The best things in life can be free (when needed)

Article 43 of the new Constitution creates an expanded Bill of Rights. In addition to civil and political rights, like freedom of speech or association, that protect citizens from state oppression, it provides for socio-economic or “second generation” rights including health care, housing, sanitation, food, safe water, social security and education.

All key aspects of Vision 2030, these goals stem from a desire to eradicate poverty and provide for the most vulnerable in our society. Our Constitution is not the only place where these rights are mentioned. Kenya has already signed several international treaties committing to provide most of these amenities to all our people.

But around the world, socio-economic rights are controversial. Some people think they do not belong in a constitution. By making certain court decisions, they feel, judges can affect ministry budgets that are often delicately negotiated between the Cabinet and Parliament.

Others argue that poor countries cannot afford to deliver these rights. If some constitutional provisions are only targets, they complain, it opens the door for government to ignore others. Yet another group fears that if implemented clumsily, these clauses promote big, wasteful government messing with areas better left to business.

And too many vague rights can foster a culture of entitlement to “free things.” After all, shouldn’t the first responsibility to support a child fall to its parents? But we also know many genuine cases — children who wade through sewage on the way to school, patients locked in hospitals because they cannot pay their bills and top-performing students who cannot afford secondary school.

How can we strike a balance? For one, although countries like South Africa and India have these in their constitutions, we should not follow them blindly. We should read Article 43 in the context of Kenya’s cultural values. Kenya, for instance, has a strong tradition of celebrating private enterprise.

So, in interpreting socio-economic rights, we can encourage government to partner with the private sector — business, civil society, faith-based initiatives and of course, communities themselves — to meet these ambitious goals. In a low-income country like Kenya, the government’s budget is not sufficient to meet the overwhelming needs of the vulnerable.

Plus, since our economy is still small, many are unable to find employment. These problems offer a unique opening for investors. The most critical step the state can take to meet its constitutional obligations is identify which socio-economic rights can be met by the market through expanding private health care and educational facilities as well as private property and infrastructure development.

The state must also promote innovation, such as low-cost building techniques and alternative medicine, to accelerate solutions. Where business cannot provide a viable solution, the state can then step in. What about the worry that second-generation rights will make people lazy? Isn’t part of the reason for a new Constitution to reduce scope for people who reap where they have not sown?

Dignity of self-reliance

In reading Article 43, Kenyan courts should assume that the primary responsibility of provision falls on the individual himself, or in the case of a child, her parents. Only when an individual is helpless should the state intervene. The bias then is for every Kenyan to enjoy the dignity of self-reliance, but to always know that should their sincere efforts fail, they will not be abandoned.

In the case of a disabled person, for instance, this would mean that Kenya must support you through technologies but also hold you accountable for what is made available to you. The Constitution recognises that Kenya may not be able to provide all these benefits — housing, education, food, water — immediately, but requires that the state work “to achieve [their] progressive realisation.”

So the human right to housing, for example, does not obligate the state to provide houses for everyone or to make all housing free. Unless there is an emergency, not every person can go to hospital free of charge. But the new Constitution does make these issues — housing, heath, education — firm priorities in the public policy agenda and obligates the state to demonstrate concrete measures towards reasonable progress.

Besides, all these goals are core to any government’s mandate. So if public resources are being wasted or misappropriated, this can now be grounds for a constitutional challenge. If used constructively, then, Article 43 can be a powerful tool to monitor that government is performing in an efficient way.

Dr Laila Macharia is an expert in institutional reform.