobi & Siaya.

17.1 Conceptualizing Human rights and the Bill of rights in Kenya

My overarching argument is that there is at least a five-pronged typology on human rights. First,
human rights are closely related to natural rights, fundamental rights. The second and third
categories are also referred to as constitutional (or the Bill of Rights) or legal rights.1 Human
rights are rights guaranteed to all human beings, irrespective of nationality, citizenship, tribe,
gender or age.

Second, there is a debate on universality on human rights. Numerous rights are universal, for
instance, the right to life, non-discrimination, freedom from slavery and freedom from torture
and inhuman treatment. They are fundamental on common humanity and do not depend on race,
tribe, gender, age, or religion. There are also arguments that human rights are cultural and
context specific, hence cultural relationship of human rights.2 Thus, some human rights are more
important in Kenya and Africa than others.

Third, indivisibility of human rights. One argument is that human rights form one single whole.
That suggests that all the rights are equally important and are non-hierarchical. Also, there are
arguments to the effect that Article 25 of the Constitution recognizes super (or superior) rights
which cannot be derogated from.3 Moreover, Articles 21 and 24 recognize immediate
progressive realization of some rights and balance of rights, including the right to education,
highest attainable standard of health, freedom from hunger, among others.4

Fourth, constitutional, transitional law and practice now recognize four (4) generations of rights.

Fifth, the inviolability of human rights. The national and transnational Bill of Rights codify and
constitutionalizes human rights in Kenya, Africa and globally.

This Chapter adopts an Afro-Kenyanist constitutional theory and methodology in analyzing and
discussing human rights.

1
Cf. Issa G Shivji (1989) The Concept of Human Rights in Africa. African Books Collective.
2
Ibid.
3
This is also consistent with Article 4 of International Covenant of Civil and Political Rights (ICCPR) 1966.
4
Article 43, Constitution of Kenya, 2010.
Page 1 of 16
We also interrogate the emerging debates on rights under the Building Bridges Initiative (BBI)
and related reforms’ relationship of human rights in Kenya and Africa.

The principle of universality of human rights is the cornerstone of international human rights
law. This principle, as first emphasized in the Universal Declaration on Human Rights (UDHR)
1948, has been reiterated in the entire International Bill of Rights5 numerous international human
rights conventions, declarations, and resolutions.6

17.1.1 Generations of Rights in Kenya and Africa

What are the four (4) generations of human rights? What is the context of each of these
generations of rights? Which regions or ideologies informed their introduction to international
law? How have those ideologies promoted or compromised those rights?

First, civil and political. Promoted mainly by the (neo) liberal and capitalist west. But even the
West limit these rights, especially for minorities… They are largely individualistic. What is
civil? Political? They are largely negative (as opposed to being positive) as they mainly require
the State (agencies or officials) to restrain from interfering with the individual’s rights. They are
intended to limit governmental power….

Some of the examples include the Universal Declaration of Human Rights (UDHR) 1948,
International Covenant of Civil and Political Rights (ICCPR) 1996, and African Union (AU)
instruments like, the African Charter on Human and People’s Rights (ACHPR) and the Protocol
to the African Charter on Human and People’s Rights.

Second, economic and social (or ecosoc) rights. These were mainly being promoted by the
Soviet Union (USSR, now Russia)...especially through political rhetoric, rather than practice.

These are largely positive (as opposed to negative) rights requiring the State (agencies or
officials) to implement economic and social rights and programming… Examples include, the
International Convention on Economic, Social and Cultural Rights (ICESCR) 1966, … and
Article 43 of the Constitution of Kenya 2010.

Third, group or communitarian rights. These were promoted mainly by Africa. These were
mainly exercised at the family, clan, and or corporate level... Also, communal rights have been
enjoyed through political parties and even trade unions in Kenya and Africa..... Group rights
have also been largely been part of the Afro-Kenyan struggle for re-Africanization and

5
The International Bill of Rights consists of the Universal Declaration of Human Rights (UDHR), International
Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural
Rights (ICESCR).
6
United Nations Office of the Commissioner for Human Rights, at
http://www.ohchr.org/en/issues/Pages/WhatareHumanRights.aspx (accessed 21/2/2013).
Page 2 of 16
reparation from colonial powers, for instance, more than 10, 000 members of the Talai clan
claimed recognition and reparations from the British for the human rights violations against them
during the colonial era….7

An example is the African Charter on Human and Peoples Rights (ACHPR), 1981. Why human
and people?

Fourth, Lesbian, Gay, Bisexual and Transgender (LGBTQI) rights. The evolving LGBTQI
debate. The myth that they are all sick, “un-African.”

Afro-Kenyanist economists, political scientists, sociologists and literates including Professors

among others have discussed and described the human condition or human rights. They have
helped delineate the political economy of human rights.

17.2 Human Rights in Kenyan and African Poetry8

The Revolt of the Children of a Lesser God, Poem by Dibussi Tande on Black Power following
the killing of Freddie Gray, a black American at Baltimore; NTV Documentary ‘Children of a
lesser God’ following the massacre of 148 students at Garissa University College on April 2,
2015.

