It is important that the process of evictions respect the rights of citizens.
A few weeks ago, information filtered about the impending demolitions of houses in Kibera so as to give way for the construction of a road that was going to pass through the informal settlement.
Evictions raise contestation of two fundamental rights. First is the right to property. Second is the right to housing and that of dignity. In the first instance, the residents of the Kibera had constructed their houses in areas whose tenure rights is contested. In this instance the place where the buildings were, was reserved for road. In essence therefore, the houses were on a road reserve.
While the Constitution protects property rights even for those who do not have title deeds, the protection is available to those whose rights are established. It is not for everybody who resides in a particular piece of land.
One must be able to establish that they have legal rights to that land. In this instance, just like in many informal settlements, tenure security is a tenuous matter. Most dwellers in informal settlements occupy land whose legal ownership either belong to the entire public as public land or was reserved or allocated to a public institution or purpose, like the Kenya Urban Roads Authority for the construction of a road as in the instance case.
Protection of property rights becomes difficult for these informal settlers. This is complicated by the provisions of Article 40 of the Constitution that excludes from the protection those who illegally and irregularly acquired their land.
The question that becomes critical is the manner in which the residents acquired the land. Illegal and irregular allocations are terms that found their way into the Constitution following the work of the Ndung’u Land Commission. That commission investigated these two issues and made a wide range of recommendations.
One of the difficulties it ran into in the process of finding solutions to the widespread grabbing of public land was the legal protection of first registration through the doctrine of sanctity of title. It, therefore recommended that the law ceases to protect those who acquired their title through corrupt and other illegal or unprocedural ways. This led to the inclusion of the provision in the Constitution.
Are the communities in Kibera those who were the focus of the commission’s report? Or are they those who have found themselves on these public spaces because of lack of land for housing. This brings to fore the second right that is protected by the Constitution and comes into play in instances of evictions. Every citizen has the right to adequate housing as guaranteed by Article 43 of the Constitution.
In cases of evictions, even if the people being evicted do not have property rights to the land on which they had built their structures, their rights to housing should not be violated. Balancing these sometimes competing rights is a challenge.
The High Court in a case involving residents of Muthurwa in Nairobi gave detailed guidelines on evictions and urged for policy prescriptions to guide the process. The decision led to the amendments to the Land Act to provide for procedure in undertaking evictions.
A review of the Land Act against the manner in which the evictions were done reveals several shortcomings. At the heart of the procedure is the need to ensure that evictions are carried out humanely without violating the rights of those who are being evicted.
This is the reason why the law requires that adequate notice be given, that public officers be present whenever the evictions are taking place, that there is respect for the dignity, liberty and security of the residents. In addition, the rights of the vulnerable, being women, youth and children must be particularly respected.
In the Kibera situation, there was agreement that the evictions would be postponed to allow for enumeration of those involved for purposes of compensation. While this decision was laudable, the fact that the evictions were carried out before the compensation was given defeats logic. The money was useful to the communities to enable them relocate to other places. If you remove them from their shelter before giving them money.
This was evident from the media reports of women and children out in the cold, during the very cold month that July was. In addition, the evictions had negative impacts on education as school going children, including those about to sit national exams were not just evicted from their homes but also schools.
Moving forward it is important that the process of evictions respect the rights of citizens.
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