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Kibera
residents demonstrating against the evictions
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Inter-Faith
Prayer during the Marathon for shelter
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Exodus
- Kutoka Network
Actions on Evictions
The
slum dwellers live in a great insecurity, not
only because of the difficulties they encounter
in their daily life, but specially due to the
fact that they are exposed to being thrown out
of their houses, and seeing their belongings
destroyed by bulldozers or other machines.
During
the last decades it has been quite a number
of evictions in Nairobi. Those owning illegal
kiosks in the Centre of the town see them destroyed
regularly, just to rebuild them some days later
in the same spot.
Giving
different excuses the municipality and the government
have undertaken a series of slum destructions:
all the houses under high voltage electric wires;
the making of a road that has not yet started
one year after the evictions; the privatization
of the railway, etc.
As
you can see in the section Network/ Actions
the Catholic Church together with other churches
and civil society have undertaken a series of
actions against the evictions. Some of their
lobby and advocacy were sucessful at least in
delaying the eviction, but the threat is there
ready to hit when people expect it less.
We
present a series of documents and actions against
the evictions in Nairobi.
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- Actions
Against Evictions by the KUTOKA Network
Information
and Actions on Evictions
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Campaign
against forced Evictions in the informal Settlements
in Nairobi (Kenya)
Nairobi, April 26. 2004
Introduction | Ongoing and Threatened Evictions | Response
of the Affected Communities | Government Response to
Protests? | Concerns on the Short and Long-Term Threat
of Forced Evictions | Proposals for a Way Forward |
Introduction
In the last few weeks, Nairobi informal settlements
residents have experienced great threat to their short
and long term stability, resultant from threats of demolition
and eviction. Currently, there are notices from several
government ministries to undertake large-scale demolition
of structures that purportedly present a risk to the
occupants of railway line operational corridors and
households living near or under electric power lines
and wayleaves or are in the way of planned bypass roads.
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Street
in a Nairobi slum
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Currently, there are over 168 informal settlements in Nairobi
that are home to over two million people. Residents of Nairobi's
informal settlements constitute 55% of the city's total population
and yet they are crowded on 5% of the total land area in the
city. These staggering statistics have their historical roots
in the failure of the State to provide for low-cost housing
for the poor. As a result, thousands of residents of informal
settlements in Nairobi have encroached on unoccupied land,
including that set aside for road reserves, railway lines,
forests and public utilities, where they have put up semi-permanent
structures.
The main
reason being advanced justifying evictions is that it is dangerous
for people to live near the rail lines and power lines. That
position is indisputable. However, the current situation in
the informal settlements is very complex because of its historical
context. Any solution for the current problem must consider
the origins of the informal settlements. Most structure owners
in Kibera, Korogocho and the other affected areas have paid
a "fee" to the local administration including chiefs,
wazee wa vijiji (village elders) and the police in exchange
for "official permission" to occupy the spaces where
they live. These irregular allocations by the local administration
are normal business in the informal settlements. As recently
as February 19th this year, Kenya Railways was issuing receipts
for 'rent' paid by people occupying plots located on the rail
line operational corridors. People have been increasingly
occupying space near the rail line and under power lines for
decades and they have occupied these places with the full
knowledge and sanction of the Government.
In addition,
UN Habitat has undertaken to support slum upgrading in the
Nairobi slums. After an initial agreement with the former
government, the Executive Director of UN Habitat entered into
an official memorandum of understanding with the Ministry
of Roads, Public Works and Housing in January, 2003. The agreement
was widely publicized and hailed as a positive step forward
in improving the informal settlements. This combined project
of the Government and UN Habitat is specifically designed
to improve the housing and infrastructure of Soweto village
in Kibera. Since the signing of that agreement, however, the
project has been characterized by confusion caused by lack
of information and consultation. An apparent lack of coordinated
thinking by the Government, has frustrated initial good intentions
that are now marred with plans for forced evictions by different
ministries in the very area that was to be regenerated.
These
large-scale demolitions are being undertaken with little consideration
of their disastrous effect on the residents. The internal
displacement that will invariably accompany the forced evictions
will lead to increased violence, insecurity, loss of livelihoods,
community structures and consequently greater poverty for
hundreds of thousands of people living in informal settlements
such as Kibera, Korogocho, Agare, Lunga Lunga, Sinai,Soweto
and others.
Forced
evictions of this magnitude are unprecedented in Kenya. To
render tens of thousands homeless in a matter of a few days
is an unlawful slum eradication campaign. Furthermore, forced
evictions of this nature are in breach of well-established
international norms and laws which obligate the Government
to provide the affected communities with: (1) adequate and
reasonable notice, (2) genuine consultation, (3) information
on the proposed evictions and (4) adequate alternative housing
or resettlement.
