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CHAPTER FOUR

CHAPTER FOUR

The Bill of Rights

Part 1 - General provisions relating to the Bill of Rights

19.

Rights and fundamental freedoms

  1. The Bill of Rights is an integral part of Kenya's democratic state and is the framework for social, economic and cultural policies.

  2. The purpose of recognizing 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.

  3. The rights and fundamental freedoms in the Bill of Rights-

    1. belong to each individual and are not granted by the State;

    2. do not include other rights and fundamental freedoms not in the Bill of Rights, but recognised or conferred by law, except to the extent that they are inconsistent with this chapter; and

    3. are subject to the limitations contemplated in this Constitution.


20.

Application of Bill of Rights

  1. The Bill of Rights applies to all law and binds all State organs and all persons.

  2. Every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedoms.

  3. In applying a provision of the Bill of Rights, a court shall-

    1. develop the law to the extent that it does not give effect to the right or fundamental freedom; and

    2. adopt the interpretation that most favours the enforcement of a right.

  4. In interpreting the Bill of Rights, a court, tribunal or other authority shall promote-

    1. the value that underlie an open and democratic society based on human dignity, equality, equity and freedom; and

    2. the spirit of, purport and objects of the Bill of Rights.

  5. In applying any right under Article 43: Economic and social rights , if the State claims that it does not have the resources to implement the right, a court, a tribunal or other authority shall be guided by the following principles-

    1. it is the responsibility of the State to show that the resources are not available;

    2. in allocating the resources, the State shall give priority to ensuring the widest possible enjoyment of the right or fundamental freedom having regard to prevailing circumstances, including the vulnerability of particular groups or individuals; and

    3. the court, tribunal or other authority may not interfere with a decision by the State organ concerning the allocation of available resources, sorely on the basis that it would have reached a different conclusion.


21.

Implementation of rights and fundamental freedoms

  1. It is a fundamental duty of the State and every State organ to observe, respect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights.

  2. The State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realisation of the rights guaranteed under Article 43: Economic and social rights .

  3. All State organs and all public officers have the duty to address the needs of vulnerable groups within the society, including women, older members of the society, persons with disabilities, children, youth, members of the minority or marginalized communities, and members of particular ethnic, religious or cultural communities.

  4. The State shall enact and implement legislation to fulfill its international obligations in respect of human rights and fundamental freedoms.


22.

Enforcement of Bill of Rights

  1. Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or it is threatened.

  2. In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by-

    1. person acting on behalf of another person who cannot act in their own name;

    2. person acting as a member of, or in the interest of, a group or class of persons;

    3. person acting in the public interest; or

    4. association acting in the interest of one or more of its members.

  3. The Chief Justice shall make rules providing for the court proceedings referred to in this Article, which shall satisfy the criteria that-

    1. the rights of standing provided for in clause (2) are fully facilitated;

    2. formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation;

    3. no fee may be charged for commencing the proceedings;

    4. the court, while observing the rules of natural justice, shall no be unreasonably restricted by procedural technicalities; and

    5. an organisation or individual with particular expertise may, with the leave of the court, appear as a friend of the court.

  4. The absence of rules contemplated in clause (3) does not limit the right of any person to commence court proceedings under this Article, and to have the matter heard and determined by a court.


23.

Authority of courts to uphold and enforce the Bill of Rights

  1. The High Court has jurisdiction, in accordance with Article 165: High Court , to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.

  2. Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.

  3. In any proceedings brought under Article 22: Enforcement of Bill of Rights, a court may grant appropriate relief, including-

    1. a declaration of rights;

    2. an injunction;

    3. a conservatory order;

    4. a declaration of invalidity of any law that denies, violates, infringes or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24; Limitations of Rights or Fundamental freedoms

    5. an order for compensation; and

    6. an order of judicial review.


24.

Limitations of Rights or Fundamental freedoms

  1. A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open democratic society based on human dignity, equality, and freedom, taking into account all relevant factors, including-

    1. the nature of the right and fundamental freedom;

    2. the importance of the purpose of the limitation;

    3. the nature and extent of the limitation;

    4. the need to ensure that the enjoyment of the rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and

    5. the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

  2. Despite clause (1), a provision in legislation limiting a right or fundamental freedom-

    1. in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation;

    2. shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or fundamental freedom to be limited and the nature and extent of the limitation; and

    3. shall not limit the right and fundamental freedom so far as to derogate from its core or essential content.

  3. The state or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied.

  4. The provisions on this chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before Kadhi's courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance.

  5. Despite clause (1) and (2), a provision in legislation may limit the application of the rights and fundamental freedoms in the following provisions to persons serving in the Kenya Defence Forces or the National Police Service-

    1. Article 31 - Privacy;

    2. Article 36 - Freedom of association ;

    3. Article 37 - Assembly, demonstration, picketing and petition;

    4. Article 41 - Labour relations;

    5. Article 43 - Economic and social;

    6. Article 49 - Rights of arrested persons


25.

Fundamental rights and freedoms may not be limited

  1. Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited-

    1. Freedom from torture and cruel, inhuman and degrading treatment or punishment;

    2. Freedom from slavery and servitude;

    3. The right to a fair trial; and

    4. The right to an order of habeas corpus.


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