Listers, <br>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. <br><br><table align="center" bgcolor="#FFFFFF" border="0" cellpadding="0" cellspacing="0" width="600">
<tbody><tr><td class="title"><br></td>
<td class="title2" colspan="2"><span class="headers1"><b><font color="#8C0000">Socio–Economic Rights</font></b></span>
<p style="font-weight:bold">Consumer Federation of Kenya (COFEK) v Attorney General & 4 Others<br>
Petition No 88 of 2011<br>
High Court at Nairobi<br>
October 5, 2012<br>
M Ngugi, J.<br>
Reported by Andrew Halonyere<br><br>
<a href="http://kenyalaw.org/CaseSearch/view_preview1.php?link=43259092389526753407017" target="_blank" style="text-decoration:none" title="Download the Decision"><b>Download the Decision</b></a></p>
<p><span class="headers1"><strong><u>Issues</u></strong></span></p><ol type="1"><li>Whether
the enjoyment of socio–economic rights had been violated through an
alleged Government’s failure to control the rising cost of living.
</li></ol>
<div style="text-align:justify"><span class="headers1"><b><em>Constitutional Law </em></b></span><em> - </em><em>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</em><br><br>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.<font color="#FF0000">Read More...</font></div>
<div style="display:block" class="texter style3" id="a14">
<p><span class="headers1"><em><u><strong>Held</strong>:</u></em> </span></p>
<ol start="1" type="1"><li>
<p>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.</p></li><li><p>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.</p></li><li><p>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.
</p></li><li><p>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.</p>
</li><li>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.</li></ol></div></td></tr></tbody></table><br clear="all"><br>-- <br>Grace L.N. Mutung'u (Bomu)<br>Kenya<br>Skype: gracebomu<br>Twitter: @Bomu<br>
<div>Website: <a href="http://www.diplointernetgovernance.org/profile/GraceMutungu" target="_blank">http://www.diplointernetgovernance.org/profile/GraceMutungu</a></div><br>