It has always been assumed that the right to adequate housing as envisioned in our constitution means that the government must construct a house for every Kenyan.
Right to adequate housing, being a universal right means that anyone has the right to live somewhere in security, peace and dignity, but also provides an opportunity for everyone to access and enjoy other economic, social and cultural rights that are interlinked with the right to adequate housing, including right to education, work, health, water, sanitation and social security.
As such, national and county governments are under a legal obligation to provide adequate housing to everyone within their jurisdiction. This means that at the first instance, the government is under an obligation not to forcefully evict anyone if that action will render them homeless.
We need to look at the progress the government has made towards achieving the right to adequate housing as envisioned in our constitution and towards a country of zero forced evictions.
In July 2018, the government, through the Kenya Urban Roads Authority conducted forceful eviction of residents from a section of the Kibera urban informal settlement to pave way for road infrastructure development. The forceful eviction went against an earlier proposal between the Kenya Urban Roads Authority, the community and other stakeholders to develop a Resettlement Action Plan, which could have provided opportunity for adequate notification, public participation and compensation of affected persons.
To date the victims of the Kibera evictions have not been compensated. In the same fashion, in July 2019, the county government of Nairobi in the middle of the night demolished houses in Pangani without providing notice, meaningful engagement and just compensation.
World over no government condones the practice of evicting people in the middle of the night. That is not what the spirit of our Constitution 2010 envisages.
Forced evictions are a gross violation of human rights as per international law as they also usually target the most vulnerable members in a society.
To secure and protect the right to adequate housing, as well as fulfill its international and national legal obligations, the government has developed various interventions aimed at providing access to adequate housing. The housing pillar as part of the Big Four Agenda is one of the most recent and notable policy interventions by the government that aims to develop a total of 500,000 housing units between 2018-2020.
Under the agenda, the government proposed to provide government land in various counties, including Nairobi, Nakuru, Eldoret, Mombasa and Kisumu, through public private partnerships to lower cost of housing development.
But what is the cost of developing these houses? The process must be open and transparent for public to buy in. Fundamental questions must be raised so that we do not see forced evictions in the name of development. In Jevanjee Estate and Old Ngara council estates, the residents are living in fear of forced evictions given what happened to their Pangani neighbours in the middle of the night.
The government also recently, through a review of the Employment Act had proposed establishment of a National Housing Development Fund. It had been proposed that starting March 2019, 1.5 per cent levy would be imposed on salaries of all employees to fund housing programmes, and the employees would in turn be eligible to purchase houses through the scheme.
But lack of a proper framework for operationalisation of the proposal, lack of clear justification by the government on need for additional taxing on top of already high taxation rates, as well as lack of any public participation and adequate awareness, this proposal was rejected by the public.
With an estimated 61 per cent of the urban population living in urban informal settlements and the urban population growing at a rate of 4.2 per cent per annum, the government must be keen not to disenfranchise these people through forced evictions.
It must also commit that the the most vulnerable are considered first in the social houses it is currently constructing. This is what we want to see from government towards adequate housing in Kenya.
- The author is an advocate of the High Court of Kenya
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