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Denmark’s support for human rights and democratisation projects in Kenya has almost entirely been provided through Kenyan NGOs and has taken the form of small projects funded via the Embassy’s local grants facility. An overall programme framework was absent until end of 2000 when the present Human Rights, Democratisation and Good Governance (HRDGG) Programme was approved. The

The purpose of the programme is to improve the human rights situation in Kenya and expand the democratic space so as to enable all citizens to participate in economic and political life.

The programme has the following components:

Support to civil society organisations;
Media;
Civic Education;
Public Institutions; and
Capacity Building

In June 2002 a contract, including a Memorandum of Understanding, was signed with MS Kenya, (Danish Association for International Co-operation). Under the MoU, MS Kenya undertook direct implementation of the capacity building component of the programme. The Memorandum has since been revised to deepen the collaboration. This now entails MS Kenya being responsible for implementing and monitoring two additional components; namely, support to civil society and support to media. A critical objective of the programme is the development of synergy between and amongst the various components of the programme.

2. Objectives of the study

Broadly this study is intended:

§         to provide an overview of what existing Partners to the Danish Human Rights Programme are doing in terms of addressing socio-economic rights
§         to assess the significance they apportion to this generation of rights in the current Kenyan dispensation.
§         to identify non-traditional Human Rights organisations who are nonetheless addressing socio-economic rights and hold potential as Partners to the Human Rights Programme in this regard.

The monumental changes witnessed in Kenya’s governance landscape at the end of 2002 as a result of a political transition had a marked impact on the HRDGG Programme. For instance, the new political dispensation in Kenya created a sense of disarray in civil society. Many human rights organisations were forced to reassess their mandate, identity and legitimacy in light of the fact that the new NARC government marketed itself as a human rights friendly government that at least in theory shared their agenda. The NARC government has launched a Governance, Justice, Law and Order sector Reform (GJLOS) Programme, a SWAP which proposes far-reaching changes in the arenas of human rights and good governance; anti-corruption; and judicial reform. While the GJLOS is still in the process of being actualised, it is clear that its proposed areas of intervention are centred on civil-political rights.

Given that the Human Rights movement in Kenya was to a great extent shaped around the protection of civil-political rights, this generation of rights constitutes a cornerstone for most organisations’ work. The level of poverty and marginalisation in Kenya suggests that there is a case to be made for increased focus on socio-economic rights. In recent years, a number of individual human rights organisations have taken up and addressed issues related to socio-economic rights abuse. It is, however, not clear whether this is as a result of deliberate re-focusing, nor is it clear whether the human rights organisations view socio-economic issues as rights issues per se. The perspective from which they would approach the protection of this generation of rights furthermore warrants some examination. Equally, there are organisations who are not perceived to be human rights organisations who are in fact addressing issues closely related to socio-economic rights. Assessing their capacity and willingness to take/enhance a rights approach is desirable for the HRDGG programme.

3. Approach and Methodology

The consultant was asked to:

1.     Provide a brief overview of the ways in which the 2002 political transition had implications for the human rights agenda in Kenya.
2.     Assess the degree to which current partner organisations to the HRDGG programme address socio-economic rights.
3.     Present a contextual analysis on the relevance of HRDGG partners incorporating socio-economic rights to a greater extent based on their perceptions regarding this specific generation of rights.
4.     Based on the prevailing poverty levels and other factors (liberalisation, globalisation, etc), identify key socio-economic issues adversely affecting the Kenyan population and suggest ways in which the HRDGG partners could constructively address these from a rights/advocacy perspective.
5.     Provide an overview of the extent to which socio-economic rights are addressed by the human rights fraternity and whether the cases noted constitute a deliberate shift of focus.
6.     Assess the significance apportioned by the human rights fraternity to the relevance of addressing socio-economic conditions prevailing in Kenya from a rights perspective.
7.     Based on interviews with relevant organisations, assess the relevance and potential benefits of incorporating into the HRDGG programme organisations who are addressing socio-economic issues, but who are not considered human rights organisations (for instance Transparency International, Institute for Economic Affairs, etc.)
8.     Assess the capacity of traditional human rights organisations to take on board socio-economic rights and identify possible gaps in this regard.

4. Methodology

To accomplish these objectives the consultant

Conducted a desk review of CSO and RDE project documents, reviews, reports, studies and other relevant materials related to the programme.
Held consultations with key stakeholder CSOs and potential partners.
Used questionnaires to collect information from 11 key informant CSOs relevant to the objectives of the study. These were:

I.             Institute of Economic Affairs
II.           Kenya Human Rights Commission
III.         Collaborative Centre for Gender and Development
IV.         Kenya Social Forum/Social Development Network
V.           Kenya Debt Relief Network
VI.         Education Centre for Women in Democracy
VII.       Legal Resources Foundation
VIII.     People Against Torture
IX.         Release Political Prisoners
X.           Center for Law and Research International
XI.         Transparency International

Held discussions with MS Kenya particularly the director
Held informal discussions with Chemchemi Ya Ukweli and key individuals in the HR sector
Attended a retreat of HRDGG staff from MS and the Embassy in Naivasha
Engaged an assistant to administer and analyse questionnaire
Sampled different studies such as The Cost of Globalisation, Social Watch Report 2003, the Politics of Transition in Kenya: From KANU to NARC among other studies to enflesh the report.
Attended an East African workshop on Water organized by the Nowergian Church Aid at which valuable discussions took place

The consultant spent a total of 4 days in the field, 1 day in the workshop and 2 days to write up the preliminary report. Tools used included interviews, questionnaires and informal discussions mainly with different actors and feedback from participants at the workshop, director MS, evaluators of the HRDGG programme among others. A final report is herewith presented.

Output
A final report herewith captures the findings and is divided in to five parts the first of which is the foregoing. The second part is about the historical background of the socio-economic rights discourse in Kenya. In particular this part is a broad overview of the regulatory and legal framework on which the Kenyan state has articulated and implemented its social objectives. The case is made that the Kenyan state has essentially approached its economic and human rights agenda from the standpoint of a command-based paradigm. This analysis sets the platform on which the third part is bounced off and that is about the civil society and political transition in Kenya. This section makes no frills about NARC and its crippling blindspot and how this has played out to compromise the capacity of CSOs. It is contended that CSOs cannot be without blemish on this situation of futility that affects the sector. This part ends with a brief examination of poverty in Kenya and some snippets are shared about NARC’s posturing nay ‘economic recovery strategy’ aimed at addressing the challenge of poverty. The fourth part highlights the findings of the study from the responses of the key informant interviews. The thesis of the first part is validated in this section. It is with this richness that debate ebbs and flows, crystallizes and sometimes becomes fluid in the fifth and last part. The distinction between the findings of the research and my own reflections become blurred in parts of this section. That was not intended. This is sometimes the limitation of a practitioner. I end by making conclusions built in from the respondents findings before making broad suggestions of what the best way forward could be. The recommendations go beyond what the HROs suggested, that was part of my brief.

Socio-economic Rights in Kenya

The colonial state in Kenya was founded on the premise of accumulation and exploitation of both the natural and human resources. This was made possible by an effective and elaborate legal and administrative machinery that regulated all spheres of life and polity. A highly centralised political system at the apex of which was a governor represented at the provinces by provincial governors supervised this predatory system. The post colonial state in Kenya did not make any attempts to change this set up; thus oppressive laws such as the Public Order Act, Preservation of Public Security Act, Societies Act have continued to ensure that Africans are excluded from participating in the political, social and economic life of the nation.

In its Sessional paper No. 10 of 1965 the government articulated its commitment to eradicating poverty and subsequent five-year development plans have been replete with anti-poverty strategies. The District Focus for Rural Development Plan of 1983 has been by far the most candid of all the poverty alleviation rhetoric. The 1986 Sessional paper on economic management for renewed growth and other periodic sectoral policies have come out to address poverty. The more bolder plan was launched in 1995 the social dimensions of development that led to the national poverty eradication plan and its offspring the PRSP, MTEF among others.

Every woman, man, youth and child has the human right to secure a home and community in which to live in peace and dignity. The right to food, health, adequate housing and the range of rights and services including water and sanitation are found in this group. There is a general neglect of the poor as market mechanisms are left to take control of essential services. Central governments are increasingly unable to reconcile macroeconomic policies with social objectives keeping in mind the primacy of human rights obligations. The government has responsibility to make targeted interventions in order to ensure universal access to public services on a fair and equitable basis.

Yet in Kenya the greatest problem with economic governance is the exclusion of people from its management and control. Law and policy on this front is mostly contradictory and at cross purposes with each other. Whereas government has always pledged to commit itself to a total change from a command economy to a free market one at least since 1986 this has mainly remained at the level of mere words. That is what the economic management for renewed growth paper was all about. It intended a small government whose role would mainly be to adjudicate and protect. The government set out to liberalise trade and finance, cut down the civil service and sell off state owned enterprises. The law was however never changed to reflect this new thinking and so the command economy legal framework has been the basis upon which a liberal market economy has been intended to operate since 1986.

The single party constitution has similarly been used to operationalise a multi party framework. Political and civil rights are constantly in danger as long as people’s basic needs are not met. Basic needs are an integral part of civil rights. The Kenyan constitution guarantees civil and political rights but socio-economic and cultural rights are not. It is important that we transform basic needs into rights in order to affirm the importance of life, food, water, education and health in the same way that we value the right to vote. Political party manifestos, government policy pronouncements and international covenants articulate this second generation rights that aim at eradicating poverty and entrenching social justice and equity, why not embrace them? Without the guarantee of basic rights, basic needs will never be fulfilled. The basic rights approach ensures a coherent framework for development co-operation. It is what can straddle all levels from the household to the global level.

The state apart from signing onto the international human rights instruments and lately founding a national commission on human rights has done little to domesticate the aspirations and spirit of these instruments. Human rights CSOs on their part have confined themselves to HR trainings, workshops, seminars, information and documentation and assessment of HR needs to some extent. Many Kenyans lack adequate access to sanitation, safe drinking water and these are related to other rights including the right to life, health, food, security and education. Corporate globalisation and its clear expression of privatisation of services, is one of the greatest threats to universal access to clean drinking water. By turning social goods and scarce resources into economic commodities, we are courting a tragedy.

The move to privatise water in Kenya means we have to contend with private business’s emphasis on profits and cost recovery. Already there are complaints in places where water has been privatised that rates have increased, consumer fees have been raised to attract investments and it is said profit guarantees have been written in contracts with these companies. Privatisation also means that unprofitable sectors such as infrastructure, sewerage treatment and provision to slum settlements and rural water will be unbundled to government. To the extent that Kenya has adopted the policies brought to us by the multilateral agencies there has been a marked decline as services to vulnerable groups are increasingly becoming inadequate and of poor quality. Private operators are not accountable to the public and the external economic environment has affected Kenya’s ability make progress through:

Continuous fall in prices of export commodities that has caused income and foreign exchange losses leading to increased poverty at local level
Financial instability and sharp currency fluctuations caused by large inflows and out flows of external funds that has further led to financial and economic crises
Suffering of industrial jobs and farmers’ livelihoods caused by inappropriate import liberalisation policies brought by loan conditionalities and multilateral trade rules
Cut backs on social expenditure and user should pay principle brought as a result of SAPs leading to worsening of social well being of the poor and vulnerable

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