| dc.description.abstract | This work is an attempt to investigate why, inspite of the existing and elaborate constitutional and legal framework for the protection of fundamental rights and freedoms of the individual, these rights are not being adequately vindicated. The thesis starts off by examining the historical and philosophical foundations of human rights, and proceeds to outline the constitutional and legal framework for the articulation and protection of the said rights in Kenya. The core constitutional provision in the protection of fundamental rights and freedoms is s.84 of the Constitution of Kenya. Section 84(i) guarantees every individual whose rights have been, are being or are likely to be infringed upon, access to the High Court for redress.
Under s.84(2), the High Court may make any orders, issue any writs, and give such directions as it may deem appropriate ~or the purpose of enforcing the rights and freedoms enshrined in the Bill of Rights in Chapter V of the Constitution. On that basis, it appears that the rights and freedoms of the individual are secure because they can be vindicated by the courts. But from the discussions in chapter two, it will be demonstrated that the courts have ousted their own
j~ridiction and in the process haye ﾷsacrificed the redressing of violated rights and freedoms. This state of-affairs results from the adoption by the courts of a narrow and legalistic construction of the provisions of the Bill of Rights.
It is clear from the discussions in this chapter that the courts in Kenya will have to adopt a broader and more liberal approach to constitutional interpretation in order to ﾣacilitate the maximum enjoyment by the individual of his basic rights and freedoms. That is the position prevailing in other jurisdictions with similar constitutional provisions as Kenya. Beside the need to adopt the suggested broad approach to constitutional - interpretation by the courts, certain other circumstances which whittle down the independence of the judiciary must be addressed. They include the existing flawed procedure. for the appointment and removal of judges; the question of security of tenure for judges; poor terms of service for the judiciary; the existence of contract judges; political interference by the Executive with the courts' judicial function, and finally, the inability of judges to individually and collectively assert t~eir judicial independence.
'
These matters are discussed in chapter three. In chapter four we discuss the judiciary and its intervention in the protection o{ furdamental rights and freedoms in the new era of multi-party democracy which was ushered in by the abolition of the one-party system on December 10, 1991. The expectations of Kenyans were that the machinery for the protection of their basic rights and freedoms would improve with the advent of multi-partyism. But as will be observed in chapter four, there has been no significant orﾷ meaningful improvement yet, due to the apparent Government~s resolve to maintain the status guo of the single party era. For this reason, we hope and trust that the Government will implement the recommendations we make in chapter five for the sake of greater justice and freedom within Kenya. In chapter five we make some conclusions.
The first of the major ones is that Kenya~s poor record of observance of human rights is as a result of the courts~ failure to zealously protect these rights. The courts lack judicial independence; thus they are easily emasculated by the Executive. Secondly, security of tenure for judges is elusive. This also compromises judicial independence at the cost of protecting fundamental rights and freedoms. Thirdly, we make a finding that there are flaws in the present law on the protection of fundamental rights and freedoms. One major flaw is the existence of legislation, such as, fo~ example, Iha Preservation of Public Security Act and-The Public Order which clearly derogate the constitutionally The other flaw is the guaranteed rights and freedoms. fact that the Court of Appeal has no jurisdiction to hear an appeal from the decision of the High Court given in the latter~s exercise of its jurisdiction given under B.84 of the Constitution. We have made certain recommendations in chapter five in the light of these conclusions. | en_US |
