COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS CONSIDERS REPORT OF KENYA

The Committee on Economic, Social and Cultural Rights today concluded its consideration of the combined second to fifth periodic report of Kenya on its implementation of the provisions of the International Covenant on Economic, Social and Cultural Rights.

Presenting the report, Stephen Ndung’u Karau, Permanent Representative of Kenya to the United Nations Office at Geneva, said that the rights of the Covenant found their deepest affirmation in Kenya’s rights-based Constitution. The Bill of Rights guaranteed economic and social rights and outlawed all forms of discrimination. The Government had initiated various programmes to increase the number of units of affordable housing, which included the Slum Upgrading Programme and the provision of alternative and low cost building technologies. In order to improve the right to health, the Government had devolved health services to enhance access at the local level and established the National Health Insurance Strategy. Unemployment remained a huge challenge for the Government, and measures to address it included the expansion of credit access and the creation of the Youth Enterprise Development Fund.

In the discussion which followed, Committee Experts asked for more details on the situation of internally displaced persons and the Endorois community. They raised questions on women’s right to inherit property and own land, matrimonial property, prevalence of female genital mutilation, polygamy, and domestic violence; the minimum wage, job creation, anti-poverty measures, rights of non-unionized workers, employment of persons with disabilities, and effects of trade agreements on Kenyan workers and farmers; and the hierarchy between traditional and civil jurisdictions and the justiciability of economic, social and cultural rights. Experts also wanted to hear about child labour, use of communal lands, illegal fencing, affordable housing, education standards, access to clean water, and the conditions of Kenyan domestic workers in the Middle East.

Chandrashekhar Dasgubta, Committee Expert and Rapporteur for Kenya, in concluding remarks, said it was clear that Kenya had taken important strides forward in the constitutional and judicial spheres to promote economic, social and cultural rights. Constitutional provisions now needed to be translated into concrete laws and applied.

Maryann Njau-Kimani, Secretary at the Department of Justice and Constitutional Affairs at the Office of the Attorney General and Department of Justice of Kenya, said that the delegation highly valued the dialogue, which would help Kenya evaluate the measures it had taken to ensure that the Covenant rights became a reality for all Kenyans.

The delegation of Kenya included representatives of the Ministry of Health, the Ministry of Labour and African and East African Affairs, the Office of the Attorney General and Department of Justice, the Ministry of Lands, Housing and Urban Development, the Kenya Law Reform Commission and the Permanent Mission of Kenya to the United Nations Office at Geneva.

The Committee will next convene in public at 3 p.m. this afternoon for an informal meeting with States.


Report

The combined second to fifth periodic report of Kenya can be read here: E/C/12/KEN/2-5.

Presentation of the Report

STEPHEN NDUNG’U KARAU, Permanent Representative of Kenya to the United Nations Office at Geneva, said that, since the consideration of its initial report, Kenya had recorded huge milestones in the implementation of rights from the Covenant. Major legal, institutional and policy measures had been undertaken to ensure basic standards and entitlements. The rights of the Covenant found their deepest affirmation in Kenya’s rights-based Constitution, which infused the notion of rights throughout its chapters. The Bill of Rights guaranteed economic and social rights and outlawed all forms of discrimination. Vision 2030 was the main framework for achieving economic, social and cultural rights. The justiciability of those rights in Kenyan courts was assured in terms of specific constitutional provisions.

In order to protect the rights of affected communities by the discovery of oil, gas and mineral deposits, the Government had put in place measures which included effective public participation of affected communities, equitable sharing of resources, policy dialogue, appropriate legislation and strong oversight by relevant institutions. The Government recognized that corruption diverted funds from the State budget and undermined its ability to protect and fulfil its human rights obligations. Human and financial capacities of the Ethic and Anti-Corruption Commission had been strengthened, while other adopted policies included the Bribery Bill and the Whistle-blower Protection Bill.

To address discrimination and stigma associated with HIV/AIDS, the HIV and AIDS Prevention and Control Act was in place, establishing both the National AIDS Control Council and the HIV/AIDS Tribunal. The State had taken various steps to either resettle internally displaced persons or provide them with resources to rebuild their lives. The right to physical access for persons with disabilities was a constitutional and statutory right in Kenya, and the Persons with Disabilities Act was being currently reviewed. The National Gender and Equality Commission had been established in 2011 with the mandate, among others, to ensure that the State put in place appropriate policies, programmes and measures.

