Nothing but a mass of debris: Urban evictions and the right of access to adequate housing in Kenya

 Laurence Juma
 LLB (Nairobi), LLM (Pennsylvania), MA (Notre Dame), LLD (Fort Hare)
 Associate Professor, Rhodes University, South Africa
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 Edition: AHRLJ Volume 12 No 2 2012
  Pages: 470 - 507
 Citation: (2012) 2 AHRLJ 470-507
 Download article in PDF

I am indebted to Gustav Muller and to the two anonymous reviewers for their insightful comments.

Summary

The article explores the opportunities that the new constitutional dispensation in Kenya has created for the protection against unlawful eviction of poor populations living in urban centres. It analyses the content of the right to accessible and adequate housing as provided for in article 43 of the Constitution of Kenya and articulated in various international instruments, and traces how this provision has been applied in the eviction cases that the Kenyan courts have decided. From this analysis, the article suggests that the new constitutional dispensation has opened up possibilities for rights enforcement that the courts as well as administrative organs should take advantage of. It also makes tangible suggestions on how to improve rights litigation in this regard, such as affirming the rights of access to courts and seeking further judicial oversight prior to any eviction and the promulgation of enabling legislation.

1.  Introduction

On the morning of 12 November 2011, bulldozers tore into the Nairobi suburb of Syokimau and demolished all the houses said to have been built on land belonging to the Kenya Airport Authority. [1] A few days later, demolitions were also carried out near Wilson Airport and around Eastleigh airbase. [2] Like in all previous incidences, these evictions were violent, disruptive and involved a massive display of force. In their wake, property worth millions of shillings were destroyed or looted and residents, including women and children, were rendered homeless. Not surprisingly, the demolitions drew significant criticism from civil society, churches and the media. A lawyer writing in a daily newspaper termed it the 'battle of haves and have nots' and castigated the way in which those in power were using the law 'to protect the property they had stolen from government'. [3] Similarly, a government minister, incensed by the barbaric nature of the evictions, labelled the acts 'unconstitutional' and called on the government to compensate the victims. [4] In addition to the media furore, the evictions also spurred the usual stock of ponderous and ineffectual administrative and political responses, such as the formation of the Joint Parliamentary Committee to investigate the evictions, and dramatised high-level government statement promising investigations and stern action should any act of impropriety be found. Unfortunately, these responses never yielded any tangible benefit to the evictees, except to reveal, to no avail, the depth of corruption, malfeasance and pure incompetence in government departments charged with the responsibility of registering and issuing titles as well as those that regulate planning and approve new developments. [5] 

There is certainly not a great deal of disagreement on the fact that forced evictions of this nature violate human rights. [6] The consensus revolves around the universal recognition of the right to adequate housing and the possibilities that the rights regime, in general, presents for eliminating obstacles to the full realisation of fundamental dignity for all human beings. Therefore, the assumption that strengthening the enforcement of relevant rights, at the domestic level will ameliorate the suffering of evictees and improve their situation is indeed warranted, not least because it provides an entry point to analytical evocation of what could be regarded as the rights-based approach to the eviction question in Kenya. However, an approach based on this assumption must necessarily unravel a number of expectations that often determine the effectiveness of a rights-protection regime in a domestic system. The first, obviously, is the basic expectation that international standards will positively influence the adjudication of rights by domestic courts. This expectation arises from the generally-uncontested view that human rights principles will have optimum effect if adopted into domestic law and enforced through local courts; [7] secondly, that the compartmentalisation that we have seen in judicial approaches to socio-economic rights, where courts defer to the executive in matters that they consider to fall within their competence, will not postpone rights adjudication or defeat it altogether, and that the barriers to justiciability will be overcome by the entrenchment of these rights in the domestic constitution. [8] Thirdly is the capacity issue – the hope that domestic systems will have the necessary capacity to deal with rights claims and render positive outcomes.

In addition to these general expectations, there is a more substantive one which calls for the subordination of the property rights regime to a constitutional rights system. This expectation draws on the proposition that evictions reflect the asymmetrical power relations between parties. The party with the legal mandate to evict is often the one who is in control of a 'bundle of rights', that include the right to capital, the right to possess, the right to use, the liability to execution and immunity from expropriation. [9] The expectation that constitutional rights could tamper any rights within the bundle is revolutionary in a way, but not entirely unfathomable. In some jurisdictions, human rights have been held to constitute a new addition to the bundle, thereby conditioning the property rights holder to the observance and the respect of constitutional values. [10] It may be arguable whether such an approach is conceivable in Kenya, given the slew of legislations yet to be enacted and the plethora of adjustments needed to align the existing statutes with the new constitutional dispensation. But this notwithstanding, the idea alone that property rights are not absolute and must succumb to higher goals of society should in itself lend credence to this expectation.

The claim I make in this article is that the degree of fulfilment of both the general and substantive expectations correlates with the manner in which the constitutional guarantee on the right to housing is elaborated, interpreted and ultimately infused into the domestic property governance systems. I argue that the current constitutional dispensation in Kenya offers some opportunity for the fulfilment of these expectations and, therefore, the realisation of the rights to adequate housing within the framework of protection underwritten by international human rights law. This article is not meant to be a brief on the limitations of the current framework of human rights law per se, rather an exploration of opportunities that the new constitutional dispensation now provide for enhancing the protection for victims of forced evictions within the rubric of the right to adequate housing. 

Therefore, it outlines the nature and content of standards established by international regimes and assess how the new constitutional dispensation in Kenya has responded to these standards. It is against this background that the article then discusses the phenomenon of forced evictions in urban areas and isolates its implications for the effective protection and enjoyment of the right to housing. In the end, the article suggests that a rights-based approach, conceived within the framework of the constitutional right to housing, has the capacity to expand the protection regime for evictees by taking into account broader perspectives, such as the requirement for judicial oversight, and providing wider opportunities for rights litigation than had hitherto been the case. The whole discussion in this article is situated within the context of Kenya's transformational journey which begun by the enactment of the new Constitution in August 2010. [11]

2.  Debating the relevance of the discourse on the right to housing

Advocating for a rights-based approach in dealing with reckless evictions and demolition of houses in Kenya has obvious benefits. First, it provides an opportunity for testing the practical utility of rights in a needs-based environment. Already, the 'basic needs' approach, [12] which recognises the fact that society can only develop if the fundamental needs of its people are met, has absorbed key human rights standards such as those established by the International Covenant on Economic, Social and Cultural Rights (ICESCR) [13] and the Declaration on the Right to Development. [14] Yet, the idea of needs, as it resonates with impoverishment and disempowerment of the vulnerable and economically-marginalised groups, still presents the greatest challenge to a rights regime, especially where governmental action is involved. This is because claims of individual rights are inevitably juxtaposed against the obligations to ensure public good, which then gives rise to the so-called 'public interest' argument. As is always the case, whenever evictions occur and the civil society and human rights groups call for action against those involved, the ranks of Kenyan leadership routinely brandish the 'public interest' justification. [15] In Syokimau, the eviction was justified on the ground that ensuring security of the adjoining airport was in the public interest. Indeed, as the Minister of Transport was to confirm five days after the evictions, 'there was a programme of demolitions to clear people who are illegally or irregularly settled on land that they should not be residing on for security purposes'. [16] It should be noted, however, that the 'public interest' notion faces a considerable challenge in human rights discourse, because it often merely provides some latitude for elite manipulation of the political agenda. [17] While I do not dispute that there may be circumstances in which a public interest justification may be warranted, it must, nevertheless, meet a very stringent test. 'Public interest', if at all, must prioritise people's rights and allow for consultations among all the affected parties. [18] The test therefore is the extent to which the public have been involved in the decision-making process and have accepted the government's proposal to evict them. [19] None of the urban evictions seen in Kenya recently meets the test of public interest, however constructed, because the rights of evictees have never been considered. Moreover, these evictions occur against a backdrop of a culture of impunity often manifested in the persistent and routine disregard for individual rights and freedoms prescribed by both domestic and international law. Therefore, according to Ocheje, the 'public interest' rational is 'more of a myth than a credible explanation for forced evictions'. [20]

