the Kenyan Court of Appeal’s Affordable Housing Act Judgment – Constitutional Law and Philosophy

Introduction

The recent judgment of the Kenyan Court of Appeal upholding the Affordable Housing Act of 2024 presents us with an interesting case study on the limits of the judicial enforcement of socio-economic rights. Article 43(1)(b) of the Constitution of Kenya guarantees to everyone the right to “accessible and adequate housing.” The Affordable Housing Act was enacted, ostensibly, to fulfil the promise of Article 43. It did so in the following manner: first, it levied a tax of 1.5% on gross salary of every employee, or a person’s gross income (“the affordable housing levy”). This levy would go into an Affordable Housing Fund, managed by an Affordable Housing Board, which would be used for “the design, development and maintenance of affordable housing, institutional housing and associated social and physical infrastructure,” maintenance funds, low cost loans, and so on. The Act would be implemented through the allocation of public land for affordable and institutional housing schemes, and the process of building could also be carried out through private parties that had been contracted to do so. Eligible persons – to be so determined through regulations – could then apply for, and be allocated, an affordable housing unit, which they would have to purchase through the payment of an agreed price (the Act also provided for loan schemes). A perusal of the Affordable Housing Regulations reveals that the Board’s functioning vis-a-vis eligible persons was, in most senses, something between a private landowner and a financier. Furthermore, as this article demonstrates, the price-setting was/is such that the primary way of affording these units appears to be via mortgages.

The Commodification of Housing

An analysis of the Affordable Housing Act, the Regulations, and the manner of its implementation therefore makes it clear that, in essence, the State established a somewhat subsidised private housing market on public land, where the extent of subsidy would be financed through a general tax (the housing levy). This raises an immediate question: to what extent is a housing market consistent with the State’s obligations under Article 43, which speaks of a right to accessible and adequate housing? To put it another way, does it make sense to say that I have a right to a good “X” if good “X” is a commodity that can only be accessed through the market (for an extended version of the argument, see here)? Specifically, what of people who lack the means of accessing the market?

This, indeed, was precisely the argument made by one set of parties challenging the Act. In paragraph 78, the Court of Appeal accepted the point when it noted that:

… the affordable housing program, as envisioned under the Act, is meant for those intending to purchase or develop affordable housing. In other words, the low-income earners and the developers. It does not cater for the no income earners. It locks out of consideration those who, in our view, are most deserving of the constitutional intervention. (emphasis supplied)

Having said that, how did the Court nevertheless find the Act to be constitutional? It did so by taking refuge in the doctrine of progressive realisation:

Whereas the Act, as enacted, cannot be said to have fully met the constitutional expectation in Article 43(1)(b) of the Constitution, as correctly submitted on behalf of the 5th respondent, the enactment of the Act is but one of the measures taken by the State to ensure that the right to accessible and adequate housing is realized. More needs to be and must be done going forward. We cannot therefore conclude that the Act is unconstitutional merely because it does not fully address the constitutional expectation under Article 43(1)(b) of the Constitution.

It is worthwhile, however, to interrogate this further. Simply put, the doctrine of progressive realisation holds that because of potential budgetary constraints upon governments, a socio-economic right (whether housing, or health, or education, or food) might not be implemented immediately, but that governments are to be accorded a “margin of appreciation” in progressively moving towards its realisation. This set of concepts was articulated by the South African Constitutional Court in Grootboom, which the Kenyan Court of Appeal relied heavily on.

The conceptual problem with deploying the doctrine of progressive realisation to legislation such as the Affordable Housing Act, however, is this: as I have argued above, the Act entrenches market-based social relations around housing with the State organ acting as a guarantor for what is essentially a private housing market. In other words, it extends the logic of the commodification of housing, with the State acting as a one of the commodity providers (along with private players) – an entrenchment that is compounded by the fact that it was public land being used for the creation of a private housing market. For the reasons adduced above, this is the polar opposite of the language and grammar of a right to something.

In other words, it would be one thing to hold that a partial decommodification of housing through State policy amounts to a “progressive realisation” of rights, as we can fairly say that in such a case, the State is moving towards ensuring that access to housing is a right that is meaningful for every person, regardless of their ability to access the market. However, it is difficult to see how entrenching commodification amounts to progressive realisation, because the market model ensures that the “no-income” individuals that the Court expressed sympathy for will never actually be able to exercise the right that the Constitution accords to them: in other words, the logic is oppositional.

The Political Economy Question

What is interesting about this case is that the parties challenging the Act framed the question in a way that is not often framed in constitutional litigation around the right to housing: they squarely put to the Court the point that the existing political economy around housing, in effect, fails to fulfil Article 43, and legislative intervention that upholds and entrenches that political economy correspondingly fails. To hold in favour of the petitioners, the Court of Appeal would have had to interrogate that anterior question, but this it was unwilling to do. Is it more appropriate to think of this as a failure of judicial imagination, or the hard limits of socio-economic rights and constitutionalism within the capitalist State? Perhaps a bit of both.

A few concluding endnotes: whatever their holdings, one hopes that courts move away from citing Grootboom as a socio-economic rights enforcement lodestar. One can be sympathetic to the difficult adjudicatory position that the then-judges of the South African Constitutional Court found themselves in, while also noting the fact that Irene Grootboom’s death in a shack at the age of 39 exhibits the limitations of that judgment in the starkest possible terms; moving away from Grootboom’s somewhat restrictive understanding of SER’s is the first step towards expanding the judicial imagination that I have written of above.

Devolution and Public Participation

Secondly, this case also raised a devolution question, in that the county governments were more or less bypassed in the design of this Act. The Court rejected this submission by holding that the Act established cooperative governance by reserving a role for the counties “in the implementation of the affordable housing.” (para 116) With respect, however, this is somewhat thin gruel: a relationship between the national and county level where the latter has an implementing role is not genuine devolution: indeed, the use of the second unit of governance to implement the policies framed by the first takes one back to the pre-2010 Constitution’s “provincial administration” structure, where the purpose of provincial administrations was less autonomous policy formation and more implementing decisions taken at the national level. If, therefore, the post-2010 devolution regime is characterised by the concept of interdependence, then some deeper thought needs to be given to whether a relationship characterised by implementation sits well within that constitutional design.

Finally, the Court’s analysis of the public participation question also appears to be somewhat thin: I have, yesterday, analysed the recent judgment of the South African Constitutional Court that demonstrates how a public participation guarantee can be rigorously enforced; in comparison, the Court of Appeal limits itself to high-level observations without looking closely at whether, for example, the relevant State organs actually engaged with the substance of the public comments, even thematically arranged. In light of previous judgments on the point, one can certainly expect more rigour on this issue.

Conclusion

In sum, the Court of Appeal judgment presents thorny questions for the project of judicial enforcement of socio-economic rights. If, eventually, this case moves to the Supreme Court, it will be interesting to see whether the Court – that once issued potentially radically judgments such as Mitu-Bell – will go against this grain, or confirm it.