KENYA

CESCR E/1994/23

66. The Committee considered the state of implementation by Kenya of the economic, social and cultural rights contained in the Covenant at its 4^th and 19^th meetings on 17 and 27 May 1993 and, at its 19^th meeting, adopted the following concluding observations.

A. Review of the implementation of the Covenant in relation to States parties which have failed to report

67. At its seventh session, the Committee on Economic, Social and Cultural Rights decided to proceed to a consideration of the state of implementation of the International Covenant on Economic, Social and Cultural Rights in a number of States parties which, despite many requests to do so, had not fulfilled their reporting obligations under articles 16 and 17 of the Covenant.

68. The purpose of the reporting system established by the Covenant is for the States parties to report to the competent monitoring body, the Committee on Economic, Social and Cultural Rights, and through it, to the Economic and Social Council, on the measures which they have adopted, the progress made, and the difficulties encountered in achieving the observance of the rights recognized in the Covenant. Non-performance by a State party of its reporting obligations, in addition to constituting a breach of the Covenant, creates a severe obstacle to the fulfilment of the Committee's functions. Nevertheless, the Committee has to perform its supervisory role in such cases, and must do so on the basis of all reliable information available to it.

69. In situations in which a Government has not supplied the Committee with any information as to how it evaluates its own compliance with its obligations under the Covenant, the Committee has to base its observations on a variety of materials stemming from both intergovernmental and non-governmental sources. While the former provide mainly statistical information and apply important economic and social indicators, the information gathered from the relevant academic literature, from non-governmental organizations and from the press tends, by its very nature, to be more critical of the political, economic and social conditions in the countries concerned. Under normal circumstances, the constructive dialogue between a State party reporting and the Committee will provide an opportunity for the Government concerned to voice its own view, and to seek to refute such criticism and convince the Committee of the conformity of its policies with what is required by the Covenant. Non-submission of reports and non-appearance before the Committee deprives a Government of this possibility to set the record straight.

B. Introduction

70. Kenya has been a party to the Covenant since 3 January 1976, the date of its entry into force. Since then, it has not submitted a single report. The Committee strongly urges the Government of Kenya to live up to its reporting obligations as soon as possible so that the Covenant on Economic, Social and Cultural Rights can be given full effect, for the benefit of the people of Kenya. The Committee emphasizes that it considers the non-performance by Kenya of its reporting obligations not only a violation of the Covenant but also a grave impediment to an adequate application of the Covenant.

C. Factors and difficulties impeding the application of the Covenant

71. The Committee takes note of the fact that performance by Kenya of the obligations arising from the Covenant on Economic, Social and Cultural Rights cannot be evaluated without taking into consideration the political, economic and social conditions in which the country finds itself at present. Kenya is currently suffering severe political as well as economic turbulence. The transition from the one-party rule exercised by KANU to a truly democratic multi-party system seems to be under way, albeit slowly, and in the face of numerous obstacles set up by those in power. Frictions appear to be severe in all domains of public life, culminating in violent clashes among certain ethnic groups which have cost more than a thousand lives so far. Conditions are aggravated further by the influx of a large number of refugees and displaced persons as well as by the persistent drought in some parts of the country.

72. The Committee notes that, in the economic field, the international donor community, the World Bank and the International Monetary Fund in particular, are calling for a thorough liberalization of Kenya's economy and finances, a system hitherto marked by pervasive State interventionism. From the viewpoint of the Covenant and its interpretation by the Committee, any reform measures must be accompanied by the adoption of targeted programmes designed to protect specifically the vulnerable groups and members of society. As far as the Committee has been able to ascertain, the Government of Kenya has demonstrated very little awareness or willingness in this regard. A lack of financial resources is cited by way of justification for the comprehensive neglect of such protective measures. The reform process appears to be complicated and slowed down by mismanagement as well as by a determination to maintain the political status quo.

73. The Committee further notes that, within the last 12 months, the economic situation of the vast majority of the population of Kenya has deteriorated considerably. Due in part to measures taken by the central bank of Kenya, inflation has increased immensely. This has led to a redistribution of income which has made the rich even richer and the poor even poorer than before. Wage rises have been significantly below the rate of inflation.

D. Positive aspects

74. The Committee notes that Kenya's economy and social welfare system, particularly in the field of education and health care, used to be, and probably still is, more highly developed than that of many other countries in the region.

E. Principal subjects of concern

75. The Committee is deeply concerned, however, that the social system will no longer be able to cope with the consequences of the economic and social crisis. If carefully targeted measures are not undertaken, current developments will lead to even greater deprivation of the economic and social rights of the Kenyan people.

76. More specifically, the Committee notes with concern that the rights recognized by Kenya as a State party to the International Covenant on Economic, Social and Cultural Rights are contained neither in the Constitution of Kenya nor in a separate bill of rights; nor do the provisions of the Covenant seem to have been incorporated into the municipal law of Kenya. Neither does there exist any institution or national machinery with responsibility for overseeing the implementation of human rights in the country. According to the information available to the Committee, the High Court does not play an effective role in the enforcement of human rights.

77. The Committee expresses its concern that no effort has been made by the Government of Kenya to promote awareness of the rights recognized in the Covenant. On the contrary, there are reports that the Government has frustrated efforts by non-governmental organizations to spread such awareness.

78. With regard to the rights contained in articles 6 and 7 of the Covenant, the Committee notes with concern that the possibilities of employment creation are extremely limited and, at present, only a small proportion of young persons leaving school can expect to find work. The labour force participation rate is decreasing, as is the level of annual earnings at the minimum wage (in US dollars at the official exchange rate). These minimum wages appear to be far too low to allow even a very modest standard of living. Furthermore, the enforcement of minimum wages does not seem to be adequately secured in practice. Generally, wages have not kept pace with the high rise in the rate of inflation.

