Supreme Court decision recognizes Socio-Economic Rights and Structural Interdicts as a means of human rights protection in Petition No.3 of 2018 (decision delivered on 11 January 2021)
The East African Centre for Human Rights (also known as EACHRights) lauds the recent decision by the Supreme Court recognizing socio-economic rights as inalienable human rights. (EACHRights is a non-partisan, Regional Non-Governmental Organization that seeks to initiate and undertake programmes that promote, protect, and enhance Economic, Social, and Cultural Rights (ECOSOC Rights) in Kenya, Uganda and Tanzania for vulnerable and marginalized groups. The organization employs the Rights Based Approach in its interventions)
International human rights law recognizes a distinction between political and civil rights on one hand and economic, social and cultural rights on the other. Direct Constitutional Protection of Economic, Social and Cultural Rights is ensured under Kenya’s 2010 Constitution.
On 11th January 2021, the Supreme Court of Kenya made its first socio-economic rights ruling under the 2010 Constitution. The court delivered its judgment in the appeal by Mitu-Bell Welfare Association (Mitubell) on the evictions of over 3000 households and the interpretation of socio-economic rights under the Constitution of Kenya.
The Supreme Court overturned the regressive decision of the Court of Appeal issued in 2016 which posited that structural interdicts/remedies do not form part of Kenyan law. Furthermore, the Supreme Court’s decision served as a full recognition of the assertion of social economic rights as an inalienable class of human rights.
The previous decision of the Court of Appeal issued in July 2016 was retrogressive and threatened to plunge the country back into the dark ages whereby the realization of socio-economic rights was entirely subject to the arbitrary whims of the state.
The case concerned a suit filed before the Kenyan High Court by inhabitants of Mitumba, a village settlement situated adjacent to Wilson Airport in Nairobi. This matter arose from the demolition of their houses despite an existing court injunction. While the High Court, inspired by progressive legal authorities on socio-economic rights, ruled in favour of the inhabitants, the Court of Appeal reversed the High Court’s holding.
The Court of Appeal questioned the application of general comments drafted by the Committee on Economic, Social and Cultural Rights (CESCR) and in particular, General Comment No. 7 on the right to adequate housing that gives guidelines on evictions. Disappointingly, the Court cast aspersions on the applicability of a general comment, terming it a mere “rule of international law” which does not form part of the laws of Kenya, as opposed to “general rules of international law” which are grounded in law vide Article 2 (5) of the country’s 2010 Constitution.
Furthermore, the Court of Appeal used the supremacy of the Constitution as a basis for declaring General Comment No. 7 guidelines on evictions inconsistent with Kenyan law. This is despite Kenya being an ICESCR signatory. Furthermore, Article 2(5) of the constitution categorically incorporates general rules of international law while Article 2(6) incorporates international treaties ratified by Kenya into Kenyan laws.
Implementation of Socio-Economic Rights
While the Court of Appeal noted that the implementation of socio-economic rights cannot confer propriety rights in the land of another and that the realization of socio-economic rights does not override the provisions of the Limitation of Actions Act (Cap 22 of the Laws of Kenya), It was the appellants’ case that Article 21 (1) of the Constitution imposes both positive and negative obligations upon the State with regard to protection of rights and freedoms in the Bill of Rights. They urged the court that in this case, the negative obligation is to respect, which requires the state to refrain from interfering directly or indirectly with the right to housing while the positive obligation includes; to protect, which requires the State to prevent third parties from interfering with the right to housing. This entails the adoption of legislative measures to deter potential violations and to provide for appropriate remedies in the event that such violations occur.
Then there is the duty to promote, which requires the State to put in place, measures aimed at the promotion of tolerance, awareness raising, and the building of infrastructure to enhance enjoyment of rights; and finally, the duty to fulfil, which requires the state to adopt appropriate legislative, administrative, judicial, promotional and other measures to realize the right.
To buttress this submission, the appellants relied on the South African case of Glenister v. President of the Republic of South Africa  ZACC 6;2011 (3) SA 347(CC); 2011(7) BCLR 651 in which, while interpreting the provisions of Section 7(2) of the South African Constitution, which is similar to Article 21 (1) of our Constitution, (Ncogbo CJ) upheld the negative and positive state obligation to give effect to fundamental rights contained in the Bill of Rights.
In addition, the appellants submitted to the Supreme Court that it is incumbent upon the National Government to make policies and take other measures to ensure the protection of human rights under Article 21 (2) of the Constitution. They submitted further that, in accordance with the Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, the Petition No 3 OF 2018 26 ,theState has an obligation to put in place, measures to ensure the realization of social, economic and cultural rights.
