THE MUTHURWA RIGHT TO HOUSING CASE: PROGRESSIVE REALIZATION OF ECONOMIC AND SOCIAL RIGHTS?

 

Evictions enlarged

Violent and inhuman evictions

The Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme attempted to violently and illegally evict the residents of Muthurwa estate on 12th July 2010 because it wanted to develop the land on which they lived.

The Registered Trustees of The Kenya Railways Staff Retirement Benefits Scheme had called upon Muthurwa residents to vacate the premises without any regard to their lack of alternative housing.  The Trustees continued to threaten to evict the residents from the premises. They had partially demolished and further threatened to demolish all the houses occupied by the residents for purposes of subdivision and sale of the premises, construction of a commercial business park and other commercial developments without regard to the housing interests of the residents. The Trustees further disconnected water supply and demolished toilets and sanitary facilities as a way of compelling the residents to vacate the premises. The Trustees permitted the construction of dusty roads through the premises to inconvenience the petitioners, cause health risks to them and compel them to vacate.

A large portion of the premises were allocated to the City Council of Nairobi by the Trustees and The Kenya Railways Corporation to construct an open air market unilaterally and in total disregard of its adverse effects on the residents. These actions were done without consulting the residents. The Kenya Railways Corporation and the Attorney General refused to intervene in spite of the residents’ pleas and requests.

Going to Court

On the 28th October, 2010, Kituo, on behalf of Muthurwa residents filed a petition of the enforcement of the right to housing under Article 43(1) (b) of the Constitution and Article 28 – Right to Dignity. The petition was filed against The Registered Trustees of The Kenya Railways Staff Retirement Benefits Scheme, The Kenya Railways Corporation and The Attorney General.

Muthurwa is a huge estate with over 1,000 residents. They could not all go to court at once. It would be too much as they all would be saying more or less the same things to the judge. So 10 persons were chosen to represent the residents. The 10 were chosen by the residents themselves in an open and transparent way. The 10 came to be known as the 10 petitioners.

The other two petitioners are Prof. Yash Pal Ghai and former Kituo Executive Director Ms. Priscilla Nyokabi. They were added as petitioners to strengthen the case as well as to bring life to Article 22 of the Constitution. Also, in case any of the other 10 petitioners came out of the case, the two additional petitioners were to ensure the case would proceed to its conclusion.

In 2011, Kituo Cha Sheria managed to get an injunction restraining the Registered Trustees of The Kenya Railways Staff Retirement Benefits Scheme from demolishing houses, terminating leases or tenancies, transferring or alienating the suit premises or in any other manner evicting the residents from Muthurwa.

Kituo cha Sheria’s requests to the Court:

  • A declaration that the 1st to 10th Petitioners, the persons they represent and their families are entitled to the right to adequate housing as provided for in Article 43 of the Constitution.
  • A declaration that the actions and omissions of the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme violated the fundamental rights and freedoms of the 1st to 10th petitioners, the persons they represent and their families.
  • An injunction restraining the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme, their servants, agents or others acting on their behalf or instructions from i) demolishing houses ii) terminating leases or tenancies ii) transferring the suit premises and iii) evicting the petitioners and the persons they represent from the estate
  • An order that the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme reconnect sewage systems, water supply and toilet facilities to the estate.
  • An order that the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme avail all information relating to the suit premises including decisions (resolutions) of all the organs that authorised the demolition and sale of the suit premises and eviction of the petitioners.
  • In the alternative, a declaration that in the event of an eviction and prior to such eviction the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme shall ensure and provide:

  1. One (1) year notice in writing to the petitioners and all affected persons

 2. An opportunity to challenge the eviction decision and to present alternatives proposals and issues, priority rights   and interests, which shall be incorporated in the final decision.

 3. All relevant information including land records and a comprehensive proposal on the resettlement plan specifically addressing the residents’ rights and all rights of vulnerable persons in advance.

