Human rights and democratic

governance in Kenya:
A post-2007 appraisal

Morris Kiwinda Mbondenyi

LLD, LLM (UNISA), LLB (Moi), Dip. Law (KSL)
Associate Professor of Law, Africa Nazarene University

Evelyne Owiye Asaala

LLM (Pretoria), LLB (Nairobi)
Lecturer in Law, University of Nairobi

Tom Kabau
PhD (Hong Kong), LLM, LLB (Nairobi), Dip. Law (KSL)
Senior Lecturer in Law, Africa Nazarene University

Attiya Waris
PhD (Lancaster), LLM (Pretoria), LLM (London), LLB (Nairobi)
Senior Lecturer in Law, University of Nairobi

2015

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 2
CHAPTER
A NEW ERA IN HUMAN RIGHTS
PROMOTION AND PROTECTION
IN KENYA? AN ANALYSIS OF THE
SALIENT FEATURES OF THE 2010
CONSTITUTION’S BILL OF RIGHTS

John Osogo Ambani

Morris Kiwinda Mbondenyi

1 Introduction

One dominant view holds that human rights are those entitlements which
become due to every human person at the commencement of life. Thus,
the only qualification for earning them is the act simply of being human. It
follows that rights are not granted by government(s) but accrue to human
beings naturally.1 Law and governments only affirm this reality. Because
of their centrality to human worth and dignity, rights have become an
important subject and pillar of contemporary constitutions. The issue of
their recognition, promotion and protection is generally given centre-
stage.2 Indeed, as Mutakha-Kangu observes, most countries claim to be
founded upon a jurisprudence and culture of protection and promotion of
fundamental rights and freedoms.3 Constitutions are therefore judged
based on how effectively they secure fundamental human rights and
liberties. In the modern society, it is becoming increasingly difficult to
fathom a constitution without a Bill of Rights.

So crucial are human rights that in Kenya’s context the problems of the
Bill of Rights in the repealed Constitution were a prominent reason why
the people opted for a review of the Constitution in the first place. There
are several accounts why the preceding Bill of Rights was invariably
considered retrogressive and obsolete. One explanation is that the chapter
of the Bill of Rights4 was replete with limitations, whose enormity had
rendered the enjoyment of human rights peripheral. A writer noted of the
repealed Bill of Rights thus:

1 The 2010 Constitution at art 19(3)(a) takes cognisance of the fact that rights and
fundamental freedoms ‘belong to each individual and are not granted by the State’.
2 J Mutakha-Kangu ‘The theory and design of limitation of fundamental rights and
freedoms’ (2008) 4 The Law Society of Kenya Journal 1.
3 As above.
4 See Chapter V of the repealed Constitution on ‘protection of fundamental rights and
freedoms of the individual’.

17

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18 Chapter 2

Indeed, one of the biggest problems with fundamental human rights in Kenya
stems from the issue of limitation of rights. The Kenyan Bill of Rights has
even been described as a bill of exceptions rather than rights.5

True, the Bill of Rights was littered with ‘claw-back’ clauses which often
defeated the very essence of guaranteeing human rights.6 Hiding behind
the internal limitations assigned specific rights as well as the general
limitation clause entailing that rights would be restricted for greater public
interests,7 for example, of public safety, security and health,8 state
authorities tended to restrict rather than promote and protect human
rights. Due to these limitation clauses, the Bill of Rights ended up taking
away rights more than it guaranteed them.9

The ‘claw back’ clauses also found favour in the manner in which the
repealed Constitution was interpreted. The judiciary, which was entrusted
with the task of protecting fundamental rights and individual liberties, had
adopted a very restrictive approach to human rights litigation and
constitutional interpretation. In one instance, the High Court dismissed an
applicant’s pleadings on the technical ground simply that he did not

5 Mutakha-Kangu (n 2 above).
6 The following excerpt from the repealed Constitution is illustrative of how rights
would be provided for and limited extensively within the same clause in what came to
be called ‘claw back’ clauses. Section 80, for instance, read:
‘(1) Except with his own consent, no person shall be hindered in the enjoyment
of his freedom of assembly and association, that is to say, his right to assemble
freely and associate with other persons and in particular to form or belong to
trade unions or other associations for the protection of his interests.
(2) Nothing contained in or done under the authority of any law shall be held
to be inconsistent with or in contravention of this section to the extent that the
law in question makes provision -
(a) that is reasonably required in the interests of defence, public safety, public
order, public morality or public health;
(b) that is reasonably required for the purpose of protecting the rights or
freedoms of other persons;
(c) that imposes restrictions upon public officers, members of a disciplined
force, or persons in the service of a local government authority; or
(d) for the registration of trade unions and associations of trade unions in a
register established by or under any law, and for imposing reasonable
conditions relating to the requirements for entry on such a register (including
conditions as to the minimum number of persons necessary to constitute a
trade union qualified for registration, or of members necessary to constitute an
association of trade unions qualified for registration, and conditions whereby
registration may be refused on the grounds that another trade union already
registered or association of trade unions already registered, as the case may be,
is sufficiently representative of the whole or of a substantial proportion of the
interests in respect of which registration of a trade union or association of trade
unions is sought), and except so far as that provision or, as the case may be, the
thing done under the authority thereof is shown not to be reasonably justifiable
in a democratic society.’
7 Repealed Constitution, sec 70.
8 See for example the limitations in sec 81(3)(a) & (b) of the repealed Constitution.
9 WV Mitullah et al Kenya’s democratisation: Gains or losses? Appraising the post Kanu state of
affairs (2005) 3.

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 An analysis of the salient features of the 2010 Constitution’s Bill of Rights 19

identify which constitutional provision had been contravened.10 In Koigi

wa Wamwere v Attorney General,11 the Court held that section 72 of the
Constitution protected the fundamental right to liberty, but did not specify
the manner in which arrests could be made, or where such arrests could be
effected. The tribunal declined to concern itself with extradition or the
manner in which police officers carry out their duties.

Regarding the general approach to constitutional interpretation, in

Republic v Elman,12 the High Court early on set the precedent that the
Constitution is to be taken as any other piece of legislation and ought to be
interpreted in a strict, rigid, legalistic and conservative manner which was
to the detriment of human rights. That position, however, seemed to
change during the last days of the old constitutional order.

