Structural Interdicts and the Doctrine of Functus Officio

Introduction

Litigation is not intended to proceed to no end. At some point, a court of law must make its final decision and thereafter down its tools. The doctrine of functus officio embodies this principle. It is one of the mechanisms through which the law entrenches the principle of finality of cases.

As a general rule, a court of law can exercise judicial authority only once in relation to the same matter and once the court gives its verdict, such a decision is final and conclusive unless an appeal is filed in a superior court. This position has been accepted by the Supreme Court of Kenya and was emphasized by the Court in Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR.

However, there are exceptions to the doctrine of functus officio. Section 99 of the Civil Procedure Act provides that a court of law can revisit its judgment, decree or order where there are clerical or arithmetical mistakes in the final decision or arising therefrom as a result of a mistake or omission. The above are the only clearly provided instances where a court of law may go against the functus officio doctrine.

Enforcement of Fundamental Rights & Freedoms

Article 22 (1) of the Constitution gives every person the locus to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or is threatened. The High Court may grant any appropriate relief for violation or infringement of fundamental rights and freedoms including (i) a declaration of rights, (ii) an injunction, (iii) a conservatory order, (iv) invalidation of laws, (v) order of compensation and (vi) order of judicial review as highlighted under Article 23 (3) of the Constitution.

Whereas these remedies may be adequate in enforcement of other fundamental rights and freedoms in the Bill of Rights, they may not be adequate in enforcing infringement or denial of socio-economic rights such as housing, health or education where the state is required to take positive action. A declaration of rights, an injunction or even compensatory orders may not adequately address violation of socio-economic rights.

Structural Interdicts – An Exception to the Functus Officio Doctrine

One of the remedies that courts (including Kenyan courts) have developed to ensure enforcement of socio-economic rights is the use of structural interdicts. A structural interdict is a remedy that involves the active and continuous involvement of the court in the implementation of its final decision. Whereas the doctrine of functus officio dictates that a court of law must rest once it has given its final verdict in a matter, a court that issues a structural interdict does not down its tools or surrender the case. Instead, it goes on to monitor the implementation of its order closely and actively. The Supreme Court of Kenya in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others [2021] eKLR emphasized that the doctrine of functus officio cannot be used to defeat the need to redress the violation of a fundamental right where a court of law issues a carefully and judicially crafted order.

In Moi University v Council of Legal Education & another [2016] eKLR, the High Court outlined 5 elements of a structural interdict as follows:

1. A declaration by the court on how a constitutional right has been infringed or denied by the government or its agencies.
2. A court order directing the government or its agencies to comply with its constitutional mandate.
3. A court order directing the government to prepare and submit a comprehensive report under oath to the court on a specific date. The report should outline the government’s plan of action to remedy the said violations and the means of compliance the government wishes to adopt.
4. Evaluation of the government’s plan by the court to assess constitutional soundness and whether the violations are addressed. This involves dialogue between the court and the government or its agency to identify any threats to implementation of the plan. The court may provide amendments or insights to the proposed plan.
5. Finally, once the court approves the plan, it issues a final order which takes into consideration the government plan and court insights. Failure by the government to implement the final order then amounts to contempt of court.

A structural interdict or a supervisory order issued by a court of law in redress to violations of fundamental rights and freedoms must be specific, appropriate, clear and effective. Additionally and most importantly, they must be addressed to the parties to the suit or any other government agency which has a constitutional or statutory mandate to enforce the order.

Conclusion

The doctrine of functus officio dictates that once a court has settled a matter and issued its final decision, the court must down its tools. However, this may not be the case in enforcement of fundamental rights and freedoms in the Bill of Rights, particularly socio-economic rights. Courts often issue supervisory orders in the form of structural interdicts where the court actively monitors implementation of its final orders. This is an exception to the doctrine of functus officio. The use of structural interdicts has been embraced by courts all over the world including the Supreme Court of Kenya and is intended to provide adequate remedy to address infringement or violation of socio-economic rights where the state or its agencies may be required to take pro-active action in addressing such violations.