Abstract
The enforcement of socio-economic rights is unique as it necessitates positive action in policy-making and bears budgetary implications. Consequently, to prevent such enforcement from exceeding the scope established by the doctrine of ‘separation of powers’, because policy-making and budgetary allocation are under the executive and legislature respectively, the Kenyan Court of Appeal was hesitant to apply structural interdicts in the case of Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others. This decision has outlawed structural interdicts from the Kenyan jurisprudential landscape and has failed to give a viable alternative judicial approach that should guide subsequent courts in enforcing socio-economic rights. This study looks into the origin and models of structural interdicts so as to analyse and critique this Court of Appeal’s decision by showing how the Court could have applied structural interdicts in the enforcement of socio-economic rights without impinging on the doctrine of separation of powers. This will be achieved through the use of literature review.
Highlights
As granted by the new constitutional dispensation, in Article 43, socioeconomic rights enjoy protection and are subject to judicial enforcement.Strathmore Law Review, June 2019Strathmore Law Clinic (SLC)These rights obligate the State to take special deliberative action whose judicial enforcement requires innovative and unorthodox remedial propositions
It should be borne in mind that structural interdicts are usually used as a remedy for eliminating systemic violations of socio-economic rights where constitutional obligations exist
The courts have consistently found themselves in a challenging position concerning how to enforce the positive obligations imposed by socioeconomic rights, and at the same time respect the limits of the separation of powers.[81]
Summary
As granted by the new constitutional dispensation, in Article 43, socioeconomic rights enjoy protection and are subject to judicial enforcement. It is important, to note that the enforcement and adjudication of socio-economic rights has not been without difficulty, not in the least on account of their novelty in the Kenyan jurisdiction.
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