17.2.1 A Freedom Song9

Atieno washes dishes, Atieno plucks the chicken,
Atieno gets up early, Beds her sucks down in the kitchen,
Atieno eight years old, Atieno yo.

Since she’s my sister’s child, Atieno needs no pay

While she works my wife can sit, Sewing each sunny day,
With her earning I support, Atieno yo.

Atieno’s sly and jealous, Bad example to the kids

Since she minds them, like a school girl, Wants their dresses, shoes and beads.
Atieno ten years old, Atieno yo.

Now my wife has gone to study,

Atieno’s less free,
Don’t I feed her, school my own ones,

7
Anne Soy (2022) “Kenya's Talai clan petitions Prince William over land eviction,” BBC News, May 4, 2022, at
https://www.bbc.com/news/world-africa-61320475 (accessed May 6, 2022).
8
Jared Angira (1996) “The siege of Ramogi,” in David Cook & David Rubadiri (eds) Poems from East Africa, East
African Publishers, at 8. Jag Jitsing Portrait of an Asian as an East African, Gidi Gidi Maji Maji, Unbwogable
9
Marjorie Macgoye “A freedom song” (Atieno yo)…
Page 3 of 16
 Pay the party, union fee
All for progress? Aren’t you grateful,
Atieno yo?

Visitors need much attention, specially when I work nights.

That girl stays too long at market, Who will teach her what is right?
Atieno rising fourteen, Atieno yo.

Atieno’s had a baby, So we know that she is bad

Fifty-fifty it may live, To repeat the life she had,
Ending in post partum bleeding, Atieno yo.
Atieno’s soon replaced, Meat and sugar more than all
She ate in such a narrow life, Were lavished in her funeral
Atieno’s gone to glory, Atieno yo.

By Marjorie Macgoye Oludhe (Kenya).

In “A Freedom Song,” Mcgoye brings out at least three contexts where marginalization and
quest for liberty. First, the girl child or young person. Second, a domestic or unskilled worker.
Third, a Luo who forms part of the habitually excluded marginalized in post-independence
Kenya.

17.2.2 Poetic Expressions on Human Rights in Kenya and Africa….

Poems and poetic expressions include: Dibussi Tande, Buea, April 30, 1992, ‘The Revolt of the
Poems and poetic expressions include: Jagjit Sing “Portrait of an Asian as an East African.”
There are also important human rights poems from the African Diaspora or global Africa. These
include Henry Wadsworth Longfellow’s “A slave’s dream” Dibussi Tande, Buea, April 30,
1992, “The Revolt of the Children of a Lesser God-Baltimore Today, LA Yesterday: Scribbles
from the Den.”:.

These poems help explain the debate of … human rights; universality vis-à-vis cultural …; and
national vis-a-vis transnational and international protection of rights.10

10
There are two extremes: Hans Kelsen and others argued that international law is international politics, with dire
consequences for international human rights law (IHL). This lays emphasis on the primacy of national constitutional
or rights regime.... Is it monism and or dualism? Cf. H.W.O. Okoth Ogendo (1975) “National implementation of
international responsibility: some thoughts on human rights in Africa” Vol. 10, East African Law Journal, 60-66.
Monism vis-à-vis dualism are discussed in Chapter 1, 2, 3 and 5 of CODRALKA 1. Chapter V of 1969 Constitution
was on the Protection of Fundamental rights and Freedoms of the Individual. Chapter IV of 2010 Constitution is on
the Bill of Rights.
Page 4 of 16
Prof Makau Mutua, a Kenyan human rights scholar, opines that the human rights corpus is
defined by a variety of pathologies both of choice and substance that are limited and limiting.11
This is because human rights seek to regulate the space between the state and the individual, but
ignores the space between individuals and other individuals. This inaccurately equates
containment of state despotism with attainment of human dignity.12

17.3 LGBTI in Kenya and Africa:13 The fourth generation in the Bill of Rights: same sex
relations and civic unions.14
As discussed above, the Lesbian, Gay, Bisexual and Transgender (LGBTQI) rights have been
recognized in comparative jurisdictions and by different scholars as the fourth-generation rights.
However, this has also sparked debate especially in African countries.

Some leading judgments of the High Court of Kenya have helped operationalise the Bill of
Rights, especially in the context of contested ethical, moral, religious and social values and
principles. Some decisions have been retrogressive mainly because they were influenced by the
political economy of the day.

