Right to housing as an aspect of the demand for social justice*

Bahar-BayhanAuthor: Bahar Bayhan
Urban Policies Programme Coordinator

*This article was originally published in Turkish on IHO Blog. Translated by Virtus Çeviri

The right to housing is a fundamental human right emphasised in both the Constitution of the Republic of Turkey and the Universal Declaration of Human Rights.[1] Although it does not include details on how this right will be exercised, how fair access to it will be ensured and how it will be secured, Article 57 of the Turkish Constitution reads: “The State shall take measures to meet the need for housing within the framework of a plan that takes into account the characteristics of cities and environmental conditions, and also support community housing projects.” The United Nations Special Rapporteur on the Right to Adequate Housing expands the definition of the right to housing as “the right to housing adequate for habitation” and defines the necessary conditions of housing for a sustainable and dignified life. Before discussing the above-mentioned conditions and how they relate to social justice, it is worth tackling the meaning the word “housing” assumes today.

Defining the Problem of Housing

Access to housing has become a global issue, especially after the COVID-19 pandemic. The experience of widespread and deepening housing problem has led to the identification of this problem as a housing crisis. In their seminal work In Defense of Housing, David Madden and Peter Marcuse elaborate on the word “crisis” and analyse why the definition of housing crisis should be used with caution.[2] They argue that the word “crisis” describes an extraordinary situation and that in fact the “oppressed” have always experienced this crisis. In other words, housing has always been an aspect of injustice for disadvantaged groups in society. On the other hand, the authors state that the term “crisis” creates the perception of an isolated malfunction in an already well-functioning system. Housing has never been presented in a way that prioritises social justice anyway, and has virtually served as a useful apparatus of capitalist spatial development for states. Therefore, even though housing is defined as a right, it has steered away from the focus on basic needs and use value and has become a commodity where exchange value is prominent, financialised, and a kind of privilege.

Sulukule

Madden and Marcuse argue that there is no direct correlation between states recognising the right to housing and actually providing access to housing for all.[3] Moreover, they emphasise that the right to housing is used to ensure and legitimise the functioning of the system. This is apparent in the functioning of housing projects in Turkey. For example, the Sulukule Urban Renewal Project was proposed on the grounds that it would make the neighborhood more livable. The project’s promise of “hygiene” was of course not limited to the demolition of old buildings and the construction of new ones. The people of Sulukule were forcibly evicted and given the “chance” to own a house in the TOKİ (Housing Development Administration) houses built in Kayabaşı, on the periphery of İstanbul. The neighborhood residents, who were given housing through lot draws organised to resemble festivals, now had “sterile” houses, but had lost the solidarity relations and livelihoods woven within the space itself in Sulukule. And they went into debt because of housing expenses. In other words, as a result of the state’s move to provide housing, the people of Sulukule were left with the psychological and financial burdens created by the housing problem. Sulukule is certainly not an exception in the practice of housing production in Turkey. We know that the wave of urban transformation that rose in the 2000s violated the right to housing, especially in poor neighborhoods, dragged people into a desperate spiral of poverty, and had striking social and psychological effects. It is important to analyse all these practices, to establish the relationship of housing – which is more than just a roof over our heads – with other social rights, and to comprehend the injustice caused by problems of access to housing as a whole.

Right to Housing and Social Justice

So, what do we mean when we argue that housing is not just four walls and a roof? The UN’s concept of the “right to adequate housing” provides an important framework here. The institution defines the seven conditions necessary for housing that will enable a life worthy of human dignity as follows:

  • Security of Tenure: Making households safe against forced evictions and to eliminate threats, harassment and discrimination. This article establishes that the right to housing should not only be considered within the framework of the right to own property, but that non-owners also have the right to live in a secure dwelling with a sense of belonging.
  • Availability of Services, Materials, Facilities and Infrastructure: Equal access to many services such as sanitary drinking water, electricity, safe and comfortable heating.
  • Affordability: The share allocated to housing not undermining household budgets, so that households are able allocate the necessary budget for other needs. Accordingly, a maximum of 30 percent of the household budget should be allocated to housing costs.
  • Habitability: The physical qualities offered by the housing. Housing that is adequately ventilated, flooded with sunlight, free of dampness, with open spaces such as balconies; in short, housing that is good for our physical and mental health.
  • Accessibility: Housing that meets the specific needs of disadvantaged groups such as people with disabilities, the elderly, women and children, and allows them to live healthily and comfortably; for example, an apartment building with an elevator or a playground within walking distance for a child.
  • Location: Easy accessibility to health services, schools, employment opportunities and social facilities. It is also emphasised that housing should not be built on unstable ground or in polluted areas (such as industrial zones) that threaten the right to health.
  • Cultural Adequacy: Housing should be built in accordance with the cultural identity and lifestyle of the neighborhood. In other words, the use of modern techniques in construction or architecture should not neglect the cultural aspect of housing.

These criteria may of course vary according to living standards, habits and needs in each country. However, the concept of the right to adequate housing is an important ground for discussion as it emphasises the socialness of housing beyond its status as a product of construction. It helps us to understand how housing has become a means of continuous gain for the privileged while creating a spiral of injustice for lower income groups and disadvantaged groups in society. Refugees, for instance, are forced to live in damp basements that do not even function as housing, where toilets and kitchens are adjacent, or in buildings that are unsafe against earthquakes. Being forced to live in such spaces causes them to suffer from pulmonary diseases such as asthma and increases the vulnerability inherent in their lives as their access to the right to health is also problematic. Although earthquake is the most urgent agenda item in Istanbul, the number of earthquake-proof buildings in the city is quite low and not everyone living in the city has economic access to these buildings. LGBTI+ persons are discriminated against during the house-hunting process simply because of their identities and are eventually forced to live in unhealthy housing that does not meet their needs. The buildings with full physical accessibility are not built in the city center due to the lack of public oversight and the rapid construction cycle. Accordingly, people with disabilities are forced to live on the periphery, and they are prevented from moving safely in the city because basic urban infrastructure such as transportation vehicles, sidewalks and streets are not accessible and safe. On the other hand, if we take housing to mean not only a house but also as spaces that meet the need for shelter, the scope of disadvantaged groups expands even further. Recently, the students, who have brought the problem of access to dormitories and housing to the agenda with the We Can’t Shelter Movement, have once again demonstrated the direct relationship between the housing problem and the right to education. To conclude, the housing problem exacerbates injustice by reproducing social inequalities.

A New Kind of Polarisation: Tenant and Landlord

Today, tenancy is one of the most pressing housing issues. There is no doubt that tenants are now a vulnerable segment of society. Just as homeownership is seen as a sort of guarantee, investment and security, being a tenant carries a kind of precariousness. Tenancy encompasses a kind of precariousness created by the state of transience, not being permanent, and being subjected to arbitrary practices. So much so that one of the main motivations for becoming a homeowner is to “no longer be a tenant”.

