By Jerameel Kevins Owuor Odhiambo
Structural interdicts have emerged as an innovative judicial remedy in Kenya’s human rights enforcement landscape, especially following the promulgation of the 2010 Constitution. These interdicts require a violator of rights to remedy the violation under the supervision of the court, ensuring compliance over time rather than a one-off order. The remedy is particularly significant in socio-economic rights cases where complex systemic issues require ongoing oversight. Kenya’s courts have increasingly recognized the need to develop such tools to enforce rights effectively, reflecting a progressive approach to constitutional adjudication. The Supreme Court’s landmark ruling in Petition No. 3 of 2018 (Mitu-Bell Welfare Society case) affirmed the place of structural interdicts in human rights litigation. This decision underscored the courts’ role in shaping remedies that are specific, clear, and enforceable to protect fundamental rights.
The 2010 Constitution of Kenya explicitly provides for the enforcement of the Bill of Rights under Article 22, empowering courts to grant any appropriate relief for violations. Article 23(3) further authorizes courts to issue orders including declarations, injunctions, and conservatory orders, with the list of remedies being non-exhaustive. This constitutional framework allows courts to innovate and tailor remedies such as structural interdicts to address complex human rights violations. Structural interdicts thus fill a critical gap where traditional remedies fall short, especially in socio-economic rights cases involving housing, health, or education. The courts’ supervisory role ensures that state agencies or violators implement necessary policies and programs to remedy violations. This approach aligns Kenya with international best practices in human rights enforcement.
The Mitu-Bell Welfare Society case, which involved the eviction of over 3,000 households, was pivotal in clarifying the status of structural interdicts in Kenya. The High Court initially granted structural orders requiring the government to report on housing policies and programs, but the Court of Appeal overturned this, citing separation of powers and the political question doctrine. However, the Supreme Court reversed the Court of Appeal, affirming that structural interdicts are valid remedies under the Constitution. The Supreme Court emphasized that such orders must be specific, effective, and directed at parties with constitutional mandates to enforce them. It also recognized socio-economic rights, such as the right to housing, as inalienable and enforceable rights, not subject to progressive realization alone. This ruling marked a significant advancement in Kenya’s human rights jurisprudence.
Structural interdicts require courts to maintain supervisory jurisdiction to ensure compliance with their orders. This means courts do not merely issue a judgment and close the case but actively monitor implementation over time. This ongoing oversight is crucial in cases where violations stem from systemic failures or require policy changes. For example, courts may order periodic reports from government agencies or require the establishment of mechanisms to prevent recurrence of violations. Such supervision ensures accountability and transparency in the enforcement of rights. It also empowers marginalized communities by providing a judicial avenue to compel state action.
Despite their promise, structural interdicts face challenges in Kenya. Critics argue that they may infringe on the doctrine of separation of powers by involving courts in policy formulation and implementation. There are concerns about courts becoming “super-legislators” or “super-executives,” which may raise political question issues. Additionally, enforcement of structural interdicts requires judicial resources and capacity for sustained monitoring, which may be limited. The Court of Appeal’s earlier reluctance to embrace structural interdicts reflected these concerns. Nonetheless, the Supreme Court’s ruling signals a willingness to balance these challenges against the need to protect fundamental rights effectively.
International human rights law supports the use of structural interdicts as effective remedies, especially for socio-economic rights. Kenya’s Constitution incorporates international law under Articles 2(5) and 2(6), making international human rights instruments part of domestic law. The United Nations’ guidelines on evictions and General Comment No. 7 on forced evictions emphasize the need for remedies that include supervision and enforcement mechanisms. Structural interdicts thus align Kenya’s judicial remedies with international standards, reinforcing the state’s obligation to respect, protect, and fulfill human rights. This international dimension strengthens the legitimacy and scope of structural interdicts in Kenyan courts.
The practical impact of structural interdicts is evident in various Kenyan cases beyond Mitu-Bell. For example, in Daniel Ngetich & Others v Attorney General, the High Court issued structural interdicts to protect the right to health for inmates with infectious tuberculosis. This remedy compelled the government to take concrete steps under court supervision to improve prison health conditions. Such cases demonstrate how structural interdicts can address systemic human rights violations that require more than declaratory relief or compensation. They provide a framework for transformative justice by mandating positive state action. This judicial creativity enhances the enforcement of socio-economic rights in Kenya’s constitutional order.
Structural interdicts also promote participatory justice by involving affected communities in monitoring compliance. Courts may require regular updates from government agencies and allow for community input on progress. This participatory element fosters transparency and empowers rights holders to hold duty bearers accountable. It also bridges the gap between legal pronouncements and lived realities of vulnerable populations. In this way, structural interdicts contribute to building a culture of human rights respect and institutional accountability in Kenya.
The Supreme Court’s recognition of structural interdicts signals a broader judicial commitment to realizing the full spectrum of rights under the 2010 Constitution. It reflects an understanding that socio-economic rights are justiciable and enforceable, not merely aspirational. This approach strengthens Kenya’s human rights framework by ensuring that rights violations are met with effective, enforceable remedies. It also challenges traditional judicial conservatism, encouraging courts to be proactive agents of social justice. Ultimately, structural interdicts represent a powerful tool for advancing human dignity and equality in Kenya.
In conclusion, structural interdicts are a vital means of human rights enforcement in Kenya, particularly for socio-economic rights. They enable courts to issue orders that require ongoing compliance and supervision, ensuring that violations are remedied effectively. The Supreme Court’s jurisprudence affirms their legitimacy and necessity within Kenya’s constitutional framework. While challenges remain, including concerns about separation of powers and resource constraints, the benefits of structural interdicts in protecting vulnerable populations are clear. By aligning domestic remedies with international standards, Kenya is advancing a progressive human rights enforcement model. Structural interdicts thus embody the judiciary’s crucial role in safeguarding human rights and promoting social justice.
The writer is a lawyer and legal researcher.
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