CHAPTER THREE: RIGHT TO FREEDOM OF MOVEMENT
Legal Framework
Freedom of movement is a fundamental right for the individual. When undermined, it
would be difficult for a person to realize other fundamental rights such as work, freedom of expression, freedom of association and education. This right has a profound
impact on a person’s life and livelihood.
Article 13 of the UDHR guarantees ‘everyone’ the freedom to move ‘within the borders’ of any state. Obligations to respect, protect and promote this right are also
found in other international human rights instruments such as the ICCPR,109 the Banjul Charter110 and the CEDAW.111 Soft law, such as the Declaration on the Human
Rights of Individuals Who are not Nationals of the Country in which they Live112 (‘Declaration on Foreign Nationals’) contains similar provisions. 113
Consistent with international law, the domestic legal framework of Kenya recognizes
this entitlement via section 81(1) of the current Constitution:
No citizen of Kenya shall be deprived of his freedom of movement, that is to say, the right to move freely
throughout Kenya, the right to reside in any part of Kenya, the right to enter Kenya, the right to leave
Kenya and immunity from expulsion from Kenya.
Although the wording of this section seems to suggest that the right of movement is
available to citizens only, this is hardly the case. The remainder of section 81 suggests
that any person who is in the country is entitled to this freedom,114 subject to certain
conditions. Everyone who is in the country is entitled to movement rights. As the
South African Constitutional Court (O’Regan J) has underlined, constitutions ‘must
be interpreted in a way that will promote rather than hinder the achievement of the
protection of human rights’.115
The right to freedom of movement places both a positive and a negative obligation
on States. The former requires them to undertake measures that will promote and
protect
Article 12.
Article 12.
111
Article 15.
112
Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which
they Live, G.A. res. 40/144, annex, 40 U.N. GAOR Supp. (No. 53) at 252, U.N. Doc. A/40/53 (1985)
(‘Declaration on Foreign Nationals’).
113
Ibid article 2(a).
114
See section 81(1)(a)-(d) as well as (f) and (g), which place limitations on the freedom of movement within and out of the country, and makes reference to ‘any person’, not Kenyan citizens.
115
Kaunda v President of the Republic of South Africa (2005) 4 SA 235 at 304.
109
110
20
OUT OF THE SHADOWS TOWARDS ENSURING THE RIGHTS OF STATELESS PERSONS AND PERSONS AT RISK OF STATELESSNESS IN KENYA
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