79. Concerning the rights contained in article 8 of the Covenant, the Committee is of the view that the domination of the Central Organization of Trade Unions (COTU) by KANU appears to contravene the letter and spirit of the Covenant. The same observation seems to be valid with regard to the regulation of the right to strike in the Trade Disputes Act.

80. With regard to article 9 of the Covenant, the Committee expresses its concern that married women whose husbands are in taxable employment cannot participate in the scheme of the National Hospital Insurance Fund. The Committee is also concerned by reports of large-scale mismanagement of the National Social Security Fund.

81. Concerning the rights recognized in article 10 of the Covenant, the Committee expresses its profound concern about the fate of the great number of street (parking) children. The public funds earmarked for destitute children appear to the Committee to be pitifully inadequate. Further, the Committee is distressed about the apparent fact that child prostitution is common in many parts of Kenya and that the Government has thus not ensured children the special protection to which the Covenant entitles them.

82. As to the right to an adequate standard of living for everyone, recognized in article 11 of the Covenant, the Committee reiterates its grave concern that the current economic and fiscal policies of the Government of Kenya are not designed to secure this right for the overwhelming majority of the population. The Committee notes reports that between 1980 and 1989 no less than 44 per cent of the population - in rural areas 55 per cent - lived below the poverty line. The Committee further notes a distressing inequality in income distribution. The Committee is also concerned about the fact that more than 30 per cent of the population of Kenya are reported to suffer from malnutrition. With regard to the right to adequate housing, the Committee notes with great concern that practices of forces evictions without consultation, compensation or adequate resettlement appear to be widespread in Kenya, particularly in Nairobi.

83. Turning to article 12 of the Covenant, on the right to health, the Committee is concerned about the fact that government expenditure on health care appears to be constantly decreasing. It is also concerned that the introduction of fees for treatment in hospitals has its most negative effects on the particularly vulnerable groups and members of Kenyan society.

84. Regarding the right to education, the Committee expresses its concern about the low school attendance of children in the poorest areas of the country and in nomadic communities. The Committee observes that the obligation of States parties to the Covenant to ensure that "primary education shall be compulsory and available free to all" applies in all situations including those in which local communities are unable to furnish buildings, or individuals are unable to afford any costs associated with attendance at school. The Committee also draws the attention of the Government of Kenya to the obligation, contained in article 14 of the Covenant, and applying in cases where free compulsory education has not been assured, to "work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years" of the relevant right. The Committee also regrets the significant gender disparities and regional differences with regard to access to education, the significant difference in quality between the government secondary schools and the Harambee or community schools, as well as the difficulties encountered through the introduction of the new 8-4-4 system of education.

85. With regard to the rights recognized in article 15 of the Covenant, the Committee expresses its deep concern about the fact that, according to information available to it, academic freedom in Kenya is still seriously curtailed through intimidation and a variety of measures such as the need for academics to obtain official research and travel clearance. The Committee also regrets the frequent interventions by the Government in cultural life through, for example, the banning of plays and the prohibition of certain books and periodicals.

86. The Committee expresses its concern that the policies of the Kenyan Government to ensure the protection of the economic, social and cultural rights of women and to discourage violence against, and sexual abuse of, women do not appear adequate.

87. The Committee expresses its concern about the marginalization of ethnic minorities in Kenya, particularly of the nomadic pastoralists and the ethnic Somalis in the North Eastern Province.

F. Suggestions and recommendations

88. The Committee reiterates its request that the Government of Kenya actively participate in a constructive dialogue with the Committee on how the obligations arising from the International Covenant on Economic, Social and Cultural Rights can be fulfilled in a more adequate manner. It calls to the Government's attention the fact that the Covenant creates a legal obligation for all States parties to submit periodic reports and that Kenya has been in breach of this obligation for many years.

89. The Committee recommends that the Government of Kenya avail itself of the advisory services of the United Nations Centre for Human Rights in order to enable it to submit as soon as possible a comprehensive report on the implementation of the Covenant in conformity with the Revised General Guidelines adopted by the Committee in 1990 (E/C.12/1991/1) and with particular emphasis on the issues raised and concerns expressed in the present concluding observations.

CESCR E/1995/22

159. The Committee considered the initial report of Kenya (E/1990/5/Add.17) at its 12^th meeting on 9 May and, at its 28^th meeting on 20 May 1994, adopted the following decision.

160. The Committee appreciates the willingness of the Government of Kenya to present a report to the Committee and to engage in a dialogue with it. Having considered the information contained in the initial report and the oral replies to questions raised, the Committee decides to request the State party to prepare a new comprehensive report which follows the Committee's guidelines on reporting.

161. The Committee further recommends that the new report should take into account the points raised during its dialogue with the State party at the tenth session.

162. The report should also address the points made in the concluding observations adopted by the Committee at its eighth session on the state of implementation by Kenya of the economic, social and cultural rights provided for in the Covenant as contained in document E/C.12/1993/6.

163. The Committee considers that the preparation of the new report would permit it to engage in a more constructive and fruitful dialogue with the State party and requests that the new report be submitted by the end of 1994.

164. In the context of the preparation of the new report, the Committee also welcomes the request of the delegation to receive technical assistance from the Centre for Human Rights for this purpose. In view of the foregoing, the Committee recommends that the Centre for Human Rights should provide the necessary assistance to the State party from its technical assistance and advisory services programme.