The Economic and Social Rights Bill Senate Bill No. 7 of 2022

REPUBLICOFKENYA

PARLIAMENT

SENATEBILLS

(Bill No. 7 of 2022)

THE ECONOMIC AND SOCIAL RIGHTS BILL, 2022

(A Bill published in the Kenya Gazette Supplement No. 178 of 9th November, 2022 and passed by the Senate, with amendments, on 20" June, 2023.)

THEECONOMICANDSOCIALRIGHTSBILL,2022

ARRANGEMENTOFCLAUSES

Clause

PARTI-PRELIMINARY

• 1—Short title.
• 2—Interpretation.
• 3—Object and purposes.
• 4—Guiding principles.

PARTII—OBLIGATIONSOFTHENATIONALANDCOUNTY GOVERNMENTS

• 5—Obligations of the National and county governments with respect to economic and social rights.

PARTIII—ROLEANDFUNCTIONSOFTHECOMMISSION

• 6—The role of the Commission
• 7—Functions of the Commission.
• 8—Economic and social rights index.

PARTIV-COUNTYSTRATEGICPLANS

• 9-County strategic plans.
• 10—Objective of county strategic plans.
• 11—Baseline survey.
• 12—Receipt of grants and donations.
• 13—Approval of county strategic plans by the county assembly.
• 14—Reports on implementation of economic and social rights.

2

• 15—Recommendations on implementation of the report.
• 16—Court action.
• 17—Remedies.
• 18—County Fiscal Strategy Paper to contain measures on social economic rights.

PARTV-MISCELLANEOUSPROVISIONS

• 19—Regulations.
• 20—Public awareness framework.
• 21—Transition.
• 22—Amendment of No.18 of 2012.
• 23—Amendment of No. 17 of 2012.

SCHEDULE—CRITERIAFORTHEREALISATIONOFECONOMIC ANDSOCIALRIGHTS

THEECONOMICANDSOCIALRIGHTSBILL,2022

A Bill for

ANACTofParliament:toprovide aframework for thepromotion, monitoring andenforcementof economic and social rights;toestablish mechanisms tomonitor andpromote adherenceby theNational and county governments to Article 43 of the Constitution; and for connectedpurposes.

ENACTED by the Parliament of Kenya, as follows-

PARTI—PRELIMINARY

1. This Act may be cited as the Economic and SocialRightsAct,2022. 2. 2.In this Act, unless the context otherwise requires——

"access"in relation to economic and social rights means the physical, economic and social access by a person or households to goods and services through production, purchase or through programmes implemented by the National and county governments to ensure that the economic and social rights of every person is actualised;

"Cabinet Secretary"means the CabinetSecretary responsible for matters related to planning;

"Commission" means the Kenya National Commission on Human Rights established under section 3of theKenyaNational Commission onHumanRights Act;

"Council of county Governors" means the Council of countyGovernors established under section 19of theIntergovernmental RelationsAct;

"county executive committee member" means the countyexecutivecommitteememberresponsiblefor

Short title.

Interpretation.

No.14 of2011.

No.2 of 2012.

No.17of2012.

matters related to planning within the county;

"county integrated development plan" means the five-year plan developed by a county government in accordancewith 1section108 of the County GovernmentsAct.

"county strategic plan" means the county strategic plan for the realisation of economic and social rights prepared by a county government pursuant to section 9;

"economic and social rights" means the rights accruing to every person specified under Articles 43(1) and 53(1)(c) of the Constitution and includes the right to

• (a)thehighest attainablestandardsof health which includes the right to health care services sincluding reproductivehealth careservices and emergencytreatment;
• (b) accessible and adequate housing;
• (C) reasonable standards of sanitation;
• (d) be free from hunger and to have adequatefood of acceptable quality;
• basic nutrition for children;
• ( clean and safe water in adequate quantities;
• social security and social assistance; and
• (h) education; and

"vulnerable persons" means persons who are unable to meet their economic and social needs and include children, pregnant and nursing mothers, older members of society, internally displaced persons, Object and purposes.

Guiding principles persons with disabilities, the sick, persons with chronic illnesses, victims of conflict, persons living in marginalised areas, and members of marginalised communities or groups and such other groups as the Cabinet Secretary may, by notice in the Gazette, or the respective county governor may, by notice in the Gazette and county Gazette, designate.

