A July 2016 decision by the Kenyan Court of Appeal in Kenya Airports Authority v Mitu-Bell Welfare Society & 2 Others (“Mitu-Bell”) threatens to plunge the country back into the dark ages where the realisation of socio-economic rights was subject to the whims of the state. The case concerned a suit filed before the Kenyan High Court by inhabitants of Mitumba Village, a settlement situated near Wilson Airport in Nairobi. This resulted 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, as highlighted in an earlier post, the Court of Appeal reversed the High Court’s holding. In doing so, it rubbished jurisprudence that is critical in the realisation of constitutional aspirations hitherto developed by the High Court.
In an unexpected turn of events, 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. By invoking Kenya’s sovereignty, 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. Surprisingly, despite using this as a basis for locking out the guidelines on evictions, the Court failed to create a distinctive definition of what constitutes “general rules of international law” and “rules of international law”.
Also, in a failed attempt to justify the exclusion of the CESCR’s General Comments, the Court erroneously defined general rules of international law as “those rules that … are the customary rules of international law or jus cogens in international law… from which no derogation is permitted.” This definition shows the Court’s lack of awareness of the stark difference between general rules of international law and customary international law. A glimpse of Article 38 of the ICJ Statute however reveals that these are different sources of law.
Additionally, the Court used the supremacy of the Constitution as a basis for declaring General Comment No. 7 guidelines on evictions inconsistent with Kenyan law. One is, however, left to wonder how these guidelines were inconsistent with Kenya’s transformative Constitution? This is particularly because, the CESCR derives its legitimacy from a resolution of the United Nations Economic and Social Council (“ECOSOC”) which grants it the mandate to prepare General Comments based on the various provisions of the ICESCR in a bid to assist States Parties in fulfilling their Covenant obligations. As an ICESCR signatory, Kenya has a legal obligation to engage with and attach great weight to the findings of the ICESCR.
Another ostensible reason for evading the application of General Comment No. 7 was the absence of enabling constitutional provisions allowing the application of comparative foreign or international law, like those in the South African Constitution (Section 39 (c)).
The Court also gave two conflicting viewpoints as to the applicability of another celebrated milestone in Kenyan jurisprudence under the 2010 Constitution which is the use of structural interdicts, as first explained and defined by the High Court in Moi University v Council of Legal Education & another. The concept enables a court to supervise the rectification of a breach of fundamental rights and thus inhibits abdication of responsibilities by a party to a suit. By rejecting the concept of structural interdicts, the Court has removed from the judiciary one of its primary means of compelling government organs to make good on politically unpopular but constitutional obligations. Arguably, this risks taking the judiciary back to what it once was, a toothless bulldog.
Although there is an evident tension in the Kenyan Constitution between the right to private property (Article 40) and the negative right not deprive anyone of their right to housing including informal settlers (Article 43), a realisation of the spirit, purport and objects of the Bill of Rights would involve a delicate balancing between these opposing rights. This cannot be achieved by trampling upon the rights of individuals who reside in the downtrodden informal settlements.
Great work Alvin..you have done it once again..I love the analysis and Kenya needs people like you who are at the forefront in championing for human rights and even stop us from going back to where we were..kudos
Many thanks Ruth. With the advent of the 2010 Constitution and it’s transformative nature, the court’s need to be held accountable in their obligation to give effect to the people’s constitutional aspirations.
Doing what you do best. writing. writing not just about anything, but about issues that we encounter and maybe give a blind eye on a daily basis. awesome job Attallo keep the fire blazing.
Much Appreciated Wislen.Got to make the world aware of regressive decisions in an erra where democracy and human rights are treasured.
Indeed, this Court of Appeal decision is such a retrogressive jurisprudence in the field of Social Economic rights more so in light of Kenya’s transformative constitution. I like the international law dimension you assume in this critic. Succinct.
Perhaps it is time we did away with the Old.For in many an instance the Court of Appeal has failed to give effect to the constitutional aspirations of the people.
A true mastery of the art of legal writing. The reluctance potrayed by the judiciary in enforcing the Second Generation rights is distressing and worrying. The hardline position taken by the Judges is one that betrays the spirit and raison d’etre of the Bill of Rights.
A change of attitude and reasoning is wanting.
Good Work Attalo.
Thanks Sandrah Kosgey. Funny thing is that there are decisions that have emphasized on the need to stop viewing socio-economic rights as Second Generation rights as they are inalienable from the other rights too. I think the Court of Appeal shied away from this.
Nice piece Alvin and I totally agree with you, the decision takes back the judiciary to a position we have been fighting against for a long time or as you term it “…a toothless bulldog…”
Well perhaps we still haven’t done away with the pre-democratic era it seems. Either that or the Court of Appeal is trying to re-introduce the days when socio-economic rights were left at the whims of the executive
Good piece, good one… Very true
Much appreciated @ otienovmichael.
Robust facts here.
I appreciate, Ascensio.
A toothless bulldog is as good as dead. The judiciary should be at the forefront in upholding the rights of each and every individual.
Good job Attalo Alvin
True Leila.It seems that the second greatest court has abdicated it’s responsibility as a vanguard of justice!
Good work alvin. Lovely article there.
So sad that our CA Superior court ruled the case in such a manner.It is outrageous. They do not respect the Constitution. Its clear that they do not understand “general rules of international law” and “rules of international law”. Hiding behind the principle of sovereignty when there is a clear violation of fundamental human rights is unacceptable in International law. State sovereignty is not Absolute. Congratulations Attalo for the Article. At your own time search for a book titled Litigating Socio Economic Rights in South Africa by Prof.Christopher Mbazira from Makerere University.
@ Njuguna NDUNGU. Thanks. That should make for hood read.Indeed the Vienna Convention does proscribe the invocation of national laws as an excuse for violating International law.
I conquer with you. It’s an enlightenment on critical issues especially human rights.
Good work Alvin,Keep writting
@ Sherie Susan.Inspirational. Glad I have a reading audience out there. Will do?
Succinct. Generally I think our CoA grasp of such an important issue is flawed.
Thanks @ Kelly Malenya. Perhaps the CoA needs to be re-acquainted with the basics of International law.
It’s an honour @Ng’ang’a Gaitho.
Keen piece Attalo.
Thank you @ Waithera Njung’ewa
Just when we thought that the dark days were over. The battle actually just started.
Brilliant Analysis Alvin.
Much obliged@ Gloria Talam. And let the battle to protect socio-economic rights begin
It is evident that Kenya is pressing hard for development, however, this has to be done in line with the principles of human rights. If demolition was necessary then the inhabitants should have been given a better alternative which would have resulted in upligting their lifestyle.
Great piece. No decision shall be let unchecked.
Nice analysis Atallo..has actually helped me out with something I was working on!
Better late than never! This is an articulate piece of writing. Indeed it is sad that the Appellate Court failed to understand the concept of progressive realization of rights as envisaged under the Constitution of Kenya, 2010. It is through the interdict judgements that the Courts ensure that indeed the State is taking steps in realizing the rights under Article 43 of the COK.