Unemployment remained a huge challenge for the Government of Kenya. Some measures undertaken to address it included the expansion of credit access and the establishment of the Youth Enterprise Development Fund and the National Employment Policy and Strategy. Social security was guaranteed by the Constitution, while the National Poverty Eradication Plan had been formulated through extensive consultations with relevant stakeholders. Kenya had recorded an increased enrolment of children in schools under the free primary education programme, free primary health care and maternity services and meeting maternal and child nutrition targets. While the Constitution provided for clean and safe drinking water of adequate quantity as a basic human right, the country was generally still water-stressed.

Mr. Karau stated that the Government had initiated various programmes to increase the number of affordable housing units, which included the Slum Upgrading Programme and the provision of alternative and low cost building technologies. In order to improve the right to health, the Government had devolved health services to enhance access at the local level; it had established the National Health Insurance Strategy, with the view of attaining universal health coverage. The Beyond Zero campaign aimed to improve maternal and child health. The right to education was a fundamental right, for which the budget funding had progressively increased. A council had been established to strengthen quality assurance and standards in primary schools, while the number of national schools had increased. A bill to protect traditional knowledge and traditional cultural expression as well as the question of copyright and scientific research was currently in Parliament. The training of magistrates on copyright and related rights had had a positive outcome in the informed determination of copyright infringement cases.


Questions by Experts

CHANDRASHEKHAR DASGUBTA, Committee Expert and Rapporteur for Kenya, said that the Kenyan law continued to criminalize same-sex sexual relations, even though that was prohibited by the Covenant. The Government’s policy for now seemed to be against its decriminalization.

Women continued to suffer legal discrimination in several important areas. Only one per cent of land titles were held exclusively by women. Did the State party intend to rescind discriminatory provisions of the Matrimonial Property Act? Women were also denied their fair share of their community lands.

The delegation was asked to provide information on the restitution of Lake Bogoria and other rights to the Endorois community. Was there any talk on compensation?

A large proportion of internally displaced persons from the 2008 disturbances were yet to receive any compensation.

The definition of counterfeit drugs should exclude generic drugs which were medically effective – what were the State party’s intentions in that regard?

The Expert asked the delegation to elaborate to what extent poverty reduction had been achieved and which remedial measures were envisioned.

Another Expert asked about the status of the Covenant. Could the delegation provide details of the court decisions in which the Covenant had been invoked?

What was the hierarchy between various jurisdictions, given that customary courts also existed?

A question was asked about the effectiveness of the anti-corruption measures. How was the recovery of assets undertaken and what proceeds had been recovered, the Expert inquired.

An Expert asked for a deeper assessment of the progress made by Kenya in recent years. There were a number of bills pending in Parliament, which exposed them to the danger of being irrelevant by the time they were adopted.

There was a need for legislation on internally displaced persons. The problem of land tenure was at the heart of those issues.

The problem of corruption was brought up by another Expert, who said that, while some figures were impressive, there were a very small number of cases accepted annually by the Public Prosecutor. High-level public officials seemed to be systematically escaping prosecution for corruption.

He expressed concern over the impact of Kenya’s trade agreements on economic, social and cultural rights. The real worry was the distributive effect of the Economic Partnership Agreement with the European Union. Had any impact assessment been conducted?

What kind of role did the Government see for international bodies, including the African Union, European Union and United Nations treaty bodies?

Had judicial decisions on economic, social and cultural rights been implemented by the Government? It was difficult to obtain redress in line with old colonial laws. The poorest had to have access to the courts, for which legal aid was crucial. Would the Government push and implement the National Legal Aid Bill? What was the Government doing to better channel and control international financial flows?

An Expert asked whether there was a prior assessment of impact on economic, social and cultural rights before major infrastructure projects took place. He also raised the issue of corruption and noted that many Kenyan businesses had signed up to a code of ethics. Were there any monitoring mechanisms in place to ensure their compliance?

More information was sought on the litigation on economic, social and cultural rights.

Did Kenya plan to ratify the Optional Protocol, asked another Expert?

