State must take tougher steps to ensure people's fundamental rights are not violated - Kenya’s apex court

30 July 2021 · Carmel Rickard

The supreme court of Kenya has delivered a significant judgment on the right to shelter. It involved people who had been living in two informal settlements since the 1960s, when it was effectively public land. In 2013, they were forcibly evicted by a private entity, the Moi Educational Centre, with the help of the state via the police and others. The high court found in favour of the people who were evicted, saying there was an ‘unapologetic admission’ by the Moi Centre that it had evicted the people and had their homes demolished, all without a court order. The high court ruled that fundamental rights were indeed violated, and awarded damages to the petitioners. Much of this was set aside on appeal, and the petitioners then approached the supreme court for its view. The five supreme court justices unanimously ruled that the petitioners’ rights were infringed by the Moi Centre, the police and other arms of government, and affirmed the original high court finding as well as an award of damages.

Read judgment

As the supreme court explains right at the start, this case concerns the interpretation of the right to accessible and adequate housing under the constitution’s Article 43 and, where a court finds violation of rights, the constitutional remedy of compensation.

At a less theoretical level, however, the case is about people who settled on a piece of land in about 1968. They have been living on it since then, putting up semi-permanent houses and business structures, and were supplied with services such as water and electricity. They were also legally licensed to run businesses on the property, and their children attended nearby public schools.

About 200 families were evicted in about 1980, and the respondent, Moi Educational Centre, a private primary school, was built on the land. The litigation in this case was prompted by what the petitioners claim was their forced removal and the demolition of their property during 2013 by police officers among others. They said these evictions were ‘violent and brutal’, and that the building material from their demolished homes was burnt along with their possessions – all of this without any court order.

Misinterpret

The supreme court found it had three questions to answer: did the forced evictions violate constitutional rights of the people evicted; did the court of appeal misinterpret the doctrine of the progressive realisation of rights, and did it misinterpret the remedies that were available once a court had found that rights were violated?

Since the land title held by the Moi Centre ‘remains unimpeached’, the question that needed to be decided was whether, in evicting the petitioners, the respondents violated their rights to dignity and security as well as to housing and health?

It was an ‘undeniable fact’, said the court, that forced evictions generally constituted a violation of fundamental rights and freedoms and an abuse of inherent human rights and dignity. The state was obliged to ensure that these rights and freedoms were not limited ‘without reasonable justification’.

Delicate balance

Further, in ensuring that these social and economic rights were protected, the state had to strike a ‘delicate balance between the rights of those that are most vulnerable … and those that are in economic advantage.’

The court found that the evictions were ‘violent’ and ‘did not accord with the expected constitutional obligation of the state to ensure that those in informal settlements are treated with the dignity that is conferred [by … ] the constitution.’

The principles that an ‘evicting party’ had to comply with had already been laid out by the courts and they were applicable in this case too. These guidelines flowed from the UN Guidelines on Evictions.

Redundant

The supreme court found that the high court had been correct when it wrote, ‘it is redundant to ask whether the eviction of the petitioners resulted in a violation of their rights under the constitution. Even the ordinary man in the street, confronted with the facts before [her], would answer the question in the affirmative.’

As to the court of appeal, the five judges found it had misinterpreted the law on some essentials including the award of damages.

The appeal judges set aside the award made by the high court saying that the petitioners had not given enough evidence of the loss incurred for the court to make a fair assessment on the quantum.

Manifestly different

According to the supreme court, however, there was sufficient evidence presented for the high court to have reached the decision on damages that it did.

What the court of appeal failed to appreciate was that the questions for a court to bear in mind when making a damages award in a case of constitutional violation was ‘manifestly different’ to what a court would consider in a civil liability claim.

In some more general remarks, the supreme court said it was a sad state of affairs that 10 years after the constitution’s promulgation, ‘the state still seeks to rid itself of its mandate and obligations by hiding behind the perceived inconsistencies sometimes presented in the constitution … and to abdicate its role in ensuring that Article 43 rights [dealing with economic and social rights] are realised.’

Modicum of effort

The article dealing with the state’s duty to achieve the progressive realisation of socio-economic rights, ‘does not protect the state from realising these rights ‘but rather seeks to ensure that even though these rights are not immediately achieved, there is at least some modicum of effort by the state to realise those rights.’

After a brief overview of some so far unsuccessful gestures towards legislative change, the court added, ‘The state has to take a more drastic and purposive approach to its mandate and obligations in ensuring that the rights [of] the people of Kenya are not violated, or at the very least, that these rights are not deprived or denied. We say no more.’

Elderly persons

The judges then declared that the demolition of the petitioners’ homes and property and their forced eviction without a valid court order violated their rights to dignity, security of the person and to accessible and adequate housing. They also declared that the demolition violated the fundamental rights of children and of elderly persons involved.

They thus affirmed the high court’s decision and ordered that each of the petitioners be paid Ksh150,000 by the Moi Centre and that the state should pay each petitioner Kshs100,000.

Carmel Rickard

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