Judgment-High Court Petition No 164 of 2011 - Hakijamii

all other entities and persons to desist from preventing orimpairing the right of access to adequate housing.’• In the present case, the state had an obligation to protect the petitioners’existing homes, rudimentary as they were, while doing what it could, to theextent of its available resources, to ensure their progressive access toadequate housing. It cannot properly argue, as it has in this case, that sincethe petitioners had no right to the land, their houses in Mitumba Villagecould be demolished arbitrarily without providing them with alternativeaccommodation. The state has an obligation to ‘observe, respect, protect,promote and fulfil’ the petitioners’ right to adequate housing, and theactions by the 2 nd respondent in this case was unlawful andunconstitutional.Violation of Civil and Political Rights• The petitioners have also alleged violation of their rights under Articles 26,27, 28, 29 and 47 of the Constitution, while the respondents argue thatviolation of these rights has not been made out. The Constitutionguarantees to all citizens, at Article 26, the right to life, Article 27 containsthe non-discrimination provisions and guarantees to everyone equalprotection and benefit of the law, while Article 28 recognises the inherentdignity of all and guarantees to all the right to have that dignity respected.At Article 29, the right of everyone to security of the person and to freedomfrom violence from either private or public sources is guaranteed. Article47 contains the constitutional guarantee to fair administrative action.• In my view, enjoyment of these rights, which the 2 nd respondent would liketo see in the now discarded division of rights as first and second generation,is not possible without the social economic rights which our Constitutionguarantees at Article 43. A failure by the state to ensure that citizens haveaccess to the rights guaranteed by Article 43 directly impacts on the ability