She also raised the issue of gender equality. There were still many loopholes and room for improvement. While abortion was allowed by the Constitution, the Criminal Code still prohibited it, for example. What was the division of labour between the National Human Rights Commission and the Gender and Equality Commission?

Turning to questions under cluster two, an Expert raised a question on job creation and Government activities in that regard.

She wanted to know about the rights of Kenyan domestic workers in the Gulf countries and if there were any bilateral agreements in that regard.

While it was compulsory for formal sector workers to contribute to social security, it was voluntary for those in the informal sector. What could be done to promote awareness and encourage people to sign up for social security? Another Expert wondered whether the Government considered a possibility of a non-contributory social protection scheme.

Cash transfers seemed not to arrive in time, which created issues. There were also duplicated benefits. What was being done to increase the basis of contributions?

The delegation was asked to provide an assessment of the impact of the State party’s national employment policies. Did the Government ponder on introducing an enforcement mechanism so that employers hired at least five per cent persons with disabilities? How about special vocational training, so that they could get the skills required by the job market?

Replies by the Delegation

The delegation said that any international treaty ratified by Kenya became part of Kenyan domestic legislation. The Covenant had been invoked in courts in numerous cases, including one on informal settlements, where the court had ruled in favour of the poor marginalized petitioner. The right to adequate accessible housing had been acknowledged by a court in a different case. The right to education was not to be progressively realized, but to be enjoyed now, another court had found.

A national legal aid awareness programme had been rolled out in pilot regions with modest success, but would soon be rolled out nationally, with a more adequate budget.

In 2014, the Government had created a task force to help the Government understand the African Commission on Human and People’s Rights’ ruling on the Endorois. The task force also needed to engage with the Endorois and suggest how the decision could be best implemented, having in mind economic and environmental aspects of the decision. The Endorois had been granted free access to the Lake Bogoria region, and 10 per cent of proceeds from the national park were to be used to assist the Endorois.

Regarding fighting corruption, it was explained that five Cabinet secretaries had been asked to step down because of corruption. The Public Prosecutor had prosecuted and was currently prosecuting a number of high profile cases. The Ethics and Anti-corruption Commission had seen its resources significantly increased; the majority of cases reported to the Commission were referred for administrative action or lacked evidence. There had been admittedly few convictions, for a wide array of reasons.

The delegation said that the State had taken a number of actions to resolve the issue of internally displaced persons through resettlement and integration. Plans were underway to compensate those internally displaced persons who had not yet received financial contributions.

The Government had initiated a repeal of a 1904 act on mining, so that it could be in line with the Constitution. In the proposed bill, community engagement was emphasized. No contracts could be concluded without the consent of local communities. Royalties from mining activities were to be shared between the governments and communities. Courts had the power to stop any activities which were believed to be causing health hazards. There was a fund to compensate those who had to move.

Women owned property to the extent to which they had contributed to that property. Contributions could be monetary and non-monetary, and include child care and even companionship. Even in polygamous marriages, the contribution of each wife was to be taken into consideration. Both men and women were allowed to inherit land, the delegation stressed. Women, as men, were allowed to own land; their percentage was still small, not because of the laws, but rather due to some patriarchal cultures. Raising awareness and sensitizing both men and women was of critical importance.

Parliament had been working very hard in recent years to pass laws within the deadlines as specified by the Constitution. There were procedures in place to request compensation from the Government, but exact bodies and office holders who would have to pay needed to be specified. Every day, the Government was paying settlement dues.

Questions by Experts

An Expert raised the issue of the implementation of the law on domestic violence. Had the previsioned measures been implemented and had they had an impact?

The governance of land tenure was brought up by another Expert. He said that the State could acquire land compulsorily if there was a public interest and fair compensation was provided. How were the human rights of the most vulnerable ensured? While there were plans in Kenya to move towards land reform, would the security of tenure be better protected in the future?

There was a big deficit of housing, noted an Expert, adding that there was a huge proliferation of slums. The Government ought to take steps by building social housing units, he said. The existing informal settlements did not have basic services.

Why were the court rulings on forced evictions not being enforced? Could the State party impose a moratorium on forced evictions?

