Poverty and

the right to
development
in Kenya
 Background
• The primary development goal of Kenya has been to achieve an all-inclusive and
sustainable improvement in the standards of the welfare of all its subjects. See various
national development plans
• In early independence years, poverty was identified as one Kenya’s main development
challenges.
• Poverty levels stand at around 36.1% of the population currently.
• This is still below the target of 28% that the govt committed to achieve in its 2014 report
to the African Commission.
• The UN CESCR has raised concern on the high number of people living in poverty in
Kenya and recommended an intensification of poverty reduction strategies that take
care of the most disadvantaged and marginalised in society. See, CESCR concluding
observations on the combined second to fifth reports of Kenya, UN Doc.
E/C.12/KEN/CO/2-5 9 (2016) paras 41-42
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• This means that there is need to effectively allocate resources in a
manner that addresses poverty in Kenya and the inequalities that arise
from it.
• In the 1960s, the policies that govt pursued were founded on the
assumption that economic growth would translate into poverty
alleviation.
• Poverty eradication at that time was seen as being the same as raised
incomes, and that this would lead to a prosperous economy whose
benefits would trickle down to all and rid the country of poverty,
disease and ignorance. See, National Development Plan 1966-1970
(1966)
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• The high economic growth registered in the early independence years
did not reduce poverty in any significant way. In fact, poverty increased
despite high economic growth because of inequality among the people.
That inequality subsists even today.
• In 1999, govt prepared the National Poverty Eradication Plan (NPEP)
covering the period from 1999 to 2015 as a deliberate attempt to
jumpstart poverty reduction efforts.
• The NPEP sought to address the problem of poverty not only as a
political and moral obligation but also on economic principles that
recognised the critical role, and potential contribution of the poor, to
national development.
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• Through it, govt committed to poverty eradication, achievement of
universal primary education, access to health services for all and the
social integration of disadvantaged people.
• The NPEP has 3 major features: a charter of social integration;
improved access to essential services by low income households that
lack basic health, education and safe drinking water; and a strategy
for broad economic growth.
• Each of these features sets out an agenda for action by govt, civil
society, the private sector, and development partners.

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• To operationalise the NPEP, the Interim Poverty Reduction Strategy Paper
2000-2003 (IPRSP) was prepared.
• It identified the fundamental development objective for Kenya as being
the achievement of ‘a broad-based, sustainable improvement in the
welfare of all Kenyans’ through the mobilisation of all available resources
and the deployment of those resources effectively and efficiently to fight
poverty. See, IPRSP(2000) para 1.1
• The IPRSP shifted budgetary focus to poverty reduction programmes and
the empowering of the poor by providing them with means to access
income generating opportunities, ready access to means of production,
provision of basic services and equal protection of the law.
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• To empower the poor in the development process, govt invoked a
participatory process to develop a Poverty Reduction Strategy Paper
(PRSP) for the period 2001-2004.
• This PRSP informed the development of a pro-poor Medium Term
Expenditure Framework (MTEF) budget that linked policy planning
and budgeting, and thereby ensured harmonised financing for
poverty reduction.
• The participatory process was premised on the belief that it was the
poor who best understood the causes, nature and extent of poverty.
See, PRSP(2001), para 1

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• The 2001 PRSP was founded on the principles of giving voice to the
poor (para 7); participation and ownership of the poor in
development of poverty reduction strategies (para 8); transparency,
openness and accountability (para 9); and the equitable distribution
of natural resources and development initiatives (para 10).
• 2003: the Economic Recovery Strategy for Wealth and Employment
Creation (ERS) 2003-2007 was developed. It identified rapid economic
growth, strengthening institutions of governance, rehabilitation and
expansion of physical infrastructure and investment in human
resource as critical interventions needed to spur poverty reduction.
See, ERS (2003), p 1
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• Strategies to reduce poverty included provision of free primary
education, improved access to basic healthcare, development of arid
and semi-arid areas, and upgrading living standards of the urban and
rural poor.
• Kenya Vision 2030 (KV2030) was adopted in 2007 as successor policy on
development to the ERS. It seeks to make Kenya a newly industrialised
country that provides a high quality of life for all of its citizens by 2030.
• Its social pillar seeks to create social equity and reduce poverty. It
emphasizes the creation of social equity and wealth creation
opportunities for the poor.

