Human rights and Kenya’s legal obligations on the right to food
Attaining food security is a complex task for which the primary responsibility rests with individual governments.
The right to food is one of our economic and social rights, which the state is required to take steps to achieve. As a State Party to the International Covenant on Economic, Social and Cultural Rights (ICESCR) and under Article 43 of the Constitution of Kenya, the government has the obligation to respect, protect and fulfil the realisation of the right to food for all Kenyans.
In 2011, the Consumer Federation of Kenya (COFEK) sued the government – specifically the Attorney General, Minister of Energy, Minister of Finance, Energy Regulatory Commission and the National Oil Corporation of Kenya – for failing to stabilise high fuel prices, which triggered a spike in food prices. The petitioners argued that this violated Article 43 of the Constitution, which guarantees citizens freedom from hunger and the right to adequate food of acceptable quality. It was an ambitious case that was one of the first tests of a new Constitution. COFEK’s decision to litigate was founded on the Constitution which gives the courts prominent role as guardians of the highest law of the land, and as the main body charged with the protection of fundamental rights and freedoms.
The judges, however, ruled that the petitioners had not adequately demonstrated how, exactly, the government had failed to fulfil its constitutional obligations. The authorities had indeed instituted some policy measures, such as intervening on the oil prices. More interestingly, the defendants argued that natural phenomena such as rainfall affected food security and the cost of living in ways the government policy was not able to control.
Although COFEK was not successful in the petition, the case remains an important touchstone in Kenya’s legal history. Courts can and do play a role in the realisation of economic and social rights. The jurisprudence of the South Africa Constitutional Court in the case of the Government of the Republic of South Africa and Others v. Irene Grootboom and Others (case no. CCT 11/00, 4 October 2000) is an important example of success. The COFEK ruling, therefore, should not dampen the spirit of any Kenyan who would like to exercise their constitutional rights.
Food security put simply
Food security exists when all people, at all times, have physical and economic access to sufficient, safe and nutritious food to meet their dietary needs and food preferences for an active and healthy life. Attaining food security is a complex task for which the primary responsibility rests with individual governments, which have to develop an enabling environment and have policies that ensure peace, as well as social, political and economic stability, equity and gender equality.
Adequate food means more than simply caloric quantity. It means sufficient nutritious food – free from unsafe substances and acceptable within the culture – to support active, healthy living. Governments must do their best, within their available resources, to guarantee this right and to call for international help if their own resources do not suffice. For those unable to provide for themselves, whether it is through physical limitation, during natural disasters or during periods of extreme hardship, states must establish safety nets.
Elements of the right to food
The essential elements of the right to food include availability, accessibility, adequacy, and acceptability of food.
Availability refers to the possibility of either feeding oneself directly from productive land or other natural resources or purchasing it from the market – presuming well-functioning distribution, processing and market systems. In simple terms, the food must be there.
Accessibility takes into account both economic and physical aspects. Economic accessibility means that an individual or a household must have the economic means to procure food without compromising other basic necessities. Physical accessibility implies that adequate food must be accessible to everyone, including physically vulnerable individuals, such as infants and young children, elderly people, the physically disabled, and persons with medical problems. Food must be accessible for both present and future generations (sustainability).
Adequacy refers to both the quantity and quality of food, in terms of food safety and nutrition value. This must be determined using prevailing social, economic, cultural, climatic, ecological and other conditions. It should meet the dietary needs of an individual from a health perspective.
The adequacy standard also touches on cultural or consumer acceptability, which means that one must consider cultural preferences on food – religious beliefs and taboos must be respected. For example, one cannot provide pork to Muslim households in the name of ostensibly securing their food security.
The right to be free from hunger has been defined as the right “to have access to the minimum essential food which is sufficient and adequate to ensure everyone is free from hunger and physical deterioration that would lead to death.” Under the international obligation outlined in the ICESCR, states must ensure “for everyone under its jurisdiction access to the minimum essential food which is sufficient, nutritionally adequate and safe.” Freedom from hunger is considered to be the minimum essential level of the right to food that states must ensure the satisfaction of, regardless of economic and political conditions.
The obligation on governments is to take all appropriate steps and such steps should be “deliberate, concrete and targeted.” It is ultimately up to each State Party to decide what kind of measures will be the most appropriate to ensure the realisation of the right to food. These measures could include legislation, or implementing administrative, economic, financial, educational or social reforms. The obligation to take steps with a view to progressively achieving the full realisation of the right to food implies that some measures to be taken immediately, while others are taken more gradually. The ICESCR clarifies that State Parties have a duty to “move as expeditiously and effectively as possible” towards the full realisation of the rights contained in the covenant.