Within the decade prior to the 2010 Constitution, there were many
other progressive judicial precedents although it was still difficult to
establish a trend. For instance, in Roy Richard Elirema and Another v
Republic,13 a superior court of record held, inter alia, that the right to fair
trial means that one must be prosecuted by a competent person. In George
Ngothe Juma and two Others v Attorney General,14 the High Court held that an
accused person had the right to access prosecution’s information relating
to the charge in advance, especially witness statements, to be able to
adequately prepare his/her defence. The challenge, however, was that the
judiciary never evolved a certain and predictable philosophy to guide in the
interpretation of the Bill of Rights, and the realisation of rights remained a
coincidence rather than a guarantee. A writer correctly observed:

That the issue of the proper approach to constitutional interpretation has

haunted Kenyan courts for as long as we have been independent … the courts
adopted an unprincipled, eclectic, vague, pedantic, inconsistent and
conservative approach to constitutional interpretation.15

While Chapter V of the repealed Constitution contained provisions

relating to the protection of fundamental rights and freedoms and the
circumstances for derogation, these entitlements were limited to the
traditional civil and political rights and did not expressly encompass other
fairly important genres of rights like socio-economic rights, women’s
rights, children’s rights, rights of persons with disabilities or even concerns
such as non discrimination of persons with HIV/AIDS. For example,

10 Kenneth Njindo Matiba v The Attorney General HCCC Misc Application No 666 of 1990.
11 Koigi wa Wamwere v Attorney General Misc Application NC No 574/90.
12 Republic v Elman [1969] EA 357.
13 Roy Richard Elirema and Another v Republic Nairobi Criminal Appeal No 67 of 2002.
14 George Ngothe Juma and two Others v Attorney General Nairobi High Court Misc
Application No 34 of 2001.
15 M Thiankolu ‘Landmarks from El Mann to the Saitoti ruling: Searching a philosophy
of constitutional interpretation in Kenya’ 7 www.kenyalaw.org (accessed 22 May
2014). See, also, G Muigai ‘Political jurisprudence or neutral principles: Another look
at the problem of constitutional interpretation’ (2004) East African Law Journal 1.

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20 Chapter 2

despite ratifying the International Covenant on Economic Social and

Cultural Rights (CESCR),16 the state hardly took any deliberate legislative
steps to wholly domesticate its obligations under the Treaty.17 Socio-
economic rights were neither contained in the former Constitution nor in
a separate Bill of Rights. Moreover, judicial tribunals did not play a critical
role in their enforcement using the international instruments ratified by the
state. It was therefore an accurate assessment that:

The scope of the human rights protections is rather limited, in terms of those
who are protected, in the types of rights protected and in the range of those
who are bound by the duties associated with the rights. There is no provision
of social and economic rights; and nothing to ensure the basic needs of
Kenyans. There is nothing on solidarity rights (peace, development, or
environment). Such cultural rights as exist are somewhat negative; culture, in
the form of customary law, justifies exceptions to equality rights, which
mainly disadvantages girls and women. There are no special provisions for
minorities; the Constitution says nothing about the rights of the child, the
elderly or disabled persons; the protection against discrimination applies only
to citizens of Kenya. Even in the area of civil and political rights, not all are
protected: for example there is no recognition of privacy, or rights of political
or other forms of people’s participation’; the right of an accused to fair trial
does not oblige the state to provide a lawyer to the accused even in cases
where the death penalty may be imposed. Many modern constitutions are
more explicit in the rights of particular sections of society, which in the
Kenyan context should include pastoral communities, consumers, prisoners
and people on remand, refugees, trade unionists. It does not give citizens a
right to obtain information held by the government and thus minimises
opportunities for people to scrutinise the efficiency, integrity and honesty of
public authorities.18

Hansungule was equally correct when he commented:

The current Constitution is not exactly ‘human rights friendly’. Since 1963,
Kenya has ratified or acceded to a number of international and regional
human rights instruments which have increased the range of human rights
standards designed to benefit the people. For example, there are now specific
protections of women’s rights as well as those of children in international
conventions and declarations, which are not captured in the post colonial
constitution of Kenya. In theory, at least, Kenya has a Bill of Rights just like
any other country with a written constitution. However, in practice, the Bill,
far from reflecting the interests of the ordinary Kenyans, represents the
parochial interests of the ruling class.19

16 International Covenant on Economic Social and Cultural Rights (CESCR) Adopted

by the UN General Assembly on 16 December 1966, entry into force 3 January 1976;
acceded to by Kenya on 1 May 1972.
17 Concluding observations of the Committee on Economic, Social and Cultural Rights:
Kenya (3 June 1993) UN Doc E/C.12/1993/6 (1993) para 10.
18 Constitution of Kenya Review Commission (CKRC) ‘The peoples’ choice: Report of
the Constitution of Kenya Review Commission’ (2002) 35.
19 M Hansungule ‘Kenya’s unsteady march towards the lane of constitutionalism’ (2003)
1 University of Nairobi Law Journal 43.

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 An analysis of the salient features of the 2010 Constitution’s Bill of Rights 21

Kenya’s repealed constitutional dispensation also fell far below the ‘equal
protection’ threshold in at least three cardinal respects. First, although the
Constitution prohibited discrimination on a number of grounds,
differentiation (especially on the basis of gender) was permitted in matters
of personal law such as adoption, marriage, divorce, burial and devolution
of property on death.20 Second, the repealed Constitution did not list
exhaustively the grounds upon which discriminated was proscribed.
Glaringly omitted from this Constitution were exclusions on the grounds
of disability, health status, sexual orientation, to list but a few. It is
important to point out however, that a number of ‘sectoral’ legislations
were later enacted to cater for some other categories of people who were
not sufficiently protected constitutionally. Such categories include persons
with disabilities, whose needs are addressed by the Persons with
Disabilities Act,21 persons with HIV/AIDS, through the HIV/AIDS
Prevention and Coordination Act,22 women, through the National
Commission on Gender and Development Act23 and children, through the
Children Act.24 These sectoral approaches to equality and human rights
were hardly successful hence the desire for a comprehensive equality and
non-discrimination law.