On April 24, 2015, the High Court decided that members of a Lesbian, Gay, Bisexual and
Transgender (LGBTI) rights group could formally register their organization. This is popuralry
referred to as the “Eric Gitari” case. The three-judge High Court bench composed of Justice
Mumbi Ngugi, Justice George Odunga, and Justice Isaac Lenaola ruled that the Non-
Governmental Organizations Coordination (NGO) Board’s decision violated Article 36 of
Kenya’s Constitution which entitles everyone, irrespective of gender, sexual identity, affiliation
or ideology, to the freedom of association.15

Does the Kenyan Penal Code criminalise gay and lesbian organizations?16 Sections 162, 163 and
165 of the Kenyan Penal Code have been read to mean that same-sex relations in Kenya are
criminalized…. Section 162 states:

11
Makau Mutua (1996) “The ideology of human rights,” Vol. 36, Virginia Journal of International Law
Association, 589. Prof Makau Mutua is a Kenyan and a Law Professor at SUNY, USA.
12
Makau Mutua (2008) “Human rights and powerlessness: Pathologies of choice and substance,” Vol. 56, Buffalo
Law Review 1027.
13
The “I” is sometimes “q” for queer….
14
What are the issues? How has the administrative justice system addressed them? Being sexual relations, marriage
or civic union, work e.g. in the military (cf. don’t ask, don’t tell...)
15
Eric Gitari v. Non-Governmental Organizations Co-ordination Board &4 Others [2015] eKLR.
16
The African Commission on Human and People’s Rights granted observer status to the non-governmental
Coalition of African Lesbians (CAL) on April 25, 2015. This group has the mandate to fight for the rights of
lesbians and bisexual women. The group had in 2010 been refused observer status by the Commission. According to
the Human Rights Watch, same-sex conduct is outlawed in 35 African countries. Consider also the 62% “yes” vote
in Ireland’s referendum on 22/5/2015 that guaranteed marriage equality and the right to marry without distinction as
to sex or sexual orientation. Ireland is the first country in the world to endorse marriage equality by popular vote and
Page 5 of 16
 “Any person who -
(a) has carnal knowledge of any person against the order of nature; or
(b) has carnal knowledge of an animal; or
(c) permits a male person to have carnal knowledge of him or her against the order of nature, is
guilty of a felony and is liable to imprisonment for fourteen years…”

This section adopts the terms “carnal knowledge” and actions that are “against the order of
nature” in prohibiting same-sex relations. Section 163 of the Penal Code sanctions these actions
and prescribes a 7-year imprisonment term for any individual who violates section 162.

Section 165 states:

“any male person who, whether in public or private, commits any act of gross indecency with
another male person, or procures another male person to commit any act of gross indecency with
him, or attempts to procure the commission of any such act by any male person with himself or
with another male person, whether in public or private, is guilty of a felony and is liable to
imprisonment for five years.”

This section criminalizes acts of “gross indecency” between males. Pro-LGBTQI activists have
also argued that the terms “gross indecency,” “carnal knowledge,” and “against the order of
nature” are vague and that they do not explicitly or implicitly outlaw same-sex relations.
However, Justice Chacha Mwita dismissed this argument by stating that:

“The impugned provisions of the Penal Code are not vague and disclose an offence. The
petitioners have failed to prove that the provisions are discriminatory. There is no evidence to
show that the petitioners were discriminated and their rights violated as they sought healthcare.”

Indeed, it is trite law that a petitioner who alleges a violation or infringement of their rights and
freedoms must be specific as to which rights were violated, as held in the Anarita Karimi Njeru
v. Republic (1979).

Additionally, the main contention has been whether these sections meet the test under Article 24
of the Constitution 2010 which expressly prohibits any discrimination or limitation of human
rights, except where such limitation is reasonable and justifiable in an open democracy that
upholds human dignity, rule of law and equality of persons.

Should the LGBTQI also equally enjoy the benefits of a progressive Bill of Rights under the
Constitution 2010? Relatedly, Kenya adopted an open-ended list on non-discrimination in Article

even gone forward to enshrine it in the Constitution, as the Thirty-fourth Amendment of the Constitution (Marriage
Equality) Act, 2015.
Page 6 of 16
27(4) of the Bill of Rights, by expressly using the terms “including” which could implicitly mean
that constitutional protection can also be extended to fourth-generation rights.

There have been different jurisprudence on same-sex relations developing from the courts in
Kenya, Uganda, South Africa, Nigeria, and the US Supreme Court ruling by a 5-4 vote that the
Constitution legalizes same-sex marriage.17 The Ugandan High Court opined in Kasha
Jacqueline and Others v. Rolling Stone Limited and Another No. 163 of 2010 that section 145 of
the Ugandan Penal Code did not outlaw gayism generally, unless and until a gay individual
committed the outlawed acts under this section.

In Kenya, the debate with regards to same sex marriage is three pronged. First, the …. and
related Christian groups oppose same sex marriage. They cite Old and New testament texts,18
Christian practice,19 and African tradition.20 Second, some scholars like Prof Makau Mutua have
always asserted that indeed, the Constitution of Kenya 2010 permits and protects same sex
unions.21 The third group argues that LGBTQI issues largely fall within the gray area of human
experience, human rights, and constitutional text as well as practice.22

In 2014, the Ugandan Parliament passed a law which was dubbed “kill the gays” law. The
Uganda Anti Homosexuality Act, 2014 sought to prescribe harsh punishments against gays.23
And in Namibia, the High Court sentenced two men to 15 years jail term in 2019 for engaging in
sexual relations “against the order of nature.”