Be that as it may, the rights regime pierces the veil of public interest, to give voice to the voiceless and protection to the vulnerable. In a much wider perspective, the approach advocates for transparent institutions, an inclusive and participatory decision-making process, and prioritising the needs of the most vulnerable. [21] For the reason that it is participatory in nature and prioritises needs, it can play the much-needed role of moderating demands to housing based on differing levels of needs. Recognising the diversity of people's needs is important for policy formulation as well as for designing strategies for addressing issues of poverty and other concerns. Given that instigators of evictions in Kenya are big businesses, local and central government, private developers, and even holders of foreign business interests, [22] the rights regime that confers entitlements to those affected by evictions will somewhat ensure that the needs of the vulnerable are not trampled by the economically powerful. Also worth noting is the fact that rights-based approaches have a social benefit in providing a useful rallying ground for organised resistance to forced evictions. For example, one of the key goals of the Muungano wa Wanavijiji Maskini (Federation of the Urban Poor), created in 1996 by poor communities around Nairobi and Thika, as stated in its mission, is to defend the rights of the urban poor. [23] Other organisations, such as Kituo Cha Sheria and Hakijamii, who have been active in campaigning against forced evictions, have all structured their mandate around the rights discourse. [24]

Secondly, the demand for the right to housing necessarily implicates government policy and law. The failure of government to develop rural areas has resulted in rural-urban migration. The population swell in urban centres has in turn led to the proliferation of slums and informal settlements. [25] Mwangi observes that the demand for housing by the increasing population in urban areas could only be served by informal settlements. [26] In Nairobi alone, there are over 168 informal settlements with a total population of about 2 million people. [27] The lack of sophistication in the planning and development of urban environments has often necessitated the removal and clearing of informal settlements. As well, since the residents of these informal settlements are considered 'illegal and uncontrolled', their plight is not taken into consideration. Yet, the informal sector, sustained by these informal settlements, makes a significant contribution to the national economy. [28] Needless to mention, such a contribution is lost when eviction and demolition occur. The rights regime should be able to change this dynamic. According to Leckie, the rights approach elevates the debate on housing rights 'to the level of de jure and de facto governmental obligation', and also 'provides a coherent means of analysing and evaluating the effectiveness of a state shelter legislation and policies'. [29] The question to be posited in this regard is whether there is a link between the right to housing and sustainable development, employment, stability and health – the main concerns that governments often hold up to be the basis for limiting such rights in the first place. Obviously, if a significant portion of the population has no fixed abode, then their production and participation in the national economy will be compromised. [30] The rights regime not only protects against the destabilisation of informal economies, but also imposes a positive obligation to remove the vulnerabilities of those who participate in the informal sector.

Thirdly, regimes which guarantee rights to housing, or any other rights for that matter, which affect property relationships, purposely place the operation of rights above considerations of ownership, possession and any other status dictated by the common law. This is because they declare those rights as due to 'everyone', no matter their status. But that is, in fact, the essence of human rights – that we qualify to enjoy certain rights just because we are human beings. Thus, whether a person has property or not, is rich or poor, they are entitled to claim these rights and the state is bound to fulfil, respect and also protect these rights. This has tremendous implications for property relationships in general and the concomitant ownership regimes established under common law. The domestic jurisdiction must not only establish a framework for property relations that ensure harmony in the acquisition, appropriation and protection of ownership rights, but must also incorporate the human rights perspectives in that framework. In a constitutional environment where the bill of rights entrenches the right to housing, instituting such a framework is obligatory. Lastly, engaging the rights approach and giving the courts the opportunity to pronounce on rights ultimately improves the status of a nation as a member of the international community. [31] Thus, by establishing coherency in the law relating to access to housing and adopting international standards into domestic law we may achieve an important foreign policy objective, as well.

3.  Nature and content of the right to housing under international law

Let us begin by examining the nature of the right to accessible and adequate housing with a view of isolating the elements within its content that indicate parameters of violations that have been associated with forced eviction. The right to housing is perhaps the most direct and immediate right that responds to the plight of evictees. However, this does not preclude the evocation of other rights depending on the circumstances and the nature of the eviction. Indeed, even the elaboration of the right to housing itself may be dictated by specific situations. For example, the standards required for the protection of internally-displaced persons may differ from those required to deal with urban evictions such as the ones earlier mentioned. But this caution does not rob the existing law of the stature it needs, nor does it suggest any lack of the necessary breadth to sufficiently cover instances of evictions that we have seen so far. As it is, the statement of the right in international instruments, together with guidelines established by the various UN organs, provides nations, Kenya included, with sufficient materials to develop effective regulatory frameworks for evictions within their systems. What then is the nature of the right? A preferred starting point in setting out the nature of this right is the Universal Declaration of Human Rights (Universal Declaration). [32] Article 25 provides that '[e]veryone has a right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing ...' This right is further affirmed in article 11(1) of ICESCR which reads:

Leckie has noted that this provision 'establishes the most important principle of international law on housing rights'. [33] And whereas we may not agree on what constitutes the precise content of these rights, or the manner in which they should be articulated in response to any set of circumstances, the regime established by ICESCR indicates a veritable commitment by state parties to improve access to housing and to protect persons against any actions that may inhibit or deny the enjoyment of such rights. Moreover, article 2 of ICESCR enjoins state parties to guarantee the enjoyment of these rights without discrimination of any kind, 'including ... property and other status'. State parties are also obligated to commit 'maximum available resources' so as to 'progressively' ensure the full realisation of these rights. It is also significant that ICESCR invites state parties to institute administrative and legislative measures to realise these rights. [34] Nonetheless, the characterisation of the obligation that state parties have, especially with regard to the progressive realisation of rights, has implications for housing rights that I shall examine in some detail later. In the meantime, I need to mention that there are other rights guaranteed by international instruments which may be ancillary to the right to housing, and which become relevant from time to time, in the context of forced eviction, for example, article 17(1) of the International Covenant on Civil and Political Rights (ICCPR), [35] which extends protection to privacy and homes; and article 5(e)(iii) of the International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), [36] which prohibits discrimination with regard to the protection of the right to housing. The right to housing is also safeguarded under article 17 of ICCPR, which prohibits 'unlawful interference with privacy, family, home or correspondence'.