Ongoing
and Threatened Evictions
There
have been numerous announcements, meetings and press statements
over the last two months indicating that different government
ministries will undertake demolitions and evictions in designated
slum areas within Nairobi. These demolitions essentially pertain
to structures located in three main areas: (a) within 100
feet of either side of the rail line, (b) under power lines
and (c) the area earmarked for the new road bypasses. Response
of the Affected Communities, Civil Society, Faith, Based Groups
and International Housing Groups
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a.
Affected Communities
Not surprisingly, the intended demolitions have
caused fear, panic and confusion among the affected
communities. This is because many people were
not given official notice or the actual parameters
and dates for the evictions. In Kibera, for example,
chiefs and the Provincial Administration who are
to effect the evictions have no maps to identify
which structures are earmarked. As a result, no
one knows with certainty if and when they are
likely to be evicted. This lack of information
has created a vacuum that has been filled by rumour
mills, speculation and exploitation (often by
local politicians).
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Korogocho
Slum - Nairobi
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- Notwithstanding
the information black out, the communities immediately
began to organize themselves to resist the forced
evictions and to ask for an opportunity to dialogue
with the Government for an alternative. In Kibera,
religious leaders asked for and were granted a meeting
with the District Officer on February 20th. In addition
there is an on-going signature campaign to collect
500,000 signatures to protest the evictions. The communities
also successfully organized a prayer rally on March
1st, which was presided by Catholic Archbishop Raphael
Ndingi Mwana 'a Nzeki and a representative of the
Anglican church. In his prayer, the Catholic Archbishop
asked God to grant the government grace to fight slums
and not slum dwellers.
- In
Kibera, over eighty residents living on the rail line
operational corridor have filed a case in the High
Court against the Kenya Railways Corporation, seeking
an injunction to restrain the Railways from forcibly
evicting them. They hope the court will impel Kenya
Railways to hold adequate consultations with the community
so that an alternative settlement is identified. The
suit argues that the plaintiffs, who are all long-term
residents of structures located near the rail line,
were issued with temporary occupancy licenses by the
Railways and such licenses have not expired. Furthermore,
the threatened evictions are in contravention of the
Railways Corporation Act, Children's Act and international
procedures that prohibit forced and arbitrary evictions.
-
On February 27, High Court Judge Lenaola issued
an order requiring the plaintiffs to return to court
in ten days with concrete suggestions for the time
frame needed for the community to move. On March 8th,
High Court Judge Ochieng Ag J. court heard argument
on the application and ordered that the planned eviction
by the Kenya Railways is further enjoined for three
weeks. He further ordered that the Kenya Railways
and the affected residents enter into negotiations
"and actively explore the possibility of a negotiated
time frame for the applicants to relocate." The
case was set for a mention on March 29th for further
orders and directions. The parties have agreed to
meet on March 26th.
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b. Civil Society and Faith Based
Groups
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Upon hearing of the threatened evictions, the civil
society organizations and faith based groups that
have been working for many years on housing and land
issues facing the urban poor mobilized themselves
and the affected communities to protest against evictions.
They argue that forced evictions of this scale and
nature cannot be tolerated in a democratic state that
purports to uphold the rule of law.
-
The NGOs working on land and housing issues paid for
a full page advertisement on February 20th urging
the Government to fight poverty and not the poor and
to stop slum evictions. They pointed out that procedures
for carrying out justified evictions must be followed
including providing adequate and reasonable notice,
appropriate resettlement, and consultation and planning
with the affected communities.
-
Notably, during the last week of February, Cardinal
Renato Martino, President of the Pontifical Council
for Justice and Peace, visited Kenya. The Cardinal
along with Archbishop Giovanni Tonucci, the Apostolic
Nuncio to Kenya, had the opportunity to visit Kibera
including the areas marked for demolition. While addressing
representatives of the Kibera community, the Cardinal
underscored his concern over the crisis in Kibera.
He called for respect of the human rights of slum
dwellers and stated that every effort should be made
to provide alternative accommodation before proceeding
with any evictions.
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The NGOs along with church and community leaders have
also organized to meet and dialogue with different
ministries and officers involved in the planned evictions.
These include the Mayor, the Provincial Commissioner,
the Kenya Railways Corporation, Kenya Power and Lighting
Co. Ltd., UN Habitat, and the Director of Housing
among others. The aim of these meetings is not only
to stop the planned evictions but to also ask the
Government to work closely with the affected communities
in developing an alternative resettlement plan.
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c.
International Housing Rights Groups
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The Special Rapporteur on Adequate Housing to the
UN Commission on Human Rights, Mr. Miloon Kothari
was in Kenya on a two-week mission in mid-February
on the invitation of the Government of Kenya. He was
evaluating to what extent the right to adequate housing
is being realized in the country. During his visit,
Mr. Miloon visited a number of informal settlements
and was apprised of the ongoing evictions that were
taking place. He pointed out in his Preliminary Report
that these evictions were done in flagrant violation
of international laws to which Kenya is a signatory.
-
Citing General Comment 7 of the Covenant on Economic,
Social and Cultural Rights, he specifically stated
that: I am concerned that the Government is not following
an adequate procedure keeping in mind the human rights
of those affected by these evictions, thereby impacting
on many innocent families and individuals.