17
Obergefell et al v. Hodges, Director, Ohio Department of Health, et al. Supreme Court of the United States,
decided June 26, 2015. Consider the role of Justice Kennedy in maintaining a delicate balance between (social)
liberals and conservatives. Hence the fierce battle, anxiety and debate when he left and was being replaced by
Justice Kavanaugh in 2018). The fear was and is that SCOTUS would reverse Roe v. Wade. This would have
repercussions in Kenya and other African states – e.g. a (permanent) US foreign policy to discount and defund
reproductive health, abortion.....
18
….James Mwangi and John Muthoni (2014) “PCEA kicks out David Githii after Nairobian expose,” Standard, at
https://www.standardmedia.co.ke/entertainment/the-standard/2000114828/pcea-kicks-out-david-githii-after-
nairobian-expose (accessed May 24, 2021).
19
…. Beja P. Bishop (2012) “Gays dangerous than terrorists,” Standard, Nairobi, July 23, 2012, at
http://www.standardmedia.co.ke/?articleID=2000062448 (accessed May 24, 2021).
20
Cf. The Baganda Kings….
21
Makau Mutua (2010) “Why Kenya’s new Constitution protects gays,”Daily Nation, Nairobi, 10/12/2018, at
https://www.nation.co.ke/oped/opinion/Why-Kenya-new-Constitution-protects-gays-/440808-1070772-
rd5rk0/index.html (accessed 10/12/2018).
22
…….
23
Mimi Mefo Takambou (2021) “Uncertain future for LGBT+ rights in Uganda as controversial bill is passed,” DW,
May 5, 2021, at https://www.dw.com/en/uncertain-future-for-lgbt-rights-in-uganda-as-controversial-bill-is-passed/a-
57437925 (accessed May 24, 2021).
Page 7 of 16
In the USA, the state of Michigan, Kentucky, Ohio and Tennessee define marriage as a union
between one man and one woman.24 The petitioners in Obergefell et al v. Hodges, Director,
Ohio Department of Health, et al. were 14 same-sex couples and two men whose same-sex
partners were deceased. They filed suits in Federal District Courts in their home states, claiming
that the respondent state officials violated the Fourteenth Amendment25 by denying them the
right to marry or have marriages lawfully performed in another state given full recognition.26

The Fourteenth Amendment of the US Constitution requires a State to license a marriage

between two people of the same sex and to recognize a marriage between two people of the same
sex. This is only applicable tow (2) instances. First, where the same-sex marriage was lawfully
licensed, and second, that such same-sex marriage can also be recognized in other states, across
the licensing-state. For instance, public display of affection (PDA) accommodations and The
decision in the Obergefell et al v. Hodges decision therefore served as a great step towards
recognizing same-sex marriages and their registration in all states, including those states that had
reservations ....[to review]…..

Justice (Rtd) Anthony M. Kennedy who wrote for the majority in the decision argued that:

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity,
devotion, sacrifice and family. In forming a marital union, two people become something greater
than once they were.”27

In dissent, Chief Justice John G. Roberts said the Constitution had nothing to say on the subject
of same-sex marriage. Chief Justice Roberts wrote,

“If you are among the many Americans - of whatever sexual orientation - who favor expanding
same-sex marriage, by all means celebrate today’s decision.” “Celebrate the achievement of a
desired goal. Celebrate the opportunity for a new expression of commitment to a partner.
Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to
do with it.”28

24
Article 45(2) of the Constitution of Kenya states, “every adult has the right to marry a person of the opposite sex,
based on the free consent of the parties; while Article 31(3) of the Constitution of Uganda states, “marriage shall be
entered into with the free consent of the man and woman intending to marry.”
25
The 14th Amendment to the U.S. Constitution, ratified in 1868, granted citizenship to all persons born or
naturalized in the United States— including former slaves— and guaranteed all citizens “equal protection of the
laws.”
26
Ibid.
27
Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al. Supreme Court of the United States,
decided June 26, 2015.
28
Adam Liptak (2015) “Supreme Court Ruling Makes Same-Sex Marriage a Right Nationwide,” New York Times, Washington,
26/6/2015, at http://www.nytimes.com/2015/06/27/us/supreme-court-same-sex-marriage.html?_r=0 (accessed 30/9/2015).
Page 8 of 16
These were also debated in the context of the United States Supreme Court’s decision in May
2022 allegedly overturning the decision in Roe v. Wade which constitutionalized the right to
abortion29….

17.4 Religion in Kenya and Africa30

What are some of the leading constitutional questions regarding religion in Kenya and Africa?
The debates on religion are at least three-pronged. First, the question of freedom to exercise
one’s religion. Second, the freedom from an established State religion or denomination. What of
practice? Under Kenyatta 1: Catholism? Moi: AIM? AIC? Kibaki: catholism? Kenyatta 2:
Catholisms? Third, the question of atheism…
……[To discuss these. To relate to the discussion of the preamble Arts 8, 10, 27, 35… Chapters
3, 4, 6, 9, 10, 11and 12 of CODRALKA] The Constitution and Courts have been relied on to
defend and question religion, and especially Christianity in Kenya and Africa.

