‘I buried my elder sister last week and the famine is about to claim another’ (Margaret Lodan pointing at her sister Makede Awoi’s grave, (Daily Nation Monday, 1 August, 2011)

INTRODUCTION

Since early July 2011, the local and international media has been awash with shocking accounts of Kenyans dying and millions of others on the brink of starvation. By the government’s own admission, the situation is dire. An appeal has been sent to the international community. Unfortunately, this distress call is disturbingly similar to numerous past instances when the government has declared the famine a national disaster. A remarkable difference is the current magnitude. It is feared to be the worst in the last six decades to hit the Horn of Africa region. It is estimated that 2.5 million people in northern Kenya urgently need humanitarian aid. Children are ravaged by hunger and malnutrition. Livestock carcasses dot the severely dry areas, depriving pastoralists of their livelihood.

SITUATIONAL ANALYSIS OF GOVERNMENT RESPONSE

The debate about the government response to the crisis is marred by the influx of refugees from Somalia, whether fleeing from the pangs of hunger or due to insecurity. However, there is no convincing argument that the country would be able to feed its starving population but for the influx of refugees. The refugee dynamic seems to be a convenient but unpersuasive excuse.

In response to the drought, both private and governmental agencies, local and international, have responded both in cash and kind. A private sector led initiative raised KSh1 billion. The government has set aside KSh15 billion towards mitigating the effects of the drought; more than two-thirds of this going towards long term food sustainability efforts. The international community has pledged cash while others have shipped food items. The government has opened doors for importation of genetically modified maize to supplement dwindling local stocks, among a raft of other measures.

However, this ‘crisis’ mode is juxtaposed with the irony of glut in some parts of the country where food is rotting in the granaries due to lack of market or means of transportation to ready markets. These situations include Bura Irrigation Scheme where farmers allegedly lack market for their maize. Success stories of food sufficiency in hitherto dry areas in Turkana have not been leveraged and scaled up. There have been reports of theft of relief food by government officials. The government has admitted that it does not have sufficient infrastructure to distribute relief food and is relying on credible local and international relief agencies. Controversy has also raged regarding the safety of the maize imported into the country, with the public bio-safety regulatory authority admitting incapacity to conduct the required tests. The government projects that the next maize production cycle will only meet two-thirds of the country’s requirements, a regression from the previous situation where the country ascended toward self-sufficiency in maize production.

INTERNATIONAL AND DOMESTIC OBLIGATIONS ON THE RIGHT TO FOOD

The current constitution, unlike its predecessor, introduced a regime of rights, popularly referred to as economic, social and cultural rights. Among them is the guarantee that every person has the right to be ‘free from hunger and to have adequate food of acceptable quality’. Additionally, Kenya has ratified several international covenants that expressly recognize the right to adequate food. These include the International Covenant on Economic, Social and Cultural Rights whose Article 11 obligates state parties to ensure the right to an adequate standard of living including food, housing and clothing.

Other international covenants are specific to certain segments of the population. For example, children are protected by the provisions of both the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. Additionally, Kenya has signed international commitments undertaking to effect measures to guarantee adequate food for the population. These include the Millennium Development Goals, with goal number one targeting the eradication of poverty and hunger by the year 2015. Despite these national and international commitments, the current situation and the government’s response raise serious questions about the government’s commitment to guarantee availability and access to adequate food.

There is currently no authoritative Kenya court decision spelling out the right to food. In understanding the scope of government’s obligations under the right to adequate food, the interpretation given by the relevant treaty bodies and other relevant organs is helpful. The UN Special Rapporteur on the Right to Food defined it as ‘the right to have regular, permanent and unrestricted access, either directly or by means of financial purchases to provide quantitatively and qualitatively adequate and sufficient food corresponding to the cultural tradition of the people to which the consumer belongs and which ensure a physical and mental, individual and collective, fulfilling and dignified life free of fear’.

The Committee on Economic, Social and Cultural Rights (ECOSOC) is the treaty body charged with overseeing the implementation of the charter obligations. In its general comment number 12 dating back more than a decade, it elaborated the state obligations to respect, protect and fulfill the right to adequate food. The obligation entails ensuring that state agents do not engage in acts that limit access to food. The obligation to protect involves taking measures to ensure that third parties do not compromise access to food by others, while the obligation to fulfill necessitates strengthening citizen’s ability to access food on their own by utilising the existing natural resources. However, where such facilitation would not suffice due to the extremity of the situation such as in disaster prone areas, states are obligated to provide food directly. Derogation from this duty to fulfill is legally justifiable if the state can demonstrate that it has employed all the available resources to secure the conditions necessary for the enjoyment of this right.

However, inability is, of course, different from unwillingness to make provision for food. It must be shown that the state did all that could reasonably be done, especially in the nature of obligations that are immediate, such as feeding starving populations, including making timely appeals to the international community for assistance. The ECOSOC committee has further elaborated that the food thus provided should have appropriate dietary components, free from adverse substances and culturally appropriate. Other important considerations include, physical accessibility to all including infants, the aged, physically disabled and the terminally ill on the one hand and economic accessibility which entails access to food at a cost that does not threaten the availability of other basic needs to an individual or a household.

State parties are required to devise and implement long-term food production strategies that put the population on the path of self-sustenance; effective distribution systems that ensure availability of food in all parts of the country at an accessible market price; and appropriate food conservation measures that guarantee enough stocks in the event of drought. In the event that the resources are stretched thin internally, the international community is encouraged to step in and help bridge that gap after an appeal from the concerned state.

CONCLUSION

The Bill of Rights provisions aside, that food is a basic human need is recited freely in primary schools. The entrenchment of the right to adequate food in the constitution means that it is a human right. It is a legitimate expectation or claim from the government. It is neither a privilege given by the government nor is it an act of charity for the government to ameliorate the suffering of those faced by starvation. It is an obligation on the part of the government and no accolades are owed to the government for doing its job.

There is, therefore, a wide array of obligations about what states need to fulfill to be said to have guaranteed the right to adequate food. The test of whether the right to adequate food is guaranteed is not the absence of people who have starved to death. Neither is the presence of dead people due to starvation necessarily an indication of failure by the government to fulfill its obligation under the constitutional and covenant provision. The immediacy and appropriateness of the long-term and short-term measures taken by the government is a major consideration. The doctrine of nonregression calls for progressive realisation of the right and hence the food security situation should not be worse than the preceding years.

It is on record that the government ignored adverse weather forecast from the Kenya Meteorological Department and the local chapter of the International Committee for the Red Cross. This led to an abysmal failure to plan ahead. Maize production in Kenya is admittedly dwindling despite being the staple food. Poor government policies that fail to incentivise maize production have been blamed for this situation. Despite predictable recurrence of drought, the failure to put in place a mechanism to promptly detect needy cases early enough and respond before lives are lost or starvation becomes extreme smacks of failure.

The response to the drought cannot be said to be prompt. In any event, an earlier injection of the KSh15 billion recently committed by the government would have mitigated some of the suffering and an earlier mobilization of resources would have led to a more timely response. Poor distribution of relief food has been occasioned by failure to map the drought zones properly, with the private sector and international aid agencies leading the way.

The government has not done all within its power to detect the drought both as a short-term initiative and also as a long-term measure. Unless remedial measures are taken, the constitutional guarantee of the right to adequate food will remain an exhortation on a piece of paper. More needs to be done to translate this right and its vision into reality. It is too late for Margaret’s sister who recently starved to death. Hopefully, Margaret will not have to weep over another loved one who succumbs to starvation.

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