Activists during a protest against the proposed construction of an Ebola quarantine facility at Laikipia Air Base in Nanyuki, Laikipia county, on TuesdayMany people say they are human rights activists. Recently two people in one day, separately, were described or self-described to me as a human rights activist (HRA). I felt sceptical. But thinking about it a bit more, I began to say to myself, “We should all be HRAs.”
Article 3(1) says, “Every person has an obligation to respect, uphold and defend this constitution.” You probably think of something like an attempted coup and citizens resisting it. Especially because clause (2) says, “Any attempt to establish a government otherwise than in compliance with this Constitution is unlawful.”
And being a HRA perhaps, you might think, would include demonstrating against government action. But in my view the obligation is much wider than these ideas.
Respecting
To respect law doesn’t mean just thinking it’s important and ought to be obeyed. It means acting in accordance with it. Most of the chapters of the constitution are about what people involved in government should do.
But our constitution, unusually, says that the human rights must be respected - not just by government, but by everyone. Article 20(1) says, “The Bill of Rights applies to all law and binds all State organs and all persons.”
Surely obeying the constitution is a form of action in support of the constitution - and specifically of human rights if that is the part of the constitution involved.
Expecting others to respect it
The same is perhaps more obviously true if the action is expecting others - whether public bodies or private citizens or bodies - to obey the constitution. It is true even if one is insistent on one’s own rights.
I can hear people saying, “To forgive is divine.” But if you insist on your own rights being respected you are not just benefiting yourself, you are also helping to establish better practice.
Indeed, I suggest that one can forgive a wrongdoer - not hate them - while insisting that they suffer the consequences of their unconstitutional action. That is in the public interest, not just your own. How will society improve if people don’t insist on others’ right actions?
Taking action for others
Of course, you can argue that there is moral virtue in a person insisting on others obeying the constitution - including doing the right thing about human rights - even if the former does not stand to benefit.
There is a wide range of ways of taking action or being activist to try to get more respect for human rights, or other aspects of the constitution.
Here is a sort of list - by no means complete. I also point to ways in which the constitution supports the approach. Support to enable people to put pressure for rights often involves tools that comprise other rights. Articles outside Chapter Four (the Bill of Rights) may also be relevant.
Being a human rights-conscious citizen: the constitution and human rights are not just a matter for lawyers and journalists. If everyone (that’s of course a dream) had an understanding of human rights, talked about them among themselves, and wanted them realised, the world would be a very different place.
Expressing views publicly: this can be by demonstrating, writing publicly - letters to the editor, social media, or artistic work with a message, including songs, plays, visual art. Article 33 recognises freedom of expression and specifically includes artistic creation. Article 34 is about the media and freedom of expression. The rights to assemble and demonstrate are recognised in Article 37.
Presenting views supportive of human rights to government bodies: public participation is a national value under Article 10, and Articles 118 and 196 insist on public participation in the work of the national and county law-making agencies.
Article 174 says that the objectives of devolution include “the participation of the people in the exercise of the powers of the State and in making decisions affecting them”. There should be public participation in financial matters (Article 201).
Asking questions: it may be necessary to get information to be better informed about what rights may have been violated and by whom. Article 35 protects the right to ask for information from government, and the duty of government to supply it. It includes the right to information from non-state sources if the information is needed for the protection of human rights.
Petitioning authorities: this involves asking authorities to take some action. It might include petitioning Parliament to pass law protecting human rights of some sort. Article 37 protects the right to petition public authorities.
Voting: people vote for all sorts of reasons. Trying to get a government that protects human rights is one. Article 38 recognises the right to vote and to be involved in other political activities like forming or joining a political party. And Chapter 7 on representation of the people is an important back-up for Article 38.
Going to court
Under the old constitution going to court was usually reserved for those personally affected (aggrieved); the courts were becoming a bit less rigid about this even before the new constitution. But now anyone may take a case to court for the benefit of someone else’s rights.
Article 22 says that not only do people have the right to go to court to protect their own rights but court cases may be brought by a person acting on behalf of another person who cannot act in their own name.
Similarly, someone acting in the interests of a group of people, or in the general public interest or an association acting in the interest of one or more of its members may sue. This is often called public interest litigation (PIL).
A distinguished Indian professor, Upendra Baxi, likes to call it “social action litigation” (SAL). You can see why when you reflect that in Kenya prominent bodies and individuals frequently bringing PIL/SAL include the Law Society, Kenya Human Rights Commission, National Commission on Human Rights, Institute for Social Accountability, Article 19, Katiba Institute, Senator Okiya Omtatah, Adrian Kamotho Njenga and Dr Magare Gikenyi.
Article 22 tries in various other ways to encourage litigating human rights issues, including those formalities and procedural technicalities should be minimised, and fees should not be charged for beginning cases enforcing human rights. The latter has not been fully respected.
I have listed going to court last to stress that you can be supporting human rights without having to do something that is often so expensive and complicated.
Is it enforceable?
The 2002 constitutional draft said, “Every citizen has the right and duty to defend the republic against any person who threatens the political independence, territorial integrity or constitutional order of the Republic by unconstitutional means.” Was that “duty” or the current “obligation” intended to be legally binding?
Failing to respect constitutional rights is one thing. I have already pointed out most of the Chapter Four rights are binding on people as well as the government.
If you were to frustrate someone’s right to vote, or their right to education, deprive them of their right to reasonable working conditions or their right to join a trade union, or discriminate against them they might be able to sue you for constitutional breach.
And looking at the context of the “obligation” provision in Article 3, not establishing a “government otherwise than in compliance with this constitution”, it is possible that to go along with such unlawful actions, or obey unlawful orders for such a “government” might be a crime - even treason.
It is not, however, an enforceable wrong to fail to do the sorts of things I have suggested as activism to defend the constitution.
On the whole we are talking about a moral rather than a legal obligation. So are most of the obligations in our lives - but still important.
