Basic Needs as Basic Rights: Practical Policy-Making in Kenya

10 February 1999
Public event

Chair:

Simon Maxwell, ODI.

Speakers:

Salil Shetty, Executive Director of ActionAid.

Description

In Kenya, a group of national and international NGOs had collaborated on the production of a Basic Rights Charter, proposing the inclusion of economic, social and cultural rights within an expanded Bill of Rights in the new constitution of Kenya. The rights covered included food, education, health, water, shelter, information and security.

At this event, Salil Shetty discussed this initiative.

  1. Introducing the series, the Chair, Simon Maxwell, pointed out that economic, social and cultural rights had been codified in the Universal Declaration of Human Rights and in the 1996 Covenant on Economic, Social and Cultural Rights, as well as in related conventions like the UN Convention on the Rights of the Child. Implementation had fallen far below aspiration, but economic, social and cultural rights were now rising up the political agenda. A rights-based approach to development figured prominently, for example, in the UK DFID White Paper on International Development, as well as in similar policy statements by other agencies. There were many questions to discuss: what value added did a rights-based approach offer? Who was accountable for delivery of these rights? To what extent were they justicable? What could be said about progressive realisation?
  2. Introducing the presentation on Basic Needs as Basic Rights in Kenya, Salil Shetty defined a rights-based approach using the language of choices and opportunities as well as rights. The approach was attractive, particularly because it recognised the universality and enforceability of rights, and also because it provided a coherent framework for poverty reduction strategies.
  3. In Kenya, a group of national and international NGOs had collaborated on the production of a Basic Rights Charter, proposing the inclusion of economic, social and cultural rights within an expanded Bill of Rights in the new constitution of Kenya. The rights covered included food, education, health, water, shelter, information and security. The intention was that the state should act as guarantor of basic rights, and that people should be empowered to claim basic rights. The Charter had been launched to coincide with the 50th anniversary of the Universal Declaration of Human Rights, in November 1998.
  4. The Charter had opened up an important new arena for dialogue, on three fronts:

(a) the link between the Charter and agreements signed by the Government, like the Universal Declaration, and the Convention on the Rights of the Child;

(b) links to national policy;

(c) links to the activities of aid donors, particularly through documents like the World Bank Country Assistance Strategy and the Policy Framework Paper.

  1. The Steering Committee had already undertaken a wide range of activities associated with the charter, including commissioning an opinion survey on basic rights. Its programme of work included promotion of the charter, and the development of proposals to monitor the achievement of rights (a kind of ‘basic rights watch’).
  2. Reflecting on the activity to date, Salil Shetty stressed positive aspects, including the contextual setting, the contribution of the exercise to creating a coalition of support for basic rights, and the value of information sharing. He identified issues for discussion, including questions about the value added of a rights approach, who decides on rights, enforceability, and the statecentric implications of underwriting basic needs in this way. He also signalled the potential political problems arising for agencies engaging in this kind of work.
  3. The discussion concentrated on eight main points.

(i) There was widespread recognition of the contribution that a rights-based approach could make to advocacy, though it was also recognised that similar issues could be raised by other means (for example the international development targets).

(ii) However, there was debate about whether a rights-based approach had genuine value added if it did not imply justiciablity and accountability. Some participants thought that advocacy on its own would be sufficient. Others wanted a more structured interpretation.

(iii) If this was so, many participants noted that it would be difficult to enshrine justicable basic rights, given political constraints and lack of resources. The legal framework existed in the international treaties, and there were some examples of constitutions which made provision for basic rights (South Africa was cited). However, there was little experience of citizens claiming rights such as food and shelter through the courts.

(iv)There were also international implications. The question of who were the ‘duty bearers’ was important. Did responsibility rest only with national governments, or did the international community also bear some responsibility. It the latter was true, there were very large implications for aid donors, particularly at a time of falling resources.

(v) Some felt that the problem could be tackled by focusing on the ‘progressive realisation’ of rights. However, others felt that this language provided an undesirable escape clause in the acceptance of accountability.

(vi) Even if these problems could be overcome, some participants pointed out that there were limits to state action. The language of responsibilities as well as rights suggested that individuals and families bore some responsibility for food, shelter, and the other basic needs enshrined as rights.

(vii) It was also true that there were other approaches to be considered apart from the punitive framework provided by law. For example, there had been interesting experiments with scorecards, ‘naming and shaming’, and other devices to improve public accountability.

(viii) Finally, there were a number of reflections on the Kenya case; the high degree of inequality in the country was noted, and the value of a basic rights campaign in creating political dialogue was emphasised.