According to the information received by the Committee, the health sector had been assigned four per cent of the annual budget. Could updated data on public funding for health be provided?

Female genital mutilation had a 27-per cent prevalence rate in Kenya, said an Expert. Cases of doctors performing female genital mutilation had also been reported. What was being done with regard to awareness raising and sensitization, and what support had the State provided for the victims of that practice? How was the act on the prohibition of female genital mutilation implemented? What were the activities of the board established to oversee the fight against that practice, inquired another Expert?

Factors which contributed to poverty included the use of low-yield seeds. How did Kenya assess international assistance – was it helpful in tackling those problems?

There seemed to be very different rates when it came to access to health, another Expert noted. The criminalization of homosexuality in Kenya limited the access to health care for that portion of the population. Abortion was reportedly also criminalized even in cases of rape – was that correct? What were the reasons behind the high rates of maternal mortality and what strategies were in place to reduce it?

Another Expert wanted to know about the State party’s official position on polygamy and its prevalence. She said that the long distances that women had to cross in order to fetch water carried their risks. What was the Government doing about that?

Mother-to-child HIV transmission should not be punishable, the Expert stressed. Instead, HIV-infected women should be provided with medical help.

The issue of education was raised by an Expert. He noted that very important educational documents provided for a framework for reform, but there were a number of shortcomings, including with quality and oversight. Girls subjected to early marriage and pregnancy dropped out of school. Did the delegation believe that the measures proposed by the Government were sufficient to tackle all the existing problems? Could the Government continue to make its priority allocating funds to young people so as to equip them for the global economy?

The delegation was asked to provide more clarity on child labour. How deep was the problem and what was being done to address it?

Was there a legal instrument in Kenya which connected the recognition of cultural rights and the recognition of indigenous peoples as such, an Expert inquired?

While there had been a huge increase in private primary schools in Kenya, it was not clear that they were meeting quality standards because of the lack of regulatory vigilance by the State. How would the State guidelines on quality education be implemented and would there be an increase in public spending on education?

Replies by the Delegation

The delegation said that presently the Government was working in a more systematic way and had made changes in many areas of its operation when it came to public participation and consultation. Treaties ratified by the Government formed part of Kenya’s law, which further emphasized the need for consultations with citizens and awareness raising through both electronic and print media. The Government would conduct in-depth consultations with the agricultural sector and other stakeholders relevant for the Economic Partnership Agreement, which should be concluded in October 2016.

The Persons with Disabilities Act had been adopted in 2003; one of its sections provided for a five per cent employment of persons of disabilities and guaranteed incentives to employers who did so. After the promulgation of the Constitution, the Act was being reviewed so that it would be in line with the Constitution and the Convention on the Rights of Persons with Disabilities. The authorities were broadening data collection on persons with disabilities, so that they could be better placed in jobs. The Government was speeding up the awareness raising programmes and anti-discrimination activities.

A delegate explained that the Anti-counterfeit Act had originally included generic medical drugs, which must have been an oversight. It was affirmed that the Act had been reviewed and no longer covered generic drugs.

At the moment, the schemes for social security were mostly contributory. There were plans to transfer the national hospital plans from contributory to a national health insurance programme. Those who were not able to contribute could thus still benefit. The National Health Insurance Bill was about to be passed in the Parliament, which would end the out-of-pocket financing. Before the national health insurance was in place, a subsidy programme was in place to help those who were not able to pay themselves.

Kenyan domestic workers in the Middle East faced a number of problems, including harassment, mistreatment and recruitment for non-existent jobs. The Government had taken measures to rectify the situation, including a fact-finding mission, vetting three employment agencies and establishing a committee of stakeholders to find a workable solution. Kenya had also commenced negotiations with Middle Eastern countries with the view of concluding bilateral agreements. It was important to note that not all workers in the Middle East were mistreated.

The delegation said that the purpose of the Economic Partnership Agreement included expanding foreign markets for Kenyan goods and increasing investments into the Kenyan economy. The Government had taken a number of measures, to ensure that the problems that small scale farmers could experience would be mitigated and that their revenue losses would be minimal.

Regarding job creation, a delegate stated that the Government had a rather holistic approach, which included the provision of free primary education, the progressive introduction of vocational and training programmes, and pursuing economic policies which would create an enabling environment for business development. The informal sector was generally creating more jobs than the formal sector. The Government was not a primary employer.