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The Government should immediately put this procedure
[sic]. There is need for a clear evictions policy
and even specific legislation in this regard. Meanwhile,
there should be a moratorium placed on demolitions
and evictions. In addition, and the local administration
and authorities must refrain from aggravating the
situation by further participating in malpractices
that have contributed to this crisis.
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Other international organizations have also condemned
the planned evictions. The Centre on Housing Rights
and Evictions (COHRE), an international human rights
group based in Geneva, issued a statement to President
Kibaki and the relevant Ministers on February 24th
saying that the threatened mass evictions in Kenya
are "a violation of international human rights
law and in particular the right to adequate housing."
They further stated: "examples from all over
the world have shown that the social and economic
cost of forced evictions includes deeper poverty,
reduced levels of employment and lower health standards."
COHRE strongly urges the Government of Kenya to abide
by her legal obligations, which require the government
to "explore all feasible alternatives to the
evictions, that no person be rendered homeless, and
that there be genuine consultation with those affected.
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In addition, housing rights monitors from a number
of other countries including Egypt, Pakistan, Philippines,
India, South Africa, Brazil, have issued statements
objecting to the planned forced evictions in Kenya.
All of these organizations work in countries that
have experienced housing crisis facing the urban poor.
Their message is unanimous: forced evictions will
not resolve the housing problem. Instead, affected
communities must work together with the local government,
civil society and professional urban planners to survey
and map the affected areas and develop an alternative
plan. Government Response to Protests?
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On February 29th, the Minister of Roads, Public Works
and Housing announced at a rally in Kibera that he
was directed by President Kibaki to suspend the demolition
of structures built on road bypasses, near rail lines,
under power lines and on public land. Mr. Odinga said
the Government intended to look for alternative resettlement
areas for the affected parties. Unfortunately, the
very next day Mr. Odinga changed his stand. He then
said that the suspension did not apply to the planned
demolitions that are connected with the bypass road.
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The Government's Plans to Undertake Forced Evictions
are Against the Law Because the suspension of evictions
does not apply to the bypass construction in Kibera
or to any planned evictions by Kenya Power & Light,
there still remains an imminent threat of eviction
for tens of thousands of poor people.
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The eviction that has already occurred in Kibera's
Raila village and the planned evictions are gross
violation of human and legal rights. The rule of law
must prevail regardless of whether the affected residents
are squatters or not. It is a fundamental human rights
principle that any process to evict people must ensure
a peaceful and lawful process that respects the rights
and dignity of the people. Development of any kind
cannot take precedence over the human rights of the
poor. All of the justifications for the "necessary"
evictions do not absolve the government from its legal
obligation under the laws to give adequate notice
and to prepare and implement a plan for resettlement.
-
The planned evictions are also in contravention of
prior commitments made by the Government with respect
to the right to housing. On December 11, 2002, President
Kibaki stated in a speech in Mombasa that decent housing
is a basic human right similar to education and other
human rights. Additionally, the planned evictions
are contrary to the Government's stated policy on
slum upgrading as it is contained in the National
Housing Policy Sessional Paper that was approved by
the cabinet in October of 2003. The proposed forced
evictions are also a contravention of the draft constitution,
which expressly recognizes the right to adequate housing
that includes the right to be free from forced eviction.
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Furthermore, the planned evictions are in breach of
prior commitments made by the Government to UN Habitat
and the international community with respect to slum
upgrading in Kibera. Concerns on the Short and Long-Term
Threat of Forced Evictions
-
Based on the above facts, members of the Campaign
Against Forced Evictions in the Informal Settlement
of Nairobi want to stress the shocking ills that are
unfolding. This Campaign acknowledges that the basic
idea of slum renewal is a good one.
-
However, lack of coordinated thinking and respect
for the rule of law and the dignity of the affected
parties is alarming. To that end, we must protest
and point out the aspects cited below that show just
how dangerous the acts of the Government are. Of immediate
concern is that the planned evictions will render
tens of thousands of people homeless. The effect of
these evictions will essentially create refugee communities
of internally displaced slum dwellers. Settlements
like Kibera and Korogocho are over congested. Rents
have doubled and even tripled in some areas since
news of the evictions. As a result, the evictions
will force many thousands of people to migrate to
other smaller slums or to create new slum areas.
-
The planned evictions are likely to provoke physical
conflict and violence. For example, residents on the
rail line in Kibera are already scuffling over who
will occupy the limited space that will be available
after the demolitions. There is also the threat that
affected residents particularly structure owners will
physically try to resist the evictions, which will
inevitably result in violence.
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In addition to the short-term threat of violence and
chaos, the long-term negative implications for the
economic and social development of the slum settlements
are very serious. The affected areas are not only
dwelling places. They also have a large number of
kiosks, dukas and open-air markets. Thousands of people
will lose their businesses and sources of income.
