The East African Centre for Human Rights (EACHRights) is a non-partisan, Regional Non-Governmental Organization that seeks to initiate and undertake programmes that promote, protect, and enhance Economic, Social, and Cultural Rights (ECOSOC Rights) in Kenya, Uganda and Tanzania for vulnerable and marginalized groups.
Courts as Guardians of Socio-Economic & other Constitutional Rights
Chapter 4 of the Constitution of Kenya entrenches the Bill of Rights, a catalogue of rights that are the birth right of each and every Kenyan Citizen. Rights can be categorized into; Civil & Political rights, Socio Economic rights and Cultural rights.
ECOSOC rights are human rights concerning the basic social and economic conditions needed to live a life of dignity and freedom, relating to work and workers’ rights, social security, health, education, food, water, housing, healthy environment, and culture.
Socio-economic rights, as a subset of ECOSOC rights, are those rights that give people access to certain basic needs necessary for human beings to lead a dignified life. Socio-economic refers to society related economic factors.
As far as protection and safeguarding of rights goes, the Constitution of Kenya 2010 gives the courts a prominent role as the guardians of the Constitution and as the main body charged with the protection of the entrenched fundamental rights and freedoms.
Article 23 of the Constitution entrenches the authority of courts to uphold and enforce the Bill of Rights and it provides that the High Court has jurisdiction, to hear and determine applications for violation or infringement of, a right or fundamental freedom in the Bill of Rights. Furthermore, it states that in any proceedings brought under Article 22, a court may grant appropriate relief, including-
(a) A declaration of rights;
(b) An injunction;
(c) A conservatory order
Article 22(3) has further made a requirement for the Chief Justice to make Rules to enhance the adjudication of constitutional rights.
Rule 23 of the ‘Mutunga Rules’ as developed in 2013 provides:-
“1) Despite any provision to the contrary, a Judge before whom a petition under rule 4 is presented shall hear and determine an application for conservatory or interim order.
2) Service of the application in sub rule (1) may be dispensed with, with leave of the Court.
What then are Conservatory Orders?
The word Conservatory order appears in Article 23 as one of the instruments that the Courts could use in order to protect the enforcement of Constitutional Rights.
Conservatory orders are by definition decisions arrived at by a Court of law to maintain status quo/current status of affairs to ensure that circumstances do not change while a matter is before a Court of law pending judgement. Basically, conservatory orders ensure that nothing changes circumstantially in a matter, pursuant to the existence of other factors to be determined by the court.
Therefore, for instance, if EACHRights as an organization that champions the right to education sought to halt the imminent demolition of a public primary school by a private developer, as an accompanying suit continues in a court of law, one of the remedies it could pray for from the court of law would be a conservatory order.
In granting a conservatory order, the danger looming over the realization of rights must be imminent, real and not theoretical. An appropriate every day example would therefore be e.g. an airplane or Public Service Vehicle whose brakes are faulty. Such a vessel is a very real and imminent carrier of risk. A conservatory order therefore serves as a sought of immediate ‘brake’ on such a vessel in order to prevent any imminent foreseeable dangers.
It is important to note at this point that in the determination of whether a conservatory order should be granted, it should be presumed that the court is not invited to make any conclusive findings of fact or law on the dispute before it. Making reference to the example used above, the court would therefore not examine facts such as the colour or seat size of the Psv vehicle/airplane with faulty brakes, or other substantive or legal facts that are unrelated to the danger at hand.
The jurisdiction of the court at this point is limited to examining and evaluating the materials placed before it, to determine whether the applicant has made out a prima facie case to warrant grant of a conservatory order.
When are conservatory orders granted?
The applicable principles for the grant of conservatory orders were detailed by Onguto J. in the precedent set by Board of Management of Uhuru Secondary School v. City County Director of Education & 2 Others  eKLR. In summary, the principles are that;
- The Applicant ought to demonstrate an arguable prima facie case with a likelihood of success and that in the absence of the conservatory orders he/she is likely to suffer prejudice.
- The Court should decide whether a grant or a denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights.
- Whether if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory.
- Lastly, that the Court should consider the public interest and relevant material facts in exercising its discretion
- It is clear that a party seeking a conservatory order is mandated to demonstrate that should the court fail to grant a conservatory order, there is a high probability of him/her suffering prejudice as a result of the violation or threatened violation of the Constitution. However, this must be weighed against public interest.
Who can pray for Conservatory Orders?
Article 22(1) of the constitution provides that every person has the right to institute court proceedings claiming that a right or fundamental freedom in the bill of rights has been denied, violated or infringed, or is threatened.
A citizen who feels that their socio-economic and cultural rights have been infringed/are in danger of being infringed upon may therefore pray for such an order from a court of law.
Non-governmental organizations that champion for the enforcement of human rights, specifically ECOSOC rights, through public interest litigation will find this an invaluable instrument in ensuring that such rights are not infringed upon whereby threat of that eventuality exists.
As orders that facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court for the sake of public interest, they are a crucial part of our legal landscape that ought to be utilized by individuals and organizations alike.
From the foregoing, it is evident that conservative orders are a unique instrument in the protection of human rights that individuals and non-governmental organizations that champion for ECOSOC rights such as EACHRights may utilize for the protection of rights as provided for in Chapter 4 of the constitution and relevant international instruments adopted and ratified by the state.
However, as this article clearly articulates, they may only be granted by courts of law upon the satisfaction of several pre-requisite conditions and are therefore distinct from remedies almost similar in nature such as injunctions.
It is therefore our conclusion as EACHRights that conservatory orders are an important facility offered by the constitution in the enforcement of the bill of rights and sanctification of ECOSOC rights that ought to be utilized by individuals and organizations alike.
* Ms Samantha Oswago (LLM (Candidate), KSL DIP., LLB) is a legal officer based at EACHRights and an Advocate of the High Court of Kenya.