[kictanet] The test for determining if State has met its obligations in Consumer Rights

[Grace Mutung'u (Bomu)]

Listers,
Though not directly ICT related, this is a pace setting decision as it
attempts to set a test for socio-economic rights. I foresee a day when
Kenyans will demand Internet rights from the Government.


*Socio–Economic Rights*

Consumer Federation of Kenya (COFEK) v Attorney General & 4 Others
Petition No 88 of 2011
High Court at Nairobi
October 5, 2012
M Ngugi, J.
Reported by Andrew Halonyere

*Download the Decision*<http://kenyalaw.org/CaseSearch/view_preview1.php?link=43259092389526753407017>

*Issues*

   1. Whether the enjoyment of socio–economic rights had been violated
   through an alleged Government’s failure to control the rising cost of
   living.

*Constitutional Law ** - **fundamental rights and freedoms - socio-economic
rights - declaration that socio-economic rights were violated by
Government's failure to control rising cost of living - test for
determining whether or not the state has met its obligation - manner in
which matters concerning public interest should be brought before
court-costs not to be imposed on proceedings that advance a legitimate
public interest -whether the petition had merit -Constitution of Kenya,
2010 - Article 20(5), 22,23,43*

This was a petition seeking inter alia a declaration that the Government’s
failure to stabilize and reduce high fuel prices violates article 43 of the
Constitution of Kenya which guarantees the petitioners and other citizens’
economic and social rights.Read More...

*Held:*

   1.

   The key to justifiability of the socio-economic rights is the standard
   of reasonableness. Though a considerable margin of discretion must be given
   to the state in deciding how it is to go about fulfilling the
   socio-economic rights, the reasonableness of the measures that the state
   adopts can be evaluated by a court.
   2.

   Many factors including a failure in rainfall have a negative impact on
   the availability of food and the cost of living and such factors are not a
   result of the failure on the part of the state to take appropriate policy
   and other measures to ensure the realisation by citizens of the
   socio-economic rights guaranteed under Article 43. The respondents have
   taken reasonable measures to meet their obligations under the Constitution.
   3.

   When bringing matters of socio economic rights before the court, which
   have a critical bearing on the rights, lives and livelihoods of citizens,
   it is not enough to make bare statements with regard to the violation of
   rights without seriously addressing oneself to the manner in which the
   violations have occurred and the reasonableness or otherwise of the
   measures taken to avert or ameliorate their impact. At this nascent stage
   in the implementation of the Constitution of Kenya 2010, parties in the
   position of the petitioner, should they determine to take on cases which
   have a bearing on the public interest, must take them on with all due
   seriousness.
   4.

   1. The manner in which the petition was conducted by the petitioner
   would ordinarily have attracted an award of costs against it. However, the
   intent of Articles 22 and 23 of the Constitution is that persons should
   have free and unhindered access to the Constitutional Court for the
   enforcement of their fundamental rights and freedoms. Similarly, Article
   258 allows any person to institute proceedings claiming the Constitution
   has been violated or is threatened. The imposition of costs would
   constitute a deterrent and would have a chilling effect on the enforcement
   of the Bill of Rights.
   5. In matters concerning public interest litigation, a litigant who has
   brought proceedings to advance a legitimate public interest and contributed
   to a proper understanding of the law in question without private gain
   should not be deterred from adopting a course that is beneficial to the
   public for fear of costs being imposed.



-- 
Grace L.N. Mutung'u (Bomu)
Kenya
Skype: gracebomu
Twitter: @Bomu
Website: http://www.diplointernetgovernance.org/profile/GraceMutungu
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