The image of demonstrators wearing sufurias on their heads remains the best caption for the demonstrations called by the opposition’s Azimio coalition to protest several ills they believe bedevil the country as a consequence of the policies of the Kenya Kwanza administration.
Top on the list of concerns includes the high cost of food, electricity, petrol and other basic commodities, which has seen a general rise in the cost of living, which Azimio attribute to the scrapping of subsidies and introduction of more and higher taxes.
Yet despite food and food insecurity being the poster child for the demonstrations, there is a genuine fear that food will be relegated to the backwaters and that other concerns such as an audit of the IEBC servers and reconstitution of the IEBC will take centerstage as the talks begin. We must not allow this to happen.
The right to food is enshrined in Section 43 of the 2010 Constitution, part of the social and economic rights. Article 43(1)c says “every person has the right to be free from hunger, and to have adequate food of acceptable quality”.
Article 53(1)c emphasises the right to food with regards to children, thus “every child has the right to basic nutrition, shelter and health care.”
Internationally, the right to food is part of Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), to which Kenya is a state party by way of ascension since 1972.
Such a human rights-based approach to food security means that citizens have a right to demand the same from the government and other duty-bearers, and that the government is not doing its citizens a favor by providing physical, social and economic access to sufficient, safe and nutritious food that meets their dietary needs and food preferences for an active and healthy life at all times.
Rather, the government or state is bound by law to fulfill its obligations towards rightsholders for the right to food.
Obligations of the state
The right to food puts several obligations on the government.
The obligation to respect requires the government not to take any measures that arbitrarily deprive people of their right to food. The arbitrary removal of subsidies and other measures intended to cushion poor and vulnerable citizens from the high cost of food, without putting in place alternative moderating measures, must be seen as a failure to respect the right to food.
The obligation to protect expects the government to set up and enforce appropriate laws and take relevant measures to prevent third parties, including individuals and corporations, from violating citizens’ right to food.
The presence of cartels, middlemen and multinational companies that serially import food items even when they are available or can be produced locally, or sell inputs and agro-chemicals, some of which are banned in other countries due to their toxicity to human and environmental health, constitute a failure to protect the right to food.
The obligation to fulfil (facilitate and provide) requires the government to pro-actively implement policies and programs intended to strengthen people’s access to, and utilisation of resources to facilitate their ability to feed themselves.
The lack of job opportunities for the youth, poor pay and high taxes for those in employment are pointers to the failure by the government to ensure citizens have the means and capacity to feed themselves in dignity.
In the extreme case where an individual or group is unable to enjoy the right to adequate food for reasons beyond their control, the government has the obligation to fulfil that right directly by providing food to those who need it.
Progressive rights
A notion that is often used as an excuse to deny citizens their right to food is the concept of progressive realisation. Progressive realisation implies that the government’s obligations to the right to food are to be realized progressively – over time, rather than at once. That is, the government ought to take steps as expeditiously as possible to achieve the right to adequate food.
According to Article 2(1) of the ICESCR, governments should “undertake to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”
Progressive realisation therefore provides a balance between the activation of the right to food and the peculiar national circumstances pertaining to the availability of resources. In 2004, the FAO developed Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security.
While it is true that the realisation of the right to food will be progressive. This also means that there must be a baseline or minimum starting point against which ‘progress’ is to be measured. The essence of progress is continuity, meaning that realisation does not really stop.
However, progress and continuity also imply that there is a starting point. It is this starting point that is often not defined in many jurisdictions, Kenya included. As a result, nothing is really done to achieve the right to food.
The starting point can be defined in either of two ways: one is the status of access to food or state of food security in the country, particularly for the poor and vulnerable, at a certain point in time (baseline), e.g. in 2010 when the country adopted the new Constitution with the right to food embedded therein. We then measure progress from the 2010 baseline.
Another is to collectively set what we consider minimum right to food and agree on how that minimum standard is to be realized for everyone, and by when. Otherwise, if left open as a dynamic concept with no set start point and moving goals/targets, then progressive realization loses meaning as a policy tool and becomes a mockery of the right to food.
Has Kenya as a country collectively agreed on the minimum right to food against which we should measure progressive realization? What is the red line in the sand when it comes to the right to food for Kenya? How can we say that we are progressively realizing the right to food when we don’t have an agreed bare minimum?
How do we then measure and review progress … from what to what? These questions must form part of the agenda of the proposed Azimio-Kenya Kwanza dialogue for us to begin to tackle the perennial and systemic food security challenge.
Right to food bill
A right to food law is one of the avenues through which the above questions can be addressed. A framework law facilitates – and is imperative – in the implementation of the right to food at the national level.
The ICESCR and FAO’s Right to Food Guidelines urge governments to develop a legal framework to guide their path towards a rights-based approach to food security. Several countries have set up framework laws on the right to food, among them Guatemala, Brazil, India, Nicaragua and Malawi.
Such framework laws may significantly contribute to the realisation of the right to food by ensuring that relevant government agencies are held to account if they do not comply with the obligations set out in the laws, putting the right to food at the centre of national development strategies, and guiding international cooperation, aid, trade and investments negotiations.
Some of the provisions of the right to food laws from countries that have implemented them include:
i) Recognising the justiciability of the right to food and providing recourse mechanisms.
ii) Establishing monitoring institutions to constantly assess progress made towards realising the right to food.
iii) Provisions requiring the government to tailor interventions to the most vulnerable and food insecure groups through targeted programs, affirmative action and safety nets.
iv) Establishing a National Food Security Council comprised of all key stakeholder groups as an advisory body on food security matters.
v) Procedures for regular right to food impact assessments.
vi) Mechanisms to ensure allocation of adequate resources to enable the various institutions involved in furthering the right to food fulfil their obligations.
That Kenya subscribes to the Maputo Declaration on allocation of 10 per cent of its national budget to agriculture, yet there are no mechanisms to enforce this commitment, underscores the need for such a framework law on the right to food.
The Right to Food Coalition brings together civil society organisations which are concerned about and champion the right to food, and are currently working on a right to food bill.
Development of the right to food bill should be taken seriously by the government and the bill fast-tracked in both the National Assembly and Senate as part of the bipartisan dialogue between Azimio and Kenya Kwanza.
As the two coalitions set up their negotiating teams and line up their positions and demands, it is imperative that food insecurity, which formed the very basis of the demonstrations, take its rightful place at the center of the dialogue.
Consequently, the dialogue teams must be expanded to include civil society organisations, farmers’ groups, human rights bodies, experts,and other stakeholder groups – to articulate the right to food in the talks.
This is the only way to answer President William Ruto’s rhetorical question on whether wearing sufurias on the head can enhance food production and lower the cost of food. BY DAILY NATION