The unavoidable result will be greater impoverishment
and hardship to families who are already struggling
to survive. Moreover, the involuntary displacement
that will accompany these evictions is not limited
to the physical dislocation of families, houses, businesses,
schools and churches.
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It also involves significant dismantling of the neighborhoods,
families, culture and the local community in the affected
areas.
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Proposals
for a Way Forward
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We respectfully urge the Government of Kenya to carry
out the following acts:
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a. Immediately suspend plans for any and all forced
evictions in the informal settlements.
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b. Disseminate information and carry out in-depth
consultations with all affected communities to find
a feasible alternative to the forced evictions.
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c. If there are no alternatives, ensure that international
standards related to forced evictions are followed
including but not limited to the following:
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i. adequate and reasonable notice to all affected
parties
ii.
information on the proposed evictions
iii. consultation with the affected parties
iv. adequate alternative housing or resettlement
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d. Develop a comprehensive policy on evictions that
is consistent with local and international human rights
law.
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e. The Provincial Administration should not implement
any order for eviction. Instead, a coordinated and
disinterested body should be made responsible for
orderly and peaceful evictions.
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f. Appoint an inter-ministerial consultative group
to coordinate any and all plans related to evictions
and demolitions that will take place in the informal
settlements.
- g.
Provide immediate assistance to those people who have
already been evicted
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Sign
indicating that the house will be destroyed
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More
information
- Shelter Forum, Michael Arunga, 0721-213236,
arungam@shelterforum.or.ke;
- Christ the King Church, Office of Human Rights,
Christine Bodewes, 0733-920846, cbodewes@africaonline.co.ke;
- St. John's Church, Fr. Daniel Moschetti, 780-430,
combonikario@clubinternetk.com
This is a Joint Position Paper prepared by members
of the Campaign Against Forced Evictions in
the Informal Settlements in Nairobi on March
17th 2004.
Members
of this Campaign include:
African Network for the Prevention and Protection
of Child Abuse and Neglect (ANPPCAN);
Basic Rights Campaign;
Carolina for Kibera;
Intermediate Technology Development Group (ITDG);
Kenya Human Rights Commission;
Kituo Cha Sheria;
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Kutoka
Network of Parishes in the Informal Settlements:
Christ the King, Line Saba
Sacred Heart, Dagoretti
Christ the King, Embakasi
St. John's, Korogocho
Consolata Shrine, Westlands
St. Joseph, Kahawa West
Holy Cross, Dandora
St. Joseph and Mary, Shauri Moyo
Holy Mary Mother of God, Githurai
St. Joseph the Worker, Kangemi
Holy Trinity, Kariobangi
St. Mary's, Mukuru kwa Njenga
Our Lady of Guadalupe, Adams Arcade
St. Theresa's, Eastleigh/Mathare Valley;
Maji
na Ufanisi;
Pamoja Trust;
Shelter Forum.
See also: www.giovaniemissione.it/mondo/campagnanosfrattohomeing.htm
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DRAFT
EVICTION LEGISLATION - THE GOVERNMENT LANDS (AMENDMENT)
BILL, 2001
A Bill
for
An
Act of Parliament to the amend the Government Lands Act
ENACTED
by the Parliament of Kenya as follows: -
1.
This Act may be cited as the Government Lands (Amendment)
Act, 2001.
2. The Government Lands Act (in this Act referred to as
"the principal Act") is amended by repealing
section 2 and replacing it with the following new section
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2(1) In
this Act, except where the context otherwise requires --
"forced
eviction" involves the involuntary removal of persons,
families, entities and groups from their homes and communities.
"dwelling
house" means any house or part of a house or room used
as a dwelling or place of residence, and includes the site
of the house and the garden and other lands and buildings
let therewith.
"informal
settlements" means any and all of those villages and
communities located in urban areas that are located on both
public and private land wherein persons occupy structures
and live therein without benefit of legal title.
"jua
kali market" means any stall, workshop or market occupied
wholly or mainly for the purpose of carrying on trade by the
sale or exchange of goods, wares, merchandise or refreshments.
"person"
means a company or association or body of persons, corporate
or unincorporated.
"public
land" means all government land and also all that land
held and owned by the local authorities.
"security
of tenure" means the degree of protection afforded to
persons occupying the informal settlement sector against infringement
or unjust, unreasonable and arbitrary eviction or demolition.
"structures"
means a dwelling house, jua kali market, church, mosque, school,
hospital, clinic or any other building.
3.
Section___ of the principal Act is amended by adding the
following new subsection
1. To
provide for the security of tenure for those persons living
in the informal settlements, all forced eviction of persons
and demolition of structures in the informal settlements as
a practice shall be discouraged. Eviction and demolition may
be allowed in the informal settlements only under the following
situations:
a) When
there is a valid court order for eviction and relocation obtained
pursuant to the provisions of this Act; or
b) When
an on-site development project designed to upgrade and rehabilitate
an informal settlement is to be implemented by the government
for the benefit of the occupying residents of the said informal
settlement.