3. The object and purposes of this Act are to provide a framework for —— 2. (a)the preservation of human dignity as setoutunderArticle19ofthe Constitution through the realisation of the economic and socialrights under Article 43(1)ofthe Constitution;

• b) therealisation of economic and social rights by the National and county governments;

4. ? standardsthat aretobe adhered toby the National and countygovernments intherealisationofeconomicand social rights; 5. (d)the establishmentofmechanisms to monitor and promote the realisation of theeconomic and socialrights by county governments; and 6. ? co-operationbetween theNational and county governments in the fulfilment oftheir respective obligations with regard to the realisation of economic and social rights. 4. All persons shall, in the performance of their functions under this Act, be guided by the following principles, in addition to the national values and principles set out under Article 10 of the Constitution and the objectsof devolutionset out under Article174oftheConstitution-

Obligations of the National and county governments with respectto economic and social rights.

• a) promotion of sustainable development;

2. (b) non-discrimination; 3. preservation of the well-being and dignity C of every human being; 4. promotion of good governanceand accountability of dutybearers in meeting their obligations for the realisation of economic and social rights; 5. e coordinated effective publicparticipation in the formulation, implementation and monitoring of policies, strategies and plans aimed at ensuring the realisation of economic and social rights; 6. empowerment and capacitybuilding as a meansofpromotingtherealisationofthe economic and social rights; 7. transparency intheimplementationof programmes and activities aimed at ensuring the realisation of economic and social 1rightsassetoutunder·the Constitution; and 8. h availability and access to services and timelyandreliableinformationthat facilitates the realisation of economic and social rights.

PARTII-OBLIGATIONSOFTHENATIONAL ANDCOUNTYGOVERNMENTS

5. (1) The National and county governments shall,to the extent of their constitutional mandate, respect, protect, promote and fulfil the rights and fundamental freedoms set out under Articles 43(1), 53(1)(c) and 57(d) of the Constitution and in particular, shall-

• (a) formulate and implement such policies, legislation and strategies and put inplace such mechanisms for the realisation of economic and socialrights;
• (b) establish such mechanismsas they shall consider necessaryfor the enforcementof economic and social rights;
• ensure the availability, affordability, accessibility, adaptability, acceptability of qualitygoodsand services that would facilitate the realization of economic and social rights;
• (d) put in place adequate infrastructure that wouldbe necessaryto meet their obligations in realising economic and social rights;
• (e) put in place measures thattarget vulnerable persons to ensurethe realisation of their economic and social rights and that such persons have access togoods and services that are of acceptable standards;
• protect individual persons, groups and communities from encroachmentor interference, by any person, of their economic and social rights; and
• g) create awareness and build capacity of citizens toenable them developtheir understanding, skills and ( capacityf for equitableandeffectiveparticipation in theformulation, implementation and monitoring of policies, strategies or programmes aimed at realising their economic and social rights.
• (2) The National and county governments shall,

pursuant to subsection (1) --

• (a) take measures to create the opportunities and an environment in which the economic and social rights can be realised;
• (b) adopt comprehensive strategic plans that ensure the protection and promotion of economic and social rights;
• (c)integrate, within their respective policies, strategies, actions and such othermeasures asitwouldconsider necessaryfor the realisation of the economic and social rights under the Constitution;
• (d)prioritise the allocation of resources to ensure the realisation of economic and social rights while taking into account the special needs of vulnerable persons;
• (e)avoidactionsthatwouldlimitthe economic and social rights that are conferred under the Constitution except as provided under Article 24 of the Constitution;
• (f)put in place measures that mitigate against the factors that hinder the realisation of economic andsocial rights;
• (g)identifyfactors that impede the realisation of economic and social rights and their causes and institute corrective measures; and
• (h) invest and promote investments that wouldfacilitatetherealisationof economic and social rights.

Theroleofthe Commission.

Functions of the Commission.

• (3)The Commission shall, in consultation with the Cabinet Secretary and the Council of County Governors,set out the minimum standards that the National and county governments are required to meet in carrying out their obligations under subsection (2).