Laws guaranteed the provision of a minimum wage for non-unionizable workers. Such workers were the most vulnerable to exploitation at work, the delegation stressed, and the given provisions gave them a safety net. That did not mean that unionizable workers were not protected.

The Government was actively considering the ratification of the Optional Protocol on individual complaints, as well as a number of other international instruments.

The delegation explained that the National Human Rights Commission, the Gender Equality Commission and the Commission on Administrative Justice were all constitutional commissions, emphasizing the point that human rights were interconnected and interdependent. There would be a review within five years to see how the system was working.

Muslims in Kenya had an option of going to Kadhi’s Court for civil matters relating to Islamic law or to a civil court, but in any case their appeals would go to the High Court.

Female genital mutilation was an age old practice, deeply enrooted in some parts of Kenya. The practice was now criminalized and led to hefty fines. Five convictions had been obtained so far and a number of cases were still ongoing. It was very hard to get witnesses, including victims, to testify. The Government was also focused on awareness raising, education and long-term behavioural changes.

Polygamy was a traditional cultural practice in Kenya and across Africa. It was an acceptable practice covered by the customary law and Muslim laws. Under the Marriage Act, all marriages had to be registered with the registrar.

The Government had come with a number of laws to provide protection and relief for victims of domestic violence. Surveys indicated that there had been a reduction of the cases of domestic violence in recent years.

Regarding housing rights, it was explained that the Housing Bill was being currently reviewed to make it aligned with the Constitution. Schemes were in place for police and civil servants, helping them become property owners through subsidy schemes. A draft Eviction Bill had been developed with the input of stakeholders, in line with the Constitution. It was being discussed whether that bill should stand on its own. On the security of tenure, steps had been taken to ensure that land was registered; the only land not registered was communal land, as the relevant bill had not yet been completed.

Even if a woman was not working, it was recognized that she had indirectly contributed to the creation of matrimonial property, said a delegate.

On child labour, it was explained that the development of a new statute was underway. The 2001 Children’s Act and a number of other acts were still in place. Child labour indeed remained a problem and was rampant along the beaches and in mining areas. The Government had many civil society and business partners and was working with the International Labour Organization, to increase awareness on the worst kinds of child labour. Labour inspectors were trained to visit places where child labour could be found.

The delegation informed that the Government had a number of measures to promote education, with a particular emphasis on increasing school enrolment rates, making primary education free, and combatting child labour, teenage pregnancies and early marriages. Children of those living in arid and semi-arid areas were given an opportunity to attend low-cost boarding schools. Help was provided to girls who got pregnant so that they did not need to drop out of school.

Continuing on the Government’s activities to tackle poverty, the delegation said that there were a number of funds encouraging women and youth to start small scale businesses. An increased access to clean water had been provided in recent years, which also helped tackle poverty. Access to primary health care was free.

On the right to health, it was explained that the budgetary provisions were gradually increasing, and currently stood at about seven per cent. All counties had health departments, which were allocated funds from the central budget. There was also significant donor funding to the health sector. The Health Bill had been delayed because of the enactment of the Constitution. While the out-of-pocket health spending had increased, there were ambitious plans in place to implement a national health insurance scheme. When health professionals attended to their patients, they never asked about their sexual orientation.

Abortion was illegal in the country to the extent that it was not affecting the life or health of the mother. It was thus permitted under limited conditions. The 2010 Constitution did not legalize abortion.

The delegation said that the Government had put into place measures to address the unacceptably high maternal mortality rates, which currently stood at 350/100,000 live births. The Below Zero campaign aimed at bringing to zero the number of deaths of mothers at delivery and HIV transmissions from mother to child.

Follow-up Questions

An Expert asked the delegation to assess access to the Internet across the country and among the most disadvantaged groups.

Regarding the Endorois, another Expert wanted to know how much the community was actually receiving from the national park proceeds.

Had the Anti-counterfeit Act been amended by a court to exclude generic drugs, he asked?

Information was asked about access to drinking water in urban areas – did many residents get water through water trucks rather than pipes?