Although the right to adequate housing is not expressly provided for in the African Charter on Human and Peoples' Rights (African Charter), [37] the combined effect of article 4 (the right to life), article 14 (the right to property), article 16 (the right to health), article 18(1) (the right to a family life) and article 24 (the right of peoples to a 'general satisfactory environment favourable to their development'), would seem to affirm such right. This view was ventilated by the African Commission on Human and Peoples' Rights (African Commission) in Social and Economic Rights Action Centre (SERAC) and Another v Nigeria. [38] The complaint was based on the actions of Nigeria National Petroleum Development Company and Shell Petroleum Development Corporation in the Niger Delta region. It alleged that the military government had allowed these two organisations to extract oil in a manner that adversely affected the environment and that the government had abetted these actions by using the military to suppress, kill and destroy houses and property of the Ogoni people. The African Commission interpreted the African Charter to find an implied right to housing. It observed that when housing is destroyed, property, health and family life are adversely affected. [39] It also found that the government was in violation of the right to shelter by instigating forced evictions and destroying houses and villages. Importantly, however, the Commission found that the right to adequate housing encompassed the protection against forced evictions. [40] This decision also illustrates how, in the elaboration of the right to housing, the notion of the interdependence and mutually supportive nature of rights becomes important.

3.1  Contents of the right to housing

Giving content to the right to housing is crucial in this discourse for two reasons. First is the obvious necessity of delineating the essential elements of the right so as to give concrete definition of what the right is or should mean in the context of eviction. It is a truism that in Kenya, and perhaps in many other developing countries, a house should be perceived as more than just a dwelling place, but a space in which the conglomerate of family structures and livelihood are nurtured, used and even shared. [41] Thus, without a house, a person's dignity may be impaired apart from being deprived of a basic need. The Global Strategy to year 2000 (GSS), adopted by the United Nations (UN) Commission on Human Settlement, invited the community of states to view shelter in much broader terms than just a roof over one's head. In the GSS report, the meaning of shelter was broadened to include 'adequate privacy, adequate space, adequate security, adequate lighting and ventilation, adequate basic structure and adequate location with regard to work and basic facilities – all at a reasonable cost'. [42] It is this same understanding of shelter that the community of nations affirmed at the second UN Conference on Human Settlement held in Istanbul in 1996. [43] At the Conference, member states committed themselves to [44]

Thus, housing rights have implications for other rights as well. As Stone notes, the right is built on 'recognition that the political and civil rights ... have little practical meaning or utility for those among us whose material existence is precarious'. [45] In providing context to the right and elaborating on its features, the Committee on Economic, Social and Cultural Rights (ESCR Committee), which has the responsibility of monitoring the implementation of rights under ICSECR, has listed seven essential components of the right to housing. [46] These are legal security of tenure; availability of services, materials, facilities and infrastructure; affordability; habitability; accessibility; location; and cultural adequacy. Of most relevance to us is legal security of tenure. It is common knowledge that access and enjoyment of rights to housing would not be possible unless a person is guaranteed security of tenure. Among the factors that induce insecure tenure are poverty, ineffective or non-existent normative regimes, corruption and poor governance. The insecurity is mostly felt among the slum populations in urban areas. [47] A common feature of the phenomenon would be insecure housing structures and dense occupation, both of which attract eviction by urban authorities and unscrupulous land grabbers.

Ordinarily, we associate legal security of tenure with property rights and therefore struggle to find how persons with no right in the property in which they are living should be accorded such security. But legal security of tenure for purposes of the right to housing should be understood to exist in two forms: legal security of tenure and de facto security of tenure. [48] Legal security of tenure embodies the benefits in the bundle of rights that would, presumably, shield an owner of property from forced eviction. De facto security of tenure, on the other hand, may entail factors such as 'illegal occupation of a dwelling or land and acquisition of security of tenure in practice as a result of prohibition against eviction, provision of basic services, support from local politicians, customary rituals'. [49] According to the ESCR Committee, security of tenure could take many forms, including 'rental (public and private), accommodation, co-operative housing, lease, owner-occupation, emergency housing and informal settlements, including occupation of land or property'. [50] The idea seems to be that all persons should have some form of security that guarantees them legal protection against forced eviction. This means that the right to housing places a positive obligation on states to ensure that informal settlements are secure places of residence and that persons living there are protected. For a country like Kenya, this envisages the development of housing programmes that may involve a lot more than just implementing property regimes inherited from colonial days. Back in 2005, the government admitted in its strategy for upgrading slums in Nairobi that a lack of security of tenure was the greatest threat to persons living in these informal settlements. [51] It then undertook to 'regularise land for purposes of integrating the settlements into the formal physical and economic framework for urban centres'. [52] This plan was never implemented, and the recent evictions in Syokimau and Eastleigh are a testimony to the failure of government in this regard.

The other side to this argument is that even in situations where forced evictions are mandated by some other law, legal security of tenure places an obligation on the authorities concerned to ensure that rights are not violated. Thus, it creates a layer of protection, the components of which may dictate the procedures to be employed in the eviction process and the fulfilment of conditions that have implications on the rights regime as a whole. I will elaborate on this view when discussing the manner in which the constitutional framework could be elaborated to extend protection to victims of forced evictions.

3.2  Right to housing in Kenya's new constitutional dispensation

Article 43 of the Constitution guarantees a right to 'accessible and adequate housing' for 'everyone'. Further to the declaration of the right, the Constitution places the usual responsibility on the state to 'observe, respect, protect, promote and fulfil' these rights, and to take 'legislative and policy' measures to achieve the 'progressive realisation' of rights. [53] In doing this, however, the state must take into consideration the special needs of 'vulnerable groups within society' and ensure that its international obligations are met. [54] Among these vulnerable groups are women, the elderly, persons with disabilities, children, young persons, minority or marginalised communities, and certain ethnic religious or cultural communities. [55] This is not unusual. At the continental level the need to protect the rights to housing of the vulnerable is affirmed by the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (African Women's Protocol), [56] which provides: [57]

Ultimately, what matters in the domestic arena is the justiciability of the rights guaranteed under article 43. Justiciability refers to the ability of courts to adjudicate and enforce rights. [58] The idea is that a court should be able to provide a remedy if it finds that there has been a violation. [59] Traditionally, socio-economic rights have been perceived as falling within the domain of second generation rights and, therefore, they should not be automatically enforced by the courts in the same manner as civil and political rights. [60] Central to the justification of this perception is the argument that socio-economic rights impose positive obligations on the state and therefore affect the allocation and management of resources, a function that falls within the exclusive competence of the executive arm of government. [61] Therefore, when courts pronounce on such rights, they may undemocratically violate the doctrine of separation of powers. [62] To counter this argument, which is obviously inimical to the human rights project, the international community rejected this classification of rights in 1993 at Vienna. In a statement, which is worth reciting here, it said: [63]

In Africa, we have come a long way since then, thanks mainly to the South African Constitutional Court. [64] Although doubts still linger and justiciability is still contested in some jurisdictions, trends indicate that courts within Africa are gradually accommodating international standards in adjudicating claims of rights violations. [65] Nonetheless, the notion of indivisibility and interdependence of rights have a particular relevance to forced evictions. This is because in every instance, a multiple of rights are implicated: the right to life, dignity, education, health, adequate food and even the right to privacy and the protection of family life. Moreover, the right to housing is often a precondition for the enjoyment of all other rights. [66] Thus, the compartmentalisation of rights only serves the purpose of assisting states to pick and choose the rights that they want to protect or promote.

