In Summary
  • Given the high budget deficits, the government can only provide such services by either raising taxes or borrowing.

  • Such fiscal and monetary policies are, however, contractionary and undermine initiatives to spur economic growth and employment.

  • While decent housing is, undoubtedly, desirable, it cannot be provided by the government without violating people’s right to choose.

The new tax to fund President Uhuru Kenyatta’s affordable housing legacy project is predicated on the proposition that shelter is a basic human right and the government has a constitutional obligation to provide it. But given its unpopularity, one is bound to ask whether, to Kenyans, housing is a basic right, and if to be provided by the State.

A human right is innate, inalienable and not granted by a government. Just as you do not see the public demanding less freedom of speech, one should not expect Kenyans to resist public housing if, indeed, it is a human right. That it is happening questions whether our Bill of Rights reflects their true feelings.

FREEDOM

Since the Universal Declaration of Human Rights (UDHR) charter was adopted by the United Nations in 1948, categorisation of shelter as a human right has been highly contested. From the outset, the UDHR was split into the International Covenant on Economic, Social and Cultural Rights (ICESCR or ESR) and the International Covenant on Civil and Political Rights (ICCPR or CPR). CPRs are meant to protect citizens from infringement by governments and individuals as they participate in the civic and political life of their society. They include freedom of speech and association as well as protection against torture.

ESRs include — but are not limited to — the rights to work, form and join a trade union, enjoy an adequate standard of living and access food, adequate housing, health and education.

OBLIGATIONS

By 2015, out of the 195 UN members, 164 were parties to the covenant and six, including the United States, had signed up but not ratified the treaty. Kenya ratified it in 1972 and incorporated ESRs in the 2010 Constitution.

Although all the parties to the charter immediately ratified CPRs, there was a considerable disagreement over ESRs. Ideologically, conservatives argued that individuals, not the State, are responsible for basic needs such as shelter and clothing. This is consistent with conservative opposition to government usurping individual responsibilities. A secondary consideration was that since ESRs would have to be funded through taxes, that would impose an unsolicited obligation on taxpayers. From the Kenyan experience, the tax can be likened to, during the Kanu regime, when civil servants were compelled to make ‘harambee’ contributions for a party functionary to appear philanthropic.

JUDICIABLE

The legal case against ESRs was equally persuasive and was anchored on the argument that, unlike CPRs, they are not judiciable. Given the fact that the concept of decent housing could vary from country to country, there lacks a universal standard to prosecute non-compliance.

Page 1 of 2