Most readers will surely know people who have been flooded out of their homes in the last few weeks.
And those tragedies have been succeeded by another round in the form of evictions of people living in the “wrong place”.
To summarise: people have been, are being, evicted from their homes on the basis of law that is well-nigh incomprehensible and unworkable and “unworked” (or maybe not even on the basis of that law.) This is despite the Constitution and other law that is designed to protect people’s rights to a home.
The law is a mess
The law is full of contradictions, loose ends and things that do not make sense.
The Water Quality Regulations under the Environmental Management and Co-ordination Act EMCA) say no one must develop “within full width of a river or stream to a minimum of six metres and a maximum of thirty metres on either side based on the highest recorded flood level”.
Who has a record of the previous highest flood level? What does “minimum of six metres and a maximum of thirty metres” mean? Someone must fix this for specific places – but this is not made clear. And the Physical and Land Use Planning (General Development Permission and Control) Regulations sets a minimum of 10 metres “from the highest water mark”. Is the minimum six or 10 metres? And is highest water mark the same as “the highest recorded flood level”?
The objective of these regulations is to protect the purity of the water - pretty laughable when one looks at rivers in Nairobi. It is not as Cabinet Secretary Kindiki says “to create resilience for the City of Nairobi to withstand the shocks of climate change and mitigate the loss of lives, property and livelihoods in … future torrential rains.”
What law empowers government to destroy homes so unceremoniously, even cruelly, even if they should not be there? If one is a land occupier, the traditional rule (made by judges not Parliaments) is that one has the right to remove people who have no right to be there. For anyone else to do that would require a specific law. If it is government land, then there would be a right to remove trespassing buildings.
But if buildings have been allowed to remain, then reasonable notice ought to be given that government behaviour is changing.
And removing them must be the point – destroying their property does not remove it. Their property does not cease to be theirs just because it is where it ought not to be.
Think about the situation of those people in, say, Mathare or Mukuru. They may be squatters – in which case they are hardly going to seek confirmation that they are entitled to build there. They may be tenants, in which case it was the responsibility of the landlords (or structure owners) to build where they are entitled to.
The people know they are vulnerable – vulnerable to unaffordable food, increased taxes, medical expenses and so on, as well as to diseases and the abuse of the police and other officialdom. They live where they do because they feel they have no choice. Choosing between school fees and higher rent they chose school fees.
Many will feel their very existence is somehow considered dispensable by government. The Supreme Court put it in the Mitubell case, “Where the government fails to provide accessible and adequate housing to all the people, the very least it must do, is to protect the rights and dignity of those in the informal settlements. The courts are there to ensure that such protection is realised, otherwise these citizens, must forever, wander the corners of their country, in the grim reality of “the wretched of the earth”.”
What does the constitution say?
The constitution does not consider anyone dispensable. A core message is that everyone is equal – in worth and respect - and we ought to strive towards making everyone equal in reality.
For a while, following some good cases in the courts about evictions and the right to housing, we believed that the constitution had really achieved something. But, if anything, government evictions seem to have increased, dramatically.
There is one respect in which our constitution falls short of the South African one. The first official draft constitution (CKRC in 2002) copied the South African provisions and said that no-one could be evicted from their home, or have their home demolished, without a court order. This did not survive the Bomas National Constitutional Conference (too many landowners and not enough vulnerable people).
But the right to housing remains in the constitution. And it has been used in many cases. It is important to realise that it is not the same as the right to property. Again the Supreme Court said, “the Court may craft orders aimed at protecting that right, such as compensation, the requirement of adequate notice before eviction, the observance of humane conditions during eviction … the provision of alternative land for settlement, etc.”
Even if eviction is inevitable it is normal to require reasonable notice. And another Article of the Constitution is relevant – that everyone is entitled to fair administrative justice. This would include decisions to evict people. And among the elements of such justice are the giving of notice to people to be affected.
Kenyan courts have approved a set of UN guidelines about evictions, and in 2016 section 152G of the Land Act was added to reflect those guidelines. It includes evictions must “respects the dignity, right to life and security of those affected”; they must “ensure that there is no arbitrary deprivation of property or possessions”; and “protect property and possessions left behind involuntarily”;
“respect the principles of necessity and proportionality during the use of force”; and give people “the first priority to demolish and salvage their property”.
If eviction is really urgent, then extra care needs to be taken to ensure these principles are observed.
Common humanity
This stands out overall. No-one should need to be told that it is wrong to demolish people’s houses and destroy their possessions before they have had a chance to remove them. Still less should it be necessary to remind anyone – on the basis of the constitution or any other law – that it is wrong to kill someone. Yet people have died because they were trying to rescue possessions from a building about to be demolished – and although bulldozer drivers had been warned of this.
“Who are these people?” one wonders. Not the victims but those who could carry on with bulldozing a building knowing someone was inside. Those who act because some objective seems a good idea without apparently caring whether they have power to do it or not and regardless of the impact on fellow human beings.
A heap of tragedies
A potential disaster in the form of unprecedentedly (or almost so) high rainfall becomes a disaster at least partly because of inadequate preparations, not to mention corrupt decisions like allowing buildings where none are supposed to be, and a tragedy for many individuals who lose their loved ones, their homes, their livelihoods.
And tragedies for the nation. The state of our law that is often riddled with contradictions and confusion – are you there Mr Attorney-General? The holders of public office (by virtue of the constitution) who do not seem to care a whit whether they obey that constitution or have power to do what they are doing. Those who turn a blind eye to clear breaches of the law and dangerous situations, including officials who must have known that flooding risks were created – buildings in informal settlements were there for all to see. Rather like those who remained ignorant (or wilfully blind) to the hundreds of deaths that took place in Shakahola.
It is a tragedy that many in public positions seem to care for their benefits, status and power but not for the people.
And the final tragedy – it will happen again.