Kenya Closes the Door on Structural Interdicts: A Setback for Education Rights Litigation

In July 2016, The Kenyan Court of Appeal issued a judgment in Kenya Airports Authority v Mitu-Bell Welfare Society & 2 Others, which overturned a very progressive High Court ruling. The High Court had ordered the Kenyan Airports Authority (KAA) to compensate the 15,323 residents it had evicted from Mitumba village, an informal settlement that the residents had developed on land they had been occupying for over 19 years. In the High Court case, thousands of families sought a declaration that the evictions were in contempt of previous court orders not to evict, and also that the evictions violated their constitutional rights to housing, respect for human dignity and their right to equality and non-discrimination.[1] They sought compensation and relocation to a new community. The KAA argued that the land in question was under their ownership and thus it was not possible for them to have violated the property rights of the residents by evicting them from the land.  Additionally, the KAA and other Respondents argued that “economic and social rights were subject to progressive realisation and availability of resources, and the State could not be expected to deliver on these rights immediately upon demand.”[2]

The High Court found in favour of the Mitumba residents. It issued expansive orders to remedy the rights violations they had suffered. To oversee the implementation of the orders, the Court granted a structural interdict, which required all the parties to the case and other relevant stakeholders to work together to develop a plan to realise the housing rights of the Mitumba residents, and for a report on that process to be filed with the Court within 90 days. The interdict further required the State to report to the Court within 60 days from the date of the judgment on the current State policies and programmes relevant to the realisation of the right to housing.

The High Court judgment had been widely cited as important precedent relevant to the enforcement of socio-economic rights under the new Constitution, which has been in effect since 2010.[3] Specifically, the judgment was applauded for putting forth a “broad, progressive and purposeful interpretation of the right to housing,”[4] for emphasizing the “interdependence, indivisibility and interrelatedness[5]  of civil/political rights and economic/social rights, and affirming that economic and social rights are justiciable and ripe for enforcement.[6]

Unfortunately, the Court of Appeal reversed the High Court’s judgment, and in so doing, rolled back this important progress in Kenya’s jurisprudence to realize the right to housing, and to enforce socio-economic rights more broadly. Apart from the setback created by the Court of Appeal’s judgment on the merits of the case, the Court of Appeal also rejected the concept and use of the structural interdict as an acceptable form of judicial remedy.

Kenyan legal commentator, Joseph Kilonzo, aptly summarized the Court of Appeal’s reasoning for overruling the use of structural interdicts, also known as supervisory jurisdiction:

  • The Civil Procedure Act and rules do not provide for such procedure (structural interdicts) hence it is impermissible for a court to innovate a new form of judgment that is unknown in Kenya.
  • Structural interdicts allow delegation of judicial function which according to a 1963 English case (R v Governor of Brixton Prison ex parte Enahoro (1963) 2 QBamounts to abdication of judicial functions.
  • The High Court has been borrowing jurisprudence on post-judgment supervisory orders from India, South Africa and Canada and “Article 23(3) [of the Kenyan Constitution] cannot not be construed to permit the High Court to borrow legislations from other countries and through judicial interpretation embed them into the laws of Kenya”.

While the Court of Appeal justified its reasoning by framing the structural interdict as an entirely foreign concept, its use as a form of judicial remedy had been explained and defined by the High Court in Moi University v Council of Legal Education & another.[7]  Furthermore, the Kenyan Supreme Court employed the use of structural interdicts in Communications Commission in Kenya & 5 Others v Royal Media Services Limited & 5 Others SC Petition No.14 of 2014.[8]

Kenyan advocates maintain that even if the remedy has not been expressly recognized in Kenyan legislation, the Court has the power to develop the law and grant “any other appropriate relief” under Article 23 of the Constitution.[9]

The Structural Interdict: An Innovative and Important Tool in Socio-Economic Rights Litigation

Structural interdicts require the government to report back to the court at regular intervals about the steps they have taken to comply with the orders given.[10] While the facts and demands of each case will determine the nature and function of the structural interdict, its defining quality is that the court retains jurisdiction over the case after the final judgment in order to supervise the implementation of the orders given. Thus, it is a distinctively flexible and gradual form of relief as it allows for the remedy to be revisited or revised without having to institute fresh litigation.[11] Importantly, the structural interdict is often used as a measure of last resort after there has been evidence or some indication of government recalcitrance.[12]

Because plaintiffs in socio-economic rights litigation are often indigent or marginalized people, who generally lack the resources to file another suit should the government fail to comply with the court’s remedial order, the court’s retention of jurisdiction assists those seeking to have their rights enforced. Further, the fact that the court remains open to the plaintiffs creates additional pressure for the government to engage the plaintiffs and when relevant, other concerned third parties, in meaningful dialogue about an acceptable remedy and to effectively implement the agreed upon remedial action.