First, Mr Dola Indidis, a Kenyan lawyer also initiated a case against the Republic of Italy and the
State of Israel over the execution of the Messiah in the case in Friends of Jesus v. Tiberius,
Emperor of Rome; Pontius Pilate, et al Republic of Kenya, Constitutional Petition No. 965 of
2007 …..31 The case was filed in the Kenyan High Court in Nairobi and was later thrown out.32
He later filed the same petition at the International Court of Justice (ICJ) at the Hague.33

Second, with regard to the freedom of conscience and the questions of exercise and established
religion, Kenyan courts have pronounced and affirmed the requirement that state or public
officers must acknowledge and respect individual entitlement to conscience. In Mohamed
Fugicha v. Methodist Church in Kenya (suing through its registered trustees) & 3 Others,34 the

29
Josh Gerstein and Alexander Ward (2022) “Supreme Court has voted to overturn abortion rights, draft opinion
shows,” Politico, May 2, 2022, at https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-
00029473 (accessed May 5, 2022).
30
See also Ben Sihanya (2021) “Religion in Afro-Kenyan Constitutional Democracy.”
31
Who was Mr Dola Indidis? Mr Indidis had been a spokesperson of the Judiciary. PRO in the Kenyan Judiciary?...
Damien Gayle (2013) “Kenyan lawyer Dola Indidis goes to International Court of Justice in Netherlands seeking to
overturn the conviction and death penalty handed down to Jesus,” Daily Mail, United Kingdom, 5/8/2018, at
https://www.dailymail.co.uk/news/article-2384466/Kenyan-lawyer-Dola-Indidis-goes-International-Court-Justice-
bid-overturn-conviction-handed-Jesus.html (accessed 10/12/2018). What are the arguments on both sides from the
perspective of constitutional and transnational law? What of criminal law rules? Civil procedure? Evidence law?
The statute of limitation? State succession? What about the Old and New Testament? E.g. Christ’s death and
resurrection were prophesied. But Jesus also said in Luke’s gospel: “The son of man shall go as it was prophesied,
but woe unto him by whom he is betrayed it were better if he had not been born?” so were his persecutors fulfilling a
divine mission?
32
Why? The court argued that it lacked jurisdiction to hear the matter.
33
…..Nyambega Gisesa (2013) “City man moves to Hague court to seek justice for Jesus,” Standard, July 26, 2013,
at https://www.standardmedia.co.ke/the-nairobian/article/2000089312/city-man-moves-to-hague-court-to-seek-
justice-for-jesus (accessed May 24, 2021).
34
Mohamed Fugicha v. Methodist Church in Kenya (suing through its registered trustees) & 3 Others, CA No. 22
of 2015.
Page 9 of 16
Court of Appeal permitted Muslim students to put on hijab (head covers) as part of school
uniforms.35

The court cited with approval, the South African case of National Coalition for Gay and Lesbian
Equality v. Minister for Justice,36 where it was stated that:

“The present case shows well that equality should not be confused with uniformity, in fact,
uniformity can be the enemy of equality. Equality means equal concern and respect across
differences. It does not presuppose the elimination or suppression of differences. Respect for
human rights requires the affirmation of self, not the denial of self.”

The Court elaborated:

“Equality therefore does not imply a leveling or homogenization of behavior but an

acknowledgment and acceptance of difference. At the very least, it affirms that difference should
not be the basis for exclusion, marginalization, stigma and punishment – At best, it celebrates the
validity that difference brings to any society.”37

Also, consider the justiciability of the following clauses on inclusiveness (Article 10), equality
(Article 27), participation of the people (Article 10) and accountability (Article 10) in
Kenya……It is noteworthy that despite the push for equality of sexes, gender, sexual identity,
and diversity, generally, the Kenyan and African societies have been ambivalent on fourth
generations rights. The major ground has been that LGBTQI practice is against religious and
“African” values.

Third, an atheist group sought registration in Kenya.38 Part of the preamble states:

“We, the People of Kenya, acknowledging the Supremacy of the Almighty God39 of All
creation40…”

The Registrar, in refusing to register the group cited the preamble of the Constitution,
specifically the foregoing part.

35
Cf. The Pangani Girls case.. Hijab as part of freedom of conscience…
36
National Coalition for Gay and Lesbian Equality v. Minister for Justice (1998) ZAAC 15.
37
National Coalition for Gay and Lesbian Equality v. Minister for Justice (1998) ZAAC 15.
38
Atheist in Kenya & Another v. The Registrar of Societies & 2 Others, Petition No. 308 of 2016.
39
In the USA, there have been various attempts through litigation to challenge the inclusion of the words “In God
we Trust” in American dollar bills. The courts in rejecting the applications stated that the Constitution lets the
government celebrate “our tradition of religious freedom,” and that putting the motto on currency “comports with
early understandings of the Establishment Clause” without compelling religious observance. Another view is that
the phrase is a spiritual or philosophical statement rather than a discriminatory religious commitments...
40
Discuss the creation v. evolution theory in US educational and court systems. Cf. creation v migration and
settlement myth and history discussed under nationalism in Chapter 1 of CODRALKA 2.
Page 10 of 16
The Registrar’s argument was that the Preamble of the Constitution recognises the supremacy of
God Almighty.41 The atheists group’s position was that there is a substantive Bill of Rights under
the Constitution that protected them. On March 22, 2019, the Court of Appeal upheld the
LGBTI’s right to form and register an organisation.42