The obligation to take steps through the efforts of states themselves and international assistance means that states are obliged to use the maximum available resources, including their own resources and those of the international community, to realise the right to food. If a state argues that it does not have the resources to at least meet its minimum core obligations, it must demonstrate that every effort has been made to use all the resources at its disposal to meet these minimum standards. The state must also demonstrate that it has made every effort to obtain international support to ensure the availability and accessibility of food. While the ICESCR allows for progressive realisation, certain obligations apply immediately regardless of resource availability.
The obligation not to discriminate requires each State Party to ensure equal enjoyment by all of all the rights contained in the ICESCR. The obligation not to discriminate requires that the level of protection of the right to food is objectively and reasonably the same for everybody, irrespective of race, colour, sex, language, religion, political or other opinions, national or social origin, property, birth or another status. It means that a state should identify the most vulnerable groups within its jurisdiction and take proactive steps, usually referred to as ‘special measures’, to bring the level of enjoyment of the right to food of these groups in line with the rest of the population.
Responsibilities: Respect, protect and fulfil
The obligation to respect the right to food requires states not to take any measures that would result in preventing individuals from having access to food. This negative obligation imposes limitations on state conduct that may threaten the right to food. Under this obligation, states cannot suspend legislation or policies that provide people with access to food, unless fully justified. The violations of the obligation to respect could occur if a government arbitrarily evicted people from their land, especially if the land was their primary source of subsistence, or if the government suspended social security provisions without ensuring that vulnerable people had other means to provide for themselves.
Under the duty to protect, states have a positive obligation to safeguard the enjoyment of the right to food against interference by third parties (such as private individuals, private enterprises and other entities). This obligation involves regulating the conduct of such non-state actors by the state. A violation could happen if, for example, a company polluted a community’s land or water supply and the state took no action. Under the obligation to protect, a state may also be required to enact consumer protection and food safety legislation to ensure that food which reaches the market is free from harmful substances.
The obligation to fulfil is made up of both an obligation to facilitate and an obligation to provide. The obligation to facilitate means that states must engage in activities intended to strengthen people’s ability to access means and resources to secure their livelihood, for example by implementing agrarian reform programs or introducing minimum income regulation. In particular, states are required to identify vulnerable groups and to implement policies to ensure their access to food or to the means of obtaining it. Whenever an individual or group is unable to enjoy the right to adequate food by the means at their disposal, for reasons beyond their control, states have an obligation to provide it. For instance, a state would fail to comply with the obligation to fulfil if it allowed people to starve when they were in need and had no way of providing for themselves.
Still, food aid should, as far as possible, be provided in ways which do not adversely affect local producers and local markets and should be organised in ways that facilitate the return to food self-reliance of the beneficiaries. Such aid should be based on the needs of the intended beneficiaries. Products included in international food trade or aid programmes must be safe and culturally acceptable to the recipient population.
A rights-based approach
What does this mean for Kenyan legislation, policymaking and activism? In light of its legal and international obligations, the government should at the national level, adopt a human rights-based approach to food security that emphasises universal, interdependent, indivisible and interrelated human rights. A human rights-based approach would emphasise the achievement of food security as an outcome of the realisation of existing rights. It would include the need to enable individuals to realise the right to take part in the conduct of public affairs, the right to freedom of expression and the right to seek, receive and impart information, including in relation to decision-making about policies on realising the right to adequate food.
A human rights-based approach would take into account the need for emphasis on poor and vulnerable people who are often excluded from the processes that determine policies to promote food security. In this approach, people hold their governments accountable and are participants in the process of human development, rather than being passive recipients. A human rights-based approach would require not only addressing the final outcome of abolishing hunger, but also proposing ways and tools by which that goal is achieved.
However, Kenya has no known overarching right to food policy. The policies in the agricultural sector, land policy, planning, finance and other sectors that would contribute to the right to food are not in sync. There is, therefore, an urgent need for framework law that would make multiple sector policies coherent. Only then will the right to food not only linger in the zone of progressive realisation but would become a present-day reality for Kenyans.
Neto Agostinho is a trained lawyer, obtaining his degree from the University of Nairobi, and is currently pursuing his Masters in International Relations at the United States International University in Africa. He represented Ndhiwa constituency, in Homabay County in the National Assembly of Kenya between 2012 and 2017. He is the co-leader of the United Green Movement, which seeks to help realise civil, political, economic, social, and cultural rights in Kenya.