In the past three weeks there has been outrage over the forced evictions in Kariobangi and Ruai areas of Nairobi. This is especially because the evictions were carried out in the middle of the coronavirus crisis.
In the case of the Kariobangi Sewage estate, the exercise was done in defiance of a court order, which adds to the long list of court orders disregarded by the Executive.
Moreover, the evictions were carried out at night when it is illegal to move due to the current curfew. Many Kenyans, including leaders, have termed the evictions inhumane, inconsiderate and evil.
To add salt to injury, there have been reports of continued evictions as recently as Wednesday, despite promises to halt all evictions during this period. Athi Water Services Board has defended the Kariobangi evictions by stating that the land in question had been commissioned and funded by the World Bank for a waste treatment plant. The Ruai evictions were apparently done by the Nairobi City County to reclaim its land. This plays into the all too familiar justification for forced evictions to facilitate major and essential development projects.
Forced evictions in Kenya remain a practice that is majorly carried out in urban centres and on land owned by government. There are also instances where private entities use law enforcers, and sometimes goons, to forcefully remove people alleged to be wrongfully occupying their land or where the same is in dispute.
A forced eviction can be termed as the permanent or temporary removal, against their will, of individuals, families and communities from their dwelling, without the provision of, and access to, appropriate forms of legal or other protection. They violate basic rights such as that to human dignity, fair administration of justice and the right to adequate housing, which have a direct bearing on the rights to life, food, water, health, education and work.
A unique challenge with forced evictions in Kenya is a disproportionate power dynamic where the evictions are carried out by, or at the behest of those who have political power or influence, money and resources - against those who have no money, organising capability or legal representation.
Another challenge is the role of development partners, banks and multinational companies. Banks and donor governments that finance development projects also have a responsibility and I dare say, legal obligation – to ensure they do not fund projects that will cause or contribute to human rights violations.
To solve the perennial problem of forced evictions, civil society organisations such as Amnesty International have been campaigning for legal and policy changes governing evictions for over a decade and a half now. There was a glimmer of hope when Kisumu East MP Shakeel Shabbir privately sponsored the Evictions and Resettlement Procedures Bill in 2012. It was never passed.
The Bill would have set up legal mechanisms to ensure all evictions and resettlement are done transparently, openly and with full compliance with the Constitution and international human rights principles.
The provisions included requirements for genuine and meaningful consultation between State and the affected; adequate and reasonable notice; adequate sharing of information on the proposed eviction; for a government official to be present during evictions and most importantly, that evictions are not to take place during bad weather, at night, during festivals or religious holidays, prior to an election or during national examinations.
Other measures included mechanisms for legal remedies; adequate alternative housing and compensation for all losses to those affected prior to eviction, regardless of whether they rent, own, occupy or lease the land or housing in question; and the affected persons being given the first priority to demolish and salvage their property.
The Bill also included a provision expressly stating that no order for eviction from public land should be granted when it is apparent that it would result in rendering a person affected by evictions homeless.
It is unfortunate that Kenyans continue to suffer from forced evictions carried out in inhumane conditions, even after the passage of the 2010 Constitution. Our MPs should seize the moment, revive and pass the Shabbir Bill.
Most importantly, the Executive should publicly commit to honouring and enforcing all court orders. They are not mere suggestions. The legitimacy of all arms of government come from the same Constitution and all organs should be duly respected in the interest of fidelity to the rule of law and to stave off anarchy.
Mr Kiprono is a constitutional and human rights lawyer.