On 2 July 2025, the Avid Readers’ Forum convened an intellectually stimulating discussion titled ‘Socio-economic and cultural Rights in Kenya’, as part of its sessions commemorating 15 years of the Constitution of Kenya, 2010 (2010 Constitution). The forum’s lead discussant was Senior Counsel Charles Kanjama, a distinguished constitutional lawyer, legal scholar, and public commentator. Ms Melissa Mungai, a lecturer at Kabarak Law School, moderated the session.
Historical evolution of socio-economic and cultural rights
SC Charles Kanjama began by tracing the evolution of first-generation rights, namely civil and political rights, before transitioning into second-generation rights, which encompass economic, social, and cultural entitlements. He noted that the 2010 Constitution ushered in a transformative framework by expressly entrenching second-generation rights under Article 43, thereby obligating the State not only to respect but also to progressively fulfil them. In his view, the rights to health, housing, education, food, water, and social security are justiciable and are not mere policy aspirations. Their realisation, he argued, is vital to the transformative purpose of the Constitution, which seeks to reorient governance toward social justice and dignity.
SC Kanjama Article 21(2) of the Constitution, which obliges the state to progressively realise socio-economic rights through legislative, policy, and other measures. He elaborated that this includes setting minimum standards such as ensuring all Kenyans have access to housing or clean water and adopting affirmative action measures for vulnerable groups, including children, the elderly, minorities, and marginalised communities under Articles 53 to 57 of the Constitution. He explained that progressive realisation must be interpreted within Kenya’s socio-economic context while still demanding deliberate and measurable government action.
Application of socio-economic and cultural rights in Kenya
SC Kanjama canvassed the dual framework of vertical and horizontal application of rights under Articles 21 and 43 of the Constitution. Traditionally, human rights obligations only bind the State (vertical application). However, the 2010 Constitution embraces a horizontal approach by holding private actors and fellow citizens responsible for upholding socio-economic rights.
He illustrated this normative shift, from vertical to horizontal, using the Employment Act . The statute imposes duties on employers -such as providing maternity and paternity leave-demonstrating how the State facilitates horizontal enforcement by setting legislative standards.
International standards on socio-economic and cultural rights
SC Kanjama cited the eviction guidelines under the Land Act (2012) to show the role of international standards in guiding the implementation of second-generation rights. He stated that these guidelines adopt and localise international human rights norms through legislation. Furthermore, statutory protections around evictions help to actualise the right to housing, illustrating how domestic law can incorporate international principles without compromising sovereignty.
Judicial remedies available
Referring to Article 23(3) of the Constitution, SC Kanjama explained that courts may issue declarations of rights, injunctions, conservatory orders, judicial review remedies, and orders for compensation. However, he stressed the increasing significance of structural interdicts, which are remedies that compel government institutions to undertake or report on specific policy reforms. He added that they enable courts to supervise compliance over time, particularly in complex cases requiring institutional change. Further, while not explicitly listed in Article 23, structural interdicts flow from the courts’ broad mandate to enforce rights and have become important tools in transformative constitutionalism.
Q and A session
The first question raised challenged whether the principle of progressive realisation under Article 43 was being used as a loophole to indefinitely delay socio-economic rights, especially in light of widespread corruption. SC Kanjama anchored his answer on Article 21 of the Constitution, which obligates the State to observe, respect, protect, promote, and fulfil rights. He explained that Article 21(2) compels the State to take legislative, policy, and other measures to achieve progressive realisation, which includes setting clear standards.
Additionally, he noted that the State has a heightened responsibility towards children, persons with disabilities, minorities, the youth, and older persons under Articles 53 to 57 of the Constitution. SC Kanjama clarified that while Kenya may not achieve the infrastructure standards of wealthy countries, failure to provide basic rights like health, housing, and education cannot be excused on the grounds of limited resources, especially where corruption diverts public funds. Ultimately, he underscored that progressive realisation must not be manipulated as a cover for state inaction or neglect.
Another important query concerned whether international law was subordinate to the Constitution, specifically referring to paragraph 132 of the Supreme Court’s judgment in Mitubell Welfare Society v Ministry of Housing. SC Kanjama confirmed that the Supreme Court took the view that international law cannot override the Constitution or validly enacted domestic statutes. He welcomed this clarification, stating that it respects Kenya’s sovereignty and avoids scenarios where external norms could override democratically enacted laws. However, he added that international law still plays an important role in filling legislative gaps and informing constitutional interpretation, especially concerning second-generation rights.
As the session drew to a close, a question was asked concerning the Supreme Court judgment allowing Muslim children born out of wedlock to inherit property. SC Kanjama acknowledged that while Islamic law provides specific rules on inheritance, the Constitution places limits on cultural practices that conflict with the Bill of Rights. Referencing Articles 11, 24, 44, 45, and 159 of the Constitution, he noted that all cultural rights and personal laws should be consistent with constitutional values such as equality, justice, and morality. Moreover, the Court’s decision upheld the best interests of the child by ensuring that no child suffered discrimination due to the marital status of their parents.
Drawing on Article 45 of the Constitution, which guarantees the right to family protection and recognition, SC Kanjama argued that cultural values or economic pressures affecting the stability of families should be seen as human rights concerns. He further observed that corporate social responsibility frameworks like ESG (Environmental, Social, and Governance reporting) often overlook the role of families in sustaining social well-being. In his view, a transformative human rights discourse in Kenya must give greater attention to family cohesion as both a right and a site of socio-economic development.
Conclusion
This session reaffirmed that socio-economic and cultural rights are not peripheral but central to Kenya’s constitutional order. Their full realisation demands coordinated action from the State, private sector, and civil society. By embedding these rights within a justiciable and enforceable framework, the Constitution offers a transformative vision of governance rooted in dignity, equity, and accountability.
As the country reflects on 15 years of constitutionalism, the imperative is clear: Rights must not remain on paper but must be actualised in the daily lives of all Kenyans. The event ended with a vote of thanks from Mr Cedric Kadima, who appreciated SC Kanjama for his time and depth of insight.
