Step up access to adequate housing, Supreme Court tells State

The Supreme Court Friday faulted the government for the slow progress in implementing citizens’ right to accessible and adequate housing, as it awarded 340 Nairobi squatters Sh85 million for illegal eviction from a three-acre piece of land seven years ago.

Each of the squatters will receive Sh100,000 from the government and Sh150,000 from Moi Educational Centre (MEC) for the forced eviction from two informal settlements within Nairobi under the watch of armed police officers.

The squatters were inhabitants of City Cotton and Upendo villages and their eviction was to create space for the expansion of the privately owned by MEC.

In the landmark ruling by a five-judge bench, the apex court faulted the government for slow implementation of the right to accessible and adequate housing, as provided for under Article 43 of the Constitution.

The judges said there should be continued concerted efforts by the State in the progressive realisation of these rights and therefore. It said the State should take deliberate steps, both immediately and in the future, towards the full realisation of the rights.

“It is indeed a sad state of affairs that 10 years into promulgation of the Constitution, the State still seeks to rid itself of its mandate and obligations by hiding behind the perceived inconsistencies sometimes presented in the Constitution, and in the present context, the provisions of Article 21(2) of the Constitution, and to abdicate its role in ensuring that Article 43 rights are realized,” said the Supreme Court.

The bench comprised Deputy Chief Justice Philomena Mwilu and Justice Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola.

They stated: “The State has to take a more drastic and purposive approach to its mandate and obligations in ensuring that the rights to the people of Kenya are not violated, or in the very least, that these rights are not deprived or denied. We say no more.”

Progress made

The judges, however, observed that the State has taken several steps, such as policy structures and legislative formulation, to address issues of land and housing.

“Although the State may seem to be at the forefront in the realization of Article 43 rights, more is yet to be done, especially in the realization aspect. As for the enforcement of these rights, nothing much can be achieved if the legislative and policy processes are still at the nascent stage,” said the judges.

They noted that policy and legislative formulation and lack of adequate resources have been the reasons given by the State in the realization of Article 43 rights (economic and social rights).

In listing the steps taken by the State, the apex court observed that in October 2009, the Lands ministry formulated the Eviction and Resettlement Guidelines, which provided that forced evictions were not only illegal and unjust, but also counterproductive to economic growth and development.

The guidelines also provided insights and procedures on how to deal with the issue of evictions and resettlement by the State, noting that the State was under an obligation to provide alternative resettlement to those that had been evicted.

Further on, in 2012 a Bill was presented in the National Assembly titled the Evictions and Resettlement Procedures Bill No.44 of 2012. The Bill has never gone past the first Reading – on September 12, 2012.

The Senate also introduced the Preservation of Human Dignity and Enforcement of Economic and Social Rights Bill No.27 of 2018.

The Bill proposes that each County should have an integrated development plan and to establish mechanisms to monitor and promote adherence to Article 43 of the Constitution. It has not gone past the 1st Reading – on September 25, 2018.

“These may be just some of the few, if not only, legislative and policy structures that the State has sought to come up with in the past few years,” said the judges.

"Warning" to developers

The petition filed by the squatters through Katiba Institute also sought to interrogate and contrast the obligations of the State and those of private citizens, to observe, respect, protect, promote or fulfil constitutional rights, more specifically the rights to dignity and adequate housing, and the rights of children and older persons.

The court declared that the demolition of the squatters’ houses and their forced eviction by MECand the police, without a valid court order, was a violation of their fundamental right to inherent human dignity.

It was also a violation of the right to security of the person, accessible and adequate housing guaranteed in the Constitution, and the rights of children and elderly persons.

The bench overturned a decision of the Court of Appeal to deny the squatters the damages which they had been awarded by Judge Mumbi Ngugi in 2014.

The squatters settled on the land in 1968 and constructed semi-permanent houses, business structures. 

They had also been supplied with social amenities and services such as water and electricity, and the government had also licensed them to operate businesses on the suit property

Lawyer Dudley Ochiel, for the squatters, welcomed the judgment, terming it a warning to private developers and government agencies who undertake forced evictions.

"This is the clearest statement ever from the Supreme Court that the culture of forced evictions in Kenya must come to an end, especially in informal settlements. The Supreme Court's award of damages is a warning to private developers who undertake the evictions" said Mr Ochiel. He appeared in the case alongside lawyers Mbugua Mureithi and Emily Kinama for the squatters.

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