Rising rents amid the economic crisis and the increase in tenancy while the homeownership rate declines[4] both raise the housing affordability debate and pit tenants and landlords against each other. While homeowners are reluctant to rent their properties “below their value”, tenants are struggling to find rental housing they can afford with their current income. The tension between these two groups also creates the illusion that the problem of rental housing can be solved by agreement between landlords and tenants. The obligations of the state, which should be the main answerer of the problem, are overlooked. This is because the housing problem is attributed to factors such as inflation that seem impossible to intervene in. This perspective externalises the problem, obscuring the fact that the state does not have a fair housing policy. On the other hand, the government’s solution to the housing problem is to encourage individuals to have their own house. Underlying this approach is the idea that “The only way to eliminate your housing problem is to own a house.”

In conclusion, the housing problem is confined to affordability. This situation prevents the interlocutors of the problem from engaging in other discussions such as the quality of housing, the facilities it offers, its availability and accessibility. However, the right to housing means much more than affordability and is a basis for demanding much more. Madden and Marcuse argue that, despite the danger of the right to housing remaining an abstract and unrealisable right, its constant demand can be a way to fight against the ignorance of the housing crisis and an impetus for concrete action.[5] To cut to the chase, instead of assuming that we should settle for the housing that fits our budget, we need to popularise the idea on the access to housing such that its qualities meet the necessary conditions to live a livable life with human dignity from a human rights perspective. Organising and multiplying the demand for the right to housing is an important starting point for exposing the problems of the system and changing them.

[1] The “right to respect for private and family life, home and correspondence” enshrined in the European Convention on Human Rights broadly defines housing as a place where individuals have “sufficient and continuing” links. Accordingly, student dormitories or hotel rooms, for example, are also places of accommodation that function as housing.

[2] Madden, D., Marcuse, P. (2021). Aşırı Metalaşma Çağında Konutu Savunmak [In Defense of Housing: The Politics of Crisis], trans. Geniş, Ş. İdealkent Yayınları. pp. 15-17.

[3] Ibid, pp. 117-179.

[4] Although homeownership is both a state-encouraged and socially desirable option, according to TurkStat data, the homeownership rate declined from 60.7 percent in 2006 to 57.8 percent in 2020. The rate of tenants, which stood at 22.1 percent in 2014, increased to 26.2 percent in 2020. See Euronews (2022). “Konut satışındaki artışa rağmen ev sahipliği oranı düşüyor, kiracılar artıyor” [Homeownership rate falls, tenants rise despite increase in house sales], https://tr.euronews.com/2022/04/28/konut-sat-s-ndaki-art-sa-ragmen-ev-sahipligi-oran-dusuyor-kirac-lar-art-yor, [Accessed July 2022]. On the other hand, according to a study published by the İstanbul Planning Agency in 2022, those who rented a home in 2021 faced 66.2% higher rental costs than those who rented a home in 2020 and before. See İstanbul Planning Agency (2021). Konut Sorunu Araştırması: İstanbul’da Mevcut Durum ve Öneriler [Housing Problem Research: Current Situation in İstanbul and Recommendations]. İstanbul: Kültür A.Ş., https://ipa.istanbul/wp-content/uploads/2021/09/IPA_KONUT_REHBERI-web.pdf, [Accessed July 2022].

[5] Ibıd, p. 179.

About the Author:
Bayhan graduated from Mimar Sinan Fine Arts University’s Department of Urban and Regional Planning in 2011. She completed her master’s degree at MSFU’s Department of Sociology. She worked as an editor at arkitera.com. Bayhan was the editor of beyond.istanbul publications at the Center for Spatial Justice. She has been working as Urban Policies Programme Coordinator since 2019.

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The misconceptions in section 35 (1)(e) of the Nigerian constitution and the right to liberty of persons with mental disability

Author: Abasiodiong Ubong Udoakpan
Data Protection Advisor, Researcher and a Human Rights Lawyer

The basic principle of any type of essential psychosocial care, is to respect the safety, dignity and rights of anyone you are helping, but can this be excused? An aspect of the Convention of the Rights of Persons with Disabilities (CRPD) appears to be particularly challenging to conventional mental health practice. This concerns involuntary treatment. Along with the general right to liberty, similar to that contained in other human rights instruments, the CRPD provides that ‘the existence of a disability shall in no case justify a deprivation of liberty,[1] but what happens when the Constitution set out standards and procedures by which psychiatric interventions can be imposed against the will of a person?

In Nigeria, the Constitution clearly imposes some restrictions on the rights of persons with mental health challenges. Section 35 (1) (e) states: Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law- (e) in the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community.[2] This provision allows restriction of the liberty and freedom of persons with mental disabilities when it is necessary for the purpose of caring for or treating them or the protection of the society. Ergo, this section creates two misconceptions about mental illness – the misconception of incompetence and the misconception of risk/threat.

The Misconception of Incompetence

The stigmas associated with mental illness have fueled misperceptions and perpetuated enduring negative stereotypes. As a result, these misconceptions have become pervasive and influential on the public discourse surrounding mental disability and the right to mental health. The first misconception is that of incompetency, which relies on the false assumption that persons with psychosocial disabilities cannot competently make decisions or grant consent. In actuality, psychosocial disabilities vary substantially. While some people with mental health challenges may lack competency, others have full competency or merely limited incapacity. The public is not aware of many people living with mental health problems because they are highly active and productive members of society. A person’s right to mental health clearly may be undermined if they are erroneously assumed to be incompetent.

The Misconception of Threat/Risk

A second destructive myth is the common misconception that persons with psychosocial disabilities pose a threat to others. Extensive research shows that persons with mental disabilities have no greater propensity to commit violent acts than anyone else.[3] In fact, people with mental illness are far more frequently the victims of violence than the general population. Nevertheless, society often gives disproportionate attention to the rare cases when a person with psychosocial disability commits a violent crime. Even a single high-profile incident of this nature can fuel public outrage and stigma against all persons with psychosocial disabilities and may provide the motive to enact more severe mental health laws. These stigmas lead to further discriminatory behaviours. The vast majority of people with mental health problems are no more likely to be violent than anyone else. Most people with mental illness are not violent and only 3%–5% of violent acts can be attributed to individuals living with a serious mental illness. In fact, people with severe mental illnesses are over 10 times more likely to be victims of violent crime than the general population.[4]

The Way Forward

The core reason for mental health legislation is human rights. The right to health, as it exists in international human rights instruments, clearly encompasses both physical and mental health. The promotion and protection of both mental and physical health are necessary to ensure one’s ability to enjoy and benefit from other human rights. Thus, efforts to recognise and uphold a human right to mental health must also include the right to be free from interference, such as the right to be free from compulsory detention and involuntary medical treatments. Establishing and upholding mental health rights will advance the dignity and welfare of persons with mental disabilities and at the same time ensure their access to quality health services.