On the progressive realization of Article 43 rights, the appellants submitted that the term “progressive” does not afford the State a Carte-Blanche to postpone or suspend its obligations. On the contrary, it requires the State to take immediate steps to the maximum of its available resources to realize those rights. They therefore urged that, the State cannot sanction an eviction in the absence of a concomitant duty to ensure alternative housing for the evictees
They further submitted that the State must not only begin to take steps towards the realization of the rights under Article 43 of the Constitution, it must be seen to be taking such through clear policies and demonstrable measures. In support of this argument, the appellants cited Okwanda v. Minister of Health and Medical Services, Petition No 94 of 2012 (paragraphs 15-16); MMM v. Permanent Secretary, Ministry of Education & 2 Others  eKLR; and The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (Limburg Principles).
The Supreme Court held that the question as to when the right to housing accrues is not dependent upon its progressive realization. The right accrues to every individual or family, by virtue of being a citizen of this Country. It is an entitlement guaranteed by the Constitution under the Bill of rights.
One of the issues for determination by the Supreme Court was, “what is the place of structural interdicts (if any) as forms of relief in human rights litigation under the Constitution.” The High Court, on this issue, had granted structural orders requiring the respondents to furnish the court with information regarding policies and programmes of shelter and access to housing. The Court of Appeal, overturning this decision, took the view that the High Court had become functus officio and could therefore not reserve, for itself, any issues on the matter.
However, the appellants at the Supreme Court were categorical that a structural/supervising interdict is a remedy available in Kenya under Article 23 (3) of the Constitution in a similar manner as was fashioned in the South African case of Fose v. Minster of Safety & Security  ZACC 6;1997(7) BCLR 851;1997 (3) SA 786, and applied in the High Court decision of Republic v. Council of Legal Education & Another Ex-Parte Mount Kenya University (supra) paragraphs 144-145. The same approach, urged the appellants, was followed in Daniel Ngetich & 2 Others v. The Attorney General & 3 Others Petition No. 329 of 2014;  eKLR (Daniel Ngetich Case) where the High Court issued structural interdicts as a remedy to protect the right to highest attainable standards of health, regarding inmates with infectious tuberculosis.
Agreeing with the amicus curiae on the issue of structural remedies and appropriate relief, and relying on decisions it had made in Communications Commission of Kenya case and Francis Karioko Muruatetu and Another v Republic, the Supreme Court observed that “… Article 23 (3) of the Constitution empowers the High Court to fashion appropriate reliefs, even of an interim nature, in specific cases, so as to redress the violation of a fundamental right… Further highlighting that Article 23 of the Constitution to the limitations of Rule 21 of the Civil Procedure Act, would stifle the development of Court sanctioned enforcement of human rights as envisaged in the Bill of Rights.” The court, to this end, found that Article 23(3) is not exhaustive and the court has an obligation to fashion a remedy that addresses the violation in question. The impact of this is therefore that even where a litigant has not per se requested a particular remedy from the court, the court has a wider discretion to grant the remedy, where it is appropriate.
The Court in its analysis of the issue of the place of structural interdicts, stated that “interim reliefs, structural interdicts, supervisory orders or any other orders that may be issued by the courts, have to be specific, appropriate, clear, effective, and directed at the parties to the suit or any other State Agency vested with a constitutional or statutory mandate to enforce the order.” This suggests that the order must be sufficient to address the violations in question.
Finally, the court in its decision, stated that “where necessary, a court of law may indicate that the orders it is issuing, are interim in nature, and that the final judgment shall await the crystallization of certain actions.”
The Supreme Court’s decision to remit the proceedings to the Trial Court with instructions that appropriate reliefs be crafted and granted is welcomed as reliefs granted by any court should be responsive to address the nature of the violations. The overturning of the Court of Appeal’s decision illustrates the commitment of the Supreme Court to the position that structural remedies are indeed a means of human rights protection and that social economic rights are human rights and as such must be afforded by the state to its citizenry to the best of its capacity.
By Samantha Oswago
Ms Samantha Oswago (LLM (Candidate), KSL DIP., LLB) is an Advocate of the High Court of Kenya and a graduate of the University of Nairobi with over four years working experience in strategic litigation, public policy formulation & reform as well as advocacy within the civil society sector. Ms Oswago has in the past also been engaged in Community Awareness Partnerships and Justice Innovation. She is a legal officer at the East Africa Center of Human Rights (EACHRights).
The article was first published on The Standard