A The Commissions’ Efforts to Address Vulnerability and Marginalisation That Would Exacerbate Poverty and Economic Inequality

The KNCHR and NGEC have been instrumental in investigating, reporting and making recommendations on equality-sensitive approaches that need to be taken to address the plight of various SIGs and avoid exacerbating their socio-economic marginalisation. A good example is their work on sexual and gender-based violence (‘SGBV’). Both Commissions have been active in reporting and doing advocacy work on the harms of SGBV and its various forms.^{Footnote 59}

At the onset of the COVID-19 pandemic, governmental measures to curb the rapid transmission of the virus — such as nationwide lockdowns, curfews, movement restrictions and working from home directives — largely confined people to their homes. One of the adverse effects of this was the 92.2 per cent spike in SGBV cases between January and June 2020.^{Footnote 60} Aside from its gendered element, as NGEC rightly observes, SGBV also has a socio-economic dimension, adversely affecting socially and economically vulnerable groups because of their subordinate status in society, which makes them more susceptible to violence.^{Footnote 61} The NGEC highlighted the health effects and financial implications of SGBV due to, inter alia, ‘increased disability, medical costs, and loss of labour hours’.^{Footnote 62} It estimated that an SGBV survivor and their family spend approximately Ksh 16,500 (US$146) per SGBV incident.^{Footnote 63} This cost is nevertheless averted when SGBV survivors are provided free SGBV-related health services at recovery centres set aside for SGBV survivors, with the cost being borne by the service provider.^{Footnote 64}

The SGBV example shows that an approach that recognises the interrelationship between socio-economic disadvantage and status-based discrimination is imperative in dealing with the SGBV-related poverty and economic inequality that vulnerable groups, predominantly women, face. One initiative that applies such an approach and which NGEC partners in is the National Police Service integrated POLICARE system launched in September 2021 to deal with the escalation of SGBV cases during the COVID-19 crisis.^{Footnote 65} POLICARE stands for ‘police’ and ‘cares’, a multi-agency SGBV victim-oriented one stop centre. The POLICARE system brought together the police, forensic investigators, healthcare providers, psychologists, representatives of the Director of Public Prosecutions, a magistrate on call, gender experts and correctional personnel in what was meant to be a one stop shop in addressing SGBV. It is also meant to reduce the cost of dealing with SGBV.^{Footnote 66} The NGEC is in the POLICARE management team and is specifically tasked with monitoring and advising on the integration of the principles of equality and non-discrimination in the initiative’s policy and administrative regulations, and the establishment of an Integrated Data Management System.^{Footnote 67}

The SGBV example illustrates that, through evidence-based research, the Commissions give a clear picture of root causes of poverty and economic inequality and make pragmatic recommendations on how duty bearers can address such challenges. The data also makes it is easier for the Commissions to hold duty bearers to account on their obligations to address poverty and economic inequality. Lastly, the POLICARE example shows that partnerships enable these independent Commissions to take part in activities on actual provision and fulfilment of socio-economic services to alleviate poverty and economic inequality, rather than just providing oversight on State organs’ protection and fulfilment of the same.

B Role of the Commissions in Reviewing Laws and Policies Relating to Poverty and Economic Inequality Among Vulnerable Groups

The KNCHR and NGEC play crucial roles in upholding the rule of law and ensuring that laws and policies conform to the Constitution’s human rights and equality provisions. To this end, both Commissions review laws and policies pertaining to their specific SIGs and evaluate their compliance with relevant international and regional human rights treaties and conventions.^{Footnote 68} They also work to ensure that laws and policies at both national and county levels incorporate provisions for vulnerable groups. For example, the KNCHR has assessed national and county laws and policies on disability against international standards and principles, such as those on access to education and healthcare, to identify gaps in compliance.^{Footnote 69} Upon identifying such gaps, the Commission made recommendations for improving the protection and fulfilment of the rights of persons with disabilities.^{Footnote 70} This section highlights some of the KNCHR and NGEC’s notable reviews of laws and policies, including their recommendations for revisions aimed at promoting and protecting human rights, as well as addressing poverty and economic inequality.

