Human Rights and Social Justice in Kenya

What to do if your Rights are Violated by a Public Officer

Every person in Kenya has rights protected by the Constitution of Kenya 2010. If a public officer violates your rights, you have legal remedies. The Constitution under Article 22 allows any person to bring a claim to court if their rights are violated or threatened. The High Court is empowered under Article 165 to hear these cases.

For example, in the case of Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR, the Court of Appeal confirmed that any Kenyan can move to court when public officers act outside the law. The reasoning was that protecting the Constitution is not limited to direct victims but extends to all citizens.

If you suffer a violation, you should first document what happened. You can then seek help from a Lawyer or a human rights body. Filing a constitutional petition before the High Court is a formal way of seeking justice. Judges will consider whether your rights under the Bill of Rights have been limited unlawfully.

How to Make a Complaint to IPOA, KNCHR, or CAJ

Kenya has independent bodies that receive complaints about public officers.

The Independent Policing Oversight Authority (IPOA) was created under the IPOA Act 2011. Its mandate is to investigate police misconduct. If you are harmed by a police officer, you can lodge a complaint in writing or through their regional offices. IPOA can then investigate and recommend action, which may include prosecution.

The Kenya National Commission on Human Rights (KNCHR) is established under Article 59 of the Constitution and the KNCHR Act. It receives complaints about human rights abuses. For instance, in Republic v Kenya National Commission on Human Rights Ex parte Uhuru Muigai Kenyatta [2010], the High Court noted that KNCHR has wide investigative powers.

The Commission on Administrative Justice (CAJ), also known as the Office of the Ombudsman, was created by the Commission on Administrative Justice Act. It receives complaints of abuse of power, unfair treatment or delay by public institutions. If, for example, a government office refuses to provide a service without a valid reason, you can complain to CAJ.

Rights of Persons with Disabilities, Refugees, and Minorities

The Constitution in Article 54 provides that persons with disabilities are entitled to be treated with dignity and respect. They have a right to access educational institutions and public facilities. In In the Matter of an Application by GN (a minor) [2014], the High Court directed a school to admit a child with disability after it had denied him admission. The judge held that denying access was discrimination and contrary to the Constitution.

Refugees are protected under the Refugees Act 2021. They cannot be expelled or returned to a country where they face danger. Article 2(6) of the Constitution also makes international treaties part of Kenyan law. This means the 1951 Refugee Convention applies. Courts have affirmed these rights. For example, in Kituo Cha Sheria v Attorney General [2013], the High Court declared that refugees are entitled to freedom of movement unless lawfully restricted.

Minority groups and marginalized communities are protected under Article 56 of the Constitution. The government has a duty to provide opportunities for education, employment and development. The courts have in several cases emphasized that minorities must not be excluded from national programs.

What the law says about hate speech, incitement and discrimination

The law prohibits hate speech and incitement. Article 33 protects freedom of expression but limits it where speech amounts to propaganda for war, incitement to violence, hate speech or advocacy of hatred. The National Cohesion and Integration Act makes it an offence to use threatening or abusive words that stir ethnic hatred.

In Republic v Moses Kuria [2017], the court held that remarks capable of inflaming ethnic hostility can amount to hate speech. The judge explained that while politicians enjoy free speech, this right is not unlimited when it threatens peace and security.

Discrimination is barred under Article 27 of the Constitution. No person should be treated unfairly because of race, gender, disability, religion, or other grounds. In OLN v Republic of Kenya \ [2015], the High Court noted that equal treatment is a constitutional command and cannot be undermined by administrative convenience.

Legal Process to Change your Name, Gender, or Correct Official Records

Kenyan law allows you to change your name through a deed poll registered at the Registrar of Persons under the Registration of Documents Act. Once published in the Kenya Gazette, you can update your national ID and passport.

Note: This article is meant to inform the public and does not constitute legal advice

Sources

Constitution of Kenya 2010 – especially Articles 22, 27, 33, 54, 56, 59, 165, and 2(6).
Independent Policing Oversight Authority Act 2011.
Kenya National Commission on Human Rights Act.
Commission on Administrative Justice Act.
Refugees Act 2021.
Registration of Documents Act.
National Cohesion and Integration Act.
1951 Refugee Convention.
Case laws herein