A Guide to Public Interest Litigation in Kenya

This Handbook on Public Interest Litigation (PIL) in Kenya is a milestone in the history of PIL in Kenya. I
take this opportunity to commend Kenyans for Peace with Truth and Justice (KPTJ), Africa Centre for Open
Governance (AfriCOG) and the Katiba Institute for developing it. I am happy to note that KPTJ, AfriCOG
and Katiba Institute have developed a solid reputation for urging the Kenyan state and polity to adhere to
the commitments it has made to improve democracy, human rights and open governance in the country.
The three organizations have been particularly audible, visible and articulate in focusing attention on
issues of social and economic transformation in the country such as land rights violations, police abuses,
corruption and electoral malpractice as well as making critical inputs in policy deliberations on these and
other governance concerns.
Now that Kenya has a new constitution that provides for a devolved system of governance, economic
and social rights and more robust protection for women’s rights and rights of the marginalized, it is not
premature to state that the strategic battle for the creation of a new framework for democracy and open
governance has been won. However, the next phase of focus for the democracy and governance sector is
to see to it that these new constitutional provisions are fully implemented to the benefit of the people
of Kenya. This phase will, of necessity, include the calibration of the delicate content of these provisions
and will, in all likelihood, continue into the foreseeable future. We can also conclude, in comparative
perspective, that the next phase will be most challenging.
It is for this reason that the decision to develop this Handbook is important. History shows that PIL has
been a particularly critical tool for testing, clarifying and shaping law, policy and practice in societies across
the globe. PIL will make an important contribution to the lives of many Kenyans if it succeeds in influencing
and reshaping the discussion on the issues of democracy, human rights and open governance. So far, some
of the PIL actions undertaken in Kenya in recent times have helped, for instance, to establish important
legal precedents on due process rights and land rights protections. Future innovative PIL actions can also
help shine a light on the neglected issues of violence against women, child abuse, food insecurity, deaths
from preventable diseases and extreme poverty among others. There are also the emerging issues of
exploitation of minerals and fossil fuels and the building of mega projects which, while they stand to bring
important benefits to Kenyans, may also result in the exploitation, displacement and marginalization of
some of the more vulnerable members of our society. More importantly, PIL holds the key to making the
instrument of the law (and, particularly, the Social and Economic Rights provisions of the Constitution) the
pivot for social and economic transformation in Kenya, the leverage and hinge of the social-democratic
pact that our Constitution envisages.
This Handbook is therefore a timely and Kenya-specific tool to include in the toolbox for public interest
litigators who are concerned about the need to prevent such outcomes. A review of this Handbook shows
that it provides detailed conceptual and practical guidance on various options for public interest litigators
to use the law and courts to inform on-going and future public and policy discourses on pressing social and
governance issues in Kenya. While there are a number of locally developed PIL guides, the KPTJ/AfriCOG
/ Katiba Institute Handbook is unique for its focus on the unfolding governance realities in Kenya which
are, in part, the result of Kenya’s progressive bill of rights and the move towards decentralization. It also
incorporates the observations and key lessons learned by leading Kenyan public interest litigators who
have been engaged in various PIL actions concerned with housing and land rights, police abuses, corruption,
electoral malpractice and political violence among other issues.

Click here to download PIL Guide