2. a)
No person other than the Commissioner of Lands may institute
proceedings to obtain an order for the eviction and relocation
of a person occupying public land in the informal settlements.
Similarly, no person other than the Town Clerk may institute
proceedings to obtain an order for the eviction and relocation
of a person occupying land held by the local authority in
the informal settlements. No person other than the legal titleholder
may institute proceedings to obtain an order for the eviction
and relocation of a person occupying private land in the informal
settlements.
b) In
determining whether to grant an order of eviction and relocation,
the court must consider the following factors: i) whether
there is a viable alternative to the proposed eviction and
relocation; ii) the government's proposed use for the land
at issue; iii) the period of time in which the community has
occupied the informal settlement; iv) the circumstances in
which the community was initially settled in the informal
settlement; v) the number of persons who live in the informal
settlement; and vi) any other relevant issues brought to the
attention of the court.
c) The
court shall not grant an order for eviction and relocation
unless i) it is satisfied that greater hardship will be done
to the community at large if the persons are not evicted,
than will be done to the residents if they are relocated;
and ii) satisfactory arrangements have been made for the relocation
of the residents to be affected.
d) An order of eviction shall contain therein a provision
allowing for the relocation of the affected persons. That
relocation shall be undertaken by the local government units,
in coordination with the Department of Housing with the assistance
of other government agencies within forty-five (45) days of
service of final judgment by the court.
e) The
affected persons shall be provided with relocation or resettlement
sites with basic services and facilities and access to employment
and livelihood opportunities sufficient to meet the basic
needs of affected families.
f) Prior
to relocation or resettlement, adequate consultations on the
matter of resettlement shall be undertaken with the duly designated
representatives of the families to be resettled and the affected
communities in the areas where they are to be relocated.
g) The Department of Housing and local government units shall
jointly promulgate the necessary rules and regulations to
carry out the above provision.
3. In
the event that the government undertakes an on-site development
project with the aim of upgrading and rehabilitating a blighted
area of an informal settlement, the government must proceed
in a way that minimizes displacement of persons occupying
structures therein. To the extent displacement cannot be avoided,
those persons to be affected should not be rendered homeless
but shall be relocated according to the provisions of Section
2 of this Act.
Moreover,
before proceeding with any on-site development project that
will forseeably displace residents therein, the following
are mandatory:
a) When
a development project will displace persons whose structures
are located on government land, the Commissioner of Lands
shall serve written notice of the development project and
the identity of those structures which will be demolished
on that person or persons to be affected either personally
or by leaving it for him at his last known address at least
ninety (90) days prior to the date of the demolition.
.
b) When the development project will displace persons whose
structures are located on
land held by local authorities, the Town Clerk shall serve
written notice of the development project and the identity
of those structures which will be demolished on that person
or persons to be affected either personally or by leaving
it for him at his last known address at least ninety (90)
days prior to the date of eviction.
c) Further
notice of the demolitions shall also be published by affixing
a copy in the District Commission, District Officer and area
Chief's offices and in some public or conspicuous place or
situation in the area concerned such as the area school, church,
mosque and meeting hall, and, where it is deemed necessary,
by publishing it in the Gazette.
d) Such
publication or affixing shall be deemed good and sufficient
publication and
notice to all persons concerned. Any person who, without lawful
cause or excuse, tears, defaces, alters, injures or removes
any notice so affixed shall be guilty of an offence and liable
to a fine not exceeding 1,000 shillings.
e) When
notice of the development project and demolition in the informal
settlement sector is given under this Act, any affected person
who is dissatisfied with the proposed demolition of his structure,
he may within thirty days after being notified of the demolition
appeal in writing to the Commissioner of Lands or Town Clerk
who shall hear and determine the appeal and shall notify the
resident in writing of its decision.
f) The
Minister of Lands may make regulations to provide for the
practice and
procedure to be followed in respect of appeals under this
section.
g) Any
party to an appeal to the Commissioner of Lands or Town Clerk
who is
dissatisfied with the decision of that office may appeal to
the Resident's Magistrate's Court. Any party to an appeal
to the Resident Magistrate's Court who is dissatisfied with
the decision may appeal to the High Court whose decision is
final.
4. In
the execution of any eviction or demolition of persons or
structures situated in the informal settlement sector, the
following shall be mandatory:
a) When
the eviction is to take place on government land, the Commissioner
of Lands
shall serve written notice of the eviction on the person to
whom it is to be given either personally or by leaving it
for him at his last known address at least ninety (90) days
prior to the date of eviction.
