Using the Bill of Rights in practice: enforcing Chapter Four

Chapter Four of the Constitution, Articles 19 to 59, is the Bill of Rights. It is not a list of aspirations. It is a set of rights that a court can enforce.

Who is bound, and who is protected

The Bill of Rights applies to all law and binds all State organs and all persons (Article 20). Rights belong to individuals, and in many cases to groups and to juristic persons where the nature of the right allows it.

Going to court

Article 22 allows every person to institute court proceedings claiming that a right or fundamental freedom has been denied, violated, infringed or threatened.

Anyone may act on their own behalf, for another person who cannot, as a member of a group, in the public interest, or through an association acting in the interest of its members. The Article also directs that formalities be kept to a minimum, and the court must not reject a claim only for want of form.

Under Article 23, the High Court has jurisdiction to hear applications for redress and to grant relief, including a declaration of rights, an injunction, a conservatory order, a declaration of invalidity of a law, and compensation.

The procedure is set by the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, commonly known as the Mutunga Rules.

Limits on rights

Not every right is absolute. Under Article 24, a right may be limited only by law, and only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The court looks at the nature of the right, the importance of the purpose of the limitation, and whether a less restrictive means would achieve it.

Some rights cannot be limited at all. Article 25 lists them, including freedom from torture and cruel treatment, freedom from slavery, the right to a fair trial and the right of habeas corpus.

Drafting a good petition

1. Identify the specific right and the Article that protects it.
2. State the facts that show the violation, with dates.
3. Explain the relief you want and why the court can grant it.
4. Anticipate Article 24: say why any limitation is not justified.

This article is a general introduction. Read the current rules and recent decisions before you file.

Cover photo by Krists Luhaers on Unsplash.