Third, affirmative action, as a substantive equality principle, was

without constitutional expression in Kenya. The Bill of Rights was further
faulted as inadequate by modern standards, because its enforcement
procedures and institutions were wanting.25 The repealed Constitution
had no specialised bodies like an Ombudsman or Human Rights
Commission for promoting or enforcing rights; there was no proper legal
aid to enforce rights, and few effective remedies.26

The central argument in this chapter therefore is that the 2010

Constitution encompasses a robust Bill of Rights whose provisions surpass
those that subsisted in the repealed Constitution. The second part of this
chapter analyses the salient features of the 2010 Constitution’s Bill of
Rights with a view to vindicate the argument that Kenya is indeed
experiencing a new dawn in the promotion and protection of human
rights. The third part of the chapter concludes the analysis.

20 Repealed Constitution, sec 82(4)(b).

21 Persons with Disabilities Act, 2003.
22 HIV/AIDS Prevention and Coordination Act, 2006.
23 National Commission on Gender and Development Act, 2003.
24 Children Act, 2001.
25 Constitution of Kenya Review Commission (n 18 above).
26 As above.

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22 Chapter 2

2 Salient features of the 2010 Constitution’s Bill of

Rights

Under the 2010 Constitution, the Bill of Rights is presented as an integral

part of Kenya’s democracy and the framework for social, economic and
cultural policies.27 It thus has both juridical and extra-juridical utility.
Applied in the later form, it runs beyond the precincts of the law and
judicial tribunals to be the thread that weaves through national policies and
agenda. This is consistent with the purpose of the Bill of Rights which is
‘to preserve the dignity of individuals and communities and to promote
social justice and the realisation of the potential of all human beings’.28
The Bill of Rights is envisioned to have all round application.

Compared to the Bill of Rights in the repealed Constitution or those in

many other contemporary jurisdictions, the Bill of Rights in the 2010
Constitution is unique in a number of critical respects. It exhibits the
following salient features – it has an exhaustive catalogue of entitlements,
contains the different genres of human rights; provides for an expansive
‘non-discrimination clause’; expresses regard for substantive equality
(affirmative action); reserves certain rights from derogation; carries special
regulation of emergencies; espouses a conservative strain of moral
philosophy; opts for a centralised limitation clause as opposed to multiple
internal limitation clauses; and has both vertical and horizontal
implications. The Bill of Rights also comes with viable enforcement
apparatuses. These salient features are systematically analysed below.

2.1 Bill of Rights as a near exhaustive catalogue of

entitlements

The new Bill of Rights contains a most exhaustive catalogue of human

rights. These entitlements include the right(s) to: life, equality and freedom
from discrimination, human dignity, freedom and security of the person,
slavery, servitude and forced labour, privacy, freedom of conscience,
religion, belief and opinion, freedom of expression, freedom of the media,
access to information, freedom of association, assembly, demonstration,
picketing and petition, political rights, freedom of movement and
residence, protection of the right to property, labour relations,
environment, economic and social rights, language and culture, family,
consumer rights, fair administrative action, and access to justice.29 In
addition, the Bill of Rights has elaborate protection of arrested persons,30

27 2010 Constitution, art 19(1).

28 2010 Constitution, art 19(2).
29 See, 2010 Constitution, arts 26 to 48.
30 2010 Constitution, art 49.

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 An analysis of the salient features of the 2010 Constitution’s Bill of Rights 23

the right to a fair hearing31 and the rights of persons detained, held in
custody or imprisoned.32 There is express and specific protection of
children,33 persons with disabilities,34 youth,35 minorities and
marginalised groups36 and older members of society.37

The 2010 Constitution defies the nomenclature of human rights into

generations. Indeed, it is accurate to describe the new Bill of Rights as a
collage of all generations and genres of human rights, a rare development
in municipal law. In addition to the usual civil and political rights, it also
carries social and economic rights like the right to the highest attainable
standard of health;38 the right to accessible and adequate housing, and to
reasonable standards of sanitation;39 the right to be free from hunger, and
to have adequate food of acceptable quality;40 the right to clean and safe
water in adequate quantities;41 the right to benefit from social security;42
and the right to education.43 As noted above, there is further protection of
environmental rights in addition to other special and specific rights of
children, youth, women, and the elderly, amongst others. Provision is also
made for consumer rights setting the Bill of Rights apart from many others.

According to a traditional categorisation of human rights, often

ascribed to the French jurist Karel Vasak,44 human rights unveiled at
different epochs along the three-dimensional call of the French revolution,
to wit, liberte, equalite, and fraternite. First to arise were what are now called
‘first generation’ rights. They are also referred to as civil and political
rights. There then emerged ‘second generation’ rights, or social and
economic rights. The human rights discourse, according to this
dichotomy, has lately witnessed yet another facet of entitlements termed
‘group’, ‘solidarity’ or ‘third generation’ rights. All these categories
collectively grace the Bill of Rights which is seldom for municipal
constitutions. The rights could be enjoyed individually (individuals’ rights)
or collectively (group or collective rights).

Noteworthy, while civil and political rights mostly impose restraints

on the exercise of state power and are therefore ‘negative’ rights, socio-

31 2010 Constitution, art 50.

32 2010 Constitution, art 51.
33 2010 Constitution, art 53.
34 2010 Constitution, art 54.
35 2010 Constitution, art 55.
36 2010 Constitution, art 56.
37 2010 Constitution, art 57.
38 2010 Constitution, art 43(1)(a).
39 2010 Constitution, art 43(1)(b).
40 2010 Constitution, art 43(1)(c).
41 2010 Constitution, art 43(1)(d)
42 2010 Constitution, art 43(1)(e).
43 2010 Constitution, art 43(1)(f).
44 The categorisation of rights into generations is often ascribed to Karel Vasak. See this
classification in, for example, PC Aka ‘The military, globalisation and human rights in
Africa’ (2002) New York Law School Journal of Human Rights 361.

