Eviction of families was epitome of human rights violation

Friday, February 5, will go down in history as a dark day in Kenya.  In the middle of the night, 3,500 households were evicted from their homes in Kibos Kisumu by the Kenya Railways Corporation.

The community had lived there for more than 80 years. The Kibos-Nubian land is their ancestral home. They were inhumanely evicted despite a court order protecting their right to live on that land. Businesses, schools, places of worship including a mosque built in the 1930s were not spared.

If there was a list to shame government agencies that violate human rights Kenya Railways would top. They not only ignored a court order but evicted people in the middle of the night. These evictees include children who have been left homeless, women who spent cold nights with no shelter, men who could not do anything to protect their families, the elderly who are so vulnerable that the demolitions exposed them to more vulnerability.

Mu?ammad al-Bouazizi was a Tunisian street vendor who set himself on fire on December 17, 2010, which became a catalyst for the Tunisian Revolution and the wider Arab Spring against autocratic regimes. His self-immolation was in response to the confiscation of his wares and the harassment and humiliation inflicted on him by a municipal official and her aides. Simmering public anger and sporadic violence intensified following Bouazizi's death, leading the then president of Tunisia, Zine El Abidine Ben Ali to step down on January 14, 2011, after 23 years in power.

The Nubian community is a minority and marginalised group in Kenya. Demolishing homes that were more than one kilometre away from the railway line that is purportedly being “upgraded” beats the essence of development.

The Kibos Nubian village was away from the 30-30 metre buffer that has been set by the corporation for purposes of safety and utilisation of the railway line service. The demolitions were malicious, a violation to the very public that pays taxes to keep Kenya Railways afloat.

At this point in time, Kenya Railways should be held in contempt of court and penalised for the same. If the financing of the SGR railway that occasioned the forced evictions is from a foreign country the same should be stopped due to the violations that the monies have caused.

We cannot normalise homelessness occasioned by ignoring court orders. There is no need for bloodied development that occasions death. That is not the essence of development.

The Supreme Court on January 11, 2021, clarified that the right to housing in its base form (shelter) need not be predicated upon “title to land”. The court acknowledged the inability of many citizens to acquire private title to land. 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 informal settlements.

The right to housing over public land crystallises by virtue of a long period of occupation by people who have established homes and raised families on the land. This right derives from the principle of equitable access to land under Article 60 (1) (a) of the Constitution. Faced with an eviction on grounds of public interest, such potential evicts have a right to petition the court for protection.

The protection, need not necessarily be in the form of an order restraining the State agency from evicting the occupants, given the fact that, the eviction may be entirely justifiable in the public interest. But, under Article 23 (3) of the Constitution, 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 (United Nations Guidelines), the provision of alternative land for settlement. With this pronouncement, Kenya Railways ought to have respected the court orders until alternative resettlement is identified for the community. 

The author is Pauline Vata, an advocate of the High Court of Kenya