 4. The residents be accorded reasonable opportunity to obtain legal, technical or other professional advice on their rights and interest and other options.

5. Compensation for violation of fundamental freedoms

The Decision

On the 30th of August, 2012, the Courts declared that:

  1. Kenya Railways Staff Retirement Benefits Scheme violated the Petitioners’ rights to accessible and adequate housing contrary to Article 43 of the Constitution but limited to the manner in which the forced evictions from Muthurwa Estate were conducted on or about 12th July 2010.
  2. The AG to consider amendments to the Water Services Act of 2002 to bring it in line with the expectations of Article 43(1) (d) of the Constitution 2010
  3. The AG shall within 90 days of this Judgment file an Affidavit in this Court detailing out existing or planned State Policies and Legal Framework on Forced Evictions and Demolitions in Kenya generally and whether they are in line with acceptable International standards.
  4. The AG shall within 90 days of this Judgment file an Affidavit in this Court detailing out the measures the Government has put in place towards the realisation of the right to accessible and adequate housing and to reasonable sanitation in Kenya as is the expectation of Article 43(1)(b) of the Constitution.
  5. Within 21 days of this Judgment, a meeting shall be convened by the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme together with the Petitioners, where a programme of eviction of the Petitioners shall be designed. The agreed programme shall be filed in this court, in any event within 60 days of this judgment.

 

Further, the judge ordered that at the time of evictions:

  1. Neutral observers should be allowed access to the suit premises to ensure compliance with international human rights principles.
  2. There must be a mandatory presence of Governmental officials   or representatives including Nairobi County officials and security officers
  3. There must be compliance with the right to human dignity, life and security of the evictees
  4. That the evictions must not take at night, in bad weather, during festivals or holidays, prior to any election, during or just prior to school exams and in fact preferably at the end of the school term or during school holidays
  5. That no one is subjected to indiscriminate attacks.

Kenya currently does not have any domestic law that guides the conduct of evictions. Kenya is however party to the International Guidelines and International Human Rights Law which guide evictions. Kenya is therefore obligated to follow these guidelines. The judge in his decision made reference to UN guidelines on evictions (basic principles and guidelines on development based evictions and displacement).

Right to adequate Housing and Forced evictions

The Judge found clear violation of the petitioners’ rights to adequate housing by the Respondents as the forced evictions were carried out in a reckless manner and without following the UN Guidelines on forced evictions at the very minimum.

Children

Acknowledging that “women, children, youth, older persons, indigenous people, ethnic and other minorities, and other vulnerable individuals and groups all suffer disproportionately from the practice of forced eviction”, he concludes that as the eviction took place in the middle of the school term, that the rights of the children have been violated.

What does the judgement mean?

The judgement reminds the AG of his responsibility to ensure that proper guidelines on eviction are enacted.

The judgement is focused deliberately on forced evictions specifically because Muthurwa Estate and income derived therefrom is the lifeline of hundreds of Kenya Railways Corporation pensioners some of whom still have families residing in the estate. Secondly, that the 1st to 10th Petitioners are tenants and one of the petitioners in her evidence had no strong objection to the change of user of the suit premises but desired a more humane progamme of eviction. The decision is balancing the interests of the Muthurwa residents against the vast number of railway pensioners whose pensions must be paid by the Board.

The judgement agreed to the Petitioners request for negotiations with the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme but according to the ruling, the negotiations will be on the specific procedures for the actual evictions, in accordance with the UN Guidelines. They do not, on the face of it, include discussion of the development of the estate with a component of commercial assets and residential facilities for the tenants and pensioners.

Residents will eventually have to leave, but there are steps that have to be followed to ensure the respect of human rights such as adequate notice which will be agreed upon between the petitioners and the respondents.

The Judgement clearly outlines certain timelines within which certain tasks need to have taken place. This needs the watchful eyes and active engagement of both Kituo and the communities.

Possible alternative housing which will again have to be negotiated between the petitioners and the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme.

