From Avoidance to Constitutionalization of Private Law: The Puzzle of Horizontality

Abstract

Fundamental rights and freedoms enshrined in the Bill of Rights were previously understood as spelling the obligations that the State and its organs owe individual citizens i.e., in a vertical relationship rather than a horizontal relationship. This was premised on the inequality of power between the State and the individual in that the State is far more powerful than the individual and has a monopoly of violence within its territory thus it is necessary to provide the individual with a defensive mechanism against abuse of the State’s power. In recent times, fundamental rights have evolved to include an obligation on individuals and private entities to uphold fundamental rights in appreciation of the fact that rights abuses can also be instigated by private actors i.e., horizontal relationship. For instance, Article 20 (1) of the Constitution of Kenya recognizes that the Bill of Rights applies to all law and binds all State organs and all persons. Article 20(1) thus establishes both a vertical and horizontal application of the Bill of Rights. In that regard, this paper interrogates the application of the avoidance doctrine in Kenya. It argues that the Constitution of Kenya permeates all law hence restricting the application of the avoidance doctrine to Kenya.