Structural interdicts are part of the remedies that a court could fashion to remedy a violation of fundamental rights and freedoms.

Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] eKLR

Petition 3 of 2018

Supreme Court of Kenya

DK Maraga, CJ & P, PM Mwilu, DCJ & VP, MK Ibrahim, SC Wanjala & NS Ndungu, SCJJ

January 11, 2021

Reported by Beryl Ikamari

Constitution Law - fundamental rights and freedoms - enforcement of fundamental rights and freedom - remedies in human rights litigation - structural interdicts - whether structural interdicts were part of the remedies that the court could fashion as an appropriate relief for a violation of fundamental rights and freedoms - Constitution of Kenya 2010, article 23(3).

International Law - applicability of international law in Kenya - effect of articles 2(5) and 2(6) of the Constitution on how international law would take effect in a domestic court in Kenya - whether the  U.N Guidelines on Evictions; General Comment No. 7 were part of the laws of Kenya and were of binding effect either under article 2(5) or article 2(6) of the Constitution - Constitution of Kenya 2010, article 2(5) and 2(6).

Constitution Law - fundamental rights and freedoms - enforcement of fundamental rights and freedom - socio-economic rights - right to housing - principles related to the enforcement of socio-economic rights - when would the right to housing accrue - Constitution of Kenya 2010, article 43(1)(b).

Brief facts

The petitioner was a registered society comprised of residents of Mitumba Village. Mitumba Village and the Mitumba Village Primary School were situated near Wilson Airport. A notice published in the newspapers on September 15, 2011 by the Attorney General gave the residents of Mitumba Village seven days in which to vacate the premises. Despite the fact that the petitioner obtained conservatory orders from the High Court to restrain the demolition of Mitumba Village, the premises were demolished on November 19, 2011. The petitioner sought various declaratory reliefs including those that asserted their ownership of the premises and also stating that the forceful eviction and demolition without a relocation option was illegal, oppressive and violative of the petitioner's rights.

The respondent explained that Mitumba Village was situate in property belonging to the Kenya Airports Authority and that Authority was under a statutory duty to ensure air safety by removing any informal settlement which was on a flight path. The respondents explained that given the ongoing war in Somalia, the village posed a threat.

At the High Court, the findings of the court were that the petitioner (appellants) did not own the suit premises. The newspaper notice which was said to be a reminder notice was found by the High Court to be unreasonable, unconscionable and unconstitutional as there was no other notice preceding it and it required vacation of the suit premises within 7 days. The High Court noted that there was no legislation or guidelines developed in Kenya for the eviction of persons occupying land that they were not legally entitled to occupy.

The High Court made the determination that the right to property included the protection of goods and personal property and it extended to goods and building material that had been destroyed during the demolition. The High Court also found that the eviction and demolition of the premises pursuant to a seven-day notice and the failure to provide alternative accommodation was a violation of the appellant's rights to housing and other socio-economic recognized under the Constitution. Further, the High Court found that evictions could be necessary but due process had to be followed. Due process included the issuance of reasonable notice and the conduct of consultations among those affected by the eviction. Additionally, the High determined that the demolition which left other nearby multi-storied buildings intact was discriminatory. The High Court noted that the demolitions included the demolition of a school and there was no evidence that measures were put in place to protect the needs of vulnerable groups particularly children and that children's rights were violated.

In response to the High Court judgment, the 1^st respondent filed an appeal at the Court of appeal. The Court of Appeal made various findings including findings that were to the following effect -

1. Pamoja Trust was wrongfully given a role reserved for the court, when it was asked to be involved in ascertaining eviction terms and the creation of eviction guidelines because Pamoja Trust had no constitutional mandate of resolving disputes;
2. the concept of partial judgment or interim judgment was unknown to Kenyan law; a court had to finally determine all the issues before it and it would then become functus officio;
3. allowing parties to file affidavits and reports after the judgment introduce secondary litigation of issues that were not raised in the original pleadings;
4. the security and safety of the flight paths was a limitation on enjoyment of the rights and freedoms in the Bill of Rights as permitted under article 24 of the Constitution;
5. there was no legislation in Kenya meant to regulate forcible eviction and resettlement of persons occupying public or private land and before the enactment of such legislation courts had to interpret and apply the law as it was;
6. The 1^st respondent (Kenya Airports Authority) had no mandate to provide policies and programs on provision of shelter and access to housing as directed by the High Court;
7. the trial Court erred in law in issuing orders and directions on un-pleaded issues.
8. the court should not act in vain or issue orders it could not implement and policy formulation was not within the mandate of the courts;
9. the enforcement and implementation of socio-economic rights could not confer propriety rights in the land of another and that the realization of socio-economic rights did not override the provisions of the Limitation of Actions Act;

A second appeal was filed by the appellants at the Supreme Court. They obtained certification that the matter raised issues of general public importance under article 163(4)(b) of the Constitution.