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24 Chapter 2

economic rights tend to extend the scope of state activities, translating

them into ‘positive’ rights.45 Therefore, the inclusion of all generations of
human rights in the Bill of Rights underscores the fact that one category of
rights cannot survive without the other. This development is in line with
the prevailing wisdom which claims that human rights are interrelated,
interdependent, interconnected and equal in status.46

2.2 Bill of Rights with an expansive ‘non-discrimination

clause’

In the new Bill of Rights, discrimination, whether direct or indirect, is

prohibited. The Constitution lists grounds for such discrimination to
include race, sex, pregnancy, marital status, health status, ethnic or social
origin, colour, age, disability, religion, conscience, belief, culture, dress,
language or birth.47 This menu is broad when compared to the repealed
Constitution which only listed race, tribe, place of origin or residence or
other local connection, political opinions, colour, creed or sex.48 The
repealed Constitution curiously omitted the very crucial grounds of
pregnancy, marital status, health status, age, disability, conscience, belief,
and dress amongst others. Liberal critics may however, still fault the new
Bill of Right’s non-discrimination clause for not including ‘sexual
orientation’ as is the case in South Africa.49

Litigating the non-discrimination clause may present problems

especially where the litigant(s) claims to be differentiated on the basis of a
ground not expressly listed. Such a case may beg the questions: are the
grounds listed under the ‘non-discrimination clause’ exhaustive? Are there
other possible areas of discrimination not anticipated but which qualify for
protection? Most certainly, these are pertinent questions to be determined
by superior courts of record preferably by way of development of
progressive jurisprudence. Judicial officers confronted with these issues
may take cue from South Africa’s Constitutional Court which as a matter
of principle does not condone differentiation of any kind on the listed
grounds ‘unless it is established that the discrimination is fair’.50 But where
the distinction is not listed, the Constitutional Court takes the
differentiation in question through a rigorous fairness test. The stages
entailed in such an enquiry were enumerated in Harksen v Lane NO51 in the
following terms:52

45 W Eno ‘The African Commission on Human and Peoples’ Rights as an instrument for
the protection of human rights in Africa’ LLM thesis, University of South Africa, 1998
7.
46 See art 5 of the Vienna Declaration and Programme of Action.
47 2010 Constitution, art 27(4) and (5).
48 Repealed Constitution, sec 70 and 82(3).
49 See Constitution of the Republic of South Africa, 1996, sec 9.
50 Constitution of the Republic of South Africa, sec 9(5).
51 Harksen v Lane NO 1998 (1) SA 300 (CC) para 53.
52 I Currie & J de Waal The human rights handbook (2005) 235.

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 An analysis of the salient features of the 2010 Constitution’s Bill of Rights 25

(a) Does the challenged law or conduct differentiate between people or

categories of people? If so, does the differentiation bear a rational
connection to a legitimate government purpose? If it does not, then there
is a violation of s 9(1). Even if it does bear a rational connection, it might
nevertheless amount to discrimination.
(b) Does the differentiation amount to unfair discrimination? This requires a
two-stage analysis:
(i) Firstly, does the differentiation amount to ‘discrimination’? If it is on a
specified ground, then discrimination will have been established. If it is
not on a specified ground, then whether or not there is discrimination
will depend upon whether, objectively, the ground is based on attributes
and characteristics that have the potential to impair the fundamental
human dignity of persons as human beings or to affect them adversely in
a comparably serious manner.
(ii) If the differentiation amounts to ‘discrimination’, does it amount to
‘unfair discrimination’? If it has been found to have been on a specified
ground, then unfairness will be presumed. If on an unspecified ground,
unfairness will have to be established by the complainant. The test of
unfairness focuses primarily on the impact of the discrimination on the
complainant and others in his or her situation. If, at the end of this stage
of the enquiry, the differentiation is found not to be unfair, then there will
be no violation of s 9(3) and (4).
(c) If the discrimination is found to be unfair then a determination will have
to be made as to whether the provision can be justified under the
limitation clause.

2.3 Bill of Rights with regard for substantive equality

As is already explicit, it is now an accepted principle that the law should

treat all human beings equally.53 However, even with laws and policies
that provide for equality and non-discrimination per se it is still possible that
inequalities could thrive in the given society. This is because persons are
stationed differently and certain further remedial measures may be
required to attain real equality. For example, despite express recognition
of gender equality, women are hardly equal to men due to traditional,
cultural, and even legal distinctions which have conventionally
perpetrated the subordination of the female gender. Structurally reinforced
practices such as patriarchy and capitalism have traditionally led to an
unequal status for the sexes.54 Thus, certain measures are called for to
bring women and men on a par before (or as) usual equality procedures are
implemented. Often, the measures preferred take the form of affirmative
action. Affirmative action measures could also be useful in the
amelioration of other sections of society such as ethnic or racial minorities
who have suffered past discrimination and prejudices.

53 See, for instance, S Skogly ‘Article 2’ in G Alfredsson & A Eide (eds) The universal
declaration of human rights: A common standard of achievement (1999) 75.
54 As above.

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26 Chapter 2

These factors impel that the concept of equality be broken down into
two: procedural and substantive equality. Procedural or formal equality
implies that all sectors of society be treated equal in procedures and means.
It means sameness of treatment.55 With respect to legislation, ‘the law
must treat individuals in like circumstances alike’.56 Procedural equality
does not dig deeper to understand the society itself or the various stations
occupied by the actors upon whom the equality provisions have to be
exerted. Procedural equality might provide, for example, that ‘both men
and women have equal chance to vie for political office’. It may not go
further to address circumstances such as gender-based violence, patriarchy
and women’s economic subordination which might hinder their full
realisation of equal political rights.

On the other hand, substantive equality seeks to ensure that equality

provisions have impact ‒ both de jure and de facto. It ‘requires the law to
ensure equality of outcome and is prepared to tolerate disparity of
treatment to achieve this goal’.57 Substantive equality emanates from the
philosophy that justice is attained when equals are treated equally and
injustice when unequals are treated in like manner. Substantive equality
reckons, for instance, that while equal educational opportunities might be
constitutionally granted, there could be further need to address the
underlying cultures and limitations that may hinder girl child’s access to
education. Thus, substantive equality would insist on affirmative action
and other programmes such as social engineering to change society’s
perception about girl education. In other words, it

[r]equires an examination of the actual social and economic conditions of

groups and individuals in order to determine whether the Constitution’s
commitment to equality is being upheld. The results or effects of a particular
rule are highlighted rather than its mere form.58

This approach is salient throughout the 2010 Constitution. As an

overarching principle, the Bill of Rights obliges the state to take legislative
and other measures including affirmative action programmes and policies
designed to redress any disadvantage suffered by individuals or groups
because of past discrimination.59 Similarly, the state is required to take
legislative and other measures to implement the principle that not more
than two-thirds of the members of elective or appointive bodies shall be of
the same gender.60 Other constitutional measures aimed at substantive
equality include the provision for:

55 Currie & De Waal (n 52 above) 232.

56 As above.
57 Currie & De Waal (n 52 above) 233.
58 As above.
59 2010 Constitution, art 27(6).
60 2010 Constitution, art 27(8).

