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.