Regarding the KNCHR’s work in reviewing laws and policies, the first significant example is on the right to health and water.^{Footnote 71} In the past decade, the Commission has reviewed over 24 national laws and policies concerning the right to health and water, evaluating their compliance with the Kenyan Constitution and international and regional treaties Kenya has ratified.^{Footnote 72} A case in point is the Memoranda on the national Health Bill of 2015.^{Footnote 73} The Commission observed that the Bill did not adequately address the core elements of the right to health including availability, accessibility, acceptability and quality, as set out in the Economic, Social and Cultural Rights Committee’s General Comment No 14 on the right to health.^{Footnote 74} It also cited the need to provide access to healthcare without discrimination to migrants and other vulnerable and marginalised groups in Kenya such as asylum seekers and refugees, regardless of their legal status in the country.^{Footnote 75} This has been a key challenge to such groups accessing public healthcare, especially for unregistered urban refugees who do not have the required identification documents.^{Footnote 76}

The 2017 Health Act incorporates the KNCHR’s recommendations. For example, on availability and accessibility, the Act requires national and county governments to provide free and compulsory maternal care and vaccinations for children aged below 5 years.^{Footnote 77} Undoubtedly, these are positive measures in addressing poverty and economic inequality. On health financing, section 86(2)(a) of the Act requires the Ministry of Health to consult with inter-governmental entities in developing a framework to ensure provision of healthcare to vulnerable groups and the indigent. Tied to this, the KNCHR has partnered with various stakeholders in the health sector to develop monitoring standards for the realisation of the rights to health under Article 43 of the Constitution.^{Footnote 78} This includes its collaboration with the Ministry of Health in the development of the Health Infrastructure Norms and Standards and the Human Resources for Health Norms and Standards which set out ‘standards and indicators for monitoring the right to health’.^{Footnote 79}

On the right to water, one of the laws that the KNCHR reviewed, and had its feedback implemented, is the Siaya County Water and Sanitation Bill 2018.^{Footnote 80} The Commission recommended adding provisions to ensure equitable and progressive provision of water and sanitation in accordance with Article 43(1)(b) and (d) of the Constitution. They also advised amending the Bill to avoid contradictions with the national Water Act of 2016, and to include measures for the effective, affordable and economic provision of water in reasonable quantities. Subsequently, the Siaya County Assembly Committee responsible for Water and Environment implemented approximately 80 per cent of the Commission’s recommendations.^{Footnote 81}

Second, in relation to the Public Participation Bill 2018, the KNCHR pointed out that despite requiring the relevant institutions to give the public adequate notice for them to make their input, section 4(1) did not give any timeframe for meaningful participation. The Memoranda emphasised the significance of ensuring public participation, especially in development projects, as the Commission has received numerous complaints regarding rushed participation and inadequate time provided for the public to meaningfully participate.^{Footnote 82} The KNCHR also recommended that, on access to information by the public, there be an express inclusion of the requirement that information be accessible to persons with disabilities as mandated in Article 7(3)(b) of the Constitution.^{Footnote 83} This provision states that ‘the state shall promote the development and use of indigenous languages, Kenyan sign Language, Braille and other communication formats and technologies accessible to persons with disabilities’. These recommendations are important since public participation is an important means of claiming one’s rights and highlighting issues of poverty and economic inequality that a person or a people want resolved.