Finally, there is a need to review mental health legislation in countries particularly in Africa to ensure that they reflect international human rights standards and current knowledge in the area of mental health treatment and care, taking into account the social, economic, and cultural context of the particular country.

[1] UNCRPD, Article 14(1)(b).

[2] S.35 of the 1999 Constitution of the Federal Republic of Nigeria, as Amended.

[3] Nicolas Rusch et al., Mental Illness Stigma: Concepts, Consequences, and Initiatives to Reduce Stigma, 20 EUR. PSYCH. 529 (2005).

[4] Mental Health Myths and Facts, https://www.mentalhealth.gov/basics/mental-health-myths-facts accessed 17 August 2022.

About the Author:
Abasiodiong Udoakpan is a Data Protection Advisor, Researcher, and a Human Rights Lawyer with an LL.M in International Human Rights. His research blueprint centers on the intersection of International Law, Human Rights and Global Health & Policy with further interests in Mental Health, Climate Change, Food & Drugs.

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Is South Africa turning a blind eye to climate injustices?

Sandile-NhlengetwaAuthor: Sandile Innocent Nhlengetwa
LLB candidate, University of the Western Cape

Climate change is the greatest threat to mankind as it poses a major threat to the survival of humans on earth. It has a negative impact on the prospects of economic and social prosperity of any nation. South Africa has over the years witnessed a number of her citizens; particularly poor susceptible groups being severely affected by the impacts of climate change. Most recently, the Kwazulu-Natal floods did not only displace indigent people it also led to the loss of lives. The South African government turned a blind eye to this and has been the slowest to react. Two months after the floods occurred, the government is yet to allocate satisfactory financial and human resources to redress the situation. This can be partly linked to the absence of a legislative regulatory framework which provides for an effective, clear and comprehensive response to climate change in order to minimise its impact. Currently, climate change is regulated in a piecemeal manner. Since the Constitution was adopted, an overwhelming number of statutes of environmental nature were enacted including the National Environmental Management Act 107 of 1998 and the National Environment Management: Air Quality Act 39 of 2004. Though both these statutes do not refer to climate change in explicit terms they require the environment to be utilised in a sustainable manner that is not harmful to human beings and regulate the emission of greenhouse gases respectively. Worth mentioning, however, is the Carbon Tax Act 15 of 2019 as well as the Disaster Management Act 57 of 2002 both of which have a direct bearing on climate change. The latter Act is the legislative framework within which the government responds to the impacts of climate change. The former makes explicit reference to climate change in its efforts to avoid dangerous anthropogenic climate change by stabilising greenhouse gas emissions while also ensuring sustainable socio­ economic development.

The importance of a climate change framework cannot be overemphasized. In the context of South Africa, this is even more important. Climate change affects water, food, health and human life itself. What is more unacceptable is that poor people bear the brunt of climate injustice. Recent developments in South Africa show that there is a desperate need for an effective climate change legislative and policy framework. The absence of a legislative framework is a grave miscarriage of justice for indigent people. South Africa has been battling droughts, floods and food shortages. All these unfortunate events can be linked to the lack of effective climate change mitigation and adaptation response, through appropriate legislative, policy, and administrative measures. In such instances where the events could not have been prevented, these would have minimised the impact thereof. This is, nevertheless, still an understatement. Words cannot express how significant the effective regulation of climate change is.

climate-change-kwazulu-natal

The concept of climate change is relatively new to South Africa. Unsurprisingly, there has been little to no legislative activity in this respect despite the enactments of various environmental laws in the past 25 years. There is no justification for this state of affairs as the serious nature of climate change calls for measures to be taken urgently and without delay. The Disaster Management Act 57 of 2002 is insufficient to respond effectively to the adverse impacts of climate change. Climate change and disasters are inextricably linked and must not be viewed and regulated in isolation. It, therefore, follows that climate change is deserving of its own special legislative, policy, and administrative framework to respond coherently thereto and mitigate its devastating effects. The international climate change regime, on the other hand, leaves much to be desired. At the heart of it is the overarching principle of state sovereignty coupled with the lack of enforcement measures at the international level, which has resulted in little compliance with international climate law. One example of such is the Convention for the Protection and Assistance of Internally Displaced Persons in Africa which is lauded as the most progressive regional climate change framework. South Africa has surprisingly refused to ratify this Convention despite its important nature and consequently evaded obligations to take measures to tackle climate change.

Notably, a Climate Change Bill was formally introduced to Parliament on 18 February 2022 much to the delight of environmental activists. Though this Bill is a welcome development, an in-depth analysis of the Bill reveals that it is not without flaws. One such flaw worth mentioning is the lack of means of enforcement, coercion and compliance despite the critical nature of the Bill. In several respects, the Bill has loopholes that talented corporate lawyers can help their clients to exploit. In its offence and penalties section, the Bill only makes the failure to prepare, submit and implement an approved gas mitigation plan a punishable offence. Lawyers may well advise their clients to maximise profits by exceeding their carbon budget provided that profits will exceed the carbon tax payable. This will defeat the purpose of the Bill. Another cause for concern is the fact that it does not provide a deadline for the setting of carbon budgets. To maximise profits, entities will not bother to set carbon budgets until a deadline, or a timeframe is established. It is hoped that these concerns will be addressed before the Bill is passed.

The solution lies in a radical policy shift towards a human rights-based approach to climate change. A human rights-based approach is the only approach that will ensure climate justice in South Africa. It will give effect as much as is practicable to rights enshrined in the Bill of Rights and international instruments. It will ensure that no group is disproportionately affected by climate change as compared to another group. The reality is that vulnerable groups contribute less to climate change but end up being the most affected. This calls into question the right to equality and equal protection as this disproportionately affects indigent people. It is, therefore, the duty of the state to take such measures as necessary to ensure that these injustices do not continue. The government has instead elected to turn a blind eye to these injustices prevailing on a regular basis. Climate justice calls for the consideration of climate change in every development as a variable. The Climate Change Bill once passed into law will not be an adequate measure to address climate injustices in South Africa. It is equally important that it is followed by the adoption of complementary government policies, accountability mechanisms and political will to redress these injustices.

 

About the Author:

Sandile Nhlengetwa is a final year Legum Baccalaureus (LLB) candidate at the University of the Western Cape. He has been honoured three times for the three academic years he completed thus far by the Golden Key International Honour Society for achieving high marks. He has also been awarded the Dean’s Merit Award twice. He currently serves as a member of the Moot Court Society.

