Demolitions were justified
Publication Date: 04/13/2004
One reason that the Kanu regime was hounded out of office was failure to plan adequately even for such basic social services as housing and roads.
Informal structures were allowed to spring up on road reserves and under power lines despite the danger they posed to inhabitants.
No wonder, it is now common for a motorist to veer only slightly off a road only to ram into somebody's bedroom. Cases abound where children are electrocuted by powerlines hanging just over their homes.
A lot of water has since passed under the bridge. Narc's short stint in power shows its determination to succeed where its predecessor failed: demolition of illegal structures.
As expected, however, its attempts have come against fierce resistance. Thus President Kibaki's Government has ordered that the demolitions be shelved.
The latest protests came at the weekend from the United Nations Commission on Human Rights, which termed the demolitions a violation of human rights.
Of course, to the extent that the Government has yet to offer an alternative for slum dwellers, this criticism is right.
But what human right does the Government violate when it takes action against people who deliberately erected structures in illegal locations when they knew only too well it was against the law.
Yet the mere service of demolition notices to the culprits, though right, helps pretty little. They usually are prepared to defy them, only to feign ignorance of the notices later.
We, however, concur with the UN's position, made at the commission's 60th session in Geneva, that the Government should consult more widely on the matter.
But this should apply only to the slums. The Government must get back to the drawing board and work out a plan for the promised upgrading project.
As for the rest, it will be gross injustice that the Government has demolished multi-million-shilling structures belonging to some people only for the programme to be abandoned midway.
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.
Demolitions deadline extended
Story by NATION Reporter
Publication Date: 03/03/2004
Energy minister Ochillo Ayacko yesterday gave those with buildings near power lines 40 more days to demolish them.
The 30-day deadline expired yesterday.
The minister said President Kibaki had asked the ministry to extend the deadline "to enable government departments to help resolve the problem in a more humane way".
Said Mr Ochillo: "As a government, we decided to give the evictions a human face after realising that most slum dwellers were not living there by choice. But we don't want them to endanger their lives by continuing to live in the places."
The minister who was addressing journalists at his Nairobi office, said the action was also influenced by meetings he had held with councillors, MPs and church leaders from the affected areas.
But the reprieve does not affect those with permanent buildings to which the Kenya Power and Lighting Company has started disconnecting supply.
The minister said he would consider rerouting smaller power lines, but only if owners of the buildings agreed to foot the bill.
But he clarified that his announcement and Roads, Public Works and Housing minister Raila Odinga's suspension of demolitions were a coincidence and not a follow-up or a contradiction.
The Government last month started demolishing 300 petrol stations built on road reserves in the city, according to the anti-dumping task force. The owners had had defied orders to close them down.
KPLC also disconnected supply to hundreds of houses and businesses in the city's Kayole and Umoja estates.
At the same time, he said a joint committee was discussing ways to connect Kenya to the South African electricity pool.
Forced eviction of the poor is both immoral and illegal
Story by Fr Gabriel Dolan
Publication Date: 02/29/2004
The sight or bulldozers destroying mansions on road reserves elicited few cries of condemnation or messages of sympathy. We all became patriotic overnight, saying that it was pay back time for those concerned.
We knew that the owners were now the losers, but they would not end up sleeping in the open as most of them had other property elsewhere.
The civil society gave its blessings to evict, demolish and reclaim government roads, railways, electricity pylons, etc.
In our excitement, we forgot that the next round of evictions might target the poor: Landless people in the rural areas and slum dwellers in urban centres. Asking questions about their future seemed to be spoiling the spectacle acted out on our TV sets on a daily basis.
Human rights groups were happy to be photographed with the bulldozers, naively unaware that their unreserved support for demolitions would be used as the backdrop for slum clearance in Kibera and Kaloleni.
Should the demolition of Kibera proceed as planned, in the next few weeks, we are likely to have a humanitarian disaster on our hands.
The targeted population in Kibera is 60,000 and irregular evictions put their livelihoods at risk and considerably increase the likelihood of violence in the slums and adjoining areas. Structure owners will inevitably resist with force and the thousands of homeless will fight for new space to place their settlements and families.
Roads, Works and Housing Minister Raila Odinga and the Government have a right to repossess and protect public property. But the government also has a moral duty to protect the most vulnerable of its citizens. Previous regimes allowed such informal settlements to spring up and grow.
Kibera is one of the largest slums in this part of the world. Narc did inherit a legacy of squalor and endemic poverty in the slums. But the vote they received from the millions of Kenyans was a mandate to treat its people with dignity and respect.
Arbitrary and forced evictions of the poor are both immoral and illegal. If the Government needs to repossess its land as a matter of urgency, then it has a moral duty to provide resettlement for the evicted.
Slums may be an eyesore and an embarrassment to the new Government who would wish to portray a new image of Kenya to attract investors.
However, they are a reality that is not of the poor people's making. They are a constant reminder of how the country degenerated in the past decades. A new Government cannot wipe out the poor in the flash of a bulldozer. It needs to restore their dignity and treat them with respect. That can begin by giving adequate notice, offering alternative settlements and consulting with the residents. The world is watching Narc’s bulldozers. How it handles the informal slum dwellers will show how committed it really is to democratic values, human rights and service to the poor.
Fr Gabriel Dolan,
Catholic Justice and Peace Commission,