Demolitions violate housing rights
Story by NGUGI MUHINDI / Shelter
Publication Date: 2004/04/08
Two recent events brought to light the critical issue about housing situation in the country. The first was the Government's announcement that it was stopping demolition of houses constructed on power lines and along railway lines. Significantly, the announcement was made at Nairobi's Kibera slum, where thousands of residents were likely to be affected by evictions.
In the second one, the High Court granted an injunction to eighty eight applicants restricting the Kenya Railways Corporation from evicting them from their houses constructed along railway lines.
The incidents should have sparked intense national debate for two reasons. First, they involved the rights of thousands of people. Second, they touched on the Government's obligations on housing.
The first issue to address here is property rights and the rights of squatters. The property rights of land owners and the notion that squatters may have any rights over that land tend to conflict. However, since ownership is generally regarded as the most important and prominent of all real rights on land, squatters have no rights to protect them. Forcible eviction is, therefore, seen as the only solution to the ensuing conflict between the parties.
The second issue is that unlike civil and political rights, social and cultural rights are little known or understood in many countries, including Kenya. The discourse on human rights has tended to revolve around civil and political rights. Yet at the core of forced evictions is the violation of a deeply entrenched human right; the right to adequate housing.
Right from the inception of the United Nations in 1948 housing rights were recognised. The Universal Declaration of Human Rights, now considered as part of the customary international law applicable to all states, provided for the right for all to an adequate standard of living, including the right to housing. Later, the International Covenant on Economic, Social and Cultural Rights provided that every one has the right to an adequate standard of living.
Similarly, the International Convention on the Elimination of All Forms of Racial Discrimination, the International Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child recognised the right to adequate housing.
It is on the basis of the recognition of this right that more than a third of the world's countries, including South Africa and the Philippines, have included the right in their constitutions. Security of tenure for those living in informal settlements and protection from forced eviction are invariably some of the concerns addressed by those constitutions.
Forced eviction has been defined by the UN as the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to appropriate forms of legal or other protection.
The circumstances under which forced evictions are justified are well defined. These must be exceptional circumstances and the eviction may be carried out only in accordance with the recognised principles of international law. Besides, evictions are permissible only where three additional conditions are met. These are the promotion of the general welfare in a democratic state; are carried out in accordance with general provisions of reason; and that no form of discrimination is involved in effecting them.
Every state that has ratified the International Covenant on Social, Economic and Cultural Rights has several obligations. First, they should refrain from evicting persons forcibly. Second, they should ensure that law is enforced against its agents or third parties who carry out forced evictions. Third, they have to establish an effective system of legal protection against forced evictions by taking certain measures which, include reviewing existing legislation.
South Africa and Philippines are two among about 70 countries that have not only enshrined the right in their constitutions but have also ensured appropriate procedures and due process in relation to forced evictions. The South African constitution proclaims that everyone has the right to have access to adequate housing. It further provides that no one may be evicted from their home, or have their home demolished without an order of the court. Further, no legislation may permit arbitrary eviction.
Under the Philippines Urban Development and Housing Act of 1992 for example, evictions or demolitions can only be carried out when the general welfare is in issue; where specified government infrastructure projects are imminent or when a court order for eviction and demolition has been issued.
These safeguards are important in that they are also designed to ensure that other human rights are not trampled or breached while forced eviction are taking place. These include the rights to life and property and the rights of children in the affected communities.
In Kenya, we seem to have failed to reach a consensus on the right to adequate housing . No legislation exists to protect potential victims of forced evictions exists. This is in spite of the fact that Kenya is a signatory to the UN conventions on social rights.
It is instructive to note that in the court ruling mentioned earlier, the ruling was based on sympathy for the affected persons rather than on the enforceability of their rights. This is because the country has failed to enact law that guarantees housing right.
For a country that hosts the United Nations Human Settlements Programme, the principal international body dealing with human settlements, this is scandalous. This is an area of the law where Kenya ought to be acting as a pace setter.
The writer is an advocate of the High Court of Kenya.