SUPREME COURT CLARIFIES ON INNOVATIVE RELIEFS AND POSITION OF INTERNATIONAL LAW

Mitu-Bell Welfare Society, a society registered under the provisions of the Societies Act Cap 108 (the appellants) comprising of residents of Mitumba Village, with 3065 households or approximately 15,325 men, women and children filed a petition in the High Court of Kenya on behalf of its members and other residents of Mitumba village. On the basis of the pleadings, at the time of filing the petition before the High Court, the appellants were all residents of Mitumba Village situated on Plot Number 209/12908, near Wilson Airport, Nairobi; while their children attended school at Mitumba Primary School, situated on plot number 209/12921, also located near the Wilson Airport. The appellants’ petition was prompted by a notice published in the newspapers on 15th September 2011, by the 2nd respondent giving them seven (7) days within which to vacate the suit land. Together with the petition, the appellant filed a chamber’s summons application seeking among others, conservatory orders against Kenya Airports Authority (the 1st respondent).

On the 22nd of September, 2011, the High Court granted an order restraining the respondents, i.e., the 1st respondent as well as the Hon. Attorney-General (the 2nd respondent) and the Commissioner of Lands (the 3rd respondent) from demolishing the village pending the hearing inter-partes and determination of the application for conservatory orders. However, notwithstanding the conservatory order, the respondents proceeded to demolish the appellants’ houses in the village on 19th November, 2011. The demolition necessitated the amendment of the petition and the issues framed in the High Court of Kenya arising from the amended petition and responses from the respondents were as follows:

(i) What rights, if any, do the [appellants] have over the subject property?

(ii) If the answer to (i) above is in the negative, was their eviction and the demolition of their houses a violation of their rights under the Constitution?

(iii) If the answer to (ii) above is in the positive, what relief should the Court grant to the petitioners?

(iv) Rights over the Subject Property.

The High Court, inter-alia, allowed the petition, declaring that following the demolition of Mitumba village, more so as the demolition was carried out while an Order of the Court restraining the demolition was in force, the 1st and 2nd Respondents had violated the appellants’ constitutional rights.

Before making any further Orders with regard to the appropriate relief for the appellants in the matter, the Court directed as follows;

(i) That the respondents do provide, by way of affidavit, within 60 days of judgment, the current state policies and programmes on provision of shelter and access to housing for the marginalised groups such as residents of informal and slum settlements.

(ii) That the respondents do furnish copies of such policies and programmes to the appellants, other relevant state agencies, Pamoja Trust (and such other civil society organisation as the appellants and the respondents may agree upon as having the requisite knowledge and expertise in the area of housing and shelter provision as would assist in arriving at an appropriate resolution to the appellants’ grievances), to analyse and comment on the policies and programmes provided by the respondents.

(iii) That the respondents do engage with the appellants, Pamoja Trust, other relevant state agencies and civil society organizations with a view to identifying an appropriate resolution to the appellants’ grievances following their eviction from Mitumba Village.

(iv) That the parties report back on the progress made towards a resolution of the appellants’ grievances within 90 days from the date of Judgment.

In effect, the High Court was issuing, as appropriate relief, post judgment supervision of the matters which it had given directions on. Thereafter, the State filed an affidavit appending the Government’s Guidelines on Settlement and Evictions. Consequently, the learned Judge gave parties 45 days to engage in discussions with a view to finding an amicable solution.

Aggrieved and dissatisfied with the entire Judgment and directions of the High Court, the 1st respondent filed an appeal in the Court of Appeal. The Court of Appeal on its part, identified eleven issues arising from the appeal filed before it. In doing so the Court of Appeal, inter-alia, upheld the High Court’s finding of the 2nd respondent’s liability on grounds that under the provisions of article 156 (4) (a) and (b) of the Constitution, the 2nd respondent is the legal advisor to the Government, and is empowered (other than in criminal proceedings) to represent the Government in Court or in any other legal proceedings to which the National Government is a party. The appellate court however set aside any liability against the 3rd respondent, and concluded that the High Court, erred in law in making a composite order and issuing directives against the latter.

The Court of Appeal in addressing the issue of reservation of powers to make further orders, faulted the High Court, for delivering a judgment and then reserving outstanding matters to be dealt with by the same Court. It further found that, save for the limited exceptions provided for in law, delivery of judgment marks the end of litigation and the end of jurisdictional competence of the High Court, hence upon delivery of judgment, a court becomes functus officio.

On the issue of reliance on the Universal Declaration of Human Rights, the Court of Appeal without faulting the High Court for citing the UN Guidelines, noted that it was imperative to bear in mind the hierarchy of laws in Kenya view. It opined that before a court can invoke article 2 (5) of the Constitution, it must be satisfied that the rule of international law being invoked is a general rule of international law and not simply a rule of international law; that it must be borne in mind that the United Nations and any other international or multilateral organization is neither a supplementary nor complementary legislature for Kenya; that neither the UN nor any international organization legislates for Kenya; and that it is impermissible to use article 2 (5) of the Constitution as a basis to justify any or all rules and principles of international law as part of the laws of Kenya.