Issues

1. Whether structural interdicts were recognized reliefs in human rights litigation under the Constitution of Kenya, 2010.
2. What was the effect of article 2(5) and 2(6) of the Constitution regarding the applicability of international law in general and international human rights in particular?
3. Whether U.N Guidelines on Evictions; General Comment No. 7 were part of the laws of Kenya and were of binding effect either under article 2(5) or article 2(6) of the Constitution.
4. When would the right to housing under article 43 (1) (b) of the Constitution accrue?

Held

1. The trial court issued interim orders requiring the respondents to furnish the court with information about policies and programmes on provision of shelter and access to housing. However, the Court of Appeal was of the view that the trial court could not reserve for itself any outstanding issue as it became functus officio after the delivery of the judgment. Therefore, the two superior courts held diametrically opposed views regarding structural interdicts or interim orders.
2. Article 23(1) and 23(3) of the Constitution were the launching pad of any analysis into the place and scope of interim orders in Kenya's human rights enforcement architecture. Article 23(3) provided that for a violation of the Bill of Rights the court could grant any appropriate relief including, a declaration of rights, an injunction, a conservatory order, a declaration of legal invalidity of any law that denied, violated, infringed or threatened a right or fundamental freedom in the Bill of Rights that was not justified under article 24 of the Constitution, an order for compensation and an order for judicial review. The list of appropriate reliefs that the court could grant were not exhaustive.
3. The Court of Appeal failed to consider Supreme Court decisions concerning interim reliefs that a court could issue to address the violation of a fundamental right. The appellate court appeared to shut the door on the use of interim reliefs or structural interdicts in human rights and other constitutional litigation.
4. Article 23 (3) of the Constitution empowered 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.
5. The doctrine of functus officio retained validity and vitality in both criminal and civil cases but in certain situations the doctrine ought to give way. Subjecting article 23 of the Constitution, on the court's power to fashion appropriate reliefs for human rights violations, to the limitation of the Civil Procedure Act's provisions on the court becoming functus officio after judgment, would stifle the development of court-sanctioned enforcement of human rights as envisaged in the Bill of Rights.
6. Interim reliefs, structural interdicts, supervisory orders or any other orders that could be issued by the courts, had 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. Most importantly, the court in issuing such orders, had to be realistic, and avoid the temptation of judicial overreach, especially in policy matters. When issuing interim orders the court could indicate that the orders were interim in nature and that the final judgment had to await the crystallization of certain actions.
7. Article 2(5) of the Constitution provided that the general rules of international law formed part of the laws of Kenya while article 2(6) of the Constitution provided that any treaty or convention ratified by Kenya formed part of the laws of Kenya under the Constitution. However, there were divergent views on the meaning of the provisions. One school of thought was that the article 2(6) of the Constitution transformed Kenya from a dualist to a monist nation meaning that Kenya did not have to incorporate (domesticate) an international treaty into its domestic law before the treaty could take effect. The second school of thought was of the view that international law was subordinate to the Constitution and could only take effect subject to the supreme law of the land. The proponents of the school of thought were not supporters of the view that Kenya was a monist state.
8. The meaning to be attributed to the phrase "shall form part of the law of Kenya” in articles 2(5) and 2(6) of the Constitution was that in determining a dispute, a domestic court of law had to take cognizance of rules of international law to the extent that the same were relevant and not in conflict with the Constitution, statutes or a final pronouncement.
9. Articles 2(5) and 2(6) of the Constitution were both inward looking and outward looking. They were outward looking in the sense that they committed Kenya to conduct its international relations in accordance with its obligations under international law. On the other hand, they were inward looking because they required Kenyan courts of law to apply international law in resolving disputes before them as long as long as the same were relevant, and not in conflict with, the Constitution, local statutes, or a final judicial pronouncement. International law could be applied to fill a lacuna in domestic law in the context of a dispute before a domestic court because international law was part of the laws of Kenya.
10. Articles 2(5) and 2(6) of the Constitution had nothing or little of significance to do with the monist-dualist categorization. Most importantly, the expression “shall form part of the law of Kenya” as used in the articles did not transform Kenya from a dualist to a monist state.
11. Article 2(5) of the Constitution referred to general rules of international law and that did not refer only to peremptory norms of international law or jus cogens. The two main sources of international law were treaties and international customs. Jus cogens was a technical term given to those norms of general international law which were of peremptory force and as a consequence no derogation was allowed. Jus cogens accounted for only a tiny corpus of the general rules of international law. The suggestion by the Court of Appeal that the use of the phrase "general rules of international law" in the Constitution was limited to the evolving concept of jus cogens was inconceivable.
12. The U.N Guidelines on Evictions; General Comment No. 7, at best constituted what was known as international jurisprudence or soft law. UN Resolutions, Declarations, Comments and Guidelines did not ordinarily amount to norms of international law. However, certain UN General Assembly Declarations and Resolutions could ripen into a norm or norms of international law depending on their nature and history leading to their adoption.
13. The U.N Guidelines, General Comment No. 7 did not qualify as general rules of international law, which had a binding effect on members of the international community. However, the Guidelines were intended to breathe life into the right to dignity and the right to housing under the International Covenant on Civil and Political Rights (ICCPR)  and the International Covenant on Civil Economic Social and Cultural Rights (ICESCR) respectively. They therefore constituted soft law in the language of international jurisprudence. The trial court could refer to the Guidelines but they could not be elevated to the status of general rules of international law under article 2(5) of the Constitution.
14. The U.N Guidelines in question were issued pursuant to article 21 of the International Covenant on Economic Social and Cultural Rights (ICESCR). Strictly speaking therefore, they could only be considered under article 2(6) of the Constitution, which referred to international treaties and conventions ratified by Kenya. The Guidelines could not be regarded as being part of the treaty under which they were issued. They were tools or aids directed to State parties to help the latter in implementing the treaty or better fulfilment of their obligations thereunder.
15. The Guidelines were not “binding” upon the states parties, nor were they part of the law of Kenya in the language and meaning of article 2(6) of the Constitution, unless they had ripened into a norm of customary international law, as evidenced by widespread usage.
16. Article 43 (1) (b) of the Constitution provided that every person had the right to accessible and adequate housing and to reasonable standards of sanitation. Further under article 21(1) of the Constitution the State and State organs had the duty to observe, respect, protect, promote, and fulfill the rights and fundamental freedoms in the Bill of Rights. Under article 21(2) of the Constitution, the State had to take legislative, policy and other measures, including the setting of standards in order to achieve progressive realization of the rights guaranteed under article 43 of the Constitution.  Therefore, as a socio-economic right, the right to housing had to be realized progressively.
17. The expression “progressive realization” was neither a stand-alone nor a technical phrase. It simply referred to the gradual or phased-out attainment of a goal-a human rights goal which by its very nature, could not be achieved on its own, unless first, a certain set of supportive measures were taken by the State. The exact shape of such measures would vary, depending on the nature of the right in question, as well as the prevailing social, economic, cultural and political environment. Such supportive measures could involve legislative, policy or programme initiatives including affirmative action.
18. Under article 20(5) of the Constitution, the principles that should guide a court in the enforcement of rights provided for under article 43 of the Constitution, where the state claimed that it did not have resources to implement the right were the following: -