The NGEC has also released memoranda on various laws and policies it has reviewed that directly impact poverty and economic inequality issues affecting its SIGs. First, between the year 2013 and 2021, the NGEC reviewed over 320 legal instruments, policies, bills, administrative guidelines and procedures — both at the national and county level — and issued memoranda on the extent to which they protected and promoted the rights and freedoms of SIGs.^{Footnote 84} It also issued more than 300 advisories to various state organs geared towards mainstreaming issues affecting persons with disabilities, women and the youth in plans, budgets and other policy interventions.^{Footnote 85} The language of the said laws and policies was also reviewed to ensure that they did not use derogatory terms and phrases in reference to SIGs and their needs.^{Footnote 86} It is reported that a majority of the advisories ‘have led to the review of the discriminatory actions and considerations of the corrective measures to reduce exclusion of SIGs in major opportunities’.^{Footnote 87}

Second, in its 2021 Report on the Poverty Eradication Authority Bill, the NGEC highlighted the sufficiency of existing laws and policies, including those under development, drafted pursuant to Article 43 of the Constitution to eliminate poverty and economic inequality.^{Footnote 88} As such, the Commission argued that the creation of a new public body to tackle poverty eradication was unnecessary and would place an unwarranted burden on taxpayers. Instead, it recommended that what is needed is compliance and implementation monitoring of existing institutions, and laws and policies addressing poverty. Moreover, it suggested that the proposed Authority’s functions could be assigned to existing institutions via legislative amendments, as the Bill did not provide any distinct purpose for the proposed poverty eradication Fund. Further, the Commission noted the Bill’s failure to adequately capture poverty’s root cause — the unequal, inequitable and unfair distribution of national resources. These concerns were acknowledged by the National Assembly’s Departmental Committee on Finance and National Planning, which rejected this private member’s Bill entirely.^{Footnote 89}

Third, another noteworthy advisory by the NGEC is that directed to 44 principal secretaries, the Private Sector Alliance and 14 hospitals (both private and public), impressing upon them the fact that compliance with the 2017 Health Act ‘requires all employers to support working women to breastfeed at work through the establishment of lactation stations’.^{Footnote 90} Like this one, many of NGEC’s advisories are not just addressed to State organs but also to institutions in the private sector.^{Footnote 91}

Fourth, towards achieving its goal to develop standards for the realisation of socio-economic rights, the NGEC has developed 10 standard guidelines, handbooks, model tools and instruments to integrate equality and inclusion of SIGs in the work of national and county governments as well as the private sector.^{Footnote 92} It is reported that, by 2021, 29 counties had established Equality and Inclusion Working Groups and 11 of these were using the Commission’s equality and inclusion guidelines in their work.^{Footnote 93} This helps draw attention to the socio-economic needs of those who are either at the margins of society, or need special protection because of their susceptibility to discrimination on the basis of their personal characteristics such as gender, disability, social origin or health status.

Despite the institutions, laws and policies in place to implement the socio-economic rights in Article 43, there have been numerous challenges, especially concerning corruption. For instance, in its 2017/2018 Annual Report, NGEC noted that social protection programmes targeting older members of society have been hindered by mismanagement and corruption during disbursement.^{Footnote 94} The Commission’s 2019 to 2024 Strategic Plan emphasises that Kenya’s recurring misappropriation of public funds and cases of corruption have resulted in inadequate funding in various government sectors. As a result, NGEC has made it a priority during this period to collaborate closely with national and county government institutions to promote the equitable distribution of resources.^{Footnote 95} This collaborative approach will likely involve engaging in discussions aimed at addressing corruption as well.

C Complaints Handling Mechanisms: Investigations and Redress — Status Reports, Inquiries and Fact-Finding Missions

Both Commissions have internal complaints handling mechanisms and have also sought to redress conflicts that relate to or could exacerbate poverty and economic inequality. They achieve this by directly hearing and processing complaints, conducting investigations and providing redress based on reported complaints, utilising alternative dispute resolution (‘ADR’) mechanisms and seeking judicial intervention as petitioners, co-petitioners, interested parties or amicus curiae.

