COURT OF APPEAL SHOULD BE PRO SOCIO-ECONOMIC RIGHTS IN KENYA

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Dr. Steve OUMA AKOTH

While Kenyans, were protesting against the excessive regime policing   that has threatened to reserve civil liberties and negate fundamental right to life, another horrendous act was going on. This was the ruling on the Civil Appeal 218 of 2014 issued by the Court of Appeal on July 1, 2016. On a chilly morning and with unprecedented promptness in commencing court sessions, a three-judge bench of Erastus Mwaniki Githinji, Abdallah J, and James Otieno Odek, erased and rendered hollow the quests of the urban poor people who were forcefully evicted from Mitumba slums in Embakasi in 2011.

The case was first filed at the Constitutional division of the High  Court by Mitu-Bell Society (on behalf of its members and residents of a slum dwelling known as Mitumba Village) after illegal and forceful eviction conducted by the Kenya Police on behalf of  the Kenya Airports Authority. Mitu-Bell society members being squatters erected residential and business structures as well as educational facilities on the property allegedly belonging to Kenya Airports Authority.

Curiously, a report by a parliamentary committee chaired by Rev Mutava Musymi suggested that Kenya Airports Authority was not the owner of the land in question. Even then, the central questions in this case of Mitu-Bell Welfare Society v Attorney General & 2 others [2013], when it was presented and determined by Hon. Judge Mumbi Ngugi, were mainly about forced evictions and violation of socio-economic rights. The Mitu-Bell Society sort  a declaration that the forced evictions were in contempt of previous court orders not to evict them and was also illegal  as it was undertaken without due notice. They sort compensation or relocation to new habitat.

The Mitu-Bell Society also opined that the forced evictions violated their constitutional rights to housing (Article 43), was an affront on human dignity (Article 28) and utterly discriminatory as a nearby multi-storied building was not affected by the evictions. Since there was proliferation of evictions in the year 2009- 2011with no legislation or guidelines developed to regulate evictions in Kenya, Justice Mumbi Ngugi turned to international law. She sort inspiration from paragraphs 15 and 16 of the guidelines on evictions in UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 7: The right to adequate housing (Art.11.1).  This, she argued, was made possible by virtue of Articles 2(5) and (6) of the Constitution of Kenya (CoK) , which incorporate general rules of international law and any treaty or convention that Kenya has ratified into Kenyan law.

After analyzing the facts of the case, the judge held that the forced eviction and demolition of the petitioners’ homes without a relocation option and without following the proper procedures violated their constitutional rights. The judge also opined that the selective demolition of the informal settlements alone and not the multi-storied buildings surrounding it violated the right to non-discrimination and equal protection of the law. It was based on a false assumption that “terror only resides in the downtrodden informal settlements” in Kenyan cities. She thus proceeded to make an order that the respondents should, within 60 days, provide shelter and access to housing for the former residents of Mitumba village.

It is this decision that was reversed by the Court of Appeal (COA) judges in what is a selective reading of the Constitution of Kenya. What I find ridiculous is how COA disallowed application of international law and supervision of judicial decisions. Were they to make such declaration in a context of conflict between a local legislation and a rule of international law, then one would have excused the judgment as captive to ambiguity and confusion. However, under the circumstances of this case, I see a mischievous deficit in the declaration by the judges.

Well aware that such provision on application of international law in Kenya, the judges of Court of Appeal have attempted in Paragraph 116 of their ruling to distinguish between general rules of international law (GRILs) and rules of international law (RILs). What’s the difference? Isn’t that an attempt as shallow as suggesting distinction between water and aqua.

After scattering this rich tradition of application of international law, the judges delivered their last blow on the implementation of Social and Economic Rights. They rejected suggestions for supervision of orders which was meant to ensure effective enforcement the housing  rights. Their desire was to terminate the argument under the notion of “appropriate”. Indeed the term “appropriate” remedy for social rights had been interpreted by judge Mumbi as allowing a court to award an “effective” remedy. Through this judgment, Githinji and the others displayed an amazing lack of self-awareness, nay, ignorance of current jurisprudence but much more worrying the decision which negates  Article 43 of CoK and is deleterious to the transformative intention of the constitution of Kenya.

The  author is the executive director of Pamoja Trust and can be reached at [email protected]

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