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• KV2030 acknowledges that since independence, govt has initiated
several policies and programmes to tackle poverty with little success.
See KV2030, p 126.
• In its first report to the African Commission on its obligations under the
ACHPR, the govt acknowledged that poverty was a major impediment
to both the fulfilment of the basic needs, and realisation of the
potential of many Kenyans especially women and children. See,
Republic of Kenya, Initial report on the African Charter on Human and
Peoples Rights (2006), para 6.
• It reported numerous challenges in its efforts to implement the rights
entrenched in the Charter.
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• Govt cited poor political and economic governance, corruption and
inequitable distribution of resources as the reasons that impeded its
poverty reduction goals.
• In the next report, govt reported that it had adopted KV2030 which
was among other things founded the principles of enhancement of
equity in society and the opening up of opportunities for the poor to
create wealth. Republic of Kenya, Combined 8th-11th reports on the
African Charter on Human and Peoples Rights (2014), para 16.
• Govt recognised that no society can be socially cohesive when a
significant part of its population suffers extreme poverty.

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• Govt therefore introduced the principle of equity in all of its economic,
social and cultural programmes, with emphasis on communities with
high incidences of poverty, unemployed youth, women and vulnerable
groups.
• KV2030 aims at creating ‘a just and equitable society without poverty’.
See, KV2030 (2007) p 129.
• Equity entails equal treatment of all, equality of opportunity and
realisation of the full potential of all people without hindrance on
account of poverty, poor education or parental background.
• Social justice is about eradication of extreme poverty as well as creation
of equality of opportunity for all.
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• The realisation of equity and social justice under CoK 2010 will require a
different policy and legislative environment which the State has not
been able to create since independence.
• In 2008, the CESCR noted with concern the existence of serious
disparities in Kenya in the enjoyment of economic, social and cultural
rights and this had led to the PEV after the 2007 General Election. See,
UN, Kenya: concluding observations of the CESCR, UN Doc.
E/C.12/KEN/CO/1 (2008) para 12.
• CESCR recommended that Kenya addresses the ‘disparities in the
enjoyment of economic, social and cultural rights, including access to
land, which particularly affect poor people in urban areas.
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• CoK attempts to address these issues by providing that ‘human
dignity, equity, social justice, inclusiveness, equality, human rights,
non-discrimination and protection of the marginalised’ are national
values and principles of governance. Article 10(2)(b) CoK 2010
• In Mitu-Bell Welfare Society v Attorney General (2013) eKLR, the HC
gave recognition to the importance of article 10(2)(b) in relation to
poor people. In this case the residents of an informal settlement
located next to Wilson Airport in Nairobi had been violently evicted
from their dwellings.

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• The court observed that:

… when the state or a state agency such as the 2nd respondent demolishes the
homes of poor citizens such as the petitioners who lived in informal settlements
such as Mitumba village, when it does so after a seven days notice, without
giving them alternative accommodation, it violates not only the rights of the
petitioners but the Constitution itself and the obligations it imposes on the
state, both at articles 21 and 43, but also the national values and principles of
governance set out in article 10 which include ‘human dignity, equity, social
justice, inclusiveness, equality, human rights, non-discrimination and
protection of the marginalised’. (para 54)

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• In another eviction case, Osman v Minister of State for Provincial
Administration (2011) eKLR, the court stated:

… people living without the basic necessities of life are deprived of human
dignity, freedom and equality. Democracy itself is enhanced when citizens have
access to basic necessities of life … the purpose of recognising and protecting
human rights and fundamental freedoms is to preserve the dignity of
individuals and communities and to build a society which is based on social
justice and in which the potential of each person is freed. (para 7)