Between 2020 and 2021, the KNCHR processed a total of 1,001 complaints alleging human rights violations, with 57.2 per cent of them being related to economic, social and cultural rights. Among these complaints, 583 were heard and closed by the Commission, while 113 were referred to its partners for further action. It conducted 113 investigations on the received human rights complaints, instituted 38 public interest court cases and resolved 24 through ADR.^{Footnote 96} During the same period, NGEC received and processed a total of 67 complaints related to violations of gender equality and non-discrimination principles. These complaints covered a range of issues, including cash transfer for the elderly, alleged discrimination based on gender and disability, property dispossession discrimination, land disputes, SGBV, alleged intimidation of a caregiver to a disabled person, unlawful termination and eviction.^{Footnote 97} The NGEC’s legal and investigations department successfully processed and resolved 66 per cent of these complaints, while the remaining cases were referred to the appropriate institutions for further action.^{Footnote 98}

The rest of this section highlights a selection of reported complaints that were investigated, reported and subsequently addressed. As previously mentioned, the KNCHR and NGEC have the authority to investigate violations of human rights, equality and non-discrimination through inquiries and fact-finding missions, and to provide recommendations on the same in their status reports.^{Footnote 99} In addition, the Commissions employ financial monitoring to assess the accountability of issues such as resource distribution, ensuring that funds are utilised while upholding human rights.^{Footnote 100}

The KNCHR and NGEC have been actively involved in conducting various fact-finding missions and inquiries on alleged human rights violations that exacerbate poverty and economic inequality experienced by vulnerable groups. Through these investigations, the Commissions have made significant findings and actionable recommendations to address these issues.^{Footnote 101}

The KNCHR’s function of addressing forced evictions and displacement of persons has resulted in several successful investigations. One such investigation focused on the alleged forceful eviction of members of the Ogiek indigenous community in Kenya’s Nakuru County.^{Footnote 102} The findings revealed that police officers had used excessive force during the evictions, which resulted in the deaths of two people. The Kenya Forest Service and Ministry of Lands’ construction of a cutline in the area also led to conflicts between the Ogiek and Kipsigis communities. To address these issues, the KNCHR, through ADR, engaged the Police Regional Commandant, the National Cohesion and Integration Commission and the Kenya Forest Service in Nakuru County. As a result of these efforts, the government established a multi-agency team to find a lasting solution to the problem. The team reached an agreement to allocate land to the Ogiek. The community was also provided with police protection to return to their evicted land and harvest their crops.^{Footnote 103}

Second, in response to a formal complaint received in 2020, the KNCHR conducted a field Fact-Finding Mission on Alleged Forceful Eviction at the Border Between Taita Taveta and Kajiado Counties, as well as Ziwani Settlement Scheme, Njukini Chala Ward Taveta Sub County, Taita Taveta, that yielded positive outcomes.^{Footnote 104} The investigation found that unidentified individuals accompanied by security personnel had forcefully evicted residents of Taita Taveta’s Njukini area to demarcate the boundaries between Taita Taveta and Kajiado counties. The eviction was carried out without prior notice and despite the residents possessing title deeds. The KNCHR worked with CSOs and representatives from national and county governments to achieve various outcomes. These included the successful resettlement of 12 displaced families from the Ziwani Settlement Scheme and recognition of the Boundary Dispute Agreement between Taita Taveta and Kajiado counties, which was reached on 4 July 2020.^{Footnote 105}

Turning to the NGEC’s work, its report on Unmasking Ethnic Minorities and Marginalised Communities in Kenya sheds light on the plight of marginalised groups in Kenya, highlighting their socio-economic challenges.^{Footnote 106} The report maps out various marginalised communities and ethnic groups in Kenya, revealing that they suffer from low literacy rates, higher unemployment rates, limited access to transportation and communication infrastructure, lack of social amenities, water scarcity, food insecurity and high levels of poverty.^{Footnote 107} To address this issue, the NGEC recommends classifying ethnic groups whose population is below 0.5 per cent of the national population as minorities.^{Footnote 108} Based on this report, the Commission has partnered with entities such as the Kenya National Bureau of Statistics to ensure the official recognition of indigenous and small communities like the Wardei, Makonde, Shona, Sengwer, Cherengani, Waata, Sanya, Yaaku and the Ogiek in national census, surveys and other data collection exercises.^{Footnote 109} Recognising these groups is crucial as they can then claim the socio-economic and political benefits that are set out in various constitutional provisions for minority and marginalised groups.^{Footnote 110}