PARTIII-ROLEANDFUNCTIONSOF THE COMMISSION

6. The Commission shall monitor and report on theimplementation of thisAct. 7. (1) The functions of the Commission shall be to —— 3. (a) monitor the performance of the National and county governments in theirimplementationofprogrammes andplans sfortherealisationof economic and social rights;

• b) initiate, undertake and participate in the collection, preparation, production and dissemination ofdata and information on the realisation of economic and social rights;

5. C makerecommendations to theNational and county governments sonthe implementation of policies, strategies and programmes for the realisation of economic and social rights; 6. (d) identifyfactors that impede the economic development of, and access toessentialfinancial servicesby, vulnerable persons and make recommendations on policies and strategies to address the barriers; 7. e investigate anycomplaints thatmay be madeinrelation totherealisation of

economicand social rightsand take such measures as it mayconsider necessary to secure the appropriate redress;

• annually evaluate existing policies, legislation, strategies and programmes by the National and county governments that provide for the realisationofeconomicandsocial rights and make such recommendations as itmayconsider necessary to ensure the realisation of such rights;
• adviseandmakerecommendationsto the authority responsible for implementationof social assistance programs regarding the delivery of social assistance programmes;
• (h) in collaboration with relevant stakeholders, create awareness on the realisation of economic and social rights; and
• perform such other functions as may be necessaryfor the implementation of this Act.
• (2) The Commission shall, in performing its functions under this Act-
• (a)have regard 1to the applicable international information management and dissemination standards relating to theimplementationof economicand social rights; and
• (b) consult with such entities as it may consider necessary for the carrying out of the functions.

Economic and social rightsindex.

County strategic plans.

• (3) The Commission shall, in monitoring the realisation of economic and social rights,be guided by the criteria set out in the Schedule.

8. (1) The Commission shall, in addition to its observations made under section 14(2), annually prepare an economic and social rights indexwith respect to the realisation of economic and social rights by theNational and county governments.

• (2) The Commission shall, in preparing the index under subsection(1),set out-

4. (a) the criteriausedtomeasure the realisation of economic and social rights; 5. (b) the extent to which the National or county government has realised the economic and social rights of residents within the respective county; 6. (c)the extent towhich a countygovernment has adhered to its county strategic plan andtheachievementsofthecounty government within the relevant period; and 7. (d) itsrecommendationsregarding the deliveryofgoodsandservicesbythe Nationaland countygovernmentsin ensuring the realisation of economic and social rights of residentswithin respective counties.

• (3) The Commission shall publish and publicise, within relevant counties and in such manner as it considers appropriate, the economic and social rights index prepared under subsection (1).

PARTIVCOUNTYSTRATEGICPLANS

• 9.(1) In 1preparing a countyintegrated development plan under section 108 of the County

• No.17 of2012. a county strategicplanfor therealisation of economic and social rights as a component of the county integrated

GovernmentsAct,each county government shall prepare development plan.

• (2) Each county government shall set out the following information in its county strategic plan —

• (a) variables and specific actions required to be undertakenfor the realisation of economic and social rights within its county integrated development plan;

• (b) programmes and projects aimed at the realisation of economic and social rights of residents within the county;

• C programmes and policies aimed at social protection and the promotion of economic and social rights of vulnerable persons within the county;

• (d) objectives that would facilitate the availability, affordability, accessibility, adaptabilityandacceptabilityofquality goodsand servicesrelevanttothe realisation of economic and social rights; and

• e aframeworkfor theimplementation of such programmes and projects including timelines, targets and expected outcomes in the realisation of the economic and social rights.

• (3) In preparing a county strategic plan under subsection (1), a county government shall be guided by the principles of planning and development facilitation set out under section102of theCountyGovernments Act and shall--

No.17 of 2012.

• (a) ensurethe collaboration 1ofvarious departments, agencies and institutions in

No.17 of2012.

• the relevant county in theimplementation of the development plans;
• (b) allocatesufficientfinancialandhuman resources for the realisation of economic and social rights and the implementation of the respective strategic plans for such realisation;
• C adopt strategies and plans that enhance the availability, affordability, accessibility, adaptabilityandacceptabilityofquality goods and services aimed at facilitating the realisation of economic and social rights;
• (d) adoptplansthatrespondtotheunique needsand issues affecting the respective countyintherealisationofeconomicand social rights;
• adoptgenderresponsive epoliciesand strategies in order to ensure equity in the socio-economic development of residents in the county;
• f formulate mediumtermandlong term strategies and programmes as the county government shall consider necessary;
• g) formulate strategic plans that respond effectively toissues affecting therealisation of economic and socialrightswithin the county and provide such safety nets as may be necessary;
• (h) formulate strategic plans through a participatoryprocesswith theresidents of the respective county and in accordance with section115 of the County Governments Act; and
• 1 set out, in the strategic plans, such mitigation measures and programmes,

Objective of countystrategic plans.

Baselinesurvey.

including the delivery of goods and services at a subsidised rate,to ensure accessibility ofgoodsandservicesbyallwithinthe county.