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 An analysis of the salient features of the 2010 Constitution’s Bill of Rights 27

(a) Affirmative action programmes designed to ensure that minorities and

marginalised groups participate and are represented in governance and
other spheres of life.61
(b) An electoral system that complies with inter alia the principle that not
more than two-thirds of the members of elective public bodies shall be of
the same gender as well as fair representation of persons with
disabilities.62
(c) Party lists comprising an appropriate number of qualified candidates and
which alternates between male and female candidates in the priority in
which they are listed; and (c) except in the case of county assembly seats,
each party list ought to reflects the regional and ethnic diversity of the
people of Kenya.63
(d) Respect, by every political party, of the right of all persons to participate
in the political process, including minorities and marginalised groups.64
(e) Respect and promotion of human rights and fundamental freedoms and
gender equality and equity65 by every political party.
(f) The membership of forty-seven women66 and twelve members
representatives of special interests (including the youth, persons with
disabilities and workers)67 in the National Assembly.68
(g) The nomination of sixteen women members to Senate69 and two further
members, being one man and one woman, representing the youth,70 in
addition to the nomination of two members, being one man and one
woman, representing persons with disabilities.71
(h) The enactment of legislation to promote the representation in Parliament
of ‒ (a) women; (b) persons with disabilities; (c) youth; (d) ethnic and
other minorities; and (e) marginalised communities.72
(i) The appointment of at least four women to the Parliamentary Service
Commission.73
(j) The representation of both genders in the Judicial Service Commission.74
(k) The promotion of gender equality in judicial service.75

61 2010 Constitution, art 56.

62 2010 Constitution, art 81.
63 2010 Constitution, art 90(2).
64 2010 Constitution, art 91(1)(e).
65 2010 Constitution, art 91(1)(f).
66 2010 Constitution, art 97(1)(b).
67 2010 Constitution, art 97(1)(c).
68 These members are in addition to two hundred and ninety members, each elected by
the registered voters of single member constituencies and the Speaker, who is an ex
officio member ‒ see 2010 Constitution, art 97(1)(a) & (d).
69 2010 Constitution, art 98(1)(b).
70 2010 Constitution, art 98(1)(c).
71 2010 Constitution, art 98(1)(d). Other members of the Senate are: forty-seven members
each elected by the registered voters of the counties, each county constituting a single
member constituency and (e) the Speaker, who shall be an ex officio member. See 2010
Constitution, art 98(1)(a) & (e).
72 2010 Constitution, art 100.
73 2010 Constitution, art 127(2)(c)(i), (ii) & (d).
74 2010 Constitution, art 171(2)(d), (f) & (h).
75 2010 Constitution, art 172(2)(b).

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28 Chapter 2

(l) A devolved system of government aimed inter alia at protecting and

promoting the interests and rights of minorities and marginalised
communities.76
(m) County governments reflecting inter alia the principle that no more than
two-thirds of the members of representative bodies in each county
government shall be of the same gender.77
(n) Special seats necessary to ensure that no more than two-thirds of the
membership of the respective county assembly is of the same gender.78
(o) The inclusion in county assemblies of a number of members of
marginalised groups, persons with disabilities and the youth as prescribed
by an Act of Parliament.79
(p) None inclusion of more than two-thirds of the members of any county
assembly or county executive committee from the same gender.80
(q) The requirement for the enactment of legislation to prescribe
mechanisms to protect minorities within counties.81
(r) The principle that the composition of the commissions and offices, taken
as a whole, shall reflect the regional and ethnic diversity of the people of
Kenya.82

These and similar stipulations have put Kenya in key with international
human rights standards such as the Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW) which, for instance,
allows for temporary special measures (affirmative action) to accelerate the
achievement of equality in practice between men and women,83 and
actions to modify social and cultural patterns that perpetuate
discrimination

with the view to achieving the elimination of prejudices and customary and
all other practices which are based on the idea of the inferiority or superiority
of either of the sexes or the stereotyped roles for men and women.84

2.4 Bill of Rights that saves certain rights from derogation

The rights enshrined in the 2010 Constitution may be derogated from with
the exception of the right to freedom from torture and cruel, inhuman or
degrading treatment or punishment; the right to freedom from slavery or
servitude; the right to a fair trial; and the right to an order of habeas corpus.85
This exclusion of certain rights from derogation, aside from being a unique

76 2010 Constitution, art 174(e).

77 2010 Constitution, art 175(c).
78 2010 Constitution, art 177(1)(b).
79 2010 Constitution, art 177(1)(c).
80 2010 Constitution, art 197(1).
81 2010 Constitution, art 197(2)(b).
82 2010 Constitution, art 150(4).
83 2010 Constitution, art 4.
84 2010 Constitution, art 5.
85 2010 Constitution, art 25.

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 An analysis of the salient features of the 2010 Constitution’s Bill of Rights 29

landmark in Kenya’s constitutional history, is also controversial.

Generally speaking, the idea of derogation from human rights during
emergencies is not inconsistent with international human rights law.
Under the framework of the International Covenant on Civil and Political
Rights (CCPR),86 for example,

derogations are allowed, but States are also required to immediately inform
the UN Secretary-General of the provisions from which they have derogated
and the reasons for their derogation. A similar communication must be made
when the derogation ends.87

Being party to this instrument, and international law having the force of
law locally,88 these requirements should be applicable in Kenya.
Regrettably, however, the rights saved from exclusion under the new Bill
of Rights are few and inexhaustive. The right to life;89 the right not to be
subjected to retroactive penal laws and the right to freedom of conscience
and religion are not exempted from derogation as required by the CCPR.90
South Africa, also a party to the CCPR, constitutionally protects more
human rights from derogation, namely:91 the right to equality,92 the right
to human dignity, the right to life, the right to freedom and security of
person,93 the right to protection from slavery, servitude and forced
labour,94 certain rights of children95 and rights of arrested, detained and
accused persons.96

Further, the derogation provisions of the Kenyan Bill of Rights put the
country at odds with the African human rights system and particularly the
African Charter on Human and Peoples’ Rights (African Charter).
Although the main regional instrument, the African Charter, is silent on
the effect of the suspension or derogation of rights,97 its treaty body, the
African Commission on Human and Peoples’ Rights (African
Commission), has made it clear that:

86 Kenya acceded to the CCPR on 1 May 1972.

87 F Viljoen International human rights law in Africa (2007) 251. See also 2010 Constitution,
art 4(3).
88 2010 Constitution, art 2(5) & (6).
89 Judge Emukule in Republic v John Kimita Mwaniki [2011] eKLR, was stunned that:
‘Strangely also, life is not one of those fundamental rights which may not be limited
under section 25 of the Constitution’.
90 Under art 4(2) of the CCPR the right to life; the prohibition on torture, slavery, forced
labour, application of retroactive penal laws and the right to freedom of conscience and
religion may under no circumstances be derogated from.
91 See Constitution of the Republic of South Africa, sec 37(5).
92 The right is non-derogable with respect to unfair discrimination solely on the grounds
of race, colour, ethnic or social origin, sex, religion or language.
93 The right is protected with respect to subsecs 1(d) and (e) and (2)(c) of art 12.
94 The right is protected with respect to slavery and servitude.
95 The following subsections of art 28 are protected (1)(d) and (e); 1(g)(i) and (ii) and 1(i)
with respect of children of 15 years and younger.
96 The following subsections of art 35 are protected: (1)(a), (b) and (c); 2(d); (3)(a) to (o),
excluding (d); (4) and (5) with respect to the exclusion of evidence if the admission of
that evidence would render the trial unfair.
97 Viljoen (n 87 above) 251.

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30 Chapter 2

The African Charter, unlike other human rights instruments, does not allow
for state parties to derogate from their treaty obligations during emergency
situations. Thus, even a civil war in Chad cannot be used as an excuse by the
State violating or permitting violations of rights in the African Charter.98

The African Commission has also held that ‘the suspension of the Bill of
Rights does not ipso facto mean the suspension of the domestic effect of the
Charter’.99 The apparent contradictions at both municipal and
international levels may pose challenges especially during review of the
state by the relevant treaty bodies as well as in the course of litigating the
Bill of Rights. An appropriate compromise, perhaps, would be to hold that
while the 2010 Constitution permits the derogation from certain rights in
particular contexts, the state has further international obligations not to
derogate from certain rights at the global level100 and ultimately it is
disallowed to derogate from almost all human rights at the regional level.
After all, any legislation enacted in consequence of a declaration of a state
of emergency has to be consistent with the Republic’s obligations under
international law applicable to a state of emergency.101

Overall, in the event that certain rights are suspended in accordance

with the 2010 Constitution, there is room to hold the state accountable for
slightly more non-derogable rights under the CCPR and for all the rights
provided for in the African Charter. State organs, officers and individuals
are answerable, at the municipal level, for the Bill of Rights and the state
is responsible internationally and regionally for her respective obligations.
Needless to mention, resort to derogation should be discouraged even in
extreme cases of emergency.

2.5 Bill of Rights that carries special regulation of emergencies

Seldom, situations arise in the life of a nation that seriously threatens its
security or stability.102 In response, a government may legitimately declare
a state of emergency and make emergency regulations designed to counter
the danger.103 The African Conference on the Rule of Law suggested that
emergency measures should be invoked only where regular operations of
authority are impossible.104 So long as a situation exists where authorities
can operate and the problems arising can be overcome, a state of
emergency may not be declared. In addition, the Conference resolved that

98 Communication 74/92, Commission Nationale des Droits de l’Homme et des Libertes v Chad
para 21.
99 See Gambian Coup case as cited in Viljoen (n 87 above) 252.
100 As discussed above, the CCPR bars states from derogating from more rights than those
in those reserved in the Bill of Rights.
101 2010 Constitution, art 58(6)(a)(ii).
102 J Hatchard et al Comparative constitutionalism and good governance in the commonwealth:
An Eastern and Southern African perspective (2004) 276.
103 As above.
104 See African Conference on the Rule of Law 1961 ‘Report on the Proceedings’ 162 as
cited in Hatchard et al (n 102 above).

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 An analysis of the salient features of the 2010 Constitution’s Bill of Rights 31

emergency measures should be exceptional only lasting the duration of the

national threat. Even more crucial, the reasons for the emergency must be
clearly articulated.

Sufficient safeguards have been taken in the regulation of emergencies.

For instance, although the declaration of a state of emergency may justify
the limitation of human rights, this is only to the extent that the limitation
is strictly required by the emergency and the legislation under which the
limitation is hinged is consistent with the Republic’s obligations under
international law applicable to a state of emergency. The Bill of Rights
makes it clear that no limitation shall take effect until it is published in the
Gazette.105

Efforts are also made to ensure that emergency situations occur rarely
and are short-lived if they have to happen. A state of emergency may be
declared only when the state is threatened by war, invasion, general
insurrection, disorder, natural disaster or other public emergency and the
declaration is necessary to meet the circumstances for which the
emergency is declared.106 Such declaration only applies prospectively for
no longer than 14 days.107 The National Assembly may however extend
this period but only on attaining special majorities.108

As an additional measure, the Supreme Court has jurisdiction to

decide on the validity of a declaration of a state of emergency, any
extension of a declaration of a state of emergency and any legislation
enacted, or other action taken, in consequence of a declaration of a state of
emergency.109A further safeguard is that a declaration of a state of
emergency, or legislation enacted or other action taken in consequence of
any declaration may not permit or authorise the indemnification of the
state, or of any person, in respect of any unlawful act or omission.110

2.6 Bill of Rights espousing a conservative strain of moral

philosophy

A notable attribute of the new Bill of Rights is its high regard for morality
and the natural law philosophy. For instance, in a most controversial way,
it is stipulated that the life of a person begins at conception.111 This
resolution is both intricate and delicate for it excites very sensitive

105 2010 Constitution, art 58(6).

106 2010 Constitution, art 58(1).
107 2010 Constitution, art 58(2).
108 2010 Constitution, art 58(4). The first extension of the declaration of a state of
emergency requires a supporting vote of at least two-thirds of all the members of the
National Assembly, and any subsequent extension requires a supporting vote of at
least three-quarters of all the members of the National Assembly.
109 2010 Constitution, art 58(5).
110 2010 Constitution, art 58(7).
111 2010 Constitution, art 26(2).

