E/C.12/KEN/CO/2-5
C.
Principal subjects of concern and recommendations
Domestic application of the Covenant
5.
The Committee is concerned that there has been a long delay in adopting legislation
and policies that are crucial to the realization of the economic, social and cultural rights
enshrined in the Constitution. It is also concerned at the failure of the State party to comply
with many court rulings.
6.
The Committee urges the State party to expedite the adoption of pending
legislation and policies, including the Community Land Bill, the Social Protection Bill,
the Water Bill, the Housing Bill, the Health Bill and the National Social Health
Insurance Fund Bill, to give full effect to the economic, social and cultural rights
enshrined in its Constitution. It also recommends that the State party implement the
decisions of its courts without delay.
7.
The Committee is concerned at the provisions of section 21 (4) of the Government
Proceedings Act, which essentially provide impunity to the State party when a monetary
award is made against it in favour of an aggrieved party, by way of damages or costs, as is
the case in Ibrahim Sangor Osman v. Minister for Provincial Administration and Internal
Security.
8.
The Committee urges the State party to repeal section 21 (4) of the Government
Proceedings Act, since it places the State party above the law in that it does not oblige
the State party to comply with court orders and it infringes the rights to equality and
the right of access to courts in that it denies the right of an effective remedy in case of
a violation by the State party of the economic, social and cultural rights of an
aggrieved party.
Legal aid
9.
While noting the introduction of the National Legal Aid and Awareness Programme,
the Committee is concerned at the insufficient resources allocated to the Programme. The
Committee is also concerned that access to free legal aid is still very limited, making it
difficult for disadvantaged and marginalized individuals to claim their economic social and
cultural rights.
10.
The Committee recommends that the State party expedite the adoption of the
Legal Aid Bill, expand the National Legal Aid and Awareness Programme and
allocate sufficient resources to the Programme so that disadvantaged and
marginalized individuals, particularly indigenous peoples, women, people living in
rural areas and urban informal settlements, are able to claim their economic, social
and cultural rights.
Internally displaced persons
11.
While noting the measures taken by the State party to reintegrate or resettle persons
displaced as a result of the 2007/2008 post-election inter-ethnic violence, the Committee is
concerned that the Truth, Justice and Reconciliation Commission’s recommendations have
not been fully implemented and that those internally displaced persons continue to face
difficulties in enjoying their economic, social and cultural rights. The Committee is also
concerned at the overall lack of implementation of the economic, social and cultural rights
of internally displaced persons in the State party, resulting from intercommunal conflicts,
disasters and development and environment preservation projects, in particular:
(a)
The absence of a comprehensive registration system, which leaves most
internally displaced persons unregistered, unprotected and unsupported;
2