10. The principal objective of a county strategic planpreparedundersection9istoenhancetheabilityof a county government to secure access,availability, acceptability,adaptability and quality of goods and servicesnecessaryfortherealisationofeconomicand social rights.

11. (l) Each county government shall, when preparing its county strategic plan, carry out a baseline survey in order to determine

• (a) the existing situation and gaps within the county with regard to the supply of goods anddeliveryof servicesaimedatensuring the realisation of economic and social rights of the residents within the county;
• (b) the areasofpriority thatrequireimmediate intervention by the county government in the realisation of the economic and social rights of residents within the county;
• (c)thebestinterventionsthatwouldensurethat the gaps identified under paragraph (a) are addressed;
• (d) the financial implications and theresources that would be required to address the gaps identified under paragraph (a);
• (e)theoutcomesofpreviousinterventions,if any; and
• t theappropriateinterventionsthatshould be carried out subsequent to the survey in order toensure therealisationof economicand social rightsoftheresidentsoftherespective county and the expected outcomes.

Receipt of grants anddonations.

No.18of2012.

• (2) The Commission shall, in consultation with the Council of County Governors, determine the parameters and the manner in which the baseline survey under subsection (1) shall be conducted.

12. (1) A county government may receive a grant or donation for the purpose of implementing its county strategicplanfor therealisation of economic and social rights of residents within the respective county. 3. (2)The provisions of section 138 of thePublic Finance Management Act and the annual County GovernmentsAdditionalAllocationsAct applicablein the respective financial year shall apply withrespect to a grant received under subsection (1).

• (3) A county government shall, prior to the appropriation of the grant or donation under subsection (1) and in addition to the requirements set out under section 138(6)of thePublicFinanceManagement Act

5. (a) undertake an assessment of the gaps that exist within the countyin relation to therealisation of the economic and social rights of residents within the county; 6. (b) identify, in consultation with the Commission, the areas under paragraph (a) that require intervention on a priority basis; 7. (c)undertake acosting and analysison the technical support requirements to ensure that any proposed projects or procurement of services are adequately funded; 8. (d) prepare standards and guidelines that are required tobemetfor therealisationofthe economicor socialrightsinrelation tothe activities to which the grant or donation is put to; and

Approval of countystrategic plansby the countyassembly.

No.17 of2012.

Reports on implementationof economicand social rights.

No.18 of2012.

• (e)prepare a report inrelation to the utilisation of the grant or donation.

13. (1) The respective county governor shall, withinfourteendaysof thepreparation of acounty strategic plan, submit a copy of the plan to the county assembly for approval.

• (2) The county governor shall, upon the approval of the county strategic plan, publish the plan in the Gazette and in the respective county gazette and publicise it within the county through such means as provided for under section 95 of the County Governments Act.

2. 14.(l)The Nationalandeach 1county government shall, not later than thirtieth September, in eachyear,submit to the Commission,theSenate and the National Assembly a report on the progress made on the realisation of economic andsocialrights and in particular, action taken to give effect to Article 43 of the Constitution.

• (2) On receipt of the report under subsection (1), the Commission shall make its observations regarding the progress made by the National and each county government and shall submit its report to —

4. (a) the Senate;

• b) the National Assembly;

6. ? the Attorney-General;

• d) respective county assemblies;

8. e the Commission for Revenue Allocation; 9. ( the Intergovernmental Budget and Economic Council established under section187of the PublicFinance Management Act; and 10. (g) the residents of respective counties through dissemination in such manner as

Recommendations onimplementation of the report.

Court action.

Remedies.

County Fiscal Strategy Paper to containmeasures on social economic rights.

it shall consider appropriate

• 15.(1) Each House of Parliament shall,upon receipt of the report from the Commission,consider the report and make such recommendations on such action that may need to be taken by
• a) the respective county governments; and
• (b) the relevant organs of the National Government.
• (2) Each institution thatreceivesthe recommendation ofParliament shall takeintoaccount therecommendationin theimplementation ofeconomic and social rights in the subsequent year and report thereon in its subsequent report under section 14(1).

16. (1) A person aggrieved by the decision to implement or refrain from implementing a recommendationunder this Part maymake an application to court in accordance with Article 22 of the Constitution.

• (2) The court may give such directions as it may consider appropriatefor theeffective enforcementofthe right in question.
• 17.Nothing in this Act may be deemed to deny anyperson the right toseekthe enforcementof anyright underArticle22of theConstitution onlybyreason that Parliamenthasnotmadearecommendationinthat regard pursuant to this Part.