The issue of justiciability also hinges on another important imperative: the availability of resources as a justification for the permissible infringement of rights. Obviously, the provision of housing for all needy Kenyans may be challenging and does demand proper planning and a lot of resources. Given these challenges, when should a state be compelled to guarantee and respect all other rights associated with it? Like other socio-economic rights, the obligations should be fulfilled 'progressively'. This means that the fact alone that the state does not have resources is not an excuse for limiting rights. There must be an objective criterion for determining whether rights cannot be fulfilled in a particular case. But the development of such a criterion has been controversial. The ESCR Committee in General Comment 3 suggested that states should aim to fulfil the 'minimum core obligations' of any right [67] and that

For lack of space, I will not go into the debate on whether trimming rights to their absolute core is the best way to ensure justiciability. [68] Perhaps what may be worth mentioning is that the South African courts have rejected the minimum core approach and have instead developed the test of reasonableness – that courts should establish 'whether the means chosen by the state are reasonably capable of facilitating the realisation of the socio-economic rights in question'. [69] According to Liebenberg, this approach allows the state some margin of discretion – some sort of presumption of diligence on the part of the state – that relies on the objective belief that states will want to do the best for their citizens. [70]

Given these imperatives, what promise exists for the enforcement of article 43 of the Kenyan Constitution? Interestingly, the Constitution anticipates limitations on the implementation of article 43 based on a paucity of resources. Section 20(5) of the Constitution provides some guidelines to the court in cases where the state has claimed a lack of resources to be the reason for not implementing rights. Basically, the Constitution takes the view that, whereas the state enjoys some 'margin of discretion' in line with the requirement of progressive realisation of socio-economic rights decreed by ICESCR, that discretion is not unfettered. Thus, it establishes three broad principles that will guide the court in making a determination as to whether the state has met its obligations or not: that it is the responsibility of the state to show that it lacks resources; that in allocating resources, the state ensures the widest possible enjoyment and takes into account vulnerable sections of the community; and that the court should not interfere with decisions of the state or its organs 'solely on the basis that it would have reached a different conclusion'. [71] It seems to me that what this article has done is to override the 'minimum core obligations' approach and to adopt in its place the 'reasonableness' approach preferred by the South African courts. The courts in Kenya cannot therefore construct the core of any right and impose it on the state without considering the 'reasonableness' of the state's action. The import of section 20(5)(c) is to provide the state with a 'margin of discretion' that the minimum core approach eliminates.

4.  Forced evictions

The phenomenon of forced evictions is almost synonymous with landlessness and poverty. This link has a historical presence that dates back to colonial days. Thus, what happened in Syokimau and Eastleigh in November last year were not isolated incidences. They represent a pattern in government's approach to land reform and urban management that has been in place for years. Although Kenya is in its fiftieth year of independence and its politics and even demographics have changed, a lot less has changed in terms of its agrarian policy and physical planning in urban spaces. [72] Likewise, legal frameworks that govern property relations have also remained the same despite a few cosmetic changes, such as changes in dispute settlement and the creation of racial parity in land ownership. Given these imperatives, the law and policy that have abetted forced evictions must be understood in the context of their historical formations and, of course, the stubborn reality of the failure of decolonisation. [73] It is therefore fitting to begin the discussion in this section by highlighting some of these formations, but mainly focusing on the evolution of 'squatterdom', a phenomenon that represents the true impact of the segregation policy, and the programme of land divesture that rendered a majority of Africans in areas designated for white settlement landless.

4.1  Historical origins of 'squatterdom'

It all began with the land alienation programmes instituted by the British colonial administration at the close the eighteenth century that were aimed at removing indigenous African populations from the 'white highlands' – areas thought to be most suited for European settlement – to create room for white settler communities. [74] Through this programme, Africans were violently and inhumanely evicted from their ancestral lands and forced into high-density squatter settlements known as reserves. [75] Land in the reserves remained the property of the government and therefore permission was required from the commissioner to erect a dwelling house, cultivate certain kinds of crops or even keep animals. [76] Moreover, the maximum portion that a family could get was only five acres (2,023 hectares). Unfortunately, the population in the reserves began to swell, as landless Africans jostled to find accommodation in these confined spaces while consolidating their claim to land. This constituted a security threat to the European settler community and the colonial enterprise as a whole. Thus, the Resident Native Labourers Ordinance of 1937 was passed, which effectively transferred power over squatters from the commissioner to settler-controlled district councils. [77] These councils were given the authority to regulate squatter cultivation and to organise and carry out the eviction of the so-called 'excess population' from time to time. [78] It is noteworthy that eviction in these instances was legitimised by law – the Crown Lands Ordinance of 1902 (as amended in 1915), the same law that had facilitated the divesture of ownership of land from Africans and vested it in the European settlers. The ordinance characterised African land rights as based on occupancy – a usufruct arrangement that would allow for land to be declared 'waste or unoccupied' when such occupation ceased. [79]

The divesture was complete when the Kenya Annexation Order-in-Council and the Kenya Colony Order-in-Council of 1921 were promulgated and Kenya formally declared a British colony. All Africans then became tenants-at-will of the Crown. [80] The effect of the divesture is summarised in this passage from a colonial court's judgment: [81]

It meant that the security which Africans had in land was completely extinguished and that they were subject to eviction or displacement whenever the colonial government thought it appropriate to do so. Worth mentioning here is that the displacement and erosion of security in land resulted in great poverty, the effect of which is still being felt today. Indeed, many scholars attribute the rise of the Mau Mau liberation war to the existence of a large pool of deprived youth who could neither find land to cultivate nor employment in European establishments. [82] Poverty and depravation within rural communities also resulted in the youth migrating to urban areas to look for work. Land ownership regimes existing in 'white highlands' were extended to urban areas and, therefore, in special areas reserved for African population, such as Pumwani in Nairobi, all properties belonged to the Crown.

4.2  Formalisation and entrenchment of 'ownership'

However, the formalisation of ownership of land, as modelled on British colonial law, came by way of the Swynnerton Plan of 1955, which laid the basis for the registration of individual titles and the creation of private property rights. The plan, although presented as a panacea to fragmentation and the less productive African tenural system, was mainly aimed at curtailing the ubiquitous rise of native opposition to European encroachment, racial policies and law regulating the access and use of land. [83] Nonetheless, the plan yielded a much more concerted programme of tenure reform which involved the adjudication of clan and individual rights, consolidation of fragmented holdings and the registration of individual freeholds. [84] The ultimate aim was to confer private and absolute rights of ownership to title holders for the reason that this might encourage the efficient and more productive use of land among Africans. The independent government adopted this land reform strategy and sought to implement the colonial programme more widely across the country. Legislation such as the Registration of Titles Act (Cap 281), Land Adjudication Act (Cap 284) and Registered Land Act (Cap 300), consolidated the movement towards individualisation of ownership. For example, section 23 of the Registration of Titles Act provides that '[c]ertificates of titles issued by the registrar to a purchaser of land ... shall be taken by all courts as conclusive evidence that the person named in it as the proprietor of land is the absolute and indivisible owner'. But despite such efforts, land reform based on acclamation of private ownership rights was haphazardly implemented, resulting mostly in landlessness among the poorer sections of society (as they were forced to sell their land to the rich) and unequal distribution. [85] Moreover, the reform strategy merely entrenched the historical injustices that existed at independence and, in some cases, even magnified them. For example, in a recent report compiled by the Ndungu Commission, the skewed structure of land ownership resulting from this reform process was documented. [86] So, whereas political and legislative changes after independence may have removed racial segregation in many aspects of life, the African elite who stepped into the shoes of their colonial masters merely perpetuated the inherently unequal systems of acquisition and distribution of land.

