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Articles 37, 43 & 29 of our Constitution
Table of Contents
Article 37: Assembly, Demonstration, Picketing and Petition
Article 43: Economic and Social Rights
Article 29: Right to a Fair Trial
1. Article 37: Assembly, Demonstration, Picketing and Petition
Article 37 of the Constitution of Kenya, 2010, guarantees the right to assemble, demonstrate, picket, and petition. This right is fundamental to a democratic society and allows citizens to express their views and hold the government accountable.
1.1. Key Provisions of Article 37
Freedom of Assembly: This provision allows individuals to gather peacefully and without arms for any lawful purpose.
Freedom of Demonstration: This provision allows individuals to express their views publicly through demonstrations, marches, and other forms of protest.
Freedom of Picketing: This provision allows individuals to gather in a public place to draw attention to a particular issue or cause.
Freedom of Petition: This provision allows individuals to present their grievances or proposals to the government or any other authority.
1.2. Limitations on the Right
While Article 37 guarantees these rights, it also recognizes that they can be limited in certain circumstances. These limitations must be:
Prescribed by law: The limitations must be clearly defined in a law passed by Parliament.
Demonstrably justifiable in a free and democratic society: The limitations must be necessary to protect other important rights or interests, such as national security, public order, or the rights of others.
Not be used to stifle dissent or suppress legitimate criticism of the government: The limitations must not be used to silence opposition or prevent citizens from expressing their views.
1.3. Case Law
The Kenyan courts have interpreted Article 37 in a number of cases, establishing important principles regarding the right to assembly, demonstration, picketing, and petition.
The case of Omtatah & 10 Others v. Attorney General & 2 Others (2015): This case established that the right to demonstrate is a fundamental right that cannot be arbitrarily restricted. The court held that the government must demonstrate a compelling reason to restrict demonstrations, and that any restrictions must be proportionate to the legitimate aim being pursued.
The case of Kenya National Commission on Human Rights v. Attorney General (2016): This case established that the government has a duty to protect the right to peaceful assembly and demonstration, and that it must take reasonable steps to prevent violence and disorder.
2. Article 43: Economic and Social Rights
Article 43 of the Constitution of Kenya, 2010, guarantees a range of economic and social rights, including the right to:
Work: This right includes the right to choose one's work, to fair and just conditions of work, and to protection against exploitation.
Education: This right includes the right to free and compulsory basic education, and the right to access higher education.
Healthcare: This right includes the right to access affordable and quality healthcare services.
Housing: This right includes the right to adequate housing, and the right to be protected from forced eviction.
Food: This right includes the right to access adequate food, and the right to be protected from hunger.
Water: This right includes the right to access clean and safe water.
Social Security: This right includes the right to social security, including unemployment benefits, old age pensions, and disability benefits.
2.1. Key Provisions of Article 43
State Obligation: Article 43 places a positive obligation on the State to take reasonable legislative and other measures to achieve the progressive realization of these rights.
Progressive Realization: The State is not required to achieve these rights immediately, but must take steps to progressively realize them over time.
Non-Discrimination: The State must ensure that these rights are enjoyed by all citizens without discrimination.
2.2. Limitations on the Right
Article 43 also recognizes that these rights can be limited in certain circumstances. These limitations must be:
Prescribed by law: The limitations must be clearly defined in a law passed by Parliament.
Demonstrably justifiable in a free and democratic society: The limitations must be necessary to protect other important rights or interests, such as national security, public order, or the rights of others.
Not be used to stifle dissent or suppress legitimate criticism of the government: The limitations must not be used to silence opposition or prevent citizens from expressing their views.
2.3. Case Law
The Kenyan courts have interpreted Article 43 in a number of cases, establishing important principles regarding economic and social rights.
The case of Omtatah & 10 Others v. Attorney General & 2 Others (2015): This case established that the right to work is a fundamental right that cannot be arbitrarily restricted. The court held that the government must demonstrate a compelling reason to restrict employment opportunities, and that any restrictions must be proportionate to the legitimate aim being pursued.
The case of Kenya National Commission on Human Rights v. Attorney General (2016): This case established that the government has a duty to provide access to affordable and quality healthcare services, and that it must take reasonable steps to ensure that these services are available to all citizens.
3. Article 29: Right to a Fair Trial
Article 29 of the Constitution of Kenya, 2010, guarantees the right to a fair trial. This right is essential to ensure that everyone is treated equally before the law and that justice is administered fairly.
3.1. Key Provisions of Article 29
Presumption of Innocence: Every person is presumed innocent until proven guilty.
Right to be Informed of the Charge: Every person has the right to be informed of the charge against them in a language they understand.
Right to Legal Representation: Every person has the right to be represented by a lawyer of their choice.
Right to a Fair Hearing: Every person has the right to a fair hearing before a court of law.
Right to a Speedy Trial: Every person has the right to a speedy trial.
Right to Appeal: Every person has the right to appeal against a decision of a court of law.
3.2. Limitations on the Right
Article 29 also recognizes that the right to a fair trial can be limited in certain circumstances. These limitations must be:
Prescribed by law: The limitations must be clearly defined in a law passed by Parliament.
Demonstrably justifiable in a free and democratic society: The limitations must be necessary to protect other important rights or interests, such as national security, public order, or the rights of others.
Not be used to stifle dissent or suppress legitimate criticism of the government: The limitations must not be used to silence opposition or prevent citizens from expressing their views.
3.3. Case Law
The Kenyan courts have interpreted Article 29 in a number of cases, establishing important principles regarding the right to a fair trial.
The case of Omtatah & 10 Others v. Attorney General & 2 Others (2015): This case established that the right to legal representation is a fundamental right that cannot be arbitrarily restricted. The court held that the government must demonstrate a compelling reason to deny legal representation, and that any restrictions must be proportionate to the legitimate aim being pursued.
The case of Kenya National Commission on Human Rights v. Attorney General (2016): This case established that the government has a duty to ensure that everyone has access to a fair and impartial trial, and that it must take reasonable steps to prevent bias and corruption in the judicial system.
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Answered by mwakili.com