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To whom it may concern: South Sudan may not be ready for elections, yet democracy cannot wait

Joseph-Geng-AkechAuthor: Joseph Geng Akech
Assistant Professor of Law, University of Juba, and independent researcher in human rights & constitutional designs

Introduction

Early this year, Yach Garang, political science PhD student at the University of Juba authored a blog piece asking ‘will South Sudan be ready for its first democratic elections come 2023?’ According to him, certain benchmarks are critical for South Sudan’s democratic election readiness. These include security stabilisation, enactment of electoral laws, adoption of a new constitution and conduct of population census. While I agree with his ‘benchmarks’, I contend that South Sudan may not be ready for elections, but it is imperative to note that democracy cannot wait for a perfect environment.

This piece, therefore, is addressing those to whom the democratic future of the country remains a priority.

The country has not held election since independence in 2011

South Sudan became 11 years old on 9 July 2022, and no elections have been held yet. The country’s first democratic elections were supposed to be held in 2015, but a sudden conflict erupted in December 2013 only to be halted in 2018 through the Revitalised Peace Agreement. That deal puts an ambitious rebuilding agenda from reform of laws and institutions to adoption of a new constitution and culminating into elections slated for early 2023. The prospects for those elections are, however, unlikely due to the slow pace of implementation of the peace. The parties to that Agreement are hinting at extending it to give room for completion of uncompleted tasks.

However, extending the transitional period may create anxiety among citizens who might view that democracy can no longer be deferred, especially since the country has been in transition since its birth. For instance, the Constitution is transitional, the governance formula is transitional, and the government is transitional, all highlighting the risks of permanence of transitions. Elections could thus break these endless transitions, and they may confer popular legitimacy on the resulting government rather than through current elite contracts. Holding elections is, however, not without challenges and attendant risks. The choice is, thus, between three ‘evils’–one lesser than the other.

The “evils” to choose from

Evil 1: Extend the Revitalised Peace Agreement and risk perpetual extension as it is not guaranteed that the remaining tasks under the peace deal will be completed within the extended transitional period. Even more, an extension without serious commitment from political parties that are signatory to the agreement risks disenfranchising the people and friends of South Sudan.

Evil 2: Hold elections at the end of the transitional period and develop a plan to mitigate potential risks of disagreements developing into a conflict. This option also carries risks, including the charge that the country is unprepared for elections.

Evil 3: Allow the peace agreement to naturally end and start discussion on a new political framework. Yet, this option might open another pandora box of political transition which should be avoided.

south-sudan-elections

The ‘lesser’ evil is to hold elections because they are key to the country’s democratisation

Whereas elections do not necessarily result in democracy, holding them will be more beneficial than deferral. The first and third “evils” are undesirable choices because they delay democracy and South Sudan cannot afford to be locked in endless constitutional and political transitions. The lesser ‘evil’ is to hold elections at the end of the transitional period. To do so, the government should first prioritise humanitarian relief to the affected populations and create necessary conditions for security. This would allow people to take part in local peacebuilding efforts and rebuilding of the economy. In parallel with this process should be the enactment of necessary legislation informed by popular views of the people procured through opinion polling on elections to gauge public perceptions. The election law should facilitate reform of the Election Commission and includes the following proposals:

  • Appointing an African expert to lead the National Election Commission. This is to ensure election integrity, fairness, and credibility, while providing civic spaces for political parties to part-take in elections.
  • Enjoined the African Union and the United Nations Mission in South Sudan (UNMISS) to oversee and secure elections in terms of security and supervision of the election process. The UN and AU should be able to rely on the current UN forces deployed in the country and unified forces to maintain security
  • Proactively work with election expert international organisations such as the International Institute for Democracy and Elections Assistance (International IDEA), European Union, regional election monitors and civil society to monitor electoral processes.

Last words–There is no silver bullet, but just strategies that work

Election pessimism is animated by an ambitious imagination that the ‘standard template’ for assessing election readiness in a democratic context is attainable in contemporary South Sudan. That is simply farfetched. We must start from a humble beginning where the country is now to where it ought to be. The first, second, and perhaps third elections in South Sudan may not produce democracy, but they will incrementally build civic-government relations and galvanise people around key issues, rather than sensational issues that currently pre-occupy the political landscape–tribalism, militarism and conflicts.

The optimists, myself included, are aware of prospective dangers associated with holding elections in a polarised context, including potential for conflicts, further divisions, and the fact that elections may not be free and fair. These dangers, notwithstanding, the strategies suggested above could be adopted to mitigate against those risks. Not holding elections denies the nation its much needed take-off to commence a nation-building agenda focused on wealth creation and shared prosperity.

About the Author:

Joseph Geng Akech is a South Sudanese researcher in human rights, constitutional designs and transitional justice. He holds a Doctor of Laws (LLD) in constitutional law, and he is an alumnus of the LLM in Human Rights and Democratisation at the Faculty of Law, Centre for Human Rights, University of Pretoria, and reachable at josephgakech@gmail.com

Disclaimer:

Views in this article do not represent the position or endorsement of institutions which might be affiliated with the author.

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Regulating cryptocurrencies in the Central African Republic: Has the cart been put before the horse?

Author: Rimdolmsom Jonathan Kabré
Postdoctoral researcher, Centre for Human Rights, University of Pretoria

Introduction

On 22 April 2022, the Parliament of the Central African Republic (CAR) adopted the Law n°22.004 governing cryptocurrency in the Central African Republic (hereinafter the Law). This is the second time in the world, and the first time in Africa, that a country adopts cryptocurrencies as legal tender. Previously, some other African countries considered the issue of cryptocurrencies: In Algeria, for example, they are prohibited (see art 117 of 2018 Financial law). In Egypt, bitcoin transactions were classified as haram (in a non-binding religious decree of 2018) until the recent Central Bank and Banking Sector Law No.194 of the year 2020 which contains some rules regarding the use of financial technology. Nigeria has prohibited the trading of cryptocurrencies and launched its own digital currency called eNaira. In South Africa, the regulation of cryptocurrencies is imminent (see here and here).

About the Author:

Rimdolmsom Jonathan Kabré is a postdoctoral researcher at the Centre for Human Rights, University of Pretoria, South Africa, where he also coordinates the LL.M. Programme in International Trade and Investment Law in Africa. Dr. Kabré completed his doctoral studies at University of Lausanne in 2019, for which he was awarded the 2020 Prix de Faculté of the University of Lausanne. He studied law at the University Thomas Sankara in Burkina Faso (LL.B. and LL.M.) and holds an LL.M. in International and Comparative Law from the University of Lausanne.Dr. Kabré’s research interests span across the settlement of international disputes, socio-legal approaches to law and international economic law with a particular focus on Africa. He is the authored of the monograph Le role des juristes privés dans le règlement des différends impliquant les Etats (Helbing lichtenhahn verlag, 2021).