The appellant, being aggrieved, filed an appeal to the Supreme Court after applying to the Court of Appeal that there were matters of public importance which the Court of Appeal certified. The Supreme Court identified the following five issues:

(i) What is the place of Structural Interdicts (if any) as forms of relief in human rights litigation under the Constitution?

(ii) What is 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?

(iii) To what extent are Guidelines by UN bodies relevant in the interpretation and application of Socio-Economic Rights by Kenyan Courts under the Constitution?

(iv) Under what circumstances may a Right to Housing accrue (if at all) in accordance with the provisions of Article 43 (1) (b) of the Constitution?

Held
Structural Interdicts
The Supreme Court reiterated, once again, that the High Court had powers to craft appropriate remedies, even structural interdicts, but cautioned that interim reliefs, structural interdicts, supervisory orders or any other orders that may be issued by the Courts, have 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, must be realistic, and avoid the temptation of judicial overreach, especially in matters policy. The orders should not be couched in general terms, nor should they be addressed to third parties who have no Constitutional or statutory mandate to enforce them. Where necessary, a court of law may indicate that the orders it is issuing, are interim in nature, and that the final judgment shall await the crystallization of certain actions.

Applicability of international law under article 2(5) and 2(6) of the Constitution
The Supreme Court found that article 2(5) and (6) of the Constitution has nothing or little of significance to do with the monist-dualist categorization. Most importantly, according to the Supreme Court, the expression “shall form part of the law of Kenya” as used in the Article does not transform Kenya from a dualist to a monist state as understood in international discourse. The Supreme Court then went ahead to State that the phrase, “shall form part of the law of Kenya”, was in fact first embraced by what it described as “the pioneer dualist states”, i.e., the United Kingdom and the United States.

The role of the UN Guidelines in the interpretation and clarification of the Bill of Rights
The Supreme Court held that the Guidelines cannot be regarded as being part of the treaty under which they were issued. They are tools or aids directed to states parties to help the latter in implementing the treaty or better fulfilment of their obligations there-under. Each state party is free to make use of the Guidelines, to the extent that is practicable under its legal system. The guidelines are not “binding” upon the States parties, nor are they part of the law of Kenya in the language and meaning of article 2 (6) of the Constitution, unless they have ripened into a norm of customary international law, as evidenced by widespread usage. Again, we must emphasize that there is nothing wrong in a court of law-making reference to the Guidelines as an interpretative tool aimed at breathing life into article 43 of the Constitution.

The right to housing under article 43 of the Constitution
The Supreme Court was categorical that the right to housing in its base form (shelter) need not be predicated upon “title to land”. Indeed, the Supreme Court held, it is the inability of many citizens to acquire private title to land, that condemns them to the indignity of “informal settlement”. Where the Government fails to provide accessible and adequate housing to all the people, the very least it must do, is to protect the rights and dignity of those in the informal settlements. The Supreme Court was categorical that the courts are there to ensure that such protection is realized.

Comments
The decision by the Supreme Court, in the main, was progressive. It recognized in our view three major issues, i.e., firstly that the High Court, when considering the terms, appropriate relief, in articles 22, 23 and 258 of the Constitution can craft innovative remedies, including supervisory structural interdicts. These crafted remedies have to be specific, appropriate, clear, effective, and directed at the parties to the suit or any other State agency. Secondly, as far as the Supreme Court was concerned, international law, though applicable in Kenya was lower in hierarchy to the Constitution, statute and written decisions. We think the court may have slightly misdirected itself on this point. The Supreme Court mentioned having been guided by the decisions of the US Supreme Court in the Paquete Habana and the English courts in the Triquet & Others v. Bath., to determine the meaning of the term “shall form a part of the law of Kenya used in articles 2 (5) and 2 (6) of the Constitution However a look at those decisions and the law they were interpreting shows that the Supreme Court misdirected itself. In the the Paquete Habana, the US Supreme Court said:

“International law is part of our law, and must be ascertained and administered by the Courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and as evidence of these, to the works of jurists and commentators who by years of labor, research and experience have made themselves peculiarly well acquainted with the subjects of which they treat…”

Given that article IV cl. 2 of the US Constitution provides in relevant part, that the “Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land, it would be surprising if the Paquete Habana was decided any differently than it had. International law is part of US law by dint of their Constitution. The US cannot therefore be referred to, as the Supreme Court thought, as a “dualist” State. On the other hand, when the English court was making its decision in Triquet & Others v. Bath, the UK did not have, and does not, at present, have a written Constitution. In the UK, Parliament is Supreme and customary international law is accepted by the courts as part of the law, subject of course to the law made by Parliament. So whilst in the UK, it is the courts that accept customary international law as part of the law of the UK, in Kenya, the Constitution itself directs that customary international law and treaty international laws shall from part of the law of Kenya. The effect of the Supreme Court’s decision regarding the station of international law is to reduce article 2 (5) and 2 (6) to empty platitudes. Granted, it is difficult to discern why the Constitution’s drafters wanted international law to be an automatic part of Kenyan law, but that, indeed, was their intention.

The decision is available here http://www.okadvocates.com/blog/wp-content/uploads/2021/02/Mitu-Bell-Welfare-Society-v-Kenya-Airports-Authority-and-2-others.pdf

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