This article is inspired by a recent court decision that largely equates the position of non-human “persons” to that of human beings in the context of human rights.
Human rights and democracy
Constitutional human rights protections are arguably a restriction on democracy. Chapter Four of the Constitution says that the elected government and Parliament may not freely do certain things, even if they are part of the policy on the basis of which they were in theory elected. Of course, sometimes human rights are specifically in support of democracy – like the right to vote.
We can say that the constitution is also the voice of the people (something the President forgets when he says he will ignore the constitutional rulings of courts because will of the people is “the voice of God”). The people adopted it by referendum, including the Bill of Rights with its limits on the powers of government.
The main function of a constitution is to set up the system under which the country will be governed. And a government must be allowed to govern. There are, it is true, various ways in which our constitution does limit or at least guide what government may do. The division of powers between national and county governments is one. Some provisions on public finance also – public money must be used prudently, the burden of taxation must be fair.
But human rights are the most extensive set of limitations. Why is it proper to limit government in this way? Because some things are so important that even a democratically elected government must not be allowed to ignore or violate them. Or at least must do so only if some more important public or private purpose is to be achieved.
The courts should not rush to expand the limits on the powers of government. Beyond the limits clearly imposed by the constitution, the limits on those powers should be those stem from politics, public pressure, policy and common sense.
The humanity of rights
The nature of human rights is indicated by their name. And the constitution spells it out clearly: “The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings” (Article 19(2)).
“The rights and fundamental freedoms in the Bill of Rights— (a) belong to each individual…” (Article 19(3)).
Judges have often emphasised this: “[H]uman dignity is the foundation for recognition and protection of human rights … Regardless of one’s status or position, or mental or physical condition, one is, by virtue of being human, worthy of having his or her dignity or worth respected.” (Justice Mumbi Ngugi).
My problem lies with cases in which courts have equated non-human persons (like companies) with human beings. (Communities and associations are different - as grouping of human beings.) You might object that Article 260 says, “’person’ includes a company, association or other body of persons whether incorporated or unincorporated.” But that Article begins by saying “In this Constitution, unless the context requires otherwise…” before listing the meanings of particular words and phrases.
It is my contention that generally the human rights context requires that “person” means “human person.” Indeed Article 19 is saying just that.
Occasionally, even in Chapter Four, the context does envisage a “person” as including a company or association. Article 20(1) says “The Bill of Rights … binds all State organs and all persons.” Clearly this includes companies.
And Article 34(1) says that “Freedom and independence of electronic, print and all other types of media is guaranteed”. This seems clearly to guarantee freedom of media including to non-human persons. Cultural life (Article 44) makes sense only in a community.
Some other rights could in theory be enjoyed by agencies. Examples are the right to property, a decent environment, freedom of association and perhaps movement.
Most of the rights are really only appropriate for humans. Some refer to specific groups of people, like children or the elderly. The right to life, and family life, to education, to demonstrate, not to be subjected to violence or slavery, to vote, to access to justice and to go on strike are clearly rights of and for humans. I return to equality below.
South Africa
The South African Constitution, from which we drew much inspiration, touches on the issue. It says “A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person”. Unfortunately our constitution includes a clause that seems based on this – but says nothing about the “nature of the person” so is really meaningless.
However, the language explaining the “human” nature of human rights in our constitution is much more emphatic than that in the South African constitution.
Kenyan courts have (rightly) held that government does not have the benefit of these rights.
So can a company ever do so?
South African cases have tended to say that it is really a matter of whether the human beings that make up the company suffer. So discrimination against a company might be because of the nature of its shareholders and/or directors, and negatively affect those human beings. Cases like this have been quoted by Kenyan courts.
The Kenyan case
To come to the recent case. It involved a claim by a company that argued it ought to be able to participate in a criminal trial as the victim of the offence. The Victims Protection Act says, “’victim’ means any natural person who suffers injury, loss or damage as a consequence of an offence.” This meant that the victim of the crime in question, as a company, could not make a victim statement, which might include “information on the impact of the offence on the victim's life and any concerns the victim may have about their safety”.
The judge held that to refuse to allow a juristic person to make use of this possibility was to discriminate against them and was therefore a breach of Article 27.
Article 27 lists possible reasons for discrimination, and forbids their use (without good legal reason). They are “race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.”
These are all obviously issues that affect human beings – not companies. It is true that Article 27 indicates that there are other forbidden reasons for discrimination. Possibilities, in my view, include sexual orientation, height (to protect people with dwarfism), and weight (to prevent “fattism”). I believe it is inappropriate to include “being a juristic rather than a natural person”. This is because of the general principle of rights being to protect the dignity of human beings, and because any addition to the list in Article 27 ought to be of the same broad type - which is affecting human beings.
People form companies, creating non-human persons, to get certain advantages, including to escape personal financial liability if things go wrong. Should they have it both ways – the advantages while escaping the disadvantages of being a company?
I am afraid there is some misunderstanding about discrimination. There is discrimination if you can say “X with a certain personal characteristic was treated like this, while Y without that characteristic was treated differently” (and unfairly – no space to go into this here).
I do not believe that being an artificial person as opposed to a natural person is the sort of difference intended. Still less was the judge was right to say that the lawyers for companies “are not treated equally and are denied equal opportunity to defend their clients’ interests.” It is not some characteristic of the lawyers that (directly or indirectly) affects them, just the particular brief. And I would reject the notion that they are being disadvantaged, anyway.
Lawyers and judges need, I am afraid, to read, think about and rely on the constitution more carefully.