COHRE Housing Rights Update Kenya 2009

KENYA HOUSING RIGHTS UPDATE

Hakijamii Trust

January 2009

Commentary

The National Land Policy should be adopted without further delay Following the formation of the Grand Coalition Government early in 2008, Mr. James Orengo was appointed the new minister of lands. A renowned reformist with an enviable track record, the new minister began his assignment with admirable enthusiasm. Having been part of the team that negotiated the National Reconciliation Accord where land was identified as one of the key factors that led to the post-election violence, he was clearly well suited for the job.

In a meeting with several civil society organizations the new Minister assured them that one of his main priorities would be the immediate adoption of the Draft National Land Policy by the cabinet and subsequently by the National Parliament. It is now almost eight months since then and nothing seems to have been done. Instead it would appear that the Government has allowed itself to be held hostage by a small but powerful group of anti-reformers under the guise of seeking further consultations.

The Government must call off this latest bluff by these forces whose only agenda is to maintain the status quo which serves their vested interests. All their arguments have been robustly rebutted as they lack any merit both in terms of substance and process.

Kenyans are fully aware that the land policy making process was made open to all the interested parties.

Those who opted to stay away cannot now turn around and claim to have been excluded. No policy anywhere in the world ever seeks to solve all the problems being addressed. A policy should be judged by the extent to which it provides a civilized framework within which such problems can be solved. The Draft National Policy fully satisfies this requirement. A nation cannot indefinitely spend its time discussing policy proposals.

Minister of Lands, Mr. James Orengo A time must come when the first decisive step has to be made if any progress is to be achieved. With respect to land, that time is now! That is why we are calling on Minister James Orengo to move with speed and have the policy formally adopted so that we can begin to move to the next stage. The Draft National Land Policy deals with far too serious issues to be left in the hands of a few, even if rich individuals. The country needs to have a set of principles so that we can comprehensively deal with issues like slum upgrading, eviction guidelines, proper administration of public land, addressing access to land by the poor, women and other vulnerable groups.

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The National Taskforce on development of eviction guidelines fails to meet In our last issue we reported that the Task Force on the development of a guideline on forced evictions was scheduled to resume its meetings before the end of the month of July 2008. This proved to have been overly optimistic as no such meeting took place up to the end of year. While there is, to date, no firm evidence that the Government has reneged on its promise on developing the guidelines, the slow pace in the work of the Task Force is a cause for serious concern. Incidents of forced evictions continue to be reported throughout the country as demonstrated in this issue. Indeed the raging controversy over the Mau forest matter and the Nairobi River clean up plans are

Victims of an eviction living in a makeshift structure very clear testimony to the urgent need to come up with such guidelines.

It is our hope that the new chairperson of the Task Force will move with speed to convene a meeting so that work can restart on this most important area.

Kisumu Social Rights Association (KISORA) meet councillors over eviction guidelines In a ground-breaking development, residents of people’s settlements in Kisumu town organized two highly successful consultative meetings with the Kisumu municipal councillors. The meetings were held under the auspices of Kisumu Social Rights Association with the support from Hakijamii, COHRE and Shelter Forum. It was the first time that a community group was able to convene a meeting with key local government officials in the town and is testimony to the growing confidence and capacity of KISORA. The two meetings were principally aimed at discussing concrete ways of developing by-laws that would govern evictions within the municipality. The Council had developed some commendable draft guidelines in 2005 but they were never adopted. The meetings also discussed practical ways of involving the grassroot community groups in the decisions being made by the council.

The first meeting was held on the 19th of November 2008 and attended by fifteen councillors and KISORA members. The second meeting was held on the 8th

December 2008 and attended by 44 participants including thirty councillors. After the two meetings the following resolutions were made: • That a further stakeholder meeting involving the councillors, the technical staff to the council and civil society organizations be held in early February 2009 to approve the municipal draft evictions.

• That the final draft be presented and approved by the Council by end of April 2009.

• That after the adoption of the guidelines a city wide awareness campaign be conducted involving the public launch of the by-laws, the holding of a symposium and sporting activities as well as radio talk shows to popularize the guidelines.

• That a Task Force be formed to oversee the implementation of the action points. (The Task Force was formed consisting 11 members.)

This is indeed a significant step and it will be very encouraging to see how the process moves as it would set a precedent for other local authorities.

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Civil Society submits Shadow Report to the Committee on Economic, Social and Cultural Right In a commendable demonstration of collaboration, several civil society organizations jointly developed and submitted a shadow report to the Committee on Economic, Social and Cultural Rights at its 41st session when it, for the first time, considered Kenyan Periodic Report. COHRE and Hakijamii were among the organizations that actively contributed to the Report.

Some of the key areas highlighted in the report included the issue of slum upgrading, the right to water, social security and forced evictions.

