By Steve Ouma
Two weeks ago there was a landmark ruling by the Hon Judge Mumbi Ngugi on the case of evictions of residents of Mitumba village that was adjacent to the Wilson Airport.
While there is no doubt that the location of Mitumba village next to the Wilson Airport was precarious, their eviction in 2012 was malicious as many affluent buildings in the same locality were left intact.
When the police descended on the area in January 9, 2012, they were ruthless and acted in subversion of the values and principles in the Constitution as well as the evictions and relocation guidelines adopted on November 16, 2011.
To justify their actions, the police claimed they had issued legal prior notice. But the point is missed under a simplistic argument of whether a notice was given or not. The core subject is either to categorise the slum residents as a nuisance – as the Kenya Airport Authority claimed in the case of Mitumba – or legitimise them as encroachers with no property right to the settlements they occupy.
While it is imperative that anyone making claims of a property, which is illegally occupied by another party, should give notice to the occupant, the core question is what is the effect of evictions and why is it considered deleterious to human dignity?
It is this notion of human dignity and occupancy as a right that seems to have informed Judge Ngugi’ ruling. She declared that forceful and brutal evictions, such as the one in Mitumba, without an alternative was blatant violation of human rights as it went against the constitution.
The issue that the good judge chose to deal with was not just whether the residents had a right to property but rather what the implications of violating their right to occupancy are. The right to occupancy describes a right to live in a particular area and is distinct from individual right to private property or territorial jurisdiction. Using the right to occupancy, the judge was able to explain why individuals who are living in an area, and have come to live there justly, have moral entitlement to continue to live there.
Following on this tradition of right to occupancy, those evicted in Mitumba (even if a legal notice was given) can make legitimate claim for reprieve on two major grounds. First, the people of Mitumba have claimed – under the rubric of right to occupancy – that the brutal evictions of 2012 destroyed their lives. This is due in part to the way our chosen projects and ways of life tend to be formed around trust and social capital, which is often geography specific and takes time to build.
The second basis for claim is because being moved from this location has an irreversible impact on their economic livelihood.
The unspoken intention by the evicting authorities therefore must have been to displace poor people to more peripheral parts of the city or to force them to leave the city alltogether. This entails switching schools for the children, losing informal networks, being cut off from institutional support systems and worse, losing income-generating occupations.
As a precedent, Judge Mumbi’s ruling is an invitation to engage consequences of evictions beyond positive law and adopt laws that make us not destroy. Evictions, even when done legally, destroy human dignity and must not be part of our choices.