.
b) When the eviction is take place on City Council Land, the
Town Clerk shall serve written notice of the eviction on the
person to whom it is to be given either personally or by leaving
it for him at his last known address at least ninety (90)
days prior to the date of eviction.
c) Notice
of the evictions shall also be published by affixing a copy
in the District Commission, District Officer and area Chief's
offices and in some public or conspicuous place or situation
in the area concerned such as the area school, church, mosque
and meeting hall, and, where it is deemed necessary, by publishing
it in the Gazette.
d) Such
publication or affixing shall be deemed good and sufficient
publication and notice to all persons concerned. Any person
who, without lawful cause or excuse, tears, defaces, alters,
injures or removes any notice so affixed shall be guilty of
an offence and liable to a fine not exceeding 1,000 shillings.
e) Local
government officials or their representatives must be present
during the eviction or demolition and properly identified
at all times.
f) No
eviction or demolition shall take place between sunset and
sunrise or on anySunday.
g) No
use of heavy equipment shall be allowed for demolition except
for structures that are permanent and of concrete materials.
5. There
shall be a moratorium on the eviction of all persons and demolition
of structuressituated therein for a period of three (3) years
from the affective date of this Act; or until the Constitution
of Kenya is amended to provide for the security of tenure
for the urban poor and marginalized living in the informal
settlement sector or whichever comes sooner.
The moratorium
shall not apply to those persons who have constructed their
structures after the effective date of this Act or for cases
enumerated in this Act.
6. Any
person who violates any provision of Section 1 herein shall
be imposed the penalty of not more and three (3) years of
imprisonment or a fine not less than 50,000 Kenyan shillings,
but not more than 100,000 Kenyan shillings or both at the
discretion of the court.
Provided,
that if the offender is a corporation, partnership, (limited
or otherwise), or association, the penalty shall be imposed
on the officer or officers of the said corporation, partnership,
association who caused the violation.
7. All
persons subjected to any eviction not in full accordance with
the Act, shall be entitled to restitution and/or compensation
for any losses of land, personal, real or other property or
goods. The absence of legal title to land by affected person
shall not be a bar to compensation.
Compensation
can include land and access to common property resources and
shall not be limited to cash payments.
8. Any
person or persons who claim that any of the provisions herein
have been violated with respect to himself, he shall apply
to the High Court in its original jurisdiction and notwithstanding
the provisions of the Government Proceedings Act, the Court
shall have the power to issue orders of injunction which it
deems appropriate.
Complaints
of violations of these regulations against state, administrative
or local government executives and officers shall be filed
and prepared in accordance with section ___.
Complaints
against subordinate officials including but not limited to
those chiefs, sub-chiefs, employees, agents and others acting
for or on behalf of state, administrative or local government
officials shall be filed with the office of ____ who shall
cause to institute administrative or judicial proceedings
against any subordinate official or employee who may have
committed an offense in violation of these regulations.
In all
instances, the aggrieved party may filed his/her complaints
directly with a court of competent jurisdiction pursuant to
section ____ of the Civil Code of Procedure.
Questions
to this piece of legislation:
Who is
protected by the legislation?
Is it
limited to urban areas?
Is it
limited to informal settlements? If so, what constitutes an
informal settlement?
Do we
distinguish between an eviction and "forced eviction"?
Are we
opposed to evictions by the government and its agents only?
What about private landlords who do small, small evictions?
Consider evictions by occupying powers, international financial
and other institutions or organizations, transnational corporations
and individual third parties including public and private
landlords or land owners.
Should
there be an obligation to explore all possible alternatives
before an eviction? What about the right to receive all relevant
information and right to full participation and consultation
throughout the process? Do the affected person have a right
to propose alternatives to evictions that must be considered?
Do we
need to spell out the rights of persons who are faced with
a forced eviction the right to a fair hearing before a competent,
impartial and independent court or tribunal; legal counsel
and effective remedies?
Should
we include language that a court in determining whether to
issue a court order should consider all relevant circumstances
of the affected persons and any decision made should be in
full accordance with principles of equity and justice?
Regarding
compensation, do we need to identify details relating to valuation,
criteria for determining resettlement eligibility of affected
households and how to develop ways to prevent illegal encroachers
and squatters including an influx of non-residents entering
in to take advantage of resettlement benefits. One way to
do this is early recordation of names of all affected persons
that will be entitled to compensation.
Consider
making direct reference to Operation Directive 4-30 of the
World Bank regarding guidelines to be followed when World
Bank funded projects displace people. IE Kibera.involuntary
resettlement to be avoided or minimized where feasible, exploring
viable alternative designs such as realigning roads where
displacement is unavoidable, resettlement plans should be
developed. Displaced persons should be compensated for their
losses in full replacement cost prior to the actual move;
assisted with the move and supported during the transition
period in the resettlement site, and assisted in their efforts
to improve their former living standards, income earning capacity
and production levels.
Community
participations in planning and implementing resettlement should
be encouraged. Appropriate patters of social organization
should be established and existing social and cultural institutions
of resettlers and their hosts should be supported and used
to the greatest extent possible.
Resettlers should be integrated socially and economically
into host communities so that adverse impacts on host communities
are minimized.
Land, housing, infrastructure and other compensation should
be provided to the adversely affected population, indigenous
groups, ethnic minorities, etc
What about
threats or harassment regarding evictions? Does this Act adequately
"prevent" evictions versus just punishing it after
the fact?