In its initial concluding observations the Committee categorically recommended that the Government should address the disparities in the enjoyment of economic, social and cultural rights, including access to land, which particularly affect poor people in urban areas and minority and indigenous communities in rural areas, for example, by adopting the Draft National Land Policy, establishing land inspectorates to monitor discriminatory allocation of land, and implementing the recommendations of the Ndung’u Commission of Inquiry into Illegal/Irregular Allocation of Public Land.

affordable access to adequate water and sanitation in informal settlements and arid or semi-arid areas by reducing waiting time for collecting water, adequately controlling prices charged by private water services and water kiosks and connecting Kibera to the Nairobi city sewage system.

On slum upgrading, it called on the government to ensure that such projects give priority to the construction of social housing which is affordable for the disadvantaged and marginalized individuals and families and that affected communities are consulted and involved in the planning and implementation of such projects.

It is now up to the civil society groups and other actors to closely monitor the implementation of these far-reaching recommendations. It will be vital to do consistent follow ups continuously with the Committee.

On forced evictions, the Committee recommended that the Government should to “consider including a provision in its new draft Constitution to ensure that evictions are only used as a last resort, adopt legislation or guidelines strictly defining the circumstances and safeguards under which evictions must take place, in accordance with the Committee’s General Comment No. 7 on forced evictions (1997), and ensure that each victim of forced evictions is provided with adequate alternative housing or compensation and that he or she has access to an effective remedy”.

On the right to water, the Committee recommended that the Government should take immediate steps to ensure

Hakijamii had an occasion to present a parallel report to the UN committee on Economic, Social and Cultural Rights during its 41st session in Geneva, at the Palais Wilson Centre on two areas; Right to housing and water and Social security. Elijah Odhiambo (Programme officer Hakijamii), Mr. Philippe Texier Chairman of the UN-Committee on Economic, Social and Cultural Rights and Monica Otieno (Nairobi People’s Settlement NetworkCommunity partner of Hakijamii) pose for a photo after the presentation.

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COHRE and Hakijamii spearhead efforts towards a concerted right to water advocacy Access to water and other basic services remain one of the major problems in most of the poor urban settlements. The water sector has witnessed a number of reforms. Unfortunately the participation of the affected people in these reforms has been minimal.

Part of the reason for this has been the absence of a well coordinated civil society platform to articulate the emerging issues and facilitate the active involvement of the grassroot groups. It is as a result of this that COHRE and Hakijamii have initiated an inclusive process to bring the main civil society actors not only to speak with one voice but also to be better articulate the key human rights issues with regard to water.

A strategy meeting bringing together such leading organizations like SANA (Kisumu), Maji na Ufanisi, Pamoja Trust, Umande and grassroot representatives from Kisumu, Mombasa and other areas was held in Nairobi in December 2008. The meeting came up with a clear framework that is intended to assist the civil society groups to enhance their common engagement

Nairobi Peoples’ Settlement Network celebrates the 60th Anniversary of UDHR On the 10th of December 2008 at Kariokor Social Hall, Nairobi, the Nairobi Peoples’ Settlement, which has emerged as one of the leading grassroot human rights’ advocacy groups in the country, organized a colourful celebration to mark the 60th anniversary of the UDHR. It was the third time

Access to water and other basic services remain one of the major problems in most of the poor urban settlements in ensuring the national right to water advocacy at various levels. Obviously this will strengthen the voice of the people as well as providing a more coordinated approach to macro policy issues. The forthcoming constitutional review process provides a very good opportunity for this new network to actively lobby for the inclusion of the right to water in the new Constitution

that the group was organizing the event. The uniqueness of the celebration lies in the fact that it is an event which is exclusively organized by the people themselves as opposed to many others that are usually organized by NGOs. The theme of the 2008 celebration was the demand for members of Parliament to pay tax as a way of demonstrating their commitment to uplift the livelihoods of the poor. Participants also called for the expansion of the slum-upgrading program to include provision of basic services to the peoples’ settlements and the urgent adoption of the eviction guidelines.

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Mr. Opiata of Hakijamii (extreme left) with other key speakers at the Meeting

ESCR-NET General Assembly and Strategy meeting takes place in Nairobi The International Network on Economic, Social and Cultural Rights General Assembly and Strategy meeting was held in Nairobi between the 29th day of November 2008 and 4th of December 2008. It brought together over 250 human rights advocates and representatives of social movements from all over the world. The meeting was officially opened by Professor Yash Ghai, a renowned Kenyan constitutional and human rights lawyer and academic. It was closed by Ms.Ige Tokunbo IGE, Senior Human Rights Adviser UN Resident Coordinator’s Office, Nairobi, Kenya.