Fourth, the question of religion was also debated in May 2021, in the context of a petition by the
Rastafarian Society of Kenya, who sought the legalization of Marijuana for religious, medicinal
and herbal use. They argued inter alia that the criminalization of marijuana use and continued
harassment of Rastafarians by the police under Section 3 of the Narcotic Drugs Act, violated
their rights and freedoms under the progressive Bill of Rights in the Constitution 2010. They
stated:

“The impugned law which was enacted in the year 1994 is hostile and intolerant to persons
professing the Rastafari faith yet we are in a new constitutional framework following the
promulgation of the Constitution of Kenya 2010 that is progressive and accommodative of
diversity.”43

The use of Cannabis sativa is outlawed in Kenya, and one may be subjected to between 10 to 20
years imprisonment even on possession and use charges.

17.5 Right to health: Patient’s rights in Kenya and Africa

Article 43 of the Constitution guarantees the right to health in a three-pronged typology. First,
every person has the right to “the highest attainable standard of health which includes the right to
healthcare services including reproductive healthcare.”44 Second, “a person shall not be denied
emergency treatment.”45

Third, the right to health is also arguably guaranteed under related rights, including adequate
housing (Art 43(1)(d)); social security (Art 43(1)(e)); and education (Art 43(1)(f)); sanitization
(Art 43(1)(b)); freedom from hunger and adequate food (Art 43(1)(c)); clean and safe water in
adequate quantity (very important indeed) (Art 43(1)(d)).

41
Charles Lwanga (2016) “Kenyan atheists’ group issue ultimatum over their registration,” Daily Nation, Nairobi,
30/5/2016, at http://www.nation.co.ke/counties/mombasa/Kenyan-atheists-group-issue-ultimatum-over-their-
registration/-/1954178/2770316/-/9yeqwaz/-/index.html (accessed 18/6/2016).
42
…..See Non-Governmental Organizations Co-Ordination Board v. EG & 5 Others [2019] eKLR.
43
Susan Muhindi (2021) “Rastafari society files petition seeking to legalise marijuana,” Star, Nairobi, May 17,
2021, at https://www.the-star.co.ke/news/2021-05-17-rastafari-society-files-petition-seeking-to-legalise-marijuana/
(accessed May 24, 2021).
44
…… Article 43(1)(a) Constitution of Kenya 2010.
45
Article 43(2) Constitution of Kenya 2010.
Page 11 of 16
Relatedly, Justice Hatari Waweru’s also made a decision that hospitals and doctors should bear
the consequences if they fail their patients through negligence. The Court ordered Aga Khan
Hospital to pay the plaintiff two awards in the nature of general damages.46

17.6 Right to security and criminal justice in Kenya and Africa47

What is the constitutional, policy and legal framework on the right to security and criminal
justice in Kenya and Africa? What is the political economy and debates around security in Afro-
Kenyan constitutional democracy and constitutional sociology?

What about the ruling on the Security Laws (Amendment) Act, 2014? Constitutional petition on
bond to keep the peace which was declared unconstitutional. This petition raised questions about
the constitutionality of the provisions of section 43 — 61A of the Criminal Procedure Code, Cap
75 of the Laws of Kenya. The petitioners asserted that the provisions above offended various
Articles of the Constitution including, Articles 27 (equality and freedom from discrimination), 28
(human dignity), 29 (freedom and security of the person), 49 (rights of arrested persons) and 50
on fair hearing, with regard to the rights of an accused person, and were therefore null and
void.48

Questions were also raised on the exacerbation of violation of fundamental rights and freedoms
including the freedom of liberty and freedom of movement, especially during the Coronavirus
disease 2019 (COVID-19) pandemic. This was worsened by traffic during the enforcement of the
7 pm to 5 am curfew orders between March 2020 and June 2020, mandatory quarantine and
outlawing of political gatherings. The latter was debated as the Government’s attempt to stifle
campaigns and the 2022 succession and transition politics by the Deputy President William
Ruto…. (cf. to criminal justice; to political justice.

….Security administration: Inspector-General (IG), National Police Service Commission

(NPSC)….

Discuss the Lamu curfew imposed in July 2014, and subsequently extended to October by the
then Inspector General of Police David Kimaiyo. The curfew was imposed to enable security
offices to tackle the emergence of armed militia at the Coast region at that time. Inspector-
General David Kimaiyo invoked section 8(1) of the Public Order Act, Cap 56, to institute a
curfew from July 20, 2014 to August 20, 2014. The curfew would be from 6:30 pm to 6:30 pm
within the stipulated period.

