Judgment-High Court Petition No 164 of 2011 - Hakijamii

‘All human rights are universal, indivisible and interdependentand interrelated.’• With regard to the justiciability of social economic rights which the 2 ndrespondent also challenges, I can do no better than to quote GeneralComment No. 9 on the Domestic Application of the InternationalCovenant on Economic, Social and Cultural Rights, CESCR, GeneralComment 9, The Domestic Application of the Covenant (Nineteenthsession, 1998), U.N. Doc.E/C.12/1998/24 (1998), para. 10 in which theCommittee on Economic, Social and Cultural Rights (CESCR) states asfollows:‘The adoption of a rigid classification of economic, social andcultural rights which puts them, by definition, beyond the reachof the courts would thus be arbitrary and incompatible withthe principle that the two sets of human rights are indivisibleand interdependent. It would also drastically curtail thecapacity of the courts to protect the rights of the mostvulnerable and disadvantaged groups in society.’• The argument that social economic rights cannot be claimed at this point,two years after the promulgation of the Constitution, also ignores the factthat no provision of the Constitution is intended to wait until the state feelsit is ready to meet its constitutional obligations. Article 21 and 43 requirethat there should be ‘progressive realization’ of social economic rights,implying that the state must begin to take steps, and I might add be seen totake steps, towards realization of these rights.• Consequently, when the state or a state agency such as the 2 nd respondentdemolishes the homes of poor citizens such as the petitioners who live ininformal settlements such as Mitumba village, when it does so after a sevenday notice, without giving them alternative accommodation, it violates not