State
must enforce the law against its agents and third parties
who carry out forced evictions such as private landlords,
developers, international institutions and any third parties.
Do we need to expressly say this?
What about
specific language regarding evictions that result from upgrades
in slums??
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UPDATED
ACTION LETTER ON EVICTIONS
Letter
to the KUTOKA Network and organizations inside and outside
Kenya
3 March
2004
Dear colleagues
,
As we
have informed you in prior messages, mass evictions in Kenya
have threatened between 330,000 - 400,000 shanty dwellers
in Nairobi by the Government. This would affect more than
1 in every 9 people in Nairobi. Although the government announced
a suspension last Sunday, the suspension does not cover many
people. Some of the demolitions affecting 150,000 were not
suspended. The rest of the demolitions are temporarily halted,
but concerns remain that the re-settlement will not be adequate
and that the Government continues to make plans without any
meaningful consultation with the affected communities.
We call
on all organizations to send in letters of protest. We have
provided details and a model letter that you can edit as necessary
below.
The specific
evictions of the 330,000 - 400,000 shanty dwellers are as
follows:
1. Evictions
of houses on road reserves in order to build road bypasses:
Over 150,000 people to be rendered homeless and 17,600 structures
to be destroyed. According to Raila Odinga (the Roads, Public
Works and Housing Minister), these evictions have not been
suspended.
2. Evictions
of all structures within 100 feet of the railway line: More
than 108,000 people to be forcibly evicted and 20,210 structures
to be demolished. The government has suspended these to allow
the government to look for alternative re-settlement sites.
3. Evictions
of all persons near power lines: More than 76,100 people will
be made homeless when 3,255 structures are torn down. The
government has suspended these to allow the government to
look for alternative re-settlement sites.
4. Evictions
of structures near roads: As the Government has not specified
the distance involved, the number of persons affected is unclear.
It is unclear whether these have been suspended.
These
figures are based upon data collected by NGOs working in Kibera.
Two thousand
people were evicted earlier in February 2004. The current
government, which replaced the Moi regime at the end of 2002,
is making a point of showing that it is undoing the illegal
and unplanned growth of informal settlements in the past.
The Government says that it is motivated by the need to reduce
congestion in the city by building bypasses, and the need
to reduce safety threats. However, these lands are occupied
by some of poorest sections of the Nairobi population, and
no alternatives have been sought by the Government.
The current
Kenyan Government is generally sensitive to pressure, as shown
by the partial suspension of demolitions last week. Kenyan
NGOs are lobbying actively, as has the UN Special Rapportuer
on Housing who condemned the evictions when he was in Kenya
on February 21st. The threatened demolitions were also covered
in the local press. External pressure from NGOs and individuals
like yourselves could also demonstrate to the Government that
there is ongoing international concern about mass evictions.
But we need a critical mass in order to make a clear statement.
Please
let me know if you have any questions.
Very best,
Ashfaq
Khalfan
Legal Officer
Right to Water Programme
Centre on Housing Rights and Evictions
83 rue de Montbrillant,
1202 Geneva, Switzerland
Tel: +41.22.734.1028
Fax: +41.22.733.8336
ashfaq@cohre.org
www.cohre.org
URGENT
ACTION LETTER ON KIBERA EVICTIONS
Re: Upcoming
Forced Evictions in Kibera, Nairobi.
Your Excellency,
We welcome
your Government's announcement on 29 February 2004 that it
had suspended evictions in Nairobi's informal settlements,
particularly in Kibera, until plans have been made to re-settle
those who will be uprooted. However, we are extremely concerned
with the clarification by the Government on 1 March 2004 that
evictions of structures build on road reserves have not been
suspended. We also note that it is unclear whether the planned
demolition of all structures near roads, as announced by the
Ministry of Local Government, has been suspended pending re-settlement.
We also want to ensure that there will be meaningful consultation
with the affected communities and adequate re-settlement.
We also urge your Government to develop a comprehensive and
binding policy on evictions that is consistent with international
human rights obligations; there should be a moratorium on
any forced evictions until such a policy is in place.
We note
that the evictions affecting informal settlements threaten
some of the poorest and most vulnerable sections of the Kenyan
population. Several thousand people now face the loss of their
homes, their businesses and their social support networks.
We note that the disruption to the livelihoods of approximately
one in nine residents of Nairobi is likely to severely undermine
the economy, and affect the stability of the Kenya. The enforced
movement of such a large proportion of a city's population
will create a group of internally displaced persons unprecedented
in peace-time.
Forced
evictions are a violation of international human rights law
and in particular the right to adequate housing, as expressed
in treaties ratified by Kenya, including the United Nations
Covenant on Economic, Social and Cultural Rights and implicitly
in the African Charter of Human and Peoples Rights. The United
Nations Commission on Human Rights has affirmed that forced
evictions are a "gross violation" of human rights.