46
AAA v. Registered Trustees (Aga Khan University Hospital, Nairobi) [2015] eKLR.
47
See Chapters 15 CODRALKA 1 on Administering and Regulating Security and Criminal Justice in Kenya and
Africa; Chapters 14 of CODRALKA 1…
48
Anthony Njenga Mbuti & 5 Others v. Attorney General & 3 Others [2015] eKLR.
Page 12 of 16
What was the political economy and legal sociology of the series of attacks in Mpeketoni, Panda
Nguo, Hindi, Witu and twin terror attacks in Mandera?49 These attacks had led to the death of
more than 90 residents of Lamu County. Lamu county leaders faulted the National Government
for its failure to consult them in such a great matter of public interest to the people of Lamu
County.50

Lamu East Member of Parliament (MP) Ali Athman Sharif said the curfew would affect the
fishing industry, tourism and many businesses. He argued that it should have been restricted to
areas vulnerable to attacks and not the entire Lamu County.51
His defenders argued that the Inspector General was performing his functions pursuant to Article
246(3)(c) of the Constitution of Kenya 2010, sections 8 of the Public Order Act, and section 14
of the National Police Service Act, Cap 84. Section 8 (1) of the Public Order Act provides that,

“The Commissioner of Police or a Provincial Commissioner52 may, if he considers it necessary in

the interests of public order so to do, by order (hereinafter referred to as a curfew order) direct
that, within such area (being, in the case of a Provincial Commissioner, within his province) and
during such hours as may be specified in the curfew order, every person, or, as the case may be,
every member of any class of persons specified in the curfew order, shall, except under and in
accordance with the terms and conditions of a written permit granted by an authority or person
specified in the curfew order, remain indoors in the premises at which he normally resides, or at
such other premises as may be authorized by or under the curfew order.”53

On the other hand section 14 of the Police Act, Cap 84 Laws of Kenya, provided that the force
(now “service”) shall perform its functions under the overall direction, supervision and control of
the Commissioner of Police (now Inspector-General of Police), and shall be impartial and
objective in all matters and in particular, in all political matters and shall not accord different
treatment to different persons on the basis of their political opinions.54 Nonetheless, the
impartiality and independence of the occupant of the office of the IG-P has been critically
debated.

49
Paul Wafula (2014) “Kenya has experienced 100 terror related attacks in three years ”Standard Digital, Nairobi,
18/8/2018, at https://www.standardmedia.co.ke/article/2000131848/kenya-has-experienced-100-terror-related-
attacks-in-three-years (accessed 10/12/2018).
50
Kalume Kazungu (2014) “Lamu leaders fault Kimaiyo’s curfew extension,” Daily Nation, Nairobi, 21/8/2014, at
https://mobile.nation.co.ke/counties/Lamu-leaders-fault-Kimaiyos-curfew-extension/-/1950480/2426448/-
/format/xhtml/-/dgmf75/-/index.html (accessed 10/12/2018).
51
Kalume Kazungu (2014) “Lamu leaders fault David Kimaiyo's curfew extension,” Daily Nation, Nairobi,
21/8/2014, at http://www.nation.co.ke/counties/Lamu-leaders-fault-Kimaiyos-curfew-extension/-
/1107872/2426448/-/axbeo5/-/index.html (accessed 29/9/14); Fred Mukinda (2014) “Inspector General of Police
David Kimaiyo says Lamu curfew extended to October,” Daily Nation, Nairobi, 20/9/2014, at
http://www.nation.co.ke/counties/Kimaiyo-extends-Lamu-curfew-Monday/-/1107872/2459488/-/t66bh6z/-
/index.html (accessed 29/9/14).
52
This was amended to now mean Regional Commandant. Cf. Officer Commanding Police Division (OCPD) to
Sub-county Police Commander (SCPC)? To align police service to the political and administrative units....
53
Section 8(1) of the Public Order Act, Cap 56
54
…..
Page 13 of 16
What is the implication of section 86 of the Security Laws (Amendment) Act, 2014 for the
Inspector General’s impartiality and objectivity especially on political matters? [To review
Nexus]…….

The section amended section 12 of the National Police Service Act by substituting it with the
following sub-section-

“The President shall, within fourteen days after a vacancy occurs in the office of the Inspector-
General, nominate a person for appointment as an Inspector-General and submit the name of the
nominee to the National Assembly.”55

Under these changes, the President would constitute a selection panel for the interviewing of
potential candidates. Members of this panel include a representative from the President’s office,
a representative of the Public Service Commission (PSC); a member of the Law Society of
Kenya (LSK); a member of the National Police Service Commission (NPSC); a member from
the National Gender and Equality Commission (NGEC); and a member from the Independent
Policing and Oversight Authority (IPOA).

Some argued that having a representative of the President as part of the Selection panel would be
a drawback of the constitutional gains. The Constitution 2010 vested the National Police Service
Commission (NPSC) with the powers of vetting and nominating persons for appointment as IG-
P.

The political pressure and interference would arise from the direct role played by the President in
the appointment of the Inspector-General of Police and the two (2) Deputies, which were
conceptualized as a functionally and institutionally independent offices. Kenyans conceptualized
an independent police service, alien to political interference by the Cabinet Secretary and or the
President to serve their selfish interests.