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32 Chapter 2

discourses especially in the areas of jurisprudence and reproductive health

rights. During the deliberations that eventually resulted in the Convention
on the Rights of the Child (CRC), for example, the Holy See had made the
case for reference to the unborn child in defining who a ‘child’ is. Using
this approach, the definition of the child would encompass ‘before as well
as after birth’. In the end, narrates Veerman:

It was stated that since national legislation on the question of abortion

differed greatly, the Convention could only be widely ratified if it did not take
sides on the issue.112

However, this position may not have settled the controversy given that the
Preamble to the Treaty carries the very position the Holy See had
championed. The relevant preambular section (paragraph nine) reads:

Bearing in mind that, as indicated in the Declaration of the Rights of the Child,
‘the child, by reason of his physical and mental immaturity, needs special
safeguards and care, including appropriate legal protection, before as well as
after birth’.

As expected, ‘most people now interpret the Preamble as a statement

against abortion’.113 In fact, the Holy See itself has expressed confidence
that the ninth preambular paragraph will serve as the perspective through
which the rest of the Convention will be interpreted.114 Kenyans by dint of
the 2010 Constitution have heeded this religious and moral call.

It is further important to note that although the Bill of Rights, while

emulating South Africa’s Constitution,115 prohibits discrimination on an
exhaustive list of grounds, it curiously leaves out only the ground of ‘sexual
orientation’. Sexual orientation is not one of the protected grounds leaving
it open to the view that there is no room for same sex relationships in the
legal system. Another example of morally cautious provision is article
45(2) granting every adult the right to marry only a person of the opposite
sex, based on the free consent of the parties.

2.7 Bill of Rights with centralised general limitation clause

As noted above, the Bill of Rights in the repealed Constitution was often
criticised for belabouring the limitations of human rights more than it
guaranteed the entitlements. Human rights would be limited in two major
ways: by way of internal limitations assigned to particular rights; and
through a general limitation clause which stated that human rights could
be limited for the sake of greater interests of public health, security and

112 PE Veerman The rights of the child and the changing image of childhood (1992) 185.
113 Veerman (n 112 above) 186.
114 Holy See ‘interpretative declaration’ declaration under the CRC.
115 See Constitution of the Republic of South Africa, 1996, sec 9(3).

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 An analysis of the salient features of the 2010 Constitution’s Bill of Rights 33

morality. These provisions were often utilised to defeat the realisation of

human rights. But the anomaly has since been corrected. With the
exception of three human rights ‒ right to property, right to freedom of the
media and the right to freedom of expression ‒ the new Bill of Rights does
not make use of internal limitations or ‘claw back clauses’. This leaves the
limitation of all human rights to be operated by one general and arguably
progressive clause:

(1) A right or fundamental freedom in the Bill of Rights shall not be limited
except by law, and then only to the extent that the limitation is reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account all relevant factors,
including –
(a) the nature of the right or fundamental freedom;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and fundamental
freedoms by any individual does not prejudice the rights and
fundamental freedoms of others; and
(e) the relation between the limitation and its purpose and whether there are
less restrictive means to achieve the purpose. 116
(2) Despite clause (1), a provision in legislation limiting a right or
fundamental freedom ‒
(a) in the case of a provision enacted or amended on or after the effective
date, is not valid unless the legislation specifically expresses the intention
to limit that right or fundamental freedom, and the nature and extent of
the limitation;
(b) shall not be construed as limiting the right or fundamental freedom
unless the provision is clear and specific about the right or freedom to be
limited and the nature and extent of the limitation; and
(c) shall not limit the right or fundamental freedom so far as to derogate
from its core or essential content.
(3) The State or a person seeking to justify a particular limitation shall
demonstrate to the court, tribunal or other authority that the
requirements of this Article have been satisfied.
(4) The provisions of this Chapter on equality shall be qualified to the extent
strictly necessary for the application of Muslim law before the Kadhis’
courts, to persons who profess the Muslim religion, in matters relating to
personal status, marriage, divorce and inheritance.
(5) Despite clause (1) and (2), a provision in legislation may limit the
application of the rights or fundamental freedoms in the following
provisions to persons serving in the Kenya Defence Forces or the
National Police Service –
(a) Article 31 ‒ Privacy;

116 See 2010 Constitution, art 24(1).

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34 Chapter 2

(b) Article 36 ‒ Freedom of association;

(c) Article 37 ‒ Assembly, demonstration, picketing and petition;
(d) Article 41 ‒ Labour relations;
(e) Article 43 ‒ Economic and social rights; and
(f) Article 49 ‒ Rights of arrested persons.

Six important points could be noted about the general limitation clause.117
First, that it provides for limitation of the Bill of Rights only by way of
law.118 Thus, limitations by executive or military decrees or other extra-
juridical devices have no place in the new legal dispensation.

Second, that where a limitation is sanctioned by law, it has to be

reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom, taking into account, inter alia: the
nature of the right or fundamental freedom; the purpose of the limitation;
the nature and extent of the limitation; the need to ensure that the
enjoyment of rights and fundamental freedoms by any individual does not
prejudice the rights and fundamental freedoms of others; and the relation
between the limitation and its purpose and whether there are less restrictive
means to achieve the purpose.119 This exercise is a balancing act of which
it was stated:

In the balancing process the relevant consideration will include that nature of
the right that is limited and its importance to an open and democratic society
based on freedom and equality; the purpose for which the right is limited and
the importance of that purpose to such a society; the extent of the limitation,
its efficacy and, particularly where the limitation has to be necessary, whether
the desired ends could reasonably be achieved through other means less
damaging to the right in question.120

Third, human rights cannot be limited by inference or implication.

Legislation limiting the Bill of Rights must specifically and expressly state
the intention to limit a particular right or fundamental freedom as well as
the nature and extent of the limitation in question.121 Despite this,
legislation may limit the application of certain stipulated rights and
fundamental freedoms122 to persons serving in the Kenya Defence Forces
or the National Police Service.123

117 2010 Constitution, art 24.

118 2010 Constitution, art 24(1).
119 2010 Constitution, art 24(1).
120 S v Makwanyane and Another 1995 (3) SA 391 (CC) 104. The phraseology in art 24(1) of
the Constitution of Kenya is adopted entirely from art 36(1) of the Constitution of
South Africa. Jurisprudence on it from South African courts especially the
Constitutional Court is therefore imperative.
121 2010 Constitution, art 24(2)(a) - (b).
122 Right to privacy; right to freedom of association; right to assembly, demonstration,
picketing and petition; labour relations rights; economic and social rights; and rights of
arrested persons.
123 2010 Constitution, art 24(5).