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Women and Disability in Africa: African Disability Protocol to the Rescue?

Farirai-Sinothando-Sibanda

Author: Farirai Sinothando Sibanda
Master’s Candidate, Centre for Human Rights, University of Pretoria

It is a gross injustice that disability rights in Africa have previously not been prioritised given that 80% of persons with disabilities live in developing countries. However, this situation seems to be gaining some attention with most African states having ratified the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) with the exception of three, namely Cameroon, South Sudan and Eritrea. Following this trajectory, in 2018, the African Union (AU) member states adopted the African Disability Protocol which will enter into force after ratification by 15 AU member states. Despite its potential to enhance persons with disabilities’ enjoyment of their rights, as of March 2022, the African Disability Protocol has only been ratified by three countries namely; Mali, Kenya, and Rwanda which is disappointingly low.

The UNCRPD is a key instrument in advancing the rights of persons with disabilities, but it lacks the specificity to the African context. Due to poverty and other issues in Africa, the situation of persons with disabilities, especially women, differs radically from that in other regions. Article 6 of the UNCRPD addresses women in two general provisions by obligating states to protect them from discrimination, ensure enjoyment of their rights and empower them. However, it does not specify the actions that states must take to fulfil these obligations. Resultantly, the UNCRPD does not adequately address the unique situation of persons with disabilities in Africa.

2017 Edouard Dropsy for Human Rights Watch

Women with disabilities in Africa are reportedly three times more likely to have unmet needs for health care; three times more likely to be illiterate; twice less likely to be employed, and twice times less likely to use the internet. The Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa attempts to address the needs of women with disabilities through article 23, which obligates state parties to take specific measures commensurate with women with disabilities’ physical, economic, and social needs as well as their participation in decision-making; and to ensure that their right to freedom from violence, including sexual abuse, discrimination based on disability and the right to be treated with dignity.

The African Disability Protocol provides the most extensive elaboration of the rights of women with disabilities in article 27. Article 27 obligates state parties to ensure that the barriers that hinder the participation of women with disabilities in society are eliminated, thus recognising that lack of participation may be attributable to societal barriers and not lack of interest. Therefore, the state parties need to be proactive in their efforts to eliminate these barriers. State parties are further required to ensure that women with disabilities are included in mainstream women’s organisations and programmes. This provision seeks to ensure that women with disabilities are not treated as an afterthought in the women’s rights movement. It aims to ensure that women with disabilities are included in women’s organisations not just as beneficiaries but rather as members of these organisations.

The African Disability Protocol also obligates state parties to ensure that women with disabilities access information, communication, and technology. Given that today’s world is increasingly digitised, this is a timely innovation. Access to information, communication, and technology is a necessity for anyone living in this digital age and this provision reaffirms that women with disabilities must have the same level of access as everyone else.

Article 27(h) stipulates that state parties must ensure that women with disabilities have access to income-generating opportunities and credit facilities. This is contextually relevant to the African continent given that poverty and exclusion is higher among persons with disabilities. By obligating state parties to guarantee access to income-generating opportunities and credit facilities, the Protocol requires states to actively create opportunities through which women with disabilities can earn a living and be independent.

Article 27(k) also obligates state parties to ensure that the sexual and reproductive health rights of women with disabilities are guaranteed, and that these women have the right to retain and control their fertility and are not sterilised without their consent. This is progressive, particularly in the African context where the sexual and reproductive rights of women with disabilities are susceptible to violation fuelled by negative social attitudes and beliefs. These abuses include forced sterilisation, which is quite prevalent. Thus, this provision is unique to the African Disability Protocol, which seeks to ensure that women with disabilities are protected from such abuses. Furthermore, this provision recognises that women with disabilities are women and may indulge in sexual relations and should retain their bodily autonomy in those relationships, like other women.

Considering the extensive protections that the African Disability Protocol provides to women with disabilities, AU member states need to ratify this instrument expeditiously, so it can come into effect. To that end, human rights, disability rights and women’s organisations need to intensify their advocacy efforts to popularise the African Disability Protocol and call for its ratification.

About the Author:

Farirai is a Zimbabwean lawyer and a Master’s Candidate in the LLM in Human Rights and Democratisation in Africa Program at the Centre for Human Rights, University of Pretoria.

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Climate change and internal displacement

Authors: Zanele Christine Fengu, Meron Eshetu Birhanu and Bernice Asante

“Internal Displacement and climate change are both highly complex phenomena. In the public debate we often hear about ‘climate-related displacement’ or even ‘climate refugees’, and very often this is done with a note of alert”.

The Global Classroom on Human Rights recently held its annual meeting, which was hosted by the Centre for Human Rights, University of Pretoria with Internal Displacement as its theme. The programme featured enlightening presentations from members across the world who reflected on legal and non-legal approaches to the matter. A key message which came from the engagement was the need to adopt a climate justice approach to climate change and how our legal frameworks could embody this principle.

Climate change is an injustice, which places a disproportionate burden on those who have contributed the least to the problem. The concept of climate justice, therefore, developed as a response to the injustice and inequalities experienced by the most vulnerable communities who are being harmed through a problem that is not of their making and seeks to secure global justice. In general, it aims to make climate-related actions consistent with international human rights agreements, principles and norms. In 1990 the Intergovernmental Panel on Climate Change (IPCC) revealed that one of the negative impacts of climate change is human mobility. The Internal Displacement Monitoring Centre (IDMC) further noted that at least 7 million people were internally displaced by disasters across 104 countries and territories as of 31 December 2020.

Although climate-induced displacement has a wide range of impacts, something which was interesting was the effect it had on the right to health, particularly, mental health. The Global Campus Caucasus team presenting on this topic made a case for how this type of displacement should not be thought of in isolation as it has very real consequences on the more apparent rights such as the right to shelter and nutrition, as well as something less obvious such as mental health.

The principle of climate justice requires states to adopt a human rights-based approach to address the plights of those who have been affected by climate-induced displacement, integrate human rights in existing climate policies and be guided by human rights considerations in all climate change-related actions, including prevention, mitigation, adaptation, finance and technology. From observations, a clear trend across various parts of the world is the reluctance to use the term ‘climate justice’ in law. Perhaps this is a result of the lack of understanding of the concept and how the climate – an environmental notion, could be thought of in terms of justice – a human rights notion. The two ideas are inseparable as evidenced by the human rights implications of climatic phenomena.

Africa stood out for having one of the most progressive regional frameworks on climate change. The Convention for the Protection and Assistance of Internally Displaced Person in Africa (Kampala Convention) is the first and the only legally binding regional instrument which extensively covers the issues of climate change as a driver of internal displacement, and mandates states to take measures to protect and assist IDPs displaced due to natural or human-made disasters, including climate change and addresses the role of multinational corporations. Apart from enhancing the protection of IDPs, the adoption of the Convention plays a vital role in encouraging states to develop IDPs laws and policies at the national level.

