Kenyan High Court decision concerning the implementation of economic, social, and cultural rights based on Kenya’s new constitution and international human rights law; International human rights norms and their application in domestic jurisdiction; Justiciability of economic, social, and cultural rights; Access to legal remedies; Due process.
This High Court case was brought with the support of Hakijamii, a human rights organization based in Nairobi that has been a member of ESCR-Net since 2005; and stemmed from the request of more than 1,000 individuals, evicted from their homes located in six communities commonly known as the Medina Location of Garissa municipality.
The Petitioners, including children, women, and the elderly, were violently removed from public land that they had occupied since the 1940s. Their homes were demolished by officials of the provincial administration and the Municipal Council of Garissa, resulting in their social and economic dislocation. Petitioners never received any written notice nor did the Respondents consult with them prior to their eviction. Several national and international rights organizations joined the case as amici curiae in support of those evicted, including the ESCR-Net Working Group on Adjudication.
In ruling for the petitioners, the High Court recognized the interdependence among civil and political and economic, social and cultural rights highlighting the justiciability of the latter. The Court stressed that any treaty ratified by Kenya is part of Kenyan law basing its decision not only on the new Kenyan Constitution but also on articles 11 and 26 of the International Covenant on Economic, Social and Cultural Rights and articles 16 and 18 of the African Charter on Human and People’s Rights. The Court reiterated the justiciability of ESCR by declaring a violation of the right to life, the right to adequate housing, the right to water and sanitation, the right to physical and mental health, the right to clean and safe water, the right to education, the right to information, the right to fair administrative decisions, the right to be free from hunger as well as the right of the elderly to pursue personal development, to live in dignity, respect and freedom from abuse and to receive reasonable care. Finally, the Court issued a permanent injunction compelling the State to return petitioners to their land and to reconstruct their homes and/or provide alternative housing and other facilities including schools and awarded each of the petitioners Kshs 200,000.00 (approx. $2,000.00) in damages.
Keywords: Constitutional Petition No. 2 of 2011 (Garissa), Access, Justice, Education, Food, Health, Housing, Information, Life, Water, Sanitation, Rights
Advocates in Kenya are aware that enforcing court orders concerning ECSR is a challenge impacting not only the victims of violations of those rights but also the implementation of human rights obligations and legal precedent within the domestic sphere. As a result, advocates, including those acting as friends of the court in the present case will be following the implementation of this decision and work toward full enforcement.[1]
[1] Okoth, Dann, “Tiny Garissa community wins legal battle over land ownership,” The Standard, December 2, 2011, available at http://www.standardmedia.co.ke/InsidePage.php?id=%202000047712&cid=259&story=Tiny%20Garissa%20community%20wins%20legal%20battle%20over%20land%20ownership;
Advocates hailed this decision as establishing an important normative precedent for the promotion of economic and social rights through national courts including areas not previously ruled on like the impact of forced evictions on the right to health care services, right to information, right to fair administrative decision, freedom from hunger and the right to clean and safe water. The Court broke new ground by ordering the reconstruction of demolished homes and buildings as a remedy for forced eviction cases and by awarding punitive damages.[1] It also has significant ramifications with regard to ensuring government accountability in administrative decisions. The ruling is likely to hold significance beyond Kenya’s borders.[2]
[1] Ibid.
[2] Okoth, Dann, “Groups seek inclusion in community land case,” Special Report, Community at Crossroads, Standard on Saturday, June 18, 2011, available at http://www.communitylawcentre.org.za/files/evictionskenya.pdf.
Hakijamii ESCR-Net
