Kenya’s Constitutional Court Certifies Structural Interdict as an Interlocutory Remedy

Kenya’s constitutional court has demonstrated its flexibility in facilitating the progressive realisation of the constitutional aspirations through the rapidly evolving jurisprudence on Article 43 of the Constitution of Kenya 2010. As envisaged by the drafters, the transformative Constitution invited a plethora of jurisprudence that would revolutionise the legal niche by including socio-economic rights in its entrenched status under Article 43. Recently, the decision of the High Court in Law Society of Kenya & 7 others v Cabinet Secretary for Health & 8 others; China Southern Co. Airline Ltd (Interested Party) [2020] eKLR upheld structural interdict, a relief traditionally (un)available, as an interlocutory remedy in constitutional litigation within the jurisdiction. The Law Society of Kenya Case is significant as it demonstrated the deep-seated determination of the Kenyan judiciary in protecting socio-economic rights.

In the Law Society of Kenya Case, the Petitioners challenged the decision of the government to allow flights from China following the outbreak of COVID-19, arguing that such measures threatened the constitutional right to life. The Petitioners further asserted that the WHO had designated China as the epicenter of the COVID-19 disease. By allowing flights, the Respondents exposed citizens to the threat of the deadly disease of coronavirus. On the contrary, the Respondents contended that necessary measures were in place to avert any incidences of disease outbreak and the spread. In the ruling of the court, Makau, J. emphasized the necessity for structural interdict to compel the first Respondent to present to the court a plan of action detailing the appropriate responses towards the management and control of the outbreak of COVID-19 in the country. As further observed in the Law Society of Kenya Case, the rationale for using structural interdicts is to protect the socio-economic interests through priority setting in a way that compels the state to discharge its constitutional duty. The decision showed the determination of the judiciary in facilitating the realisation of the progressive agenda of the Constitution. Therefore, through the Law Society of Kenya Case, the Kenyan judiciary cautioned against unreasonable and unjustified neglect of the socio-economic rights captured under Article 43 of the Constitution.

The decision in the Law Society of Kenya Case is in contrast to an earlier finding of the Court of Appeal in the Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others [2016} eKLR that capped the use of structural interdicts. In the Law Society of Kenya Case, the court emphasized that the duty of the constitutional court as the custodian and protector of socio-economic rights under Article 43 of the Constitution stems from Article 23. Article 23 of the Constitution stipulates the inherent powers of the constitutional court to grant any appropriate remedy or relief that protects the rights and freedoms in the circumstances of a case. Further, the interpretation of the duty of the constitutional court under Article 23 embodies the exercise of the inherent power that permits the adoption of deliberative measures to ensure the judicial enforcement of remedies otherwise considered as unavailable within the jurisdiction. The exercise of the inherent power of the constitutional court under Article 23 in the Law Society of Kenya Case is a stark expression of the progressive nature of the court in facilitating socio-economic rights.

In conclusion, the recent decision in the Law Society of Kenya Case ushers in a new era, which indicates the attainment of the transformative and progressive agenda of the Constitution in protecting socio-economic rights. Specifically, the unique contour of jurisprudence, as reflected in the Law Society of Kenya Case, which permitted structural interdicts as a form of supervisory order at an interlocutory stage, presents a frontier change on the traditional understanding of the principles guiding constitutional remedies in Kenyan courts. Therefore, the decision of the High Court in the Law Society of Kenya Case, which is a progressive step in the protection of socio-economic rights under Article 43, hopefully thereby guarantees the adequate future protection of the rights and freedoms enshrined within the Constitution of Kenya 2010.