The Lamu County curfew in 2014 offered Kenyans a glimpse of this interference. Civil society
organisations (CSOs) including Haki Africa criticized the Kenyatta II Government for inferring
that the then opposition was responsible for the attacks in Lamu County. For instance, the then
Lamu County Governor Issa Timamy was arrested on allegations of possible involvement in the
attacks only for the charges to be dropped in September 2014. The court held that here had been
no charges against him.

Some politicians also argued that the freedom of conscience and religion overruled the imposed
curfew measures. What had the then National Assembly Majority Leader Aden Duale said about

55
Clause 86(a) (2) of the Security Laws (Amendment) Bill, 2014, which was an amendment of section 12 of No.
11A of 2011.
Page 14 of 16
Lamu curfew?56 Hon Duale initially called upon Muslim faithfuls in Lamu to disregard the
curfew orders by Inspector-General of Police (IG-P) David Kimaiyo. He stated:

“Muslims in Lamu County must go to the mosques for last 10 days Ramadan prayers despite the
curfew. Our religion supersedes curfew order.”57

Mr Gibson Kamau Kuria, a Nairobi Advocate argued that National Assembly Majority Leader
Aden Duale’s call for Lamu residents to disregard the curfew was callous and irresponsible. He
elaborated that that was a call for the destruction of the State in the name of exercising the
freedoms of worship and of speech and that such freedoms can only be exercised in a State
governed by the rule of law.58

During the implementation of the Covid-19 curfew, many Kenyans complained about the use of
excess force and police brutality in enforcing the curfew… Remarkably, in April 2021, the police
were widely criticized for enforcing a lockdown on Thika Superhighway, even against essential
service providers.59

Relatedly, major debates have also been on the excessive, unlawful, partial and illegal use of
police powers and state security organs during electioneering periods especially during the 2021
by-elections in Bonchari, Kisii County, and in Juja, Kiambu county. These precipitated calls for
the impeachment of Interior Security Cabinet Secretary Fred Matiang’i on grounds, including
allegations of abuse of office.60

17.6 Summary of Findings, Conclusions and Reforms on the Bill of Rights in Kenya and
Africa
…. We adopted a five-pronged typology on conceptualizing, problematizing and contextualizing
human rights in Kenya and Africa. First, that human rights are closely related to natural rights,
fundamental rights. Second, the debates on universality on human rights. Third, indivisibility of
human rights. Fourth, we also discussed the four generations of human rights. Fifth, the
inviolability of human rights.

56
….
57
Joseph Muraya (2014) “Duale tells Lamu Muslims to ignore curfew,” Capital News, July 20, 2014, at
https://www.capitalfm.co.ke/news/2014/07/duale-tells-lamu-muslims-to-ignore-curfew/ (accessed July 6, 2021).
58
Gibson Kamau Kuria (2014) “MP and his ilk are wrong to reject Lamu curfew,” Daily Nation, Nairobi, July 21,
2014, at http://mobile.nation.co.ke/blogs/MP-and-his-ilk-wrong-to-reject-Lamu-curfew--/-/1949942/2392158/-
/format/xhtml/-/amt9g1z/-/index.html (accessed 29/9/14).
59
Jael Mboga & Emmanuel Too (2021) “Motorists trying to beat Covid curfew stuck in Thika Road traffic,”
Standard, Nairobi, April 18, 2021, at https://www.standardmedia.co.ke/kenya/article/2001410078/motorists-trying-
to-beat-covid-curfew-stuck-in-thika-road-traffic-again (accessed July 6, 2021).
60
Mzthews Indanyi (2021) “Ruto’s allies blame Interior CS for Bonchari, Juja chaos,” Star, May 23, 2021, at
https://www.the-star.co.ke/counties/rift-valley/2021-05-23-rutos-allies-blame-interior-cs-for-bonchari-juja-
chaos/?utm_term=Autofeed&utm_medium=Social&utm_source=Twitter#Echobox=1621796731 (accessed May 24,
2021).
Page 15 of 16
….It is therefore fundamental that the implementation of the Bill of Rights under the
Constitution requires broad vigilance, cooperation, trust and accountability by the people, state
officers and state organs including the Judiciary, and relevant reforms. This will ultimately
promote good governance, administrative justice, electoral justice, patriotism and equivalent
sanctions against violators.

... Let wisdom flow from the Oracle and back in class and through books, articles, online, in the
Oracle’s Shrine, and in appropriate fora…

© Prof Ben Sihanya, JSD (Stanford), Revised 27/2/2013; 26/9/2013; 14/6/2014; 14/10/14;
16/02/15; 16/06/15; 31/08/2015; 10/2/2016; 29/6/2016; 14/4/17; 10/4/2018; 8/2/2019; 11/2; 2/5;
6/9; 18/12/2019; 27/4/2020; 18/8/2020; 19/8/2020; 21/5/; 24/5/; 6/6/2021; 6/5/2022

email: sihanyamentoring@gmail.com; info@sihanyaprofadvs.co.ke (use both)

url: www.innovativelawyering.com; www.sihanyaprofadvs.co.ke

Page 16 of 16