End of demolitions debacle?

Often we are treated on prime time TV by the horrors of a family losing their life’s saving when authorities strike with their bulldozers and flatten residences. However, that could be a thing of the past, writes HAROLD AYODO

Fresh concerns have emerged over right to adequate housing as provided in the Constitution.

Adequate housing remain a pipe dream in the wake of incessant forceful evictions and demolition of homes, leaving many families in the cold.

Many others put up in informal settlements in Nairobi, where slums cover five per cent of the total area of 684 square kilometres.

And with the population growth rate of Nairobi at 4.1 per cent, access to housing remains a dream despite constitutional provisions of right to housing.

Despite the shortage, many families live at the mercy of the Government, which either demolishes their houses or evicts them at will, terming them as squatters.

Poor housing has even led to deaths like the fire in Sinai Slums in September last year, that left 120 people dead, and many others maimed and property destroyed.

Currently, 102 victims of the fire are in court seeking compensation from Kenya Pipeline Company (KPC) and the City Council of Nairobi.

Recent demolitions have also happened in Syokimau, Eastleigh, Kyang’ombe, Masai village and Upper Hill, and the concerned victims are also in court seeking compensation.

Unfortunately, majority of the affected families either lose the cases or wait for judgment for decades as the Judiciary attributes delay to case backlogs.

Take the case of thousands of property owners in Syokimau whose homes were demolished last year and their fate hangs in the balance.

The palatial homes were reduced to debris for allegedly being on land that belongs to the Kenya Airports Authority.

The investors now have their fingers crossed following a forensic audit that vetoed a resolution of a joint Parliamentary Committee report that proposed compensation.

Auditor-General Edward Ouko says the committee, chaired by Gachoka MP Mutava Musyimi, ignored critical facts when it recommended compensation and resettlement.

“Government compensation would encourage encroachment and invasion of private property in the hope of similar treatment,” the report says.

Silver lining

But now, a new dawn awaits families living in constant threats of eviction, should the Government ratify an international treaty on economic, social and cultural rights.

Last week, retired Judge of the Constitutional Court in South Africa Albie Sachs told a public forum at Hilton Hotel in Nairobi that property rights of the poor are important.

“I fail to understand why we refer to some families as squatters, yet they live on land where their ancestors were buried,” Justice Sachs says.

According to Sachs, abuses of rights to adequate housing, food, water, sanitation, health, work and education are fundamental and enshrined in the Constitution.

He said this while giving a keynote address on a public forum the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.

Sachs, a member of the Judges and Magistrates Vetting Board, presented a paper titled, The Centrality of Economic and Social Rights in Emerging Democracies.

At the forum, participants drawn from the legal fraternity and civil society organisations called on the Government to sign an international treaty to guarantee housing rights.

The treaty is called the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.

If ratified by Government, evicted citizens would have a remedy to seek justice abroad on violated rights after exhausting domestic remedies.

The international treaty establishes complaint and inquiry mechanisms on economic, cultural and social rights.

The United Nations General Assembly adopted the document on December 10, 2008 and opened for signatures on September 24, 2009.

African countries that have already signed the treaty include Cape Verde, Congo, and Democratic Republic of the Congo, Gabon, Ghana, Guinea Bissau, Madagascar, Mali, Senegal and Togo.

Currently, several families continue to languish in the cold after forced evictions by Government and private developers with impunity.

Constitutionally, Article 43 (b) of the supreme law guarantees a right to proper housing while Article 40 provides protection of personal property.

Moreover, Article 10 (2) (b) outlines national values and principles of governance to include human dignity.

Others are equity, social justice, inclusiveness, equality, human rights, non-discrimination and more significantly and protection of the marginalised.

 

The Constitution also obligates the State to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.

Another saviour to families that leave on constant fear of forced evictions is the Eviction and Resettlement Bill, 2011 - it is yet to pass into law.

For starters, the Bill provides guidelines for evictions in line with the Constitution and internationally accepted standards.

Back to the treaty, International Commission of Jurists Executive Director George Kegoro says its ratification would be better for the country.

According to Kegoro, property laws and housing rights in the country, which mainly affect the poor, must be addressed as provided in the Constitution.

“Human rights were violated and property destroyed during the post-election violence... such treaties would be alternatives to seek fundamental rights,” Kegoro says.

Nevertheless, Kegoro argues that Kenya had a poor history in ratification of international treaties over political reasons.

Hakijamii Executive Director Odindo Opiata says the treaty would assist the country to more concretely comply with its international obligations.

Legally, it would promote principles of universality, indivisibility and interdependence of fundamental rights, which guided drafting of the current constitution.

“It will enable the Government in understanding steps it needs to take to respect, protect and fulfil economic, social and cultural rights,” Opiata says.

Centre for Human Rights and Policy Studies director Dr Mutuma Ruteere and Chris Grove of the International Network on Economic, Social and Cultural Rights concur.

Basic right

“It will be easier for the Government to seek assistance and cooperation, both economic and technical, to enable it achieve realisation of social rights,” Dr Ruteere says.

Other advantages include encouraging the Government to take legal, administrative, budgetary and judicial measures towards realisation of social rights, like housing.

Civil Society Urban Development Programme Coordinator George Wasonga says the State should look at the positive side of ratifying the treaty.

“It would be a tool to foster Government accountability, efficiency, and transparency and improve service delivery,” Wasonga says.

According to Wasonga, the treaty would ensure the Government addresses myriad urban challenges.

“Urban dwellers suffer challenges ranging from inadequate housing, water and sanitation,” Wasonga says.

According to the International Network for Economic, Social and Cultural Rights Network official Ivahanna Larrosa, fundamental rights will be upheld.

“Individuals or groups that are victims of violations without effect remedies at home, will be able to file complaints abroad,” Larossa says.

Larrosa explains that third parties may also file complaints on behalf of people whose housing rights have been violated.

“Third parties may file complaints on behalf of presumed victims — without their consent — but must justify acting on their behalf,” Larossa concludes.