Enforcement of Fundamental Rights and Freedoms in the Proposed Constitution
One area of reform that legal practitioners have proposed is in regard to Judicial Enforcement of Fundamental rights and Freedoms. They have generated reforms after interacting with the current constitution premised on Section 84 of the Constitution. The major handicaps revolve around four thematic areas

• Question of standing – who can bring a case in court to enforce fundamental rights and freedoms

• Question of jurisdiction of the High Court to enforce Fundamental Rights and Freedoms and the administrative Constitutional Division of the High Court.

• Question of enforcement when then the Chief Justice has not published Rules on enforcement.

• Enforcement of remedies after successful cases.

The Proposed Constitution has adequately addressed these historical concerns. The foundation (in my reading of the draft) nothing should stand in the way of Kenyans who seek to enforce their constitutional rights. Recall that rights are inherent and are not granted by the state, we are born equal, and wonderfully in the image of God I dare add. Rights are to be enjoyed at all times without restriction or discrimination. The enforcement mechanism is straight forward and will lead to greater enjoyment of rights.

Let us now examine how the draft proposes to address the above concerns.

Who can enforce rights and freedoms?
In other words who can go to court and complain, thus seek assistance (remedies), that a right or freedom has been or is under threat of violation? Every person whose right has been denied, violated or infringed, or is threatened can go to court, Article 22(1). In addition, Article 22 (2) sets out other persons or association that can institute proceedings.

In which court do you enforce the rights and freedoms?
The High Court – Articles 23(1) and 165(3) (c). Article 23(2) provides that parliament shall enact law to give subordinate (lower) courts original power to hear such cases. This will reduce the back log of cases at the High Court and ensure cases are heard within a short period.

Absence of rules to enforce fundamental rights and freedoms
The Chief Justice shall make rules under Article 22(3) of the proposed Constitution. The criteria for the rules is set out which includes the requirement that no fees is charged for taking such a case to court. Article 22(4) states that the lack of rules does not limit anyone from going to court. This is because in the past the Chief Justice had refused to make the rules with the intention of denying Kenyans the right to go to court.

Remedies
Article 23 (3) sets out the remedies that the court may give.

Be informed.