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National Constitutional provisions – Kenya

 

The constitution is the fundamental law of the country, reflecting the underlying and unifying values of society. It spells out the basic rights of each person; it serves as a framework for all other laws and policies, and cannot be easily changed. However, it can be changed and updated through a democratic process, and it is important to keep it alive, by popularising and using it, and by campaigning for its reform or amendment if necessary. Below we have picked out what we see as some of the most relevant articles, but please be encouraged to seek and read your constitution in its entirety.

The state is the central actor in any claim to the right to education: it is the prime duty-bearer and the prime implementer; it is the guarantor; and it is the state´s signature vis-à-vis the international norms and standards which binds it to respect, protect and fulfil the right to education. The state must therefore be judged or challenged on its central text on the right to education, whether this be the constitution, the laws or the policies.

The Constitution of Kenya Adopted August 2010 

 

EDUCATION

43.(1) Every person has the right—(f) to education.
Implementation of rights and fundamental freedoms
21 (1) It is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil 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.
(3) All State organs and all public officers have the duty to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities.
(4) The State shall enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms.
 
DISTRIBUTION OF FUNCTIONS BETWEEN THE NATIONAL GOVERNMENT AND
THE COUNTY GOVERNMENTS
Part 1 – National Government
15. Education policy, standards, curricula, examinations and the granting of
university charters.
16. Universities, tertiary educational institutions and other institutions of research
and higher learning and primary schools , special education, secondary
schools and special education institutions.
CHILD RIGHTS
53.(1) Every child has the right –
(a) to a name and nationality from birth;
(b) to free and compulsory basic education;
(c) to basic nutrition, shelter and health care;
(d) to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour;
(e) to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not; and
(f) not to be detained, except as a measure of last resort, and when detained, to be held –
(i) for the shortest appropriate period of time; and
(ii) separate from adults and in conditions that take account of the child’s sex and age.
 
(2) A child’s best interests are of paramount importance in every matter concerning the child.
 
55.The State shall take measures, including affirmative action
programmes, to ensure that the youth—
(a) access relevant education and training;
(b) have opportunities to associate, be represented and participate in political, social, economic and other spheres of life;
(c) access employment; and
(d) are protected from harmful cultural practices and exploitation.
 
EQUALITY
Preamble: RECOGNISINGthe aspirations of all Kenyans for a government based on the
essential values of human rights, equality, freedom, democracy, social justice and
the rule of law:
10 (2) The national values and principles of governance include—(b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised;
(3) The rights and fundamental freedoms in the Bill of Rights—
(a) belong to each individual and are not granted by the State;
(b) do not exclude 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
(c) are subject only to the limitations contemplated in this Constitution.
 
20 (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 freedom.
 
24 (4) The provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhis’ courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance.
 
27.(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
(3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
(5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).
(6) To give full effect to the realisation of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.
(7) Any measure taken under clause (6) shall adequately provide for any benefits to be on the basis of genuine need.
(8) In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.
 
28.Every person has inherent dignity and the right to have that dignity respected
and protected.
 
MINORITIES
56. The State shall put in place affirmative action programmes designed to ensure that minorities and marginalised groups—
(a) participate and are represented in governance and other spheres of life;
(b) are provided special opportunities in educational and economic fields;
(c) are provided special opportunities for access to employment;
(d) develop their cultural values, languages and practices; and
(e) have reasonable access to water, health services and infrastructure.
 
LANGUAGE
National, official and other languages
7.(1) The national language of the Republic is Kiswahili.
(2) The official languages of the Republic are Kiswahili and English.
(3) The State shall––
(a) promote and protect the diversity of language of the people of Kenya; and
(b) promote the development and use of indigenous languages, Kenyan Sign language, Braille and other communication formats and technologies accessible to persons with disabilities.
 
44.(1) Every person has the right to use the language, and to participate in the cultural life, of the person’s choice.
(2) A person belonging to a cultural or linguistic community has the right, with other members of that community—
(a) to enjoy the person’s culture and use the person’s language; or
(b) to form, join and maintain cultural and linguistic associations and other organs of civil society.
(3) A person shall not compel another person to perform, observe or undergo any cultural practice or rite.
 
GENDER
27(3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
 
DISABILITIES
54.(1) A person with any disability is entitled––
(a) to be treated with dignity and respect and to be addressed and referred to in a manner that is not demeaning;
(b) to access educational institutions and facilities for persons with disabilities that are integrated into society to the extent compatible with the interests of the person;
(c) to reasonable access to all places, public transport and information;
(d) to use Sign language, Braille or other appropriate means of communication; and
(e) to access materials and devices to overcome constraints arising from the person’s disability.
(2) The State shall ensure the progressive implementation of the principle that at least five percent of the members of the public in elective and appointive bodies are persons with disabilities.
 
