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