Groups join forces to stop State evictions

By Dann Okoth

Seven international rights organisations have sought to be enjoined in a case challenging the eviction of a local community in North-Eastern by the Government.

In an application under the amici curiae (friend of the court), the organisations seek to offer expertise in a petition filed at the High Court by residents of Medina Location in Garissa, seeking to stop the Provincial Administration and county council from evicting them from their land.

The application by the organisations under the umbrella of The Global Initiative for Economic, Social and Cultural Rights sets precedence and could go along way in defining how future petitions involving economic and social rights are handled by courts.

Residents of Medina in Garissa County ponder their next move after they were evicted from their homes.[PHOTO: DANN OKOTH/STANDARD]

The Global Initiative for Economic, Social and Cultural Rights is a human rights organisation, which works to enforce economic, social and cultural rights through litigation.

Experts also see the development as a shot in the arm for minority and marginalised communities like the Endorois, who have sought justice beyond Kenya’s jurisprudence boundaries.

The community went to African Commission on Human and Peoples’ Rights in 2009 seeking to compel the Government to resettle in their ancestral land in the Lake Bogoria area taken away in the 1970s to create a game reserve.

Court orders

The organisations would bring many years of experience and expertise from dealing with landmark cases elsewhere in Africa and beyond.

They include the Socio-Economic Rights Institute, the Community Law Centre, Centre for Economic and Social Rights, the Centre for Equality Rights in Accommodation and the Social Rights Advocacy Centre.

Others are members of the International Economic, Social and Cultural Rights Network Adjudication Working Group as well as Malcolm Langford, Co-Coordinator of the ESCR-Net Adjudication Working Group and Director of the Socio-Economic Rights Programme (Norwegian Centre for Human Rights, University of Oslo).

Already, the High Court has issued an order stopping the Government through the Provincial Administration and the County Council of Garissa to stop further eviction or harassment of residents of Bularik, Bula Medina, Sagarai, Naima, Bulla Nasal and Gesto (collectively known as ‘Medina’) in Garissa.

The High Court sitting in Embu ruled on April 1 that the evictions should stop until the matter was heard and determined.

Under a certificate of emergency Justice Mohamed Warsame gave an interim order of injunction restraining the Government, its officers, agents and or servants from evicting the residents until the case was heard and determined.

In a disturbing twist, however, the residents say the provincial administration has threatened them with eviction despite the court order. "The Garissa DC has on several occasions threatened the community with eviction by sending emissaries to serve us with verbal notice," says Mr Ibrahim Sangor Osman, who filed the petition on behalf of the community.

"We live in fear since we do not know what will happen. We are particularly worried because we have been forcefully and violently evicted on two occasions," he adds.

Although Garissa DC Samson Macharia admitted to having seen the court order, he says the Provincial Administration and the council have stopped further development in the area. "We cannot allow any development or construction to go on in the area. The council is in the process of designing a development plan and we will not allow people who do not have title deeds to develop the area," he says.

He, however, denies any eviction threats or notices were given to the residents adding the administration was awaiting instructions from ‘above’.

The ministry of Lands and that of Internal Security and Provincial Administration, which were served with the court papers alongside the Attorney General, were silent on the issue.

"I do not know about the orders. I am two weeks old here. I will have to find out and get back to you," said Mr Mulei Muia of the Communications office of the Lands ministry.

The 1,122 residents claimed they had occupied the land since the 1940s.

What would be interesting, however, is how the organisations, which have shared in the adjudication of economic, social and cultural rights and which are credited with wide experience, would assist in the case.

"I have also litigated cases dealing with housing rights and the prohibition on forced evictions directly and as amicus curiae in international and national fora," says Bret Thiele, a Co-Executive Director and lead lawyer of the Global Initiative for Economic, Social and Cultural Rights.

The memorial, he says are "Gundwana v Nedcor Bank and others (Gundwana) before the Constitutional Court of South Africa; Blue Moonlight Properties v Occupiers of Saratoga Avenue (Blue Moonlight) before the Supreme Court of Appeal of South Africa and The Occupiers of Chung Hua vs Hoosein Mohamed and four others (Chung Hua), an appeal to a full-bench of the South Gauteng High Court in Johannesburg.

Triumphs elsewhere

The Community Law Centre (CLC) is part of the Law Faculty at the University of the Western Cape in the Republic of South Africa. The CLC engages in policy development, advocacy and educational initiatives, focusing on areas critical to the realization of human rights and democracy in South Africa and Africa in general. The Community Law Centre has been admitted as amicus curiae by various courts, including the Constitutional Court of South Africa.

The cases in which has been admitted as amicus curiae include; Occupiers of 51 Olivia Road, Berea Township and Others vs. City of Johannesburg and Others before the Constitutional Court of South Africa in 2007– and the now all too famous Grootboom case pitting the government of South Africa and others vs. Irene Grootboom before the Constitutional Court of South Africa in September 2000 – in the landmark case the applicant successfully sought court orders to compel the government of South Africa and Cape Town provide basic sanitation to a community that had been living temporarily at Wallacedene Sportsground in the outskirts of the city.

"The Amici believe their application should be granted because of the exceptional importance and impact that the determination that this case will have on the interpretation and enforcement of economic and social rights under the current Kenya Constitution," says Thiele.