Forceful evictions are still common in Kenya. This is a process where ordinary Kenyans are forcefully removed and ejected from a certain defined land or settlement area that they inhabit, are identified with and they have a sense of belonging and where their primary livelihood and benefits are derived from. They are strongly denied access to that settlement and land based resources or profit that may be derived from there.

Majority of the victims of forced evictions in Kenya are squatters and poor people who settle on land that legally belongs to another person or institution without the owner’s consent. Affected also are low income people living in informal settlements in sub-standard housing without formal or official tenure rights. The settlements are not in compliance with the relevant physical or land use planning requirements, more especially in urban areas like Nairobi. Forceful evictions have also been carried out in areas gazetted as forest land and other government lands as dwellers of the land are said to have encroached on government land. The sanctity of their title is revoked and labeled as pieces of paper.

These forceful evictions have been done contrary to Article 40(4) of the Kenyan constitution which provides for compensation to be paid to occupants in good faith of land acquired, even to those who may not hold title to the land. Kenya lacks appropriate legal guidelines on evictions and displacement of people from informal settlements and even formal ones, particularly in instances where peasants and low income earners have to be displaced from public or private land.

Forceful evictions in Kenya have always been carried out under two notorious powers of the government, ‘eminent domain’ or compulsory acquisition and the ‘police power’ or development control. Eminent domain or compulsory acquisition is the power of the Kenyan state to acquire any title or other interests in land for a public service subject to prompt payment of compensation. The police power is another power of the Kenyan state deploys to regulate property in land and is derived from the state’s responsibility to ensure that the use of land is not injurious to the public interest. Police power seeks to limit the use of the land in order to protect public welfare from any danger that might arise from its misuse.

These two state powers have raised fundamental constitutional issues among social justice activists. The powers have not been always exercised effectively or accountably. The famous Ndung’u Report on illegal land acquisition defines the doctrine of public interest as revolving around matters touching upon public safety, security, health, defense, morality, town and country planning, infrastructure and general development imperatives. The two powers have been abused or not adhered to. Their processes have never been efficient, transparent and accountable, which is further exacerbated by rampant corruption in the land administration systems at the ministry of lands, housing and urban development, county governments, provincial administration and private developers. These two state powers have extensively been used to settle political scores, to punish opponents, to reward kinsmen and friends or just to grab with impunity, all at the expense of the poor.

Forceful evictions have always been executed using unreasonable and inhumane court orders, demolition of houses under the watch of state administration, burning of houses, burning of food crops in the farms and use of hired armed gangs to evict people living in identified land or settlement. At times these forceful evictions are carried out in the middle of the night, and during the rainy seasons.

For instance in 2010, the government forcefully evicted communities that had settled in the Mau Forest, and in 2011 hundreds of Syokimau residents in Nairobi had their homes demolished after they were said to have encroached on government land. Another eviction was that at Embobut Forest in Elgeiyo Marakwet County where settlers’ houses were torched down and crops in the fields burnt in an exercise carried out by Provincial Administration and Forestry Department. Notorious forceful evictions quite often happen in informal settlements of Nairobi, where burning down of shanties is normally carried out by private developers and with the help of Provincial Administration, undermining further the right to housing.

The consequences of these forceful evictions for years have rendered the poor and low income people homeless. They have lost property and their children forced out of school. They have been exposed to lack of food and ill health as a result of bad weather and increase of internally displaced persons.

We, Kenyans, should know our rights. We should not allow duty bearers to forcefully evict us from what we know is morally our land and homes unless a human rights approach and applicable rules and procedures are followed. It is our right, no matter who owns the house or the land where we live.

Before any evictions squatters and those living in informal settlement are entitled to a full written notice on eviction that will take place, to be involved in a genuine process of consultation before eviction takes place. They have the power to challenge the eviction, demand for the compensation before eviction, demand for alternative for those who cannot provide for themselves and ask for time to collect their possessions and building materials before eviction takes place.

The right to housing does not mean that it is the obligation of the Kenya’s ministry of land, housing and urban development to built houses and dish out land for the entire Kenyan population; rather the right to housing obliges the ministry to take all measures necessary to prevent homelessness, prohibit forceful evictions, eliminate discrimination in access to housing, address the rights of the marginalized and other vulnerable groups, ensure security of tenure for all and ensure every individual enjoys reasonable housing and above all the ministry should put in place legislation, policy and other measures including the setting of standards on how eviction should be carried out safely.

Eviction should also be carried out in the presence of morally upright state officials without unnecessary or unreasonable force to implement eviction processes.

* Julius Okoth is a social justice activist in Kