Committee on Economic, Social and Cultural Rights
Concluding observations on the combined second to fifth periodic reports of Kenya *
1.The Committee on Economic, Social and Cultural Rights considered the combined second to fifth periodic reports of Kenya on the implementation of the International Covenant on Economic, Social and Cultural Rights (E/C.12/KEN/2-5) at its 8th and 9th meetings (E/C.12/2016/SR.8-9), held on 25 and 26 February 2016, and adopted the following concluding observations at its 20th meeting, held on 4 March 2016.
A.Introduction
2.The Committee welcomes the combined second to fifth periodic reports submitted by the State party, despite the long delay in submission, and the supplementary information provided in the replies to the list of issues (E/C.12/KEN/Q/2-5/Add.1). The Committee also appreciates the constructive dialogue held with the State party’s interministerial delegation.
B.Positive aspects
3.The Committee welcomes the incorporation of Covenant rights in the 2010 Constitution and the rulings of the High Court that recognize these rights.
4.The Committee also welcomes the adoption by the State party of the following:
(a)Basic Education Act, 2013;
(b)Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act, 2012;
(c)Kenyan Citizenship and Immigration Act, 2011;
(d)Prohibition of Female Genital Mutilation Act, 2011;
(e)Counter-Trafficking in Persons Act, 2010.
C.Principal subjects of concern and recommendations
Domestic application of the Covenant
5.The Committee is concerned that there has been a long delay in adopting legislation and policies that are crucial to the realization of the economic, social and cultural rights enshrined in the Constitution. It is also concerned at the failure of the State party to comply with many court rulings.
6. The Committee urges the State party to expedite the adoption of pending legislation and policies, including the Community Land Bill, the Social Protection Bill, the Water Bill, the Housing Bill, the Health Bill and the National Social Health Insurance Fund Bill, to give full effect to the economic, social and cultural rights enshrined in its Constitution. It also recommends that the State party implement the decisions of its courts without delay.
7.The Committee is concerned at the provisions of section 21 (4) of the Government Proceedings Act, which essentially provide impunity to the State party when a monetary award is made against it in favour of an aggrieved party, by way of damages or costs, as is the case in Ibrahim Sangor Osman v. Minister for Provincial Administration and Internal Security.
8. The Committee urges the State party to repeal section 21 (4) of the Government Proceedings Act, since it places the State party above the law in that it does not oblige the State party to comply with court orders and it infringes the rights to equality and the right of access to courts in that it denies the right of an effective remedy in case of a violation by the State party of the economic, social and cultural rights of an aggrieved party.
Legal aid
9.While noting the introduction of the National Legal Aid and Awareness Programme, the Committee is concerned at the insufficient resources allocated to the Programme. The Committee is also concerned that access to free legal aid is still very limited, making it difficult for disadvantaged and marginalized individuals to claim their economic social and cultural rights.
10. The Committee recommends that the State party expedite the adoption of the Legal Aid Bill, expand the National Legal Aid and Awareness Programme and allocate sufficient resources to the Programme so that disadvantaged and marginalized individuals, particularly indigenous peoples, women, people living in rural areas and urban informal settlements, are able to claim their economic, social and cultural rights.
Internally displaced persons
11.While noting the measures taken by the State party to reintegrate or resettle persons displaced as a result of the 2007/2008 post-election inter-ethnic violence, the Committee is concerned that the Truth, Justice and Reconciliation Commission’s recommendations have not been fully implemented and that those internally displaced persons continue to face difficulties in enjoying their economic, social and cultural rights. The Committee is also concerned at the overall lack of implementation of the economic, social and cultural rights of internally displaced persons in the State party, resulting from intercommunal conflicts, disasters and development and environment preservation projects, in particular:
(a)The absence of a comprehensive registration system, which leaves most internally displaced persons unregistered, unprotected and unsupported;
(b)The delay in adopting a national policy on internally displaced persons;
(c)Social segregation, the lack of public transportation and limited access of internally displaced persons to basic services, including water and sanitation, health, education and social assistance.
12. The Committee recommends that