Third, the NGEC investigated ethnic clashes that occurred in Kenya’s Tana River County.^{Footnote 111} The clashes were mainly driven by a fight for socio-economic resources, with water and grazing land being the key resources at stake. Communities in the area mostly practice crop farming and pastoralism, with the pastoralists (mostly Orma) claiming the right to access water and pasture for their livestock, while farmers (mostly Pokomo) claimed access to fertile farmlands along the river. This eventually led to a violent conflict, as pastoralists saw farmers as blocking their access to water and pasture, whereas farmers saw pastoralists as encroaching on their farms.^{Footnote 112}

To establish the cause of the violence and its impact on SIGs, the Commission conducted consultative meetings with elders, women and education officials in the area. The NGEC also visited camps for internally displaced persons, schools and affected villages. Based on its findings, the Commission made several recommendations, including offering psychosocial support to victims through the Ministry of Special Programmes and other actors; providing humanitarian assistance for internally displaced persons; allocating resources to address the lack of provision of public services in the area; dealing with inequalities among ethnic groups in employment, education and poverty reduction.^{Footnote 113}

Another significant recommendation was for affirmative action for standard 8 (primary school) and form 4 (secondary school) candidates. This was because the clashes had disrupted their final year third term studies and their preparations for national examinations to exit primary and secondary school, respectively, and move to the next level of their studies. The NGEC noted that the Kenya National Examination Council did not make proper preparations for these candidates. Further, even though national examinations were postponed for three weeks following the countrywide teachers’ strike in 2012, no such postponement was given after the tribal clashes in the large Tana River County, despite most of the schools being closed during the clashes.^{Footnote 114} There was thus a bias against children from these marginalised communities, who were not given an equal opportunity to compete favourably with their counterparts from well-off regions through consideration of the harsh conditions in which they study.

This example highlights that the implementation of KNCHR and NGEC reports is often contingent upon political goodwill, which is influenced by ‘the vision and posture of the political leadership in power’.^{Footnote 115} The lack of political goodwill resulted in the non-implementation of the NGEC recommendation for affirmative action targeting standard 8 and form 4 candidates.

Further, the two Commissions made significant efforts to investigate and report on the negative impact of government initiatives to curb the spread of Coronavirus that were poorly planned and ended up worsening the plight of vulnerable groups and exacerbating poverty and economic inequality.^{Footnote 116} However, despite the Commissions’ efforts, the reports did not result in significant policy changes and initiatives to address the issues they raised. The highlighted areas of concern, such as the rising cost of living, the need to address high out-of-pocket healthcare expenses, ending forced evictions and accommodating persons with disabilities in educational institutions, workplaces and modes of transportation, remain largely unaddressed.^{Footnote 117}

Nevertheless, the examples discussed underscore the critical role that investigations, fact-finding and inquiry reports play in protecting the human rights of vulnerable groups, particularly in cases where violations exacerbate their existing socio-economic disadvantages. These reports are instrumental in enabling the Commissions to advocate for equitable access to social goods and special socio-economic interventions to alleviate poverty and address the economic inequality experienced by marginalised groups. By highlighting these issues and bringing them to the attention of policymakers, the Commissions can push for meaningful change and work towards creating a more just and equitable society for all.

D Complaints Handling through Public Interest Litigation

Having explored the general complaints handling process and investigations stemming from reported complaints in the previous section, this section focuses on some of the public interest court cases pursued by the Commissions.