Another trend observed was the referral to displacements as ‘relocations’. The implications of this are that there is underreporting in displacement statistics making the matter seem less prevalent than it actually is. There is a need for states to refrain from this practice so as to allow for accuracy and for the matter to be treated with the urgency it deserves.

The impacts of climate change have been found to cause migration and increase the likelihood of conflict. This link was highlighted using case studies from Asia and South Sudan. It is a common occurrence for conflict to arise when members of a community have been displaced. This leads to a rise in tribalism and internal political instability. A prime example of this is the health impacts that arise due to forced migration and internal displacement. Population displacement compromises the provisions and distributions of medical services to the immediate population, thus making tough diseases more difficult to handle and contain. Apart from the increased risk of disease spread, other non-climate factors such as; sexual and gender-based violence, human trafficking and violence are also results of internal displacement caused by climate change. The presentation, therefore, pointed out the need to understand migration and security as they are not simply linked phenomena, but an integral component of the same underlying process

It was clear from the presentations that the existence of legal measures alone would not suffice in abating the climate crisis. In addition to these, industry-specific best practices must be determined by all sectors including mining, energy, retail, etc. Stakeholders in these industries include states, multinational corporations, businesses, non-governmental organisations, civil society organisations and individuals. All stakeholders should endeavour to meaningfully and conscientiously participate in this initiative. Their participation should not be regarded as a matter of preference as it currently is, but rather as the default way of life. For instance, it cannot be that environmentally friendly shopping bags are still only offered as an alternative to single-use plastic bags. Commitments to lower emissions cannot be made as a mere courtesy gesture. Recycling and garbage organising must be practised from the household level to the industrial level. Environmental awareness and friendliness must become standard practice by all.

About the Authors:

Zanele Christine Fengu holds Bachelor of Arts degree in International Relations and Law and a Bachelor of Laws from the University of the Witwatersrand. Zanele previously worked as a legal researcher with Corruption Watch South Africa. In 2021 she was selected to be a mentee with the prestigious South African Chapter of the International Association of Women Judges also as a fellow of the Young African Leaders Initiative – Regional Leadership Center in Southern Africa. She currently serves as a Youth Advisory Panelist for the United Nations Population Fund in South Africa.

Bernice Asante holds a Bachelor of Arts in Communications from the Grand Canyon University in the U.S.A, Arizona, and a Master of Jurisprudence in Rule of Law for Development from the Loyola University Chicago, in Rome Italy. She is a human rights advocate with more than two years of experience working as a legal, communications and publications fellow at the Institute for Human Rights and Development in Africa (IHRDA).

Meron Eshetu Birhanu holds a bachelor degree in law from Dilla University, Ethiopia and received a gold medal award for the highest scorer graduate of law in the academic year of 2021. She has been actively involved in a variety of activities that aim to promote human rights, notably women’s and children’s rights. She also worked as an intern at Dilla University Free Legal Aid Centre.

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The place of liberal feminism in the struggle for gender equality in Kenya.

Author: Davis Thuranira
Student, Kenyatta University, Kenya

Major Premise

The framers of the constitution[1] provided adequate mechanisms to counter gender discrimination and foster equality among all sexes and gender in the country. As a matter of fact, several legal provisions incline to an ideology of equality that seeks to overhaul the existing societal structure which anchors discrimination and unequal treatment of women.

Equality, non-discrimination, inclusiveness and protection of the marginalized are among the key principles featured under Article 10[2]. The provision universally applies to all persons and demands compliance by the state, including its organs, while exercising its constitutional mandate. The state is required to invoke its authority by giving effect to the two-third gender rule. Additionally, these principles and others that support gender equality are emphasized in the constitution since such are the basis for any democratic society that the constitution envisions. The applicability of these principles is mandatory, and the courts have on several occasions emphasized that the principles are not aspirational as argued by critics but realistic, practicable and binding on everyone. In the case of Rono v Rono[3], the Court of Appeal authoritatively asserted that the Constitution shields women from customary succession laws that bar women from inheriting property. The Court held that both male and female children are treated equally before the law and that discriminatory rules are invalid and unconstitutional to the extent that it treats women as inferiors to men.

Further, the Bill of Rights also encompasses the principle of non-discrimination which is incorporated into substantive rights thereby protecting every person from discrimination on the grounds of sex and marital status. The government is obligated to enforce this right and ensure that both men and women are accorded equal treatment and benefit of the law through affirmative actions and other legal and socio-economic strategies.

Most importantly, Article 100[4] lists women among marginalized groups since they trail men in the level of their involvement in the public and private affairs of the state. These groups, including women are entitled to a law facilitating their representation in the legislative arm of the government with dissolution of parliament being a consequence of non-compliance with the obligation.

The philosophy of feminism has centered the discussion on a transformative jurisprudence that focuses on the achievement of gender equality in Kenya. The adoption of such philosophy might be accommodated by Articles 159 and 259 which seems to guide the formulation of a theory for the interpretation of the constitution which should be done in a manner that promotes human rights and good governance. Liberal feminism focuses on equality of men and women and equal participation of both sexes in the political field and activities of the state.[5] Philosopher Wendy Williams, a key feminist scholar, criticizes the tendency of other feminism schools for perpetuating more inequalities by their focus on preferential treatment instead of equality and self-autonomy which are the central features in the much more progressive liberal feminism.

Minor premise

It is notable that Kenyan women live in a highly discriminatory society that has caricatured women as subordinates of men since time immemorial. The subservience of women through age-old cultural and societal practices has resulted in greater differences between men and women in the society. However, even though the constitution has encompassed certain measures to foster gender equality but the legal framework has been undermined and rendered insignificant in a manner that it fails to address the deep-rooted discrimination of women. Particularly, the Constitution provides for the two-third gender rule but parliament has adamantly failed to give it life. The deadline was set to expire 5years after the promulgation of the constitution but successive legislatures have downplayed this important socio-political milestone. Additionally, there are still other laws targeted at overhauling the social system that justifies patriarchy, toxic masculinity, female genital mutilation and other practices that are considered as affecting women disproportionately or perpetrating injustice on them. The entire legal framework designed to counter gender inequality seems to have hit a snag since it has been inefficient since its inception for lack of operationalization, political will and awareness.

There are numerous impediments that hinder the attainment of gender equality in Kenya and they range from socio-economic to political obstacles. Basically, women are considered as unworthy creatures by the society and as servants of the men. Their access to resources of economic viability is restricted and unlike men, they are condemned to stay at home and embark on domestic work which is mostly uncompensated and hardly rewarding. Notably, most women are not allowed to choose the trajectory of their life and attain full autonomy since the Kenyan society tends to dictate for them the dress code, family issues, life values and other aspects. The discrimination of women is evident in the political arena which has been dominated by men for a long period and the latter’s reluctance to adopt laws that stamp out discrimination.