Among those in attendance included Miloon Kothari, the former UN Special Rappoteur on the right to housing, Ms Magdalena Sepulveda, UN Special Rapporteur on Extreme Poverty, Mr. Bruce Porter of Social Rights Advocacy, Ms Aye Aye Win of Dignity International, Michelle Kagari of Amnesty International Ms Muthoni Wanyeki Executive Director of Kenya Human Rights Commission and Mr. Salil

Booker the Executive Director of COHRE. The conference was jointly organized by the ESCR-NET and the Kenyan Coalition on Economic and Social Rights under the coordination of Hakijamii.

Key outputs of the meeting included the formation of a national Kenya social movement with the support of Ford Foundation. Malcolm Langford from Hakijamii was also active in assisting the Adjudication Group to develop a plan of action that would see lawyers and social movements working together on a number of projects. Among organizations that supported the meeting were Ford Foundation, Cordaid, ICCO and Action Aid. The conference was a great revelation to many Kenyan organizations that had the opportunity to share and learn critical lessons on the emerging issues on economic and social rights.

Participants at the ESCR-NET Meeting

Prof. Yash Ghai who officially opened the meeting

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Eviction Watch Cases or threats of forced evictions continue to be reported from all over the country. Some cases that will be requiring close monitoring include:

Mau Forest A Task Force was appointed by the Prime Minister to determine the identity of genuine squatters and come up with concrete recommendations of how to deal with this matter. Its mandate has since expired and its report is yet to be made public. What has however emerged is the fact that the issue has been so politicized that it is highly doubtful whether the work of this Task Force, however objective, will have any positive effect. It is clear that it was certainly unwise to create a Task Force to deal with this specific case before developing national eviction guidelines. It is precisely as a result of this grave omission that it has been possible for opportunistic politicians to make the Task Force look suspect. The development of eviction guidelines is a fairly straight forward matter and if Parliament can make constitutional changes in one day, there is absolutely no reason why we cannot have such guidelines developed and signed into law in a day. Over to you Honourable James Orengo, the Minister of Lands!

Usoma - Kogony, Kisumu The Usoma-Kogony case reported in our last issue appears to moving towards some amicable settlement.

This follows the agreement by the Government to look afresh at the claims of the residents and pay compensation. Reports from the ground indicate that the most vexing problem that now awaits resolution is the ascertainment of the genuine beneficiaries. This is a typical problem in such cases as opportunists will always emerge whenever the issue of compensation arises. The Kogony Council of Elders and the Kisumu Social Rights Association, (both of which are partners of Hakijamii) are working round the clock to ensure that only genuine beneficiaries get the compensation.

We also applaud the Government for accepting to hold consultations with the community as opposed to the initial arrogant attitude of some of the officials.

The fact is, it is the obligation of the Government to ensure that people who are displaced as a result of such projects are adequately and timely compensated.

It is not a favour but a right.

The encroachment of Mau Forest

Dam Village, Nairobi In May 2008, we reported the partial eviction of residents of Dam village. To date it has remained a mystery as to why they were evicted. If there was indeed a valid court order why has not the legitimate owner continued with the exercise and cleared the entire area? The pattern of evictions in the country is clearly worrisome. Most are done with great fan fare but immediately those engaged in the evictions are challenged by the residents they disappear as soon as they appeared. It is about time the Kenya National Human Rights Commission showed equal enthusiasm in pursuing these eviction squads as they have in other cases of violations. As a matter of fact we would want to see the Commission beginning to get more involved in the violation of economic, social and cultural rights than has been the case to date.

Mukuru Sinai, Nairobi In our last issue we reported the plan by the Kenya Pipeline Company to evict more than 15,000. After many protests and petitions the matter seems to have cooled off. We urge the Pipeline to open genuine negotiations with the residents with a view to finding an appropriate relocation plan and or compensation.

People cannot just be rendered homeless because of “risk to their lives�. Indeed it is our hope that the Pipeline will consult with the relevant Government Ministries to provide them with relevant legal advice on how such relocation should be done. .

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Deep - Sea Residents Petition before the Kenya National Commission Suffers a set-back The petition filed by the Deep-sea residents who were evicted in 2005 before the Kenya National Human Rights Commission suffered a temporary setback when the Commission ruled that it could not hear the matter as the same was still pending in court. Hakijamii, which had assisted the community to file the petition, was of the strong view that the Commission could properly investigate and determine the 2005 eviction without violating the sub judice rule because the two matters are quite separate. The High Court had ruled the eviction to have been unlawful. This was the basis of the community complaint. The Commission was not convinced but agreed that it would look at the matter afresh if it was furnished with the entire court proceedings. Hakijamii is now putting together all the court proceedings to take to the Commission in order to convince it to adjudicate on the matter on merit.