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• And in Mwai v Kenya National Examinations Council (2011) eKLR, the
court stated:

In our view, the inclusion of economic, social and cultural rights in the
Constitution is aimed at advancing the socio-economic needs of the people of
Kenya, including those who are poor, in order to uplift their human dignity. The
protection of these rights is an indication of the fact that the Constitution’s
transformative agenda looks beyond merely guaranteeing abstract equality.
There is a commitment to transform Kenya from a society based on socio-
economic deprivation to one based on equal and equitable distribution of
resources. This is borne out by articles 6(3) and 10(2)(b). (para 6)

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• Poverty eradication initiatives must therefore include the formulation
and implementation of policies that minimise the differences in income
opportunities and access to social services across different social,
political, and geographical divides. KV2030 p 11
• These policies should primarily address the effects of poverty on
education and healthcare. They should focus on the provision of quality
education and provision of access to essential healthcare in an
equitable manner. KV2030 p 15
• Education and health are means through which people living in poverty
can get out of their situation. These sectors were identified early at
independence as key areas that needed to addressed.
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 Education and the right to development
• Education facilitates a person to access opportunities that improve his well-being
and enables that person participate meaningfully in the affairs of their
community.
• Lack of education therefore isolates people living in poverty from the functions of
mainstream society.
• Lack of formal education means limited ability to communicate and lack of access
to information on policies that affect the poor.
• This leads to further social exclusion of people living in poverty and hinders their
enjoyment of human rights.
• Education plays a major role in human development. It empowers people to
improve their well-being through increasing their productivity and potential to
achieve higher standards of living.
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• Education is perhaps the most reliable huma development indicator that is
capable of moving the poor from circumstances of hardship that poverty
produces. KNCHR, State of human rights report 2003-2004 (2005) p 8.
• It leads to realisation of other rights such as those to health and meaningful
participation in the public life of a nation, and provides access to
opportunities previously unavailable to the poor.
• Education has been entrenched as a human right in international instruments
and domestic law. The enjoyment of human rights is predicated on some level
of education because an educated person is able to appreciate his rights and
claim them. At the same time it inculcates some sense of tolerance to the
status of other people and their ciews on various issues.

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• Kenya as a State Party to the ICESCR and ACHPR, has assumed
international law obligations relating to education. These obligations
have also been domesticated in the CoK 2010 and national legislation.
• At the UN level, the foundation is the UDHR which recognises everyone’s
right to education and emphasizes the need for education to be free at
the basic stages. UDHR, article 26(1)
• UDHR prescribes that education should be directed towards developing
the human personality fully. UDHR, article 26(2)
• The DRD also recognises access to basic education as one of the measure
necessary at the national level for realisation of the RTD. DRD, article
8(1)
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• The ICESCR enjoins States Parties to recognise the right of everyone to
education in terms that favour realisation of the RTD. At article 13(1), it
States Parties agree that education shall be directed to the full
development of the human personality and its sense of dignity. They also
agree that education shall enable all persons to participate effectively in a
free society.
• The ICESCR then sets out parameters that can be used to determine the
extent the right to education has been realised in any State. These are that,
there shall be compulsory and free primary education for all; accessible
secondary education for all including technical and vocational training;
accessible higher education for all on the basis of capacity; and the pursuit
of development of a system of schools at all levels.
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• The CESCR has developed a framework for expanding people’s
capabilities through education. The CESCR General Comment on the right
to education gives in detail, normative content to the parameters
identified above, on the basis of which States are to advance the cause of
education at all levels. CESCR, General Comment 13: The right to
education, UN Doc. E/C.12/1999/10 (1999)
• The General Comment prescribes the essential feature of education in all
its forms as being availability; accessibility; acceptability; and adaptability.
• The CESCR has also implicitly recognised that education facilitates
realisation of the RTD by describing it as an important human right that
enables realisation of other human rights. General Comment 13, para 1
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• The right to education is about empowerment of people and is
fundamental in lifting economically and socially

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