Supervisory jurisdiction is also effective when a mandatory order has been issued in terms that are so general that it is difficult to precisely define what is required of the defendant.[13] This is often the case in the context of litigation concerning systemic violations of socio-economic rights, in which the restructuring or reform of entire government systems are often necessary elements of the remedial orders. In such cases, the court generally recognizes the limits of its expertise and defers to the appropriate executive or legislative body to determine the specifics of the appropriate remedial action.

In South Africa, structural interdicts have been hugely important for enforcing education rights. Because of the supervisory function of this remedy, coupled with the flexibility it offers for developing an effective remedial response, the courts have used the structural interdict as an innovative response to repeated  incidents or threats of government non-compliance with court orders relevant to the education system; see for example the Linkside, Madzodzo, or the Section27[14] textbooks cases.

In Linkside, the Eastern Cape Department of Education (ECDOE) had failed to appoint and pay permanent teachers, despite the presence of a court order requiring it do so. In response, the court set out an order requiring the Superintendant General to report back within 60 days of the order, and on a quarterly basis until the order had been complied with in full.[15] In Madzodzo, after breach of a previous court order, the ECDOE was ordered, if down the line it envisaged that it would not comply with a requirement to deliver furniture, to file an application explaining the reasons for its non-compliance.[16] In Section27 the Minister of Education and Limpopo Department of Education were required to file monthly reports to the court and applicant detailing their progress. In all of these cases the supervisory interdicts assisted in ensuring the State comply with its education rights obligations.

The promise and usefulness of this remedy in this context illuminates the significant setback the Kenyan judiciary has created for the enforcement of education rights in Kenya.

Indeed, socio-economic rights advocates in Kenya have lamented that the Court of Appeal’s judgment has removed one of “its primary means of compelling government organs to make good on politically unpopular but constitutional obligations.”[17]

 

By Rachel Goodman

(Edited by Samantha Brener)

 

[1] Victoria Miyandazi, “Forced Evictions and Demolition of Informal Settlements in Kenya” Oxford Human Rights Hub (19 November 2015) http://ohrh.law.ox.ac.uk/forced-evictions-and-demolition-of-informal-settlements-in-kenya/?utm_source=hootsuite

[2] East African Centre for Human Rights (EACH Rights) “A compendium on economic and social rights cases under the Constitution of Kenya, 2010” (2014),  http://www.eachrights.or.ke/pdf/2014/A-Compendium-On-Economic-And-Social-Rights-Cases-Under-The-Constitution-Of-Kenya-2010.pdf p. 32.

[3] EACH Rights, 2014, p. 30.

[4] Ibid.

[5] EACH Rights, 2014, pp. 32-33.

[6] Ibid.

[7] Alvin Attalo, “Turning back the clock on Socio-Economic Rights: Kenya’s Court of Appeal decision in the Mitu-Bell Case,” Oxford Human Rights Hub (13 September 2016) http://ohrh.law.ox.ac.uk/turning-back-the-clock-on-socio-economic-rights-kenyas-court-of-appeal-decision-in-the-mitu-bell-case/

[8] Joseph Kilonzo, “Kenyan Court of Appeals Shackles the Novel and Innovative Remedies for Socio-Economic Rights Violation (18 August 2016) https://thealchemyofatransformativeconstitution.wordpress.com/2016/08/18/kenyan-court-of-appeal-shackles-the-novel-and-innovative-remedies-for-socio-economic-rights-violation/

[9] https://mulenwa.wordpress.com/2016/08/23/

[10] Mitra Ebadolahi, “Using Structural Interdicts and the south African Human Rights Commission to Achieve Judicial Enforcement of Economic and Social Rights in South Africa,” The New York University Law Review, Vol. 83 (2008), p. 1565.

[11] Christopher Mbazira, Litigating Socio-Economic Rights in South Africa: A Choice Between Corrective and Distributive Justice, Pretoria University Law Press (2009), p. 180.

[12] Mbazira, 2009, p. 166.

[13] Mbazira, 2009, p. 181-182.

[14] Section 27 and others v Minister of Education and another 2013 (2) SA 40 GNP

[15] See paragraph 2.2

[16] See paragraph 41

[17] Attalo, 2016.

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