One of these public interest cases, Kenya National Commission on Human Rights & Another v Attorney General & 3 Others, aimed to prevent the aggravation of poverty and economic inequality by rendering refugees and asylum seekers homeless. The KNCHR filed a constitutional petition challenging the unlawfulness of the threatened closure by the government of Kenya’s Dadaab and Kakuma refugee camps, where more than 494,921 registered refugees and asylum seekers reside.^{Footnote 118} The main issue for determination was whether the government had violated the non-refoulement principle in section 18 of Kenya’s previous Refugees Act 2006, Article 33 of the 1951 Convention Relating to the Status of Refugees and other regional and international treaties that Kenya has ratified.^{Footnote 119} Nullifying the directive, the Court held that it violated the principle of non-refoulement, was discriminatory and unconstitutional.^{Footnote 120} Another directive on closure of the two camps was successfully challenged in 2021.^{Footnote 121} As of June 2023, both Dadaab and Kakuma refugee camps continue to be operational illustrating that the court orders were somewhat effective. In accordance with Part VII of the Refugees Act of 2021, the government is formulating plans to transform these camps into integrated settlements for refugees to co-exist with host communities.^{Footnote 122}

The NGEC has also been actively involved in equality and non-discrimination cases. In the case of National Gender and Equality Commission v Majority Leader, County Assembly of Nakuru & 4 Others, the Commission challenged a motion passed by the Nakuru County Assembly to de-whip nominated members of the County Assembly (‘MCAs’), who mainly consisted of NGEC’s SIGs such as women, persons with disabilities and youth, from serving as chairpersons and vice-chairpersons in different committees.^{Footnote 123} This motion would have resulted in discrimination against nominated members in taking up leadership roles in the County Assembly, as elected members saw themselves as more deserving of such roles. Further, the case had an economic inequality aspect since it concerned a circular issued by the Salaries and Remunerations Commission capping the mileage allowance of nominated MCAs to the standard mileage provision, which was lower than that of elected MCAs. Joel Ngugi J held that ‘nominated and elected members of County Assemblies had equal status and are entitled to equal opportunities, responsibilities and privileges including opportunities for leadership positions in County Assembly Committees’.^{Footnote 124} He also held that ‘nominated MCAs represent special interest groups especially the vulnerable, minority and historically marginalized groups such as women, youth, persons with disabilities and racial minorities’.^{Footnote 125} This public interest litigation by the NGEC, therefore, prevented this particular reinforcing of economic inequality.

These examples demonstrate that the involvement of the KNCHR and NGEC in public interest litigation plays a crucial role in holding State actors accountable for human rights violations and ensuring the protection of human rights, especially in the prevention of poverty and economic inequality.

Nevertheless, the ability of the Commissions to use public interest litigation to uphold socio-economic rights and equality is negatively impacted by the prevailing culture of impunity in Kenya, which manifests in the non-adherence to court orders by government organs.^{Footnote 126} This is evident in the case of Parliament’s persistent failure to implement Article 27(8) of the Constitution and related provisions, which stipulate that not more than two-thirds of the members in elective and appointive bodies should be of the same gender. Despite the various legal interventions and initiatives by the Commissions and other entities, the rule remains unimplemented, which undermines the Commissions’ efforts to promote gender equality and prevent discrimination.^{Footnote 127}

A Overlapping Mandates

Despite efforts to clearly define the division of tasks between the KNCHR and NGEC, their work often overlaps due to several reasons. First, some of their SIGs such as persons with disabilities, children and refugees are similar, leading to duplicity of effort. Second, they sometimes review the same laws and policies, which creates confusion.^{Footnote 128} The overlapping mandates of the two Commissions resulted in the proposed Kenya National Commission on Human Rights (Amendment) Bill of 2020, which suggested the merger of the KNCHR and NGEC to solve the problem of overlapping mandates, enhance effectiveness and save taxpayers money. However, the NGEC opposed the merger, stating that it would lead to a ‘loss of strategic clarity and focus’ as they have many unique focus areas.^{Footnote 129} Although the Bill was published in the Kenya Gazette in February 2020 for introduction into the National Assembly, there is no documented information regarding its progress thereafter.^{Footnote 130} However, it is evident that the Bill did not receive parliamentary approval and was not passed into law. Close collaboration in thematic areas where their mandates overlap is essential for effective utilisation of resources and better coverage of issues. Therefore, an emerging trend is the need to address the silo mentality of such IPDs in tackling related issues.