Placing the current experiences of violent evictions and the demolition of property in this historical perspective enables us to appreciate why the rights regime is indeed crucial in redressing the underlying problems that make evictions the preferred method of giving effect to land management policies in Kenya. Also, it assists us to construct a proper meaning of rights themselves in a context where the operation of common law rules of property ownership may give rise to debilitating consequences for the poor. The rights regime provides a platform upon which historical injustices that are entrenched in laws governing land ownership inherited from the colonial days can be confronted and redressed. This has an important economic and political benefit. Through the years, Kenyans have witnessed many conflicts arising from grievances relating to land and these have undermined national cohesion and efforts to consolidate political gains after independence. [87] However, before I examine how the rights regime confronts the reality of forced evictions, it may be useful to draw some link between the trajectories of forced evictions that we see in urban areas with the overall scheme of property relations that history has bequeathed to us.

4.3  Urban evictions

Forced evictions and demolitions of property in urban areas show how ownership rights are being constructed in spaces poisoned by vile politics, poor management of resources and corruption. That is why, in Nairobi, and perhaps most urban centres in Kenya, forced evictions of middle and low-income earners have been used to create space for the wealthy to expand their investments. [88] In most cases, the prospective owners were allocated the land by government to reward political patronage. [89] Ochola gives the example of the Kingston village, where land inhabited by about 2 000 residents was allocated by government to a private individual who subsequently sold the property at a pittance to a developer. [90] The developer secured a court order and evicted the residents, since they were causing him 'great financial difficulty'. Forced evictions may also occur to create space for 'economic development'. But evictions have served other purposes too. During the Moi regime, eviction and reckless demolitions of dwelling houses were part of the official government policies of containment and urban management. [91] The violent Muoroto eviction of 1990 is perhaps the most remembered because of the bloody battles that were fought between the police and the residents and the loss of lives that occurred as a result. [92] In the same year, 30 000 residents of Kibagare village in Kangemi were forcefully evicted and their houses demolished. In 1996, 20 000 residents of Mukuru kwa Njenga were threatened with eviction but the threat was never carried out. [93] The Moi government also used forced evictions as a political tool. His government is reputed to have incited ethnic violence in the Rift Valley to drive out the non-Kalenjin communities so as to consolidate support for the ruling party in the province. [94] In the Kibaki era, the same system has continued but with a mixed promise of streamlining city planning, invoking appropriate norms for sustainable resource use and environmental protection and, of course, security. For example, in January 2004, palatial homes in the Kitisuru area and sections of Kibera slums were demolished to create room for a public road. Also in the books are the famous Mau evictions of June 2005 which were largely attributed to the need to preserve the natural environment. [95] Nonetheless, there have also been widespread cases of urban evictions that serve the interests of the elite. [96] And, as one commentator has lamented, the Syokimau and Eastleigh evictions of November last year were just a tip of the iceberg. [97]

Against this backdrop of an increasingly tumultuous urban environment, a sense of concern for marginalised groups – vulnerable communities in informal settlements who eke out survival from the very bottom of the economic chain – has emerged. Buoyed by the new constitutional dispensation and ongoing reform in the judiciary, the voices of those who want to see forced eviction become a thing of the past have become louder. But the overarching question still remains: Against the web of normative and institutional structures that respect private ownership, what possibilities exist for squatters (or persons without title but living on the property) to assert their rights of access to housing? What safeguards are there to ensure that persons without title will not be evicted arbitrarily or their property demolished in such an inhumane fashion as we have seen in Syokimau and other places in the recent past? Invariably, victims of forced evictions in urban areas are often the poor who cannot afford to buy land, who are neglected and whose views on the property they occupy do not count, and who are the most insecure as their areas are considered to be the dens of criminals. And, as already mentioned, their removal is often justified as being good for society and a necessary precondition for development.

5.  Protection against forced evictions

The ESCR Committee defines forced evictions as [98]

The responsibility of state parties that flow from this definition, as elaborated by international bodies, is twofold: to prohibit forced evictions and to put in place measures aimed at protecting evictees. The two elements of prohibition and protection need some elucidation here. The first, which is the responsibility to prohibit forced evictions, is characterised by the term 'legal security of tenure'. The ESCR Committee in General Comment 4 decreed that '[n]otwithstanding the type of tenure, all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment or other threats'. [99] The obligation of state parties in this regard is stated to be that of conferring legal security of tenure to those lacking such protection. In the same year that the ESCR Committee issued its comment, the Commission on Human Rights resolved that the practice of forced eviction constituted 'a gross violation of human rights and in particular the right to adequate housing'. [100] It urged governments to take measures that would ensure the elimination of the practice and to confer legal security of tenure on those threatened with forced eviction. There was bound to be some resistance to these regimes, given that national norms were at variance with the standards they sought to establish. Indeed, the expectation that national laws would conform to international standards was tested when the General Comment as well as the Resolution placed emphasis on the elimination of eviction rather than regulating it. That is why a further elaboration of this responsibility became necessary towards the end of that decade, in General Comment 7. [101] Later the Commission also adjusted its position to accommodate the regulatory approach. [102]

Before I examine exactly how this General Comment changed the landscape, let me say something about the other element of state parties' responsibility that deals with protection. The Resolution mentioned above demanded that state parties set up proper mechanisms for the protection of evictees that are based on 'effective participation, consultation and negotiations with affected persons or groups'. [103] Further, the Resolution called upon governments to provide restitution, compensation or alternative accommodation or land to victims. [104] Here the Resolution envisaged that national systems would establish and respect the rule of law and adopt a rights-based approach in dealing with the plight of evictees. But all these became clearer in General Comment 7. Here, the prohibitionist approach was replaced by a regulatory approach. The General Comment established five major criteria for regulation of forced evictions: substantive justification, consultation or alternatives, due process, the right to alternative accommodation and non-discrimination. This approach has found favour with both domestic and international treaty monitoring bodies and has been widely regarded as the benchmark for determining the responsibility of states in this regard. [105] Its spirit has also guided the formulation of national law on evictions. [106]

6.  Judicial approach to forced evictions in Kenya

In view of the international standards discussed above, it may be useful to examine how Kenyan courts have interpreted their government's responsibility. Worth noting is the fact that the new Constitution only came into force in August 2010. This has not allowed enough time within which to assess the judicial approach to the rights indicated above or to the law on forced evictions. Moreover, given the publicity and the gravity of loss suffered from the recent Syokimau and the Eastleigh evictions, there is bound to be some jurisprudence emanating from the courts which will further elaborate these rights, since as of writing a few complaints have already been filed and are awaiting trial. Nonetheless, what we could probably do is predict what might become of the law given the few glimpses we have seen thus far.

