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Draft Eviction law offers solace to residents

REAL ESTATE
By | April 21st 2011

By Dann Okoth

It is the dead of the night and cracking sounds rudely awake Anne Wanjiku from deep slumber in her modest shack in Mukuru slums in Nairobi.

Before she can settle down to figure out what is happening she discovers, to her horror, that her home and the entire neighbourhood is engulfed in raging flames. Confused and with little time to spare Wanjiku quickly grabs her eight-month old daughter who is still sleeping next to her. She then rushes to wake her other two children sleeping on the floor before quickly scurrying them out of the now burning structure.

On that fateful night 250 shanties are burnt down in the slum and property valued at over Sh20 million destroyed. On her part Wanjiku loses all her earthly belongings and, more painfully, the only place she called home.

But if you thought this was one of the many accidental fires that often sweep through the slums, you are dead wrong. Rather it was a brazen and cowardly act by hirelings who were acting on the instructions of a purported landowner to evict the slum dwellers.

Yet this has become the rule rather than the exception in slums where eviction orders are carried out with such brute force and finality leaving the residents with little room for recourse.

"They do not alert us before evicting us," complains Jane Nafula (a.k.a Nyamalo), a resident of Deep Sea village in Westlands that suffered a severe fire incident a couple of weeks ago.

"They often raid at night catching us unawares. They burn and plunder our homes often leaving people injured or even dead, especially women, children and the elderly."

It would be more humane, she argues, for the so-called landowners to sit down with the communities and discuss and agree on modalities of eviction.

However, such discussions may not be at the whims of the landowners anymore thanks to the new Constitution and the Draft Eviction guidelines.

The guidelines are inspired by sections of the constitution dealing with basic human rights, especially right to adequate housing.

State obligations

Article 20 obliges the Government to show that it does not have resources to implement the rights to adequate housing as contained in Article 43, which says that every person has a right to accessible and adequate housing and to reasonable standards of sanitation.

Moreover Article 21 obligates the Government to pass laws, adopt policies and take other measures including setting standards to achieve the rights under Article 43 — it further obligates the state to enact and implement laws to fulfill its international obligations.

Further, General Comment number 11 on forced evictions under the International Covenant on Economic, Social and Cultural Rights (ICESCR) obligates the Government to ensure adequate housing. And Article 17.1 of the International Covenant on Civil and Political Rights complements the right not to be forcefully evicted without adequate protection, recognising, inter alia, the right to be protected against "arbitrary or unlawful interference" with one’s home.

Instances of fire outbreaks in many informal settlements are common. Some landlords have used fires to evict residents.

Meanwhile the eviction guidelines revolve around procedural protection under international treaties including that before an eviction is carried out there should be:

• Opportunity for genuine consultation with those affected.

• Adequate and reasonable notice for all affected persons prior to the scheduled date of eviction.

• Information on the proposed evictions, and where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected.

• Where groups of people are involved, government officials or their representatives to be present during an eviction.

• All persons carrying out the eviction to be properly identified.

• Evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise.

• Provision of legal remedies; and provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts.

• Evictions should not result in individuals being rendered homeless.

Securing rights

Slum dwellers are upbeat that the adoption of these guidelines in the implementation of the Constitution will rescue them from the terror that is forced evictions.

Ezekiel Rema, a member of the infamous Toi Market community says the guidelines are the culmination of a protracted fight by communities from urban poor settlements and civil rights organisation to secure their rights.

"The proposals are geared towards the rights of informal settlement people," he says. "If they are adopted they will also lead to land rights and basic rights and a whole range of constitutional reforms to protect against violation of these rights."

Meanwhile in a landmark case, residents from an urban poor community have for the first time in the history of the country under the dispensation won a court petition against their eviction.

In the matter of alleged contravention of fundamental rights and freedoms between Satrose Ayuma, Joseph Shikanga, Joseph Gitonga and others and Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme, the Kenya Railways Corporation and the Attorney General at The High Court sitting in Nairobi granted on October 28, 2010 temporary injunction against the respondents, their servants, agents and or such persons from demolishing, evicting, terminating leases or tenancies, transferring or in any way interfering or alienating the suit premises.

High Court Judge David Maraga, further granted interim orders restraining the respondents from demolishing, evicting, terminating leases or tenancies of the petitioners or transferring or in any way interfering with or alienating suit premises.

The petitioners had gone to court seeking to among other things, stopping the respondent from evicting them from Nairobi’s Muthurwa Estate. The respondent had issued a notice of eviction threatening to demolish the houses of the petitioners and all other residents of Muthurwa Estate.

The respondent had also disconnected water from the premises and destroyed some of the sewerage systems and toilet facilities, perimeter fence and other amenities used by the petitioners and other residents of the estate.

The ruling was a landmark not only because the case pitted helpless urban poor against a mighty corporation, but because the court upheld tenets of fundamental human rights as contained in the new dispensation while delivering the ruling. Indeed, this particular ruling is likely to set precedence on how such cases will be dealt with in the future.

As Judge Maraga himself observed: "We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment; inadequate social security and many do not have access to clean water or adequate health services.

These conditions already existed when the Constitution was adopted and a commitment to address them, and transform our society into one, which upholds human dignity, freedom and equality, lies at the heart of our new constitutional order. For as along as these conditions continue to exist that aspiration will have a hollow ring."

"We applaud the Court for the progressive jurisprudence on housing rights that is fast taking shape," says Odindo Opiata, executive director, Economic and Social Rights Centre. "It is becoming abundantly clear that our courts have already adopted a highly expansive interpretation of the Bill of Rights. With the pending reforms in the judiciary, translating economic and social rights into tangible policy changes that can restore the victims’ rights is looking highly likely," he adds.

He, however, notes that policy makers must now be prepared to become more politically and legally accountable for their actions.

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