CEU Electronic Theses and Dissertations, 2009
| Author | Githii, John |
|---|---|
| Title | THE CASE FOR JUSTICIABILITY OF SOCIO-ECONOMIC RIGHTS IN KENYA: DRAWING FROM THE EXPERIENCE IN SOUTH AFRICA, INDIA AND THE UNITED STATES |
| Summary | EXECUTIVE SUMMARY This thesis looks at the objections raised against judicial enforcement of socio-economic rights particularly the arguments that attempt to make a normative distinction between positive rights and negative rights corresponding with socio-economic rights and civil and political rights respectively. The opposition to justiciability arising from judicial incapacity and legitimacy are also examined. The thesis goes deeper to address the moral and philosophical concerns that are associated with enforcement of socio-economic rights especially with concerns about the distributive aspects. The ideas of John Locke, regarded as the father of liberalism, and of the more recent libertarian Robert Nozick have been put forward and examined in the context of whether the moral obstacles that they raise in relation to socio-economic rights are warranted. In particular, Nozick’s ideas of his entitlement theory have been examined in the context of Kenya. This thesis also looks at the significant development of socio-economic rights jurisprudence that takes the whole debate to how best these rights should be subjected to judicial enforcement rather than whether or not they should in the first place. India offers useful lessons using the approach where civil and political rights in the contextual background of directive principles are applied innovatively to enforce socio-economic rights. The American jurisprudence, although there is no explicit acknowledgement of socio-economic rights, also has lessons for Kenya. South African offers the best inspiration for enforcement of socio-economic rights for Kenya. Both countries have gone through a traumatic history of dispossession and repression in colonialism and apartheid respectively. Both countries remain highly unequal. Nonetheless, South Africa has constitutionalised socio-economic rights and has gone ahead to produce interesting jurisprudence in this area. So far, the approach of enforcement has been based on the reasonableness test to assess whether the state has fulfilled its obligation in relation to socio-economic rights. It is only a matter of time for the minimum core-obligations approach to be accepted as the better approach. Challenges relating to appropriate remedies and enforcement abound but this is not unique to judicial enforcement of socio-economic rights. |
| Supervisor | Uitz Renata |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2009/githii_john.pdf |
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