Application

The gender equality laws requires full implementation by the government agencies and organs to ensure the Kenyan women are liberated from the practices and systems that undermine them and places them below men in the traditionally-constructed social and family hierarchies. Article 27 of the Constitution does not recognize these conceptions on the difference between men and women since it treats them as equal partners who should not be subjected to the biased societal rules that attempts to restrain them from realizing their full potential in any field.

The Kenyan parliament has been rebuked for failing to effectuate article 100 of the constitution and address the menace of underrepresentation of women who constitute more than half of the population. The unwillingness to discuss this obligation has been accounted for by the same problem that the two-third gender principle seeks to solve. That is, the inadequacy of female representatives in government institutions to push for the much sensitive and sometimes emotive women agenda. In the matter of Gender Representation in the National Assembly and the Senate[6], the Supreme Court took notice of unbalanced and unequal positions of men and women in the country and emphasized the need to ensure compliance with all anti-discriminatory provisions of the Constitution, international instruments and other laws.

Feminists and particularly liberals advocate for the gradual reassessment of the political and legal rules and practices to bring them into conformity with equality principles. This theory is compatible with the desired solution for inequality in Kenya. Although liberals maintain the public-private division that features in their philosophy, they provide for an allowance by the state to intrude into the private life of the citizens to solve domestic issues that might be aiding subservience of women. In line with this proposition, it is therefore necessary for the government to employ all mechanisms to eradicate discrimination in every sphere of life, not only in the public/political arena but also in employment, family, economic and business aspects. Additionally, the philosophy derived from the exposition of scholar John Rawls is applied to view equality as justice and inequality as the tool for injustice through which women are denied access to resources and self-autonomy as the case in Kenya where societal norms have been used to undervalue women.[7] Therefore, the Kenyan woman’s lack of access to education, maternal health and other crucial necessities despite being the major players in the production process and particularly labor, suggests that women have been overlooked and denied of their equal status to men.

According to Mitchel Oyuga, a legal officer at FIDA[8]whom I interviewed for this paper, gender discrimination in Kenya has had a remarkable reduction in the recent past but the failure by the legislature and other government organs to provide redress for unequal representation and other issues has receded the battle against discrimination while in its most critical phase. She further propounded that although FIDA does not exclusively advocate for a single feminist theory, they mostly lean towards liberal feminism owing to its principles on equality and free choice.

Conclusion

Summarily, the history and nature of gender discrimination in Kenya reveals that the relevant government agencies and the society in general has failed to address the menace satisfactorily as envisioned by the Constitution of Kenya, 2010. Most of the challenges that women face emanate from the inequalities rooted in the economic, social, cultural and political systems of the country. Therefore, liberal feminism, being a theory that lays much emphasis on individual autonomy and equal treatment of both sexes, should be the preferred feminist theory for Kenya, also owing to its compatibility with the existing legal framework and perfect response to the consequences of gender non-inclusivity. Thus, the adoption and implementation of laws, policies and initiatives with an equality element inherent in the liberalism theory is recommended in order to realize a society where women are not exploited and enslaved but treated as equal to men and with the dignity they deserve.

[1] Constitution of Kenya, 2010

[2] Ibid.

[3] Mary Rono v Jane Rono [2005] eKLR

[4] The Constitution of Kenya, 2010

[5] Amy R. Baehr, ‘Feminism, “Feminism interpretations of John Rawls” [2007] :150

[6] [2012] eKLR

[7] Genevieve R. Painter, International Encyclopedia of the Social & Behavioral Sciences (2nd edn, University of California 2015)

[8] Federation of Women Lawyers (Kenya). A non-partisan organization aimed at promoting gender equality and women empowerment in Kenya.

About the Author:

Davis Thuranira studies Bachelor of Laws (LLB) at Kenyatta University in Kenya

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Juridical Implication of Article 12 of the Convention on the Rights of Persons with Psychosocial Disability in the Health Sector of Ethiopia

Author: Hawi Asfaw
Associate Human Rights Officer, Ethiopian Human Rights Commission

Recognition of legal capacity is inseparably linked with the enjoyment of rights in the health sector since it is a prerequisite for a person to fully control his or her health and to make a free and informed decision concerning sexual, reproductive, and mental health. Article 12 of the Convention on the Right of Persons with Disability (CRPD) to which Ethiopia is a party, provides that states should recognize the legal capacity of persons with disability and provide them with access to support in the exercise of their legal capacity which in no way amount to substitute decision making. Additionally, article 25(d) of the CRPD states that the right to health includes the right to health care on the bases of free and informed consent which presupposes the recognition and protection of legal capacity by the state for its enforcement.

Article 339 of the Ethiopian Civil Code defines a person with a psychosocial disability as ‘… one who, as a consequence of his being insufficiently developed or as a consequence of a mental disease or his senility, is not capable to understand the importance of his actions’. It also refers to persons with psychosocial disability as ‘insane’ and ‘notorious insane’ which is a derogatory language.  Regarding legal capacity, though there is no condition under the CRPD that can be used to draw exception to full legal capacity, article 192 of the Ethiopian Civil Code states that ‘all physical persons have the capacity to perform acts of civil life unless declared incapable by law’. It also provides two grounds on which a person with psychosocial disability might be deprived of his/her legal capacity. One is the presumption of legal incapacity which applies in the case of ‘notorious insanity’ and the other is judicial interdiction of ‘insane person’ who is not notorious following an application made by the person, his spouse, or close relatives or by the public prosecutor per article 351 of the Civil Code. According to articles 341&342 of the Civil Code a person will be considered ‘notoriously insane’ if he is an ‘inmate of a hospital or of an institution for insane persons or of a nursing home’ or in a rural community where there are less than two thousand inhabitants, if ‘the family of that person, or those with whom he lives, keep over him a watch because of his mental status.’

Both the presumption of legal incapacity and judicial interdiction under the Ethiopian legal system restrict the right of persons with psychosocial disabilities to full enjoyment and exercise of their rights in the health sector contrary to articles 12&25 of the CRPD by putting the person declared incapable under full guardianship. Furthermore, article 377 of the Civil Code denies a person with a psychosocial disability the right to apply for withdrawal of the interdiction.

The absence of specific mental health legislation is also another challenge in guaranteeing health treatments for persons with psychosocial disability based on the standards of human rights in Ethiopia. The absence of legislative guarantees which could address challenges related to access to health care services, involuntary admission, and non-consensual treatment practices enables violation of human rights of persons with psychosocial disability in the health sector of Ethiopia. It also gives medical practitioners a ‘blank cheque’ which allows them to act arbitrarily without the informed consent of the person with psychosocial disability seeking health services.  Since there is no judicial review for involuntarily admitted persons, it limits the right to hearing in cases of involuntary admission or non-consensual treatment in the health sector.