6.1  Susan Waithera Kariuki v The Town Clerk, Nairobi City Council [107]

The applicants in this case were squatters living in an informal settlement and on a road reserve in the Kitisuru area of Nairobi. In October 2010, officers from the Nairobi City Council delivered eviction notices to them, requiring them to vacate their homes within 24 hours. The next day, at night, the agents of the City Council together with administration police demolished all their houses. They had nowhere to go so they put up temporary structures and in the meantime went to court to seek a conservatory order. Their application was based on claims that the Nairobi City Council had violated their rights under articles 43 and 47(2) of the Constitution, by forcefully evicting them from their homes without giving ample notice and not providing them with an alternative site for settlement. The Council disputed this claim, alleging that the area in which the applicants were living was a road reserve and that they had not obtained the permission to settle there; secondly, that it had no mandate or capacity to allocate land to the homeless or to settle them. And since the Council had been charged with the responsibility of planning developments within the city, it was merely performing its duties and that could not amount to a violation of rights.

The court acknowledged that the Constitution guaranteed the rights to housing in article 43, but observed that it did not define what 'adequate' housing means. Therefore, the court resorted to international law as mandated by articles 2(5) and (6). [108] The court then found that article 11 of ICESCR and all other elaborations of the right by international bodies, which guarantee the rights of access to adequate housing, also apply to forced evictions. The right is reinforced by 'national values and principles embedded in the Constitution, such as dignity, equity, social justice and protection for the marginalised'. Therefore, the rights to housing and the protection against forced eviction must override the duty of physical planning that the city might have in respect of the property in question. The court then went on to deal with the more problematic aspect of balancing property rights as against constitutional rights and fundamental freedoms. Here the court relied on leading decisions from the South African Constitutional Court, such as Grootboom [109] and Modderklip Boedery v President of Republic of South Africa, [110] to pronounce that forced evictions in circumstances where the petitioners were rendered homeless because no alternative land or accommodation was provided by the City violated their right to housing. The court relied on the fact that the petitioners had been living on that land for close to four decades and that the state had a positive obligation under article 43(b) to ensure, 'within its available resources', that reasonable housing was available to its citizens. The latter depended on the demonstration that the government had put in place a policy that 'responds reasonably to the needs of the most desperate'. On the issue of 'reasonableness' of the government's policy, the court adopted the criteria set in Grootboom, which included the expectation that the policy would be comprehensive, coherent and effective, have sufficient regard for the social, economic and historical contexts of widespread deprivation, have sufficient regard for resources, make short, medium and long-term provision for housing needs and also give special attention to the needs of the poorest and most vulnerable. 

6.2  Ibrahim Osman v The Minister of State for Provincial Administration and Others [111]

Judgment in this case was delivered by the High Court sitting in Embu on 16 November 2011, just three days after the Syokimau evictions in Nairobi. The case arose out of the eviction of residents from the Bulurika, Bulamedimna, Sagarui, Naima, Bulanagali and Gesto (commonly known as Medina) areas in Garissatown, carried out by the provincial administration to create space for the construction of a public road. The land in question is unalienated public land in respect of which no titles have been issued. However, the residents had lived there since the 1940s. The eviction was carried out between 24 and 31 December 2010. The residents petitioned to court for an injunction restraining the respondents from further removing them from the land and for an award of aggravated, punitive and exemplary damages on the basis that their rights had been violated. They claimed that the forcible violent and brutal eviction through the demolition of homes was in violation inter alia of their rights to property under articles 40(1), (3) and (4) of the Constitution and their rights to accessible and adequate housing under article 43(1) as read together with articles 20(5) and 21(1), (2) and (3) of the Constitution.

Unfortunately, the government did not contest these allegations despite having been served with court papers. Whether it is because of its usual indolence or because it considered the merits of the claim and saw that no useful means would be served by raising a defence to the claims, is not at all clear. Perhaps the Attorney-General's office is waiting to take the matter on appeal. All these remain to be seen. What was left was for the judge to consider the merits of the claim based on the affidavit of the petitioner and the arguments of their lawyers. Thus, he analysed the standards for protection of the rights in question under international law by first acknowledging that Kenya had acceded to ICESCR in May 1972 and was therefore bound by its provisions. It then found that the petitioners were entitled to 'the fundamental rights of accessible and adequate housing and to reasonable standards of sanitation, health care, clean and safe water in adequate quantities and education' guaranteed under article 43 and made the following ruling:

The court then proceeded to order that the respondents return the petitioners to the land in question and bear the cost of reconstructing their homes. In addition, the court awarded a global sum of Ksh 200 000 to each petitioner as special damages.

6.3  Future prospects

The two cases discussed above shed some light on the conversations that the new constitutional dispensation has engendered. What is pertinent is that there seems to be space to expand the protection available to persons or communities that are likely to be forcefully evicted in the manner that has become the norm in Kenya. Three indicators may be worth mentioning here. The first is the obvious prominence of international legal principles in Kenya's rights litigation. Worth noting in this regard is that in both cases, the courts have applied principles of international law as part of Kenya's domestic law. This is a huge improvement from the previous position where the courts were impervious to the direct application of international law. [112] This change has been brought about by article 2(6) of the Constitution. [113] However, this article refers to 'treaties and conventions', which then leaves the question as to how the court should treat soft law instruments such as pronouncements of UN treaty bodies or other elements which we associate with international law. [114] Perhaps one could argue that article 2(5) of the Constitution, which stipulates that the 'general rules of international law' shall be part of Kenya's law, is good enough authority for applying resolutions of UN treaty bodies and other pronouncements. However, this position could be controversial because there is neither an indication as to what constitutes 'general rules' nor a definition of the substantive prerequisites for the application of these rules. One way of looking at it is to limit these rules to customary international law – rules that have passed the opinion juris and usus tests and are recognised as law by civilised nations. Moreover, this approach would in effect recognise the common law nature of rules of customary international law, considering that the court would have to determine their application depending on the circumstance of the case. [115] Apparently, the court in Susan Waithera did not give this matter any serious thought and therefore treated the pronouncements of a UN treaty body as though they were treaties or conventions. And because it did not care to explain why it was doing so, no explicit meaning can be attributed to article 2(5) at this stage. All the court did was to cite a document allegedly produced by the UN High Commissioner for Human Rights dealing with forced evictions and apply it as part of domestic law. [116] This notwithstanding, the prominence of international law seems set to increase rather than decrease, and all indicators seem to suggest that principles of international law will continue to influence domestic litigation in Kenya. [117] Indeed, this development seems to be concomitant with trends on the continent. [118] Perhaps the impetus is coming from the intensification of reform movements within countries such as Kenya, the re-emergence of regional and sub-regional frameworks for the administration of justice and the mobility and cross-pollination of rights practice across nations. Nonetheless, the general momentum that is swinging rights litigation towards accommodating international standards is a welcome development.