1. it was the responsibility of the State to show that the resources were not available;
2. in allocating resources the State had to give priority to ensuring the widest possible enjoyment of the right or fundamental freedom having regard to prevailing circumstances, including the vulnerability of particular groups or individuals and
3. the court, tribunal or other authority could not interfere with a decision by a state organ concerning the allocation of available resources, solely, on the basis that it would have reached a different conclusion.
19. The court would exercise its powers under article 20(5) of the Constitution by issuing interim orders whose effect was to demand evidence that would exonerate the State from liability. The orders had to be directed at the State organ responsible for the requisite progressive realization measures. That was what the trial court appeared to have done when issuing the interim orders.
20. The question as to when the right to housing accrued depended upon its progressive realization. In turn, its realization depended upon the availability of land and other material resources.
21. An illegal occupation of private land would not create prescriptive rights over that land in favour of the occupants but the same could not be said of an “illegal occupation” of public land. To the contrary, where the landless occupied public land and established homes thereon, they did not acquire title to the land but they had a protectable right to housing over the same. The Constitution of Kenya 2010, radically transformed land tenure in the country by declaring that all land in Kenya belonged the people of Kenya collectively as a nation, communities and individuals. It also created a specific category of land known as public land. Therefore, every individual as part of the collectivity of the Kenyan nation had an interest, however indescribable, however unrecognizable, or however transient, in public land.
22. Faced with an eviction on grounds of public interest, potential evictees that occupied public land, had a right to petition the court for protection. The protection, need not necessarily be in the form of an order restraining the State agency from evicting the occupants, given the fact that the eviction may be entirely justifiable in the public interest. However, under article 23(3) of the Constitution, the court could craft orders aimed at protecting that right, such as compensation, the requirement of adequate notice before eviction, the observance of humane conditions during eviction (U.N Guidelines), the provision of alternative land for settlement, etc.
23. The trial court's orders for the respondents to furnish the trial court with existing state policies and programmes on provision of shelter and access to housing were not of remedial benefit to the appellant. The trial court ought not to have included non-state actors, who were not parties to the suit in its orders.
24. The evictions that the appellant complained of were undertaken in breach of a court order. In the eviction, houses and other property were destroyed. Actions by state organs, carried out in flagrant disregard of court orders, undermined the constitutional order, more so, if they resulted in the violation of citizens’ rights.

Orders: -

1. The appeal dated February 5, 2018 was partially allowed.
2. The proceedings were remitted to the trial court, with instructions that appropriate reliefs be crafted and granted in accordance with the Supreme Court judgment and the pleadings at the High Court.
3. No orders as to costs.