“Eviction should not result in individuals being rendered homeless or vulnerable to the violation of other human rights.  Where those affected are unable to provide for themselves, the State party must take all reasonable measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be is available.”

Susan Waithera & 4 Others v the Town Clerk, Nairobi City Council and 2 others [2011] KLR ( www.kenyalaw.org )
High Court at Nairobi D. Musinga (J)
 

Nairobi Squatters to be Evicted from Land Unoccupied for over a Century

The rampant evictions and demolitions of informal settlements in city might soon be a thing of the past, thanks to a recent High Court ruling that rendered such evictions unjust and unconstitutional in the absence of adequate notice and provision of alternative housing. It matters not whether the land in question is within a road reserve, because according to High Court Justice Musinga, an individual’s fundamental rights under the Constitution including right to dignity and adequate housing were paramount. The High Court ruling followed a petition filed by five petitioners on behalf of thousands of residents living in Nairobi’s informal settlements namely Kaptagat, Dam and Ndumbuini in Kitsuru location, Maasai, Consolata in Parklands location and Kabete Native Industrial Training and Development in Kabete. The residents were challenging the demolition of their premises by the Nairobi City Council. Some of the residents had lived in the informal settlements for over forty years.

In what appears to be a case of striking the delicate balance between property rights for land owners and housing rights for the occupants; both constitutional rights, the court ruled that enjoyment of rights and fundamental freedoms by an individual should not prejudice the rights and fundamental freedoms of others. While appreciating the importance of the City Council’s duty to plan  the City properly, the court ruled that in doing so, constitutional rights of the residents had to be respected and given due consideration. The court therefore rejected the City Council’s argument that it had carried out the evictions as part of its duty to control developments in the City of Nairobi and stated that the protection of the residents’ fundamental rights as guaranteed under the Constitution superseded the duty of the City Council to plan and control developments in the city.

In granting conservatory orders to the petitioners pending the full determination of their case, the court found that it was unjust and unconstitutional for the city council to give the petitioners one or two days notice to vacate their homes without giving them any reason, and thereafter to forcefully evict them from the only homes they had known for almost forty years without providing alternative housing. The court stated that the government had a constitutional obligation to provide the residents alternative housing.
 In October, last year, officers from the City Council of Nairobi notified residents living in the abovementioned informal settlements twenty four hours notice to vacate their premises. The demolitions were undertaken the following day at night.

In the petition brought against the City Council of Nairobi Town Clerk, the Commissioner of Police and the Minister of Lands (respondents), the residents, through their advocate Mr. Aaron Ndubi argued that the respondents had breached the residents’ economic and social rights as enumerated under Article 43 of the Constitution. He asserted that the residents were owed the right to the upholding and respect of their dignity, the right not to be deprived of their means of livelihood, the right of access to reasonable sanitation, adequate housing, freedom from cruelty, inhuman and degrading treatment.  The residents further contended that the notice period issued to them was unreasonable considering the duration of time they had resided in the premises.

The City council of Nairobi through its advocate Mr. Ogolla refuted the residents’ claims arguing that it had served notices to the residents to remove the structures as they had been developed on a road reserve without the Council’s permission. The Council further argued that it was merely carrying out its responsibility of planning the City of Nairobi and that while the Council respected the dignity of the residents; it had neither the mandate nor the capacity to allocate land to the homeless or settle them.

In allowing the residents’ application, the court held that indeed there was a breach of the residents’ constitutional rights particularly right to adequate housing and stated that the State had an obligation to provide adequate housing for its citizens. Although, the term ‘adequate housing’ had not been defined in the Constitution, the court referred to Article 11.1 of the United Nations Office of the High Commissioner for Human Rights  on the right to adequate housing and forced evictions which  stated as follows: “Appropriate procedural protection and due process are essential aspects of all human rights but are especially pertinent in relation to a matter such as forced evictions which directly invokes a large number of rights recognized in both the international covenant on human rights… ” 

The Convention outlines the guidelines on forced evictions which include among other things that there should be an opportunity for genuine consultation with those affected, adequate and reasonable notice prior to eviction, information on the proposed evictions, evictions not to take place in particularly bad weather or at night unless with the consent of those affected and proper identification of all persons carrying out the eviction. The court observed that these requirements had not been put in practice in Kenya. 

The Court took note of the constitutional provision that every person had inherent dignity and the right to have that dignity respected and protected. It further noted that constitutional interpretation had to be conducted in a manner that promoted its purposes and values which included human dignity, equity, social justice and protection of the marginalized. The court ruled that although the City Council had a duty to control developments in the City of Nairobi as required under the relevant laws, the protection of the residents’ fundamental rights as guaranteed under the Constitution were paramount to the City Council’s duty and responsibility.
 
 According to Justice Musinga, the City Council should have informed the residents of the reasons for the evictions as required under Article 47 of the Constitution. Even in cases where evictions had to be carried out, the court observed, that the exercise had to be conducted humanely.  The High Court referred to a South African case in which a private landowner, a company, obtained an eviction order against the occupants on its land. However, by the time the order became executable, the occupants were so many that the cost of eviction was more than the value of the property.  The landowner then made a further application alleging that the State had breached its constitutional rights by failing to effect the eviction order. The South African Court ruled that the State was in breach of its obligation to the occupiers of the land in question and that the only appropriate relief would be for the landowner to allow the occupiers to remain on the land until alternative land or accommodation was made available to them by the State and require the State to pay compensatory damages to the landowner for the violation of its constitutional rights.

The High Court noted that appropriate legal guidelines on forced evictions and displacement of people from informal settlements were required in Kenya. The guidelines would ensure evictions were conducted without violating people’s constitutional rights and without causing extreme suffering and indignity to them. There was a need for the State to adopt and implement a reasonable policy, within its available resources, which would ensure access to adequate housing over time and which responded reasonably to the needs of the most desperate.

Accordingly the court issued conservatory orders to the petitioners for them to remain in occupation of their informal settlements pending hearing and determination of their petition.

Mukaindo Petronella, Advocate

Kenya Law Report: Court declares forced evictions from informal settlements unconstitutional