The second factor relates to the first and concerns the use of foreign jurisprudence, especially South African cases. The courts have shown a tendency to readily apply South African cases, mainly those interpreting constitutional guarantees, when dealing with eviction matters. While in certain respects the provisions of the law in question may be similar, in others they are not. For example, section 26 of the South African Constitution and article 43 of the Kenyan Constitution both guarantee the right of access to adequate housing. However, the South African Constitution has more elaborate provisions regarding eviction from homes, which the Kenyan version does not have. [119] Moreover, there are several legislations that clarify obligations under section 26 of the South African Constitution which the courts take into account as well, such as the Extension of Security of Tenure Act 62 of 1997 and the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998. When Kenyan courts adopt South African decisions, we are fast-forwarded to the present. While this may be a good thing, generally, our legislature should be reminded of the need to give effect to these rights by creating guidelines that answer to our specific conditions. This need was identified by Justice Musinga in Susan Waithera and articulated as follows: [120]

Apart from the courts, there have been calls from civil society and the media reminding our parliamentarians that the implementation of the new Constitution requires that appropriate statutes putting into effect guidelines and procedures for rights realisation be enacted. A suggestion has been put forth by a consortium of non-governmental organisations (NGOs) and civil society groups that the government should enact an eviction and resettlement law and discussions with the Ministry of Lands are currently ongoing. [121]

7.  Towards an expanded rights protection regime

The prospects discussed above indicate that there is an opportunity to solidify the elements of protection of the right to housing and thereby create a more humane and rights-friendly regime for evictions. This opportunity has been created by the Constitution. Given that the trend favours the regulation rather than prohibition of forced evictions, a rights-based approach to the improvement of the framework for evictions must necessarily build on that jurisprudence. I suggest, therefore, that a liberal interpretation of rights that expand their reach in line with experiences from other parts of the world is desirable. Even without amending the Constitution so as to create specific thresholds for the realisation of the right to housing and regulation of forced evictions, an approach that recognises the primacy of the rights of access to the court and the concomitant notions of judicial oversight, provisions of alternative accommodation or land for evictees, and the establishment of an elaborate scheme for restitution or compensation may still be possible within the current framework. What may be needed is an activist judiciary and a legal fraternity willing to take up eviction cases and challenge the government's position. Apart from judicial oversight, the other consideration that may be implicated is that of the right to counsel for indigent evictees. If we accept that further judicial oversight is mandatory and that parties must seek courts' approval for eviction to occur, then all parties should necessarily have equal capacity to litigate the matter. As we have seen, cases with tremendous impact coming from India, South Africa and even Kenya have been litigated through the help of international NGOs or other civil society bodies. One can then imagine the great number of other cases where parties, because of resource constraints, are unable to litigate their claims. Considering, too, that most evictees are poor and vulnerable, the right to counsel in eviction cases raise particular concerns that must be addressed. [122] Despite the compelling need, this article will not delve into this concern because it raises a whole lot of issues that demand ample space. What I would like to focus on, for now, is the right of access to court and the notion of further judicial oversight.

7.1  Right of access to court

The debate on the recent evictions in Syokimau and Eastleigh has been dominated by issues of ownership – whether the titles obtained by the residents were valid – rather than the legality of the procedures employed by the government to evict the residents. [123] This is understandable given the history of Kenya's land reform programmes which have emphasised registration and documentation of ownership. As I have indicated already, the right to housing is made up of many elements that work together, therefore it must be construed in broad terms for it to be effective. Moreover, the right attaches to everyone irrespective of their ownership status. The expectation therefore would be that, before eviction is undertaken, a reasonable and justifiable limitation of the right or any of its elements should be established. And this can only be achieved through a judicial enquiry. It could be argued that the Constitution had anticipated such enquiry and that is why it established the right of access to justice in article 48. This provision enjoins the state to 'ensure access to justice for all persons'. The implication is that any administrative action that denies persons affected by it the opportunity to ventilate their rights in court violates the Constitution. Moreover, as observed by one commentator,'[t]he very legitimacy of the court system is dependent upon access to justice that all courts are supposed to afford to ordinary folks'. [124] And this would go for any Act of parliament that provides for summary procedures or unilateral action by one entity against the other that bypasses the courts or other tribunals mandated to exercise judicial powers. This provision will have a huge impact on the way government performs its functions, especially if the courts in Kenya adopt a liberal interpretation similar to that which the Constitutional Court of South Africa has given to a similar provision in their Constitution. [125] In South Africa, the Court interpreted this provision to abrogate legislation that allows the bank to recover a debt from a defaulting customer through attachment and sale without seeking a court order (Chief Lesapo v North West Agricultural Bank; [126]) and declared the attachment and sale of a debtor's immovable property to recover a debt unconstitutional because the processes did not afford the debtor an opportunity for 'further judicial oversight', especially because the property involved were the applicants' homes (Jafta v Schoeman; Van Rooyen v Stolz [127] and Gundwana v Stoke Development CC [128]). It will be interesting to see how Kenyan judges deal with this provision in the future. Already, the issue of access to justice as provided for in this article was argued before Justice Muchelule in Ibrahim Osman, but there no pronouncement was made in this regard. Nonetheless, the judge seemed to place much emphasis on absence of sufficient engagement with the petitioners before eviction was carried out, indicating that pre-conditional factors are important enough to attract the court's attention.

The right of access to court is also envisaged in dealings in public property. Article 40, which embodies safeguards against the public expropriation of property, has the following provision: [129]

Here, the right of access to court is mentioned in relation to specific statutes that may decree judicial oversight before the state exercises its rights of eminent domain. However, it is a clear indication that the drafters were well aware that judicial oversight is an important component of the right to property. Moreover, an argument could be made that the right of access to court also exists by virtue of the fact that the latitude for enforcement of rights contained in the Bill of Rights should be expanded rather than constricted. The Preamble to the Constitution states the commitment to nurturing and protecting the well-being of Kenyans to be an overriding value. Such a commitment is amplified in article 43. The role of the court in protecting and enforcing the rights thereunder is articulated in expansive rather than restrictive language. Thus, a court faced with claims of socio-economic rights provided for in article 43 have obligations to 'develop the law' and to 'adopt the interpretation that most favours the enforcement of a right'. [130] The court also has an obligation to interpret the Bill of Rights in a manner that promotes 'the values that underlie an open and democratic society based on human dignity, equality, equity and freedom'. [131] In the same vein, a right may only be limited 'to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors'. [132] This apart, one would suppose that the disclaimer in article 40(6), which abrogates rights on account of the property in question being 'found to have been unlawfully acquired', begs the question as to how such a status may be determined, if not through the courts.

In my view, the argument in support of the right of access to courts, which is most compelling, is based on the content of the right to housing itself. As already mentioned, housing rights should be considered not just in terms of the positive obligation of states to fulfil the right, but also in terms of the state's policing role and its intervention in the private sphere to ensure that rights are not violated. The obligation to ensure that evictions conform to the law and respect the rights of the evictees is one that a state cannot avoid. If the eviction is to be carried out by the government or any of its agencies, then the obligation should extend to the requirement that it seeks judicial oversight of its actions and affords the citizens an opportunity to contest the move. In this case, the mere giving of notice will not suffice. The state must do more in terms of facilitating an active and transparent engagement with residents. If this process does not result in voluntary movement out of the property, a court order must necessarily be sought before eviction is instituted.