General
Comment No. 7 on Forced Eviction released by the UN Committee
on Economic, Social and Cultural Rights constitutes the international
standard on forced evictions. These procedures require, inter
alia, that each State explores all feasible alternatives to
evictions, ensure that no person is rendered homeless, carries
out genuine consultation with those affected and provides
adequate and reasonable notice.
We welcome
your Government's acknowledgement of the need to re-settle
displaced people from informal settlements. We hope that it
will apply to all the displaced persons who are not in a position
to easily secure affordable housing, including those living
in shanty structures currently housed on road reserves.
We note,
however, that re-settlement schemes across the world, and
in Kenya's past, have all too often left the inhabitants in
a situation inferior to their original condition. Those re-settled
have often found themselves in congested situations away from
their original neighbourhoods. The results include loss of
employment or businesses and breakdown of community networks.
We call
on the Government to engage in the following prior to any
evictions:
"
The Government should carry out in-depth consultations with
the affected communities to find all feasible alternatives
to evictions. The Government should re-consider the need for
any evictions. It should also consider the scale of the evictions
by fully measuring the social and economic costs of re-location
and by taking into account the necessity and scale of resettlement.
" If such alternatives to evictions do not exist, the
Government should abide by the international standards relating
to forced evictions, in particular the legal requirement to
ensure that adequate alternative housing is available to evicted
persons.
" We further call on the Government of Kenya to ensure
that the persons who have already been evicted, including
those in "Raila Village," are provided alternative
land in a suitable nearby location where they can maintain
their businesses and their links to the community. They should
also be paid compensation for the destruction of their property.
" The Government should also develop a comprehensive
and binding policy on evictions, which must be consistent
with its international human rights obligations, in consultation
with representatives of communities living in informal settlements.
There should be a moratorium on any forced evictions until
such a policy is in place.
We thank
you for your attention to this matter,
[Salutation]
The letter
can be sent to the President as well as individually, or copied,
to the relevant Ministers.
His Excellency
Mwai Kibaki
President of the Republic of Kenya
Office of President, Harambee House
P. O. Box 30510
Nairobi, Kenya
Fax: 254-20-250264
Honorable
Raila Odinga
Minister of Roads, Public Works and Housing
Ardhi House, 6th Floor
P.O. Box 75323
Nairobi, Kenya
Fax: 254.20.720.044
Honorable
Ochilo Mbogo Ayacko
Minister of Energy
Nyayo House
P. O. Box 30582
Nairobi, Kenya
Fax: 254.20.240.910
Honorable
John Njoroge Michuki
Minister of Transportation
Nyayo House
P. O. Box 52692
Nairobi, Kenya
Fax: 254.20.273.0330
Honorable
Karisa Maitha
Minister of Local Government
P. O. Box 30004
Nairobi, Kenya
Fax: 254.20.240.910
We also
recommend that you copy the message to HABITAT and the Kenyan
Mission in your country. You can find the address of the Kenyan
Mission in your country, if applicable, at the following web-site:
http://www.mfa.go.ke/dipmission2.php.
Anna Tibaijuka
Executive Director
United Nations Human Settlements Programme (UN-HABITAT)
P.O. Box 30030-00100
Nairobi, Kenya
Fax: 254.20.623477
You may
wish to also copy your letter to the UN Special Rapporteur
on Adequate Housing, at cmoller@ohchr.org.
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ADVISORY
GROUP ON FORCED EVICTIONS - INFORMATION ON IMPORTANT CASES
by International
Alliance of Inhabitants
www.habitants.org/IAI/
info@habitants.org
A: Threat of Eviction
Issues
on the city, communities and families threatened with eviction
1.
Name and location of community threatened with eviction
The inhabitants
of the following communities are being threatened with eviction:
Kibera, Korogocho, Kahawa Soweto, Kamae, Kware, Kamwanya,
Kanguku, Kandutu, City Cotton, Mutumba, Kareru, Kirigu, Muria-Mbogo,
Mutego, Njiku and others of the most populated among the 199
Nairobi slums. Other evictions are also expected to occur
throughout Kenya.
2.
Background on the city (size, location, etc.)
Population:
The current population of Nairobi is about 4 million.
Ethnicity:
Major ethnic groups include numerous African peoples such
as the Kikuyu, Luhya, Luo, Kalenjin, Kamba, Kisii, and Meru.
Asians, Europeans, and Arabs account for only about 1% of
the population.
Religion:
Religious beliefs include Protestant, Roman Catholic, Muslim,
and Indigenous beliefs. The exact percent distribution varies
from study to study.
Languages:
The official language in Kenya is Swahili. The national
language is English, as a result of the colonial system of
the British Empire. Throughout the country, more than 40 local
ethnic languages are spoken. In public schools everyone must
learn Swahili, but there are still some tribes in which people
speak neither Swahili nor English.
3.
Estimated number of families affected: Over
300.000 people.
4.
Brief description of family background
Contrary
to popular beliefs, most residents of the informal settlements
settled in Nairobi lon | | |
