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.

from an email thread