18. Each county treasury shall include in its CountyFiscal StrategyPaper——

• (a)measures aimed at ensuring the realisation of economic and social rights and associated activities for that year; and
• (b) any progress made in the realisation of

Regulations.

No.23 of2013.

Cap. 2.

economic and social rights.

PARTV—MISCELLANEOUSPROVISIONS

19. (1) The Cabinet Secretary shall, within twelve months from the commencement of this Act and in consultation with the Commission, make regulations generally for the better carrying out of the provisions of this Act.

• (2) Without prejudice to thegeneralityof subsection (l), the Cabinet Secretary may make regulations-

3. (a) to provide aframeworkfor collaborationbetweentheNationaland county governments and monitoring by the Commission on the implementation of this Act; 4. (b) to provide for the procedures for the conduct of public participation under this Act; and 5. on the conduct of awareness programmes and the publication and disseminationofinformationunder this Act. 6. (3)For the purposes of Article 94(6)of the Constitution— 7. a thepoweroftheCabinetSecretaryto make regulations shall be limited to bringing into effect the provisions of thisActand thefulfilmentof the objectivesspecified undersubsection (1); and 8. b the principles and standards set out under theStatutoryInstruments Act and the Interpretation and General Provisions Actinrelation to

Public awareness framework.

Transition.

No.17 of2012.

Amendment of No. 18of2012.

subsidiarylegislation shall apply to regulations made under this Act.

20. The Commission shall, in consultation with the Cabinet Secretary and the Council of County Governors--

• a) develop and implement public education andawareness programmes on the economic and social rights and the obligations of the National and county governments towards the residents in the realisation of suchrights;

2. (b) develop andimplement aframeworkfor the participation of the residents of the respectivecounties in the formulation of county strategic plans; and 3. ? collaborate with the relevant agencies and stakeholders within counties in enhancing the capacityoftheresidentstoeffectively participating in the affairs of theNational and county governments in the delivery of goods and services that are aimed towards therealisationof theeconomic and social rights.

21. (1) Every county government with a county integrated development plan which took effect prior to the commencement of this Act shall,within twelve months after the commencement of this Act,amend its county integrated development plan to bring it into conformity with this Act.

(2) The procedure set out under section 112 of the County Governments Act shall apply to the process of amendment of a county integrated development plan under subsection (1).

22. The Public Finance Management Act is amended-- Amendment toNo. 17of2012

• (a)in section 12(1)by inserting the following new paragraph immediately after paragraph (c)—-
• (ca)formulateand adviseonfinancial and economic measures generally tofacilitate thefulfillmentof economic and social rights as set outinArticle43ofthe Constitution;
• (b) in section 126(1) by inserting the words "including for therealisationof economic and social rights" immediately after the words"priorities and plans" appearing in paragraph (a); and
• (c) in section 187(2) by inserting the following new paragraph immediately after paragraph (g) —-
• (ga) the facilitation of the achievement of Article 43 of the Constitution;
• 23.(1)TheCounty GovernmentsActis amended in section 107(1) by inserting the following () d d
• (e)county strategicplans for therealization of economic and social rights under Part IVof theEconomic and Social Rights Act.

SCHEDULE

(s. 7(3))

CRITERIAFORTHEREALISATIONOFECONOMIC ANDSOCIALRIGHTS

The indicators for the assessment, by the Commission, of the effort by the National or a county government in the implementation of Article 43 of the Constitution shall include —

• (a) whether or not it has allocated tasks and responsibilities to respective departments, agencies and institutions;
• (b)whether or not it has ensured that sufficienthuman and financial resources are made available for its implementation;
• (c)whether or not it is capable of facilitating therealisation of the rights in question;
• (d) whether or not its plan or programme is reasonable in its conception and implementation;
• (e) whether or not its plan or programme is balanced and flexible enough to, among other things, respond to unforeseeablecircumstances;
• (f)whether or not it is inclusive or excludes a significant segment of the populace, leading to unfair discrimination;
• (g) whether or not it balances short, medium, and long-term needs;
• (h) whether or not it has put in place sufficient social safety nets such as cash transfers to vulnerable persons; and
• (i) whether or not its plan or programme responds to the needs ofvulnerable persons.

I certify that this printed impression is a true copy of the Bill as passed by the Senateon20thJune,2023.

Endorsed for presentation to the National Assembly in accordance with the provisions of standing order 161 of the Senate Standing Orders.

Speaker ofthe Senate