The judgement requires that the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme and the petitioners agree on an eviction programme to be brought before the judge. This therefore gives the Court a supervisory role in enforcement of the judgement.

Roles and responsibilities of petitioners with regards to the judgement

  • The residents must continue to pay rent to the account given.
  • Continue to cooperate with all parties to the suit. This means that joint meetings will be held between residents and Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme to come up with a way forward to implement the judgement.

Lessons for Kituo

There is need to expand the legal framework for the negotiations. There is much in the judgment which can be drawn upon to show that the framework is and was intended to be broader than focus on evictions. Kituo could also raise the question of alternative housing and the question of commercial cum residential development which will generate funds for the pensioners.

Last , but not least , there needs to be continuous and sustained engagement with the residents of Muthurwa keeping them informed of any progress made and educating them on their rights as negations proceed.

 

Compiled by Aimee Ongeso. Contributions by Jodom Mwebi, Carol Kinya and Maurice Ogosso.

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KITUO CHA SHERIA STRONGLY CONDEMNS THE POLICE BRUTALITY ON THE LANG’ATA ROAD PRIMARY SCHOOL CHILDREN.

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“There is no trust more sacred than the one the world holds with children. There is no duty more important than ensuring that their rights are respected, that their welfare is protected, that their lives are free from fear and want and that they can grow up in peace.” – Koffi Annan

It is extremely unfortunate that men and women who are entrusted to protect not only children but the public in general, betray this trust, violate children’s rights, fail to protect young minds and instead instill wanton fear among
The whole country watched in utter shock and disbelief as the Kenyan Police, with impunity, hurled teargas canisters at innocent young children on Monday, January 19th, Lang’ata Road Primary School as they demonstrated against the grabbing of their play ground by an alleged private developer. The action was not only cruel and barbaric but archaic to say the least.
Article 53(1) (a) of the constitution states clearly that every child has the right to be protected from abuse, all forms of violence, inhuman treatment and punishment, among others. It is very sad that those in the society tasked with the responsibility of protecting these rights, turned against the very people who they are supposed to protect.
We stand by the children in ensuring that justice is granted to them. All the police officers who were involved in this heinous acts must be made accountable for their acts and disciplined accordingly. It is not only legally wrong that the police used excessive force during this protest but it is also immoral that they did so to innocent harmless children. We want to remind the police service that it is their duty to uphold order and respect for the rule of law so as to maintain the fabric of our society.
The children, noble citizens of this great country, were exercising their Constitutional right to assemble, demonstrate, and picket as provided for under Article 37 of the Constitution. Furthermore they were safeguarding and protecting their property and by extension their environment, both rights which are deeply enshrined in our constitution.
Kituo reminds the Police and by extension the citizens of this country- ‘private developers’ included, that the right to education as provided for in Article 43 of the Constitution does not only stop at children attending class but also when they participate in co-curricular activities in order for them to develop socially, emotionally and physically. Play is crucial to optimal child development and has been recognized by the United Nations High Commission for Human Rights as a right of every child. Denying them this is an infringement to their right which is unacceptable.
To the purported developers who have a high affinity for public land, especially that belonging to public institution, Kituo is putting them on notice. We are telling them that it is wrong to grab land belonging to institutions and they should desist from this vice. Play is integral to the academic environment. It ensures that the school setting attends to the social and emotional development of children as well as their cognitive development. We shall endeavor to protect this at all times.
We appreciate the fact that government has strongly come out to condemn the act and to apologize. But we are saying this verbal apology alone is not enough if disciplinary measures shall not be taken against all those who are culpable.
Kituo Cha Sheria will ensure that the truth is revealed and justice granted to these innocent pupils, who were physically injured during the demonstration. We will seek legal redress should the government fail to act and grant justice to the victims of the mayhem. We fully support the Law Society of Kenya and truly wish them all the best as they endeavor to unravel the truth. We guarantee them our support.

 

Gertrude Angote- Executive Director, Kituo Cha Sheria.