Three Organizations team up to petition the Government on the plans to move over 120,000 residents of Nairobi slums COHRE, Hakijamii and Amnesty International are planning to formally petition the Government over the plan to evict over 127,000 slum dwellers living along Nairobi, Ngong’ and Mathare rivers. The three organizations are deeply concerned that unless the plan is properly thought out and executed, it will result into a case of forced eviction. They are particularly apprehensive that, given the past record by the Government, no serious effort is being made to ensure that the international standards, to which the government has repeatedly committed itself, are adhered to. The petition is the first step towards what is a intended to be a broad-based campaign involving more civil society organizations to call on the government to abide by its international human rights’ obligations.

Settlements along the Mathare River

Slum Upgrading Kibera The decanting site in Kibera for the Soweto slum upgrading project has been complete for almost one year now. There is however very little signs that the first group that is supposed to be move there will be doing so any time soon. What could be the problem?

The longer the process takes the more speculation there is going to be.

The Government should now come out unequivocally to state the precise plans it has for this exercise and submit them for comment to the residents of Soweto. It really does not matter whether other actors will disagree with such plans but it behoves of any responsible government not to fear moving ahead with what it sincerely believes is right unless there is something that the public is not being told. Ultimately governing is about making and implementing decisions.

Procrastination is more dangerous than moving ahead and listening to criticism accepting mistakes and then correcting them in good faith.

Mathare Residents evicted to give way for road In mid December 2008, an estimated 2000 people were forcibly evicted from Cluster D, Mathare for the widening of a road through the settlement.

Homes and businesses were demolished without prior consultation, adequate and reasonable notice, or other due process safeguards. No alternative accommodation or compensation was provided.

The absence of clear information on the proposed evictions continue to create considerable insecurity in many slum communities..

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STOP PRESS: Government resettles over 15,000 squatters The Government is currently resettling about 18,000 squatters in 15,000 acres of land bought at a price of Kenya Shillings 525 million. The squatters were evicted from Mt. Kenya and Aberdare forests.

They had been living on roadsides for about 19 years. While this is certainly a good gesture it nevertheless raises a number of questions. First of all it has taken the government almost 20 years to resettle just about 18,000 families. There are hundreds of thousands of such people across the country who are waiting to be resettled. How long would it take the government to do so? Secondly, if the government is going to resettle evicted people by purchasing land from private land owners, will it have enough resources? Why has the government failed to implement even a portion of

the Ndungu Report which clearly demonstrated that there is a lot of public land which ought to be repossessed by the government without a single penny being paid? Indeed this particular transaction has almost exhausted the entire budgetary allocation to the Ministry of Lands meant for this purpose. Finally there are reports that ‘fake squatters” have been added to the list of the genuine ones. It is abundantly clear that if the government is really committed to resettling the landless a bold policy intervention coupled with resolute political commitment and clear and transparent guidelines must be developed and urgently implemented. The starting point is obviously the Draft National Policy which is running the risk of being blocked by the vested interests of a few private land owners. Piecemeal and episodic interventions such as the current resettlement process will simply not do and are not clearly comprehensive indications of a government that is committed to decisively dealing with the endemic and historical land problem in the country. The Kenyan people expect and are entitled to expect more serious and coordinated initiatives.

Night Eviction at Maasai Village

This publication was supported by COHRE and Misereor.

Centre on Housing Rights & Evictions (COHRE) 83 Rue de Montbrillant 1202 Geneva Switzerland Tel: +41 22 734 1028 Fax: +41 22 733 8336 Email: kenya@cohre.org Web: www.cohre.org/kenya

Hakijamii Trust Economic and Social Rights Centre Golfcourse Commercial Centre Kenyatta Market, Nairobi P O Box 11356, 00100 Nairobi Tel: +254 (0) 20 2731667 Fax: +254 (0)20 2726023 Email: esrc@hakijamii.com Web: www.hakijamii.org/kenya

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Design: Peter Wambu

On the 22nd day of December 2008, as many people were enjoying their sleep and thinking Christmas, residents of Maasai village were awakened to the sound of bull dozers. They were another victim of the inexplicable action by the Nairobi City Council authorities. When the sounds of the bulldozer stopped, over 1,000 were left homeless.

It was later to emerge that no official agency could own up to this beastly act. The Provincial administration, a common suspect in many such evictions, confessed ignorance. Even though the residents were later allowed to rebuild their structures with support from the local Catholic Parish, a number of questions remain unanswered: who ordered the eviction? What action will be taken against those involved? Will the City Council compensate the victims for the loss suffered? Indeed who will guard the guardians? These have become typical questions in all such evictions and it is probably time that the perpetrators were brought to account? We hope the Kenya National Human Rights Commission will reactivate its eviction program and provide remedies to the poor residents of peoples’ settlements.