B Reach

The KNCHR and NGEC are headquartered in Nairobi and their regional branches are mostly located in urban centres making their services inaccessible to many of the poor and marginalised in rural areas.^{Footnote 131} Adding to this concern, most human rights NGOs in Kenya, such as KHRC, Haki Africa and the Kenya Chapter of the Federation of Women Lawyers, only have branches in urban areas, hindering the scaling up of their positive impact on the society.^{Footnote 132} Pro bono services are also largely inaccessible for the rural population.^{Footnote 133} The KNCHR has noted that its limited regional presence and accessibility is a challenge to its workings.^{Footnote 134}

Furthermore, limited staffing affects the Commissions’ reach. In the 2017/2018 financial year, the KNCHR had only 106 in-post staff, which fell short of the recommended staffing number of 205.^{Footnote 135} This shortage of personnel persisted despite the Commission receiving over 3,437 complaints during that period.^{Footnote 136} This shortage of staff impedes the Commissions’ ability to effectively promote and protect human rights. To overcome these challenges, it is crucial that the Commissions expand their regional presence and collaborate with local organisations to reach more rural areas, while also addressing staffing shortfalls.

On a positive note, the Commissions’ oversight role applied to private sector actors who adopted their standard setting and mainstreaming guidelines.^{Footnote 137} This not only legitimises their work but also demonstrates the horizontal reach of their efforts.

C Resourcing

Despite the high demand for their assistance, the KNCHR and NGEC face significant challenges related to the lack of adequate resources to run their programmes. Financial autonomy is a major impediment to the KNCHR’s work, with the government often delaying disbursement of funds.^{Footnote 138} Additionally, the KNCHR has experienced consistent budget cuts by the exchequer in recent years, negatively impacting its ability to meet set targets. For example, over the past seven years, its funding has decreased significantly from Ksh 463.02 million (US$3.76 million) in the 2014/2015 financial year to Ksh 398.76 million (US$3.43 million) in the 2017/2018 financial year.^{Footnote 139} Such funding cuts impede the Commissions’ ability to effectively address human rights violations and provide adequate assistance to those in need, which contravenes Article 249(3) of the Constitution. This provision obliges Parliament to allocate sufficient funds to the Commissions to enable them to fulfil their functions appropriately. As Obura aptly argues, it also threats their independence as fear of budget cuts could make them reluctant to criticise the government.^{Footnote 140}

However, the KNCHR and NGEC’s work in safeguarding people’s socio-economic rights and equality has attracted many local and international development partners. These include the Royal Danish Embassy, Uraia Trust, the European Union, the Royal Netherlands Embassy and Royal Norwegian Embassy, which provide the Commissions with additional financial resources that enable them to conduct more resource-intensive work like the aforesaid POLICARE example.^{Footnote 141} Notably, in the 2017/2018 financial year, the KNCHR received Ksh 190.65 million (US$1.64 million) in funding from development partners.^{Footnote 142}

D Political Goodwill

The effectiveness of the Commissions as government watchdogs is impacted by their dependence on government goodwill.^{Footnote 143} One example is the KNCHR’s struggle to hold duty bearers and agencies such as the National Police Service accountable for human rights violations due to their non-responsiveness or limited responses.^{Footnote 144} Moreover, lack of cooperation from public and private institutions has been identified as a major obstacle to resolving complaints in a timely manner.^{Footnote 145}

Nevertheless, unlike in the past, where reports were made on problems facing the country, but little was done to address them, the two Commissions’ engagement and collaboration with other stakeholders with implementation powers, and their follow-up actions, reveal that positive action is possible, and that the culture is changing.^{Footnote 146} The small wins are as meaningful as the big ones, and the NGEC’s report on Unmasking Ethnic Minorities and Marginalised Communities in Kenya demonstrates that recommendations can be implemented by piecemeal, over time, and that reports can be useful in future initiatives. Reports spark discourse, reflection and engagement on issues affecting SIGs. Such data is crucial to inform future reforms, reviews of laws and policies, and to address reported matters.