7.2  Factors to be considered

I have argued elsewhere that the purpose of further judicial oversight is to provide the party at risk of losing their home an additional layer of protection beyond that offered by the common law or the exiting land laws governing property relations. [133] This layer of protection derives its legitimacy from the Constitution and can be articulated within a framework of the right to housing. This makes it possible to advance the argument that an eviction process that has not been validated through a court order violates the rights to housing. If this argument is preferred, then the next question would be what factors a court exercising its judicial oversight role should consider before it allows or prohibits eviction. The Constitution does not provide any guidelines in this regard. What one has to do is piece together various elements within the Bill of Rights and construct some benchmarks or thresholds against which the conduct of parties could be weighed or evaluated. In South Africa, the Constitution refers to these benchmarks and thresholds simply as 'all relevant circumstances' and leaves it to the court to make the determination. [134] In my view, the factors to be taken into account must be those that go to the heart of the rights in question, and they must be of a nature that, if not met, the benefits to be derived from the right will be completely meaningless or the right will be rendered futile. This notwithstanding, each case will present its own peculiar factors and so the courts must be wary of creating a template for the assessment of the circumstances to be considered. Given the manner in which evictions in Kenya have been carried out and the underlying interests that often come to light after the fact, several general factors could be identified. The factors which I discuss here include the need to investigate whether there were other options; the provision of alternative land or accommodation; and the relationship between the parties and in relation to the property.

7.2.1  Other options

Obviously the place to begin is the consideration of whether the evicting authority could have achieved its purpose other than through eviction. In almost all eviction cases, the government, the evicting person or entity, does not avail itself of the considerations of other alternatives. Once the cabinet or a municipal council has made the decision, all minds are often directed towards planning the assault. 

A court in this instance will need to be persuaded that the evicting authority had considered other options. Another way of looking at this is by investigating the level of participation of all parties involved, including those to be evicted, in finding alternatives. Ignoring the opinion of those who are settled on the land may contribute to acrimony between the public authority and community sought to be removed. Indeed, various instruments now consider this factor to be a necessary prerequisite to eviction. The UN Committee's review of Kenya's implementation of the right to housing report of 1993 noted that there were widespread 'practices of forced eviction without consultation, compensation or adequate resettlement' especially around Nairobi. [135] This important imperative necessitates joint consultations with the residents and making them aware of the proposed plans beforehand and inviting their input into the discussions.

7.2.2  Provision of alternative land

A rare debate in Kenya's parliament occurred in June 1999 when a member of parliament asked the Minister of State in the President's office if he was aware that residents of the slum areas of Jangwani, Korogocho and Mathare, among others in Nairobi, were being threatened with eviction and whether the government could provide an alternative site to resettle the evictees. [136] The Minister in his response vehemently stated that those residents were occupying the lands belonging to Nairobi City Council illegally and that the government had no plans to resettle them. However, when pressed, he admitted that the government would look into the matter. Twelve years later, the court in Ibrahim Osman found that the absence of any indication that the petitioners would be moved to some alternative settlement, or not providing such alternative settlement, exposed them to violations of other rights. According to the court, 'the petitioners were merely thrown out, as it were, without care about where they were going. The eviction threw them into an open, hostile and shelterless environment where there was no single basic necessity of life.' Similarly, in Susan Waithera, the court found that the City of Nairobi had 'a constitutional obligation to provide them [applicants] with alternative housing'. [137]

The obligation to provide alternative accommodation may become acute depending on the length of time which the squatters have been living on the land. In John Samoei Kirwa and 9 Others v Kenya Railways Corporation, [138] a much earlier decision, the judge was emphatic: [139] 

The length of stay also affects any compensation that might be necessary to resettle the evictees in their new home. In some cases, it might be necessary to provide them with shelter, schools for their children and even medical care immediately so that their lives are not completely disrupted.

What is suggested here is not far-fetched, even for a developing economy such as Kenya. In fact, trends worldwide indicate that many municipalities are willing to offer alternative sites for the settlement of evictees. [140] Although statistics also show that such offers are often rejected because the new areas are too far from their places of employment, and there is a lack of or minimal infrastructure, the idea is seemingly gaining support. [141] A relocation project in Phnom Penh, for example, was found to have increased transportation expenses, diminished the capacity of women to engage in meaningful economic ventures, and increased the costs of putting up shelters. [142] Recently, the South African Constitutional Court affirmed that a local authority has the obligation to provide an alternative site for occupation by victims of eviction carried out by a private property owner. [143] It is apparent, therefore, that local authorities must now begin to take the obligations to provide shelter seriously. Also, they must now be proactive in regulating how settlements occur rather than wait until communities are settled and then evict them.

7.2.3  Relationship between the parties

The relationship between the parties is an important factor to consider because it enables the court to determine whether the claim for rights is not being made to disguise a failure to honour commitments already made. Obviously, if the occupation was contingent on some legal arrangements such as a lease, then the claim for access to justice or judicial oversight can only be made within the law regulating such arrangement. [144] In cases where the occupation is threatened by public need and the government is compelled to exercise its power of eminent domain, then the obligations are clearly spelt out in article 40 of the Constitution, and the court's supervisory role will be subject to ensuring that the rights thereby assigned are not violated.

This apart, the relationship that exists in cases of evictions that we now see in urban areas exposes both the asymmetry of power between the parties and circumstances of vulnerability that the rights regime should redress. As we have seen from the judgments discussed here, the courts are more likely to stop evictions in situations where those adversely affected are the weaker party and the methods used to evict are clearly underhand or burdensome. Even before the new Constitution came into effect, mass evictions of squatters by property owners or government had to satisfy a very high threshold, especially where the squatters would be rendered destitute and homeless. For example, when granting an order restraining the Kenya Railways Corporation against evicting squatters who were living on railway reserve, the court in John Samoei [145] stated as follows: [146]

Secondly, procedure has clearly been a matter of concern. In all the cases that we have discussed thus far, the courts have been less appreciative of the kinds of notices given to the evictees. But notice alone is not sufficient. It was found in Susan Waithera that the notices that were served on the petitioners neither gave sufficient time nor contained reasons why the action was being taken. Article 47 of the Constitution now provides that '[i]f a right or fundamental freedom of a person has been, or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action'. The judge in Susan Waithera was categorical that the right to fair administrative action, embodied in article 47 of the Constitution, may be violated if ample time is not given and reasons for evictions are not discussed with those likely to be affected by the eviction. 

8.  Conclusion

The discussions in this article have shown that the new constitutional dispensation in Kenya has created some opportunities for safeguarding and protecting the rights of victims of forced eviction because its framework for the protection of rights answer to the expectations that I posed at the beginning, to be the key to the realisation of the right to adequate housing. However, these opportunities must be seized by the courts and administrative organs if the right to housing and other ancillary rights are to be concretised into tangible benefits for evictees. Thus far, the jurisprudence has indicated positive movements towards rights enforcement, and the courts are more readily applying international standards given that inhibitions hitherto imposed by the dualist orientation of the last constitutional order have now been removed. [147] While it may still be too early to determine what effect the new dispensation will have on forced evictions, the spirit of a new era abounds and the government had better be prepared to deal with its consequences.