Nov. 21, 2011: The Kenyan High Court issues leading ESCR decision

The Kenyan High Court has just issued an important decision on the implementation of economic, social and cultural rights (ESCRs), based on the country's new constitution and international human rights law.

The decision was a great achievement for Kenyan civil society, Hakijamii, ESCR-Net, the members of the ESCR-Net's Adjudication Working Group, and our goal of promoting economic, social and cultural rights around the world. First, by recognizing the interdependence among civil, political, economic, social and cultural rights, the High Court highlighted the justiciability of ESCRs. More specifically, it declared that the need to recognize "interdependence [of human rights] is out of the realization that people living without the basic necessities of life are deprived of human dignity, freedom and equality".  Second, the Constitutional Court stressed that any treaty ratified by Kenya is part of Kenyan Law and it based its decision not only on the new Constitution itself but also on articles 11 and 26 of the ICESCR and articles 16 and 18 of the ACHPR. Third, the Court reiterated the justiciability of ESCRs by declaring a violation of the right to life, the right to adequate housing, the right to sanitation, the right to physical and mental health, the right to clean and safe water, the right to education, 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. Fourth, the High Court issued a permanent injunction compelling the State to return petitioners to their land and "to reconstruct reasonable residences and/or alternative accommodation" as well as assure access to facilities, including schools. Besides the injunction, the Court also decided that each of the petitioners should get Ksh 200,000.00 (approx. $2,000.00) in damages.

The case was brought to the High Court by Odindo Opiata, Executive Director of Hakijamii (Kenya). Hakijamii is a Kenyan NGO, which has been a member of ESCR-Net since 2005 and has also been active in ESCR-net's Adjudication Working Group. It was created "to strengthen the capacity of the grassroots people in Kenya in advocating and realizing their economic and social rights". In 2010, Hakijamii requested ESCR-Net's involvement in the case, as it believed that a substantive international intervention focused on comparative and international law would be influential in the construction of a strong normative precedent.

ESCR-Net's Adjudication Working Group (represented in this case by Global Initiative for Economic, Social and Cultural Rights, Socio-Economic Rights Institute, Community Law Centre, Centre for Economic and Social Rights, Centre for Equality Rights in Accommodation, Social Rights Advocacy Centre and Malcolm Langford) then collectively developed an amicus curiae, which supported the justiciability of ESCR and the application of international human rights law. 

The High Court's leading decision reflects in great part the case made by Hakijamii and ESCR-Net's Working Group on Adjudication and it is an important normative precedent for the promotion of economic, social and cultural rights through national courts.

For more information, please contact Daniela Ikawa (dikawa@escr-net.org).