Another problem is that once a person is ‘judicially interdicted’ and a guardian is appointed, there is no further timely judicial review about the change in capacity of the person admitted to the hospital. This gives limitless power which can be abused by guardians until the person recovers from the disability.

Denial of legal capacity and the absence of legislative guarantees coupled with the substituted decision-making process results in involuntary admission to health facilities and non-consensual treatment of persons with psychosocial disabilities. As state party to the CRPD, Ethiopia has an obligation to align its laws with article 12 of the CRPD to recognize the legal capacity of persons with psychosocial disability to give free informed consent and to shift its laws from substituted decision-making paradigm to supported decision making. In line with this obligation should adopt specific legislation on mental health, which protects persons with psychosocial disability from involuntary admission, non-consensual treatments, undue influence, and provide a right to hearing in all cases of involuntary treatment. Regular and timely review by a competent, independent, and impartial authority as provided under article 12 of the CRPD should also be provided.

About the Author:

Hawi Asfaw is Associate Human Rights Officer at the Ethiopian Human Rights Commission. She holds an LLM Human Rights and Democratisation in Africa from Centre for Human rights, University of Pretoria, South Africa and LLB from Wolaita Sodo University, Ethiopia. She is also former lecturer and Dean of Wolaita Sodo University School of Law, Ethiopia.

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Contextualising and Advocating for Sexual Minority Rights within Kenya’s Transformative Constitution

Author: Laureen Mukami Nyamu
Student, Kabarak University School of Law in Nakuru, Kenya

Human rights are inherent to all human beings regardless of race, ethnicity, nationality, religion or other status [1] moreover they are universal but the universality of human rights is not enjoyed by sexual minorities due to discrimination. This discrimination stems from religious, socio- cultural, institutional and discriminatory laws and policies. These factors hamper the full enjoyment of human rights by sexual minorities.

The Constitution of Kenya 2010 is transformative in the realm of human rights by recognising the bill of rights as an integral part of Kenya’s democracy, social, economic and cultural policies and by having an elaborate Bill of Rights that remedies the subversion of human rights which was a characteristic of the repealed constitution. [2] This article will contextualise and show advocacy of sexual minority rights within the constitutional framework and provide a way forward as regards sexual minority rights.

Contextualisation

The Constitution of Kenya 2010 (hereinafter referred to as the Constitution) contains the following provisions in the bill of rights that shall be contextualised in the realm of sexual minority rights.

Every person has the right to life.[3] The term ‘every person’ when interpreted includes sexual minorities. This provision protects sexual minorities from the arbitrary deprivation of their life on account of their sexual orientation.

Every person is equal before the law and has the right to equal protection and benefit of the law.[4]  Equality includes full and equal enjoyment of rights and fundamental freedoms.[5] Sexual minorities should enjoy equal protection of the law to the same extent as other persons who are not sexual minorities. The state [6] and any person[7] is prohibited from discriminating against any person a various grounds among them being sex. The constitution also obligates the state to take legislative and affirmative action measures to redress any disadvantage suffered by individuals or groups because of past discrimination.[8]

Every person is afforded dignity and the right to have that dignity respected[9]. Respect of human dignity includes the respect to the bodily integrity and autonomy of the person. Sexual minorities often face violations to their dignity through the use of violence against their bodies and use of derogatory language against them. [10]This provision therefor entrenches and protects the right to dignity of sexual minorities.

The right to Freedom and security of every person includes the right not to be subjected to any form of violence[11] and torture. [12]This provision protects sexual minorities who are often the victims of violence and brutalities from their communities.

Advocacy

The Constitution advocates for sexual minority rights by establishing duties of the state regarding human rights which include; the duty to protect, promote, respect and fulfill rights and fundamental freedoms. [13] The constitution also gives everyone the right to institute court proceedings when a fundamental right and freedom has been violated.[14] Further, the courts in the application of a fundamental rights and freedom are obligated to adopt the interpretation that most favors its enforcement[15] as seen in the case of Eric Gitari v Non-Governmental coordination organisations coordination board and 4 others [16] whereby the court held that the term every person under article 36(1)[17] does not exclude homosexuals and the petitioner who was intending to register the Gay and Lesbians Human Rights Council with the respondent falls within the ambit of article 36 (1) of the constitution. This position therefor demonstrates that sexual minorities are entitled to not only the freedom of association but also all fundamental rights and freedoms stipulated under the constitution regardless of their sexual orientation.

The Way Forward

To achieve and promote sexual minority rights, the existing constitutional provisions should be interpreted in a manner that favors their realisation. This could be achieved by the inclusion of the term ‘sexual orientation’ as one of the  protected grounds under article 27(4) [18] This would enlarge the scope of protection of sexual minorities by expressly prohibiting discrimination on account of sexual orientation. Additionally the right to marry should be accorded not only to persons of the opposite sex [19] but also to persons of the same sex. Family is the basic and most crucial unit of society. Recognising the right to marriage by persons of the same sex will lead to the realisation of their rights by granting their sexual orientation legitimacy and acceptance in the society. This will contribute towards ending the social stigma that often contributes to discrimination and the subsequent infringement of their rights.

[1] Professor Naresh Vats, Gender Equality-Human Rights violations against sexual minorities.

[2] Article19 (1) Constitution of Kenya 2010.

[3] Article 26(1) Constitution of Kenya 2010.

[4] Article 27(1) Constitution of Kenya 2010.

[5] Article 27(2) Constitution of Kenya 2010.

[6] Article 27(4) Constitution of Kenya 2010.

[7] Article 27(5) Constitution of Kenya 2010.

[8] Article27 (6) Constitution of Kenya 2010.

[9] Article 28 Constitution of Kenya 2010.

[10] J Osogo Ambani, a Triple Heritage of Regulating Homosexuality in Kenya.

[11] Article 29(c) Constitution of Kenya 2010.

[12] Article 29 (d) Constitution of Kenya 2010.

[13] Article 21(1)

[14] Article 22(1) Constitution of Kenya 2010.

[15] Article 20(2) (b) Constitution of Kenya 2010.

[16] 2015 eKLR

[17] Every person has the right to freedom of association which includes the right to form, join or participate in the activities of an association of any kind.

[18] Constitution of Kenya 2010.

[19] Article 45 (2) Constitution of Kenya 2010

About the Author:

Laureen Mukami Nyamu is a second year undergraduate student at the Kabarak University School of Law in Nakuru, Kenya. She is interested in examining how human rights can be used to remedy disadvantages experienced by minorities as a result of discriminative policies and norms and how the law can redress these disadvantages.

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