The Supreme Court’s decision set the record straight on three issues that remained contested after the Court of Appeal’s judgment. The first is on the place of structural interdicts, as a form of relief in human rights litigation, under the Kenyan Constitution. While the High Court expressed no doubt as to the applicability of structural interdicts, the Court of Appeal held that they were ‘unknown to Kenyan law’ as, according to the judges of appeal, ‘delivery of a Judgment renders a trial Court functus-officio’. On this, the Supreme Court upheld the applicability of structural interdicts in Kenya by restating its holding in Communications Commission of Kenya that Article 23(3) of the Constitution, listing the appropriate reliefs a court may grant, uses the word ‘including’ implying that the reliefs listed therein are non-exhaustive. Therefore, a court can issue orders other than those listed as it deems fit, to be decided on a case-by-case basis.

Second, the Court addressed the applicability of international law in Kenya under Articles 2(5) and 2(6) of the Constitution, stating that general rules of international law, and treaties ratified by Kenya ‘shall form part of the law of Kenya’. This was based on the trial Court’s reliance on the UN Guidelines on evictions, which the Court of Appeal had taken issue with stating that only ‘customary international law and peremptory norms (jus cogens)’ are applicable. The Supreme Court affirmed that the UN Guidelines constitute international jurisprudence or soft law, which, though not of binding force, are of persuasive value, functioning as interpretive tools aimed at breathing life into constitutional provisions like Article 43 on socio-economic rights. Having clarified this, the Supreme Court upheld the trial Court’s reference to the UN Guidelines on evictionsas aiding in fashioning appropriate reliefs, since they filled a lacuna in the law on how the government is to conduct evictions and do not offend the Constitution.

Lastly, on the right to housing under Article 43(1) of the Constitution, the Supreme Court held that the land tenure system in the country has been radically transformed by the 2010 Constitution due to its declaration that ‘all land in Kenya belongs [to] the people of Kenya collectively as a nation, communities and individuals’. Based on this, the Court held that a long period of occupation by a group of people crystallised their right to housing over public land. However, in contrast to public land, ‘illegal occupation of private land, cannot create prescriptive rights over land in favour of occupants’. This position on private land has been criticised by Gautam Bhatia who avers that, ‘[i]f indeed there is a democratic principle that all land belongs to the people, then the Court’s distinction between “public land” (where these principles apply) and “private land” (where they do not) is unsustainable’.

Crucially, the Court held that if an eviction is warranted in the public interest, potential evictees can petition the Court for protection. Then, by virtue of Article 23(3) of the Constitution, the Court can craft orders such as compensation, requirement of adequate notice, observance of humane conditions during eviction and provision of alternative land, to protect the evictees’ right to housing. The Court also acknowledged that the evictions of the appellants were in contravention of a court order and led to the destruction of homes and schools, entitling them to relief. The Supreme Court proceeded to remit the case back to the trial Court for the granting of appropriate remedies.

Party arguments on structural interdicts

In the Supreme Court, Mitu-bell Welfare Society argued that Article 23(3) of the Constitution did not offer an exhaustive list of appropriate remedies that courts can offer. Structural interdicts were therefore a relief that the court had discretion to give. Additionally, the Court of Appeal was faulted for not following the Supreme Court’s judicial precedents in the Francis Muruatetu and Communication Commission of Kenya cases which employed structural interdicts.

The Respondents argued that structural interdicts were an invention of the Canadian and South African Constitutions. Their use was restricted and only suitable in situations: where the executive arm of government is intransigent, all attempts at persuasion and assistance to the State had failed and the order issued by court is not ambiguous. This threshold had not been met by the Appellants.

Party arguments on applicability of international law

According to the Appellant, the Court of Appeal misinterpreted the High Court’s application of international law and reliance on the UN Guidelines on evictions. While the UN guidelines were not binding, they were an authoritative interpretation of a State’s treaty obligations under Article 11 (1) of the ICESCR when conducting evictions. This was applicable to Kenya by dint of Article 2(5)  and 2(6) which respectively incorporate general rules of international law and treaty law into Kenyan law.

In response, the Respondents argued that while general rules of international law are applicable in Kenya, due regard should be given to the hierarchy of laws as stipulated under Article 2(4) of the Constitution. Therefore, the Court had a duty to resolve any conflicts between human rights treaties and the Constitution in favour of the latter.

SCORK decision

In making its decision the Supreme Court stated that while the Court of Appeal indeed noted its use of interim reliefs in the Communications Commission of Kenya case, it simply disregarded it and shut the door on the use of structural interdicts. The court, while acknowledging that Rule 21 of the Civil Procedure Rules stipulates the functus officiodoctrine, the rule was subject to Article 23 of the Constitution and could not be used to stifle the development of court sanctioned human rights enforcement mechanisms.

On applicability of international law under the 2010 Constitution, the court noted that Article 2(5) and 2(6) recognized both customary and treaty law as sources of law in Kenya and that the words “general rules of international law” under Article 2(5) refer to customary international law. However, the court indicated that the trial judge had wrongly elevated the UN Guidelines on evictions and General Comment No.7 to the status of Article 2(5) as the guidelines do not qualify as general rules of international law. These were “soft law” and could only be considered under Article 2(6) as they offered guidelines pursuant to Article 21 of the ICESCR. Nonetheless, the court could not comprehend why the Court of Appeal found UN Guidelines on evictions to be inconsistent with the Constitution as they were an interpretive aid to the provisions of Article 43 which, just like the ICESCR, deals with economic and social rights.

The court proceeded to state that the right to housing accrues by virtue of being a Kenyan citizen irrespective of whether one has title to land on which one resides. Every individual, therefore, including those in informal settlements, has an interest in public land. Consequently, the State was in violation of the right to housing when it forcefully evicted the residents of Mitumba village from their informal settlements. The Supreme Court remitted the matter to the High Court for delivery of proper compensation orders.

This decision comes as a sigh of relief to many citizens living in informal settlements that have often suffered at the hand of the government, which frequently conducts evictions with impunity under the ostensible reason that such inhabitants are illegally occupying public land.

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.