Was there an inter-ministerial body to ensure gender equality across the institutions? Was polygamy not contradictory to the State party’s commitment to gender equality? Doctors providing post-abortion care to patients should not be sent to prison, she said.

Another Expert asked for a clarification on whether all bills pending in the Parliament were expected to be adopted by the end of the year.

More information was asked about the cash transfer programme.

The issue of the implementation of judicial decisions was brought up by an Expert, who asked about the provision of compensatory redress. He also reiterated his questions about the level of Government officials prosecuted for corruption, and the quality guidelines in low-cost education.

Why had the Water Bill not yet been adopted by the Parliament, an Expert asked? The poor were paying higher rates at water kiosks than those getting water through pipes. What steps were being taken to ensure that people living in informal settlements had latrines constructed in the immediate vicinity of their homes?

What procedure was in place to recover assets acquired through corruption, and could statistics be provided?

Replies by the Delegation

There was a programme for providing drugs to prevent mother-to-child HIV transmission. Maternal services were free of charge, the delegation reiterated.

The delegation was not aware of the case of a doctor sent to prison for providing post-abortion care.

The Anti-counterfeit Act had been reviewed to exclude generic drugs, stated the delegation.

On the Endorois, it was explained that in 2015, seven million schilling had been paid to the community, which was ten per cent of the national park’s proceeds. The authorities were still working on the compensation for the community. Routes to the lake had been opened to the Endorois.

According to the Marriage Act, only those over 18 were allowed to marry. All marriages in Kenya had to be registered; monogamous marriages were concluded under the civil law and polygamous marriages could be concluded under the customary law.

High profile cases of corruption had been prosecuted and were being currently prosecuted, said a delegate. The level of convictions was admittedly not very high, mostly because of the limited capacity of the prosecutors and their high turnover. The Anti-Corruption Commission had been able to trace cash and goods worth over 3.8 billion schillings.

Child abuse included child neglect, sexual abuse and the situation of street children. Those were dealt with by a number of acts, which provided protection for children at various levels of government. Eight child protection centres were spread throughout the country. The Government had put in place 24/7 help lines. The police had been trained not to place children into cells with adults, and children-friendly courts were in place.

The delegation informed that every Ministry had a gender mainstreaming division, which ensured that gender was included in all policies and activities of their respective Ministries. That was also the case at the county level.

The utmost goal for the Government was to ensure that each household had pipeline access to clean drinking water. Progress was being made in that regard. The right to clean water was enshrined in the Constitution, and the Water Bill was being reviewed to bring it into line with the Constitution. It was indeed hoped that the Water Bill and other pending bills would be adopted by the end of 2016.

The Government was committed to ensuring the quality of education in all schools, including low-cost private institutions.

An action plan on businesses and human rights was being developed in line with the United Nations Guiding Principles, said a delegate. An occupational safety management system had been made operational; further information would be provided in writing. Coordination was being improved among the existing safety net programmes with the view of eliminating duplication and fragmentation.

The Internet coverage in Kenya was over 55 per cent, which was above the global average, informed a delegate. The Internet services were delivered through different platforms, and the Government had heavily invested in e-services. For example, one could download a lot of administrative forms and renew one’s driving license online. Many rural areas had cyber cafes.


Concluding Remarks

CHANDRASHEKHAR DASGUBTA, Committee Expert and Rapporteur for Kenya, thanked the delegation for the very constructive dialogue, through which the Committee had learned a great deal. It was clear that Kenya had taken important strides forward in the constitutional and judicial spheres to promote economic, social and cultural rights. Constitutional provisions now needed to be translated into concrete laws and implemented. It was hoped that the pending bills would be adopted this year.

MARYANN NJAU-KIMANI, Secretary at the Department of Justice and Constitutional Affairs at the Office of the Attorney General and Department of Justice, thanked the Committee for its patience and understanding. The delegation would endeavour to provide answers to all the questions posed by the Committee. The delegation highly valued the dialogue, which helped Kenya evaluate the measures it had taken to ensure that the Covenant rights became a reality for Kenyans.

WALEED SADI, Committee Chairperson, stated that the delegation had made a considerable effort to respond to the Committee’s questions. Concluding observations would be adopted on 4 March and forwarded to the Permanent Mission, and it was hoped that the Government would take them on board.


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