CITIZENSHIP
12.(1) Every citizen is entitled to—(a) the rights, privileges and benefits of citizenship, subject to the limits provided or permitted by this Constitution;
 
Application of Bill of Rights
20.(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 freedom.
 
RELIGION
State and religion
8.There shall be no State religion.
32.(1) Every person has the right to freedom of conscience, religion, thought, belief and opinion.
(2) Every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship.
(3) A person may not be denied access to any institution, employment or facility, or the enjoyment of any right, because of the person’s belief or religion.
(4) A person shall not be compelled to act, or engage in any act, that is contrary to the person’s belief or religion.
 
HUMAN RIGHTS MECHANISMS
20 (5) In applying any right under Article 43, if the State claims that it does not have the resources to implement the right, a court, tribunal or other authority shall be guided by the following principles––
(a) it is the responsibility of the State to show that the resources are not available;
(b) in allocating 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
(c) the court, tribunal or other authority may not interfere with a decision by a State organ concerning the allocation of available resources, solely on the basis that it would have reached a different conclusion.
 
Implementation of rights and fundamental freedoms
21 (1) It is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil 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.
(3) All State organs and all public officers have the duty to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities.
(4) The State shall enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms.
 
Enforcement of Bill of Rights
22.(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 is threatened.[…]
 
23. (1) The High Court has jurisdiction, in accordance with Article 165, 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, a court may grant appropriate relief, including—
(a) a declaration of rights;
(b) an injunction;
(c) a conservatory order;
(d) 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;
(e) an order for compensation; and
(f) an order of judicial review.
Fair administrative action
47.(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
(3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—
(a) provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and
(b) promote efficient administration.
 
Access to justice
48.The State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.
 
Kenya National Human Rights and Equality Commission
59.(1) There is established the Kenya National Human Rights and Equality Commission.
 
(2) The functions of the Commission are—
(a) to promote respect for human rights and develop a culture of human rights in the Republic;
(b) to promote gender equality and equity generally and to coordinate and facilitate gender mainstreaming in national development;
(c) to promote the protection, and observance of human rights in public and private institutions;
(d) to monitor, investigate and report on the observance of human rights in all spheres of life in the Republic, including observance by the national security organs;
(e) to receive and investigate complaints about alleged abuses of human rights and take steps to secure appropriate redress where human rights have been violated;
(f) on its own initiative or on the basis of complaints, to investigate or research a matter in respect of human rights, and make recommendations to improve the functioning of State organs;
(g) to act as the principal organ of the State in ensuring compliance with obligations under treaties and conventions relating to human rights;
(h) to investigate any conduct in state affairs, or any act or omission in public administration in any sphere of government, that is alleged or suspected to be prejudicial or improper or to result in any impropriety or prejudice;
(i) to investigate complaints of abuse of power, unfair treatment, manifest injustice or unlawful, oppressive, unfair or unresponsive official conduct;
(j) to report on complaints investigated under paragraphs (h) and (i) and take remedial action; and
(k) to perform any other functions prescribed by legislation.
 
(3) Every person has the right to complain to the Commission, alleging that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
 
(4) Parliament shall enact legislation to give full effect to this Part, and any such legislation
may restructure the Commission into two or more separate commissions.
 
(5) If Parliament enacts legislation restructuring the Commission under clause (4)––
(a) that legislation shall assign each function of the Commission specified in this Article to one or the other of the successor commissions;
(b) each of the successor commissions shall have powers equivalent to the powers of the Commission under this Article; and
(c) each successor commission shall be a commission within the meaning of Chapter Fifteen, and shall have the status and powers of a commission under that Chapter.
 
OTHER

51.(1) A person who is detained, held in custody or imprisoned under the law, retains all the rights and fundamental freedoms in the Bill of Rights, except to the extent that any particular right or a fundamental freedom is clearly incompatible with the fact that the person is detained, held in custody or imprisoned.
 
Teachers Service Commission
237.(1) There is established the Teachers Service Commission.
(2) The functions of the Commission are—
(a) to register trained teachers;
(b) to recruit and employ registered teachers;
(c) to assign teachers employed by the Commission for service in any public school or institution;
(d) to promote and transfer teachers;
(e) to exercise disciplinary control over teachers; and
(f) to terminate the employment of teachers.
(3) The Commission shall––
(a) review the standards of education and training of persons entering the teaching service;
(b) review the demand for and the supply of teachers; and
(c) advise the national government on matters relating to the teaching profession.