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 An analysis of the salient features of the 2010 Constitution’s Bill of Rights 35

Fourth, it is required that no limitation goes so far as to derogate from

the core or essential content of the right in question.124 Fifth, the burden of
demonstrating, before courts, tribunals and other authorities, that a
limitation meets the above requirements is vested with the state or
person(s) justifying the limitation125 and not the individual(s) or group(s)
entitled to a particular right.

Finally, perhaps in appreciation of the fact that certain globally

acclaimed human rights may not always be palatable to all sections of
society, the 2010 Constitution concedes that the provisions on equality
shall be qualified to the extent strictly necessary for the application of
Muslim law before the Kadhis’ courts, to persons who profess the Muslim
religion, in matters relating to personal status, marriage, divorce and
inheritance.126 This qualification may be justified because, as cultural
relativists argue, global human rights standards which greatly influenced
the new Bill of Rights often fail to take into consideration that each region
has its own unique rights problems or priorities. Consequently, ‘regional
specifities often are the victims in processes of universal consensus-
seeking’127 and the provision under investigation could be understood as
an effort towards a practical cultural equilibrium.

2.8 Bill of Rights with both vertical and horizontal application

A bill of rights customarily regulates the ‘vertical’ relationship between the

individual and the state.128 Usually, this is an unequal relationship in
which

The state is far more powerful than any individual. It has a monopoly on the
legitimate use of force within its territory. State authority allows the state to
enforce its commands through the criminal law. If not protected by a bill of
rights against abuse of the state’s powers, the individual would be in an
extremely vulnerable position.129

It is therefore quite natural for Kenya’s Bill of Rights to bind all state
organs.130 What may not be conventional is the ‘horizontal’ application of
the Bill of Rights whereby all persons131 are bound. Thus, both state
authorities as well as private individuals are expected to fulfil their part
otherwise they could be held liable for their respective violations. Already,
in Purity Kanana Kinoti v Republic,132 a police officer found individually

124 2010 Constitution, art 24(2)(c).

125 2010 Constitution, art 24(3).
126 2010 Constitution, art 24(5).
127 Viljoen (n 87 above) 262.
128 Currie and De Waal (n 52 above) 43.
129 As above.
130 2010 Constitution, art 20(1).
131 As above. ‘Person’ under art 260 of the Constitution includes a company, association
or other body of persons whether incorporated or unincorporated.
132 Purity Kanana Kinoti v Republic [2011] eKLR.

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36 Chapter 2

responsible for violations of an accused person’s human rights was held to

be liable to compensate his victim. This means horizontal application is
real and the state is no longer the only direct duty-bearer.

2.9 Bill of Rights with viable enforcement apparatuses

In the last two decades, states appear to have developed interest in

complementing the traditional organs of state (executive, legislature and
judiciary) ostensibly to secure more protection for human rights.133 The
bodies that have emerged to buttress the bulwark of human rights
enforcement mechanisms have taken the form of human rights
commissions, ombudsmen offices or more specialised institutions, for
instance, on racial discrimination or gender equality. It is not uncommon
to find hybrid bodies exhibiting a mixture of these traits. Indeed, Reif
defines National Human Rights Institutions (NHRIs) as the ombudsmen,
human rights commissions or hybrid human rights ombudsmen.134

The human rights enforcement mechanism which the 2010

Constitution articulates (in addition to courts) is a NHRI, the Kenya
National Human Rights and Equality Commission.135 The functions
assigned the Commission are ‒

(a) to promote respect for human rights and develop a culture of human
rights in the Republic;
(b) to promote gender equality and equity generally and to coordinate and
facilitate gender mainstreaming in national development;
(c) to promote the protection, and observance of human rights in public and
private institutions;
(d) to monitor, investigate and report on the observance of human rights in
all spheres of life in the Republic, including observance by the national
security organs;
(e) to receive and investigate complaints about alleged abuses of human
rights and take steps to secure appropriate redress where human rights
have been violated;
(f) on its own initiative or on the basis of complaints, to investigate or
research a matter in respect of human rights, and make recommendations
to improve the functioning of State organs;136
(g) to act as the principal organ of the State in ensuring compliance with
obligations under treaties and conventions relating to human rights;

133 See AE Pohjolainen The evolution of national human rights institutions: The role of the
United Nations (2006) 2.
134 LC Reif ‘Building democratic institutions: The role of national human rights
institutions in good governance and human rights protection’ (2000) Harvard Human
Rights Journal 2.
135 2010 Constitution, art 59.
136 2010 Constitution, art 59(2).

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 An analysis of the salient features of the 2010 Constitution’s Bill of Rights 37

(h) to investigate any conduct in state affairs, or any act or omission in public
administration in any sphere of government, that is alleged or suspected
to be prejudicial or improper or to result in any impropriety or prejudice;
(i) to investigate complaints of abuse of power, unfair treatment, manifest
injustice or unlawful, oppressive, unfair or unresponsive official conduct;
(j) to report on complaints investigated under its mandate and to take
remedial action; and
(k) to perform any other functions prescribed by legislation.

Exercising the latitude given to it by article 59(4) of the 2010 Constitution,

which provides that legislation may restructure the aforementioned
Commission into two or more separate commissions, Parliament has
established all the categories of NHRIs discussed above ‒ a human rights
commission, Kenya National Commission on Human Rights
(KNCHR);137 an ombudsman, the Commission on Administrative Justice
(CAJ);138 and a specialised gender equality commission, the National
Gender and Equality Commission.139 The three institutions complement
each other in the promotion and protection of human rights.

3 Conclusion

This chapter has illustrated how Kenya’s 2010 Constitution differs with the
repealed Constitution in the promotion and protection of human rights.
The departure is timely because one of the underlying themes in Kenya’s
constitutional history has been the question of how to establish a
constitutional regime that would guarantee everyone equal rights
regardless of their status. The struggle to entrench a workable human rights
regime is also evident in the country’s constitutional history. Although the
repealed Constitution came with a flowery package of guarantees, it failed
to satisfactorily establish a workable human rights regime, thus posing a
big threat to democracy and good governance. With its seriousness in
providing deserved recognition to human rights and fundamental
freedoms, the 2010 Constitution has given Kenyans a golden opportunity
to redefine the future of their nation.

137 Established by the Kenya National Commission on Human Rights Act 14 of 2011.
138 Established by the Commission on Administrative Justice Act 23 of 2011.
139 Established by the National Gender and Equality Commission Act 15 of 2011.

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