Why Kenya needs to ratify the ICESCR Optional Protocol
As Beth Simmons points out, three billion people survive on
less than $2.50 per day. She states that if these facts are anything to go by,
it is even harder to comprehend that economic rights have been codified as part
of the international human rights system for the past 60 years. According
to Simmons, what is even more disturbing is the fact that over 85% of states
have ratified one or two treaties that recognise economic rights. In Kenya,
more than 58% of Kenyans live below the poverty line. Further, more than half
of the Kenyan population is poor and over 7 million Kenyans live in extreme
poverty, despite Kenya having ratified the International Covenant on Economic
Social and Cultural Rights (ICESCR) 41 years ago.
On 5 May 2013, the Optional Protocol to the ICESCR entered
into force after receiving its tenth instrument of ratification. The purpose of
the Optional Protocol is to address violations of socio-economic rights which
have been loosely applied when compared to the civil and political rights. The
Protocol achieves this by giving an individual locus standi before the
Committee and hence asking directly whether a state violated the ICESCR.
As
much as there is scepticism about this Protocol, this paper wishes to submit
that states, especially Kenya, should look beyond this scepticism and ratify
the Protocol. This article will provide both arguments for and against
ratification of the Optional Protocol.
The current on-going squabble between Kenya and the
International Criminal Court (ICC) is a factor in deciding against
ratification.
The African Union (AU) at its special summit on 18 October 2013
passed a resolution that Kenyan President Uhuru Kenyatta should not attend
hearings against him at the ICC as it is “uncivilised” to try as sitting
president. This backlash against an international body has resulted in some
governments, particularly the Kenyan government, reconsidering their
commitments towards international bodies and, to some extent, regional bodies
like the South African Development Community Tribunal.
Despite the above trend, several reasons can be advanced in
support of the ratification of the Optional Protocol by the Kenyan government.
Firstly, ratification would help clarify Kenya’s obligations under the ICESCR.
This would help give “context” and meaning to rights such as education,
housing, and work, in a developing economy like Kenya’s.
Secondly, the
ratification of the Optional Protocol would strengthen accountability in Kenyan.
The Protocol offers an opportunity for governments to be thoroughly
investigated on their obligations under ICESCR. It has been argued previously
that the existence of a complaint based mechanism always acts as a warning
device towards government. The Optional Protocol would allow Kenyans to raise
concerns with government policies and practices that would otherwise not
receive attention from parliament or the media
Kenya should ratify the Protocol as this would encourage
other countries in the region to do the same. According to Beth, the
ratification of treaties is “contagious”. Governments emulate others in what
they do and a very good example of this would be the ratification of the
Convention of the Rights of the Child (CRC). All countries, except for Somalia
and the United States, have ratified the CRC.
Finally, under the 2010 Kenyan Constitution, international
treaties form part of Kenya’s domestic law. Chief Justice Willy Mutunga was
quoted saying the effects of Article 2(6) of the Constitution meant that the
ICC is, arguably, part of the Kenyan judiciary. This is a powerful statement
from the head of judiciary since it emphasises the point of accepting
international judicial bodies as part of Kenyan law. Since the Committee, in
terms of the Protocol, would have jurisdiction to examine (alleged) violations
under the ICESCR, by ratifying the Protocol, Kenya would be subjecting itself
to a body specifically mandated to deal with violations under the ICESCR.
In conclusion, the above reasons show how important it is
for the Kenyan government to ratify the Optional Protocol to the ICESCR as it
will not only be an important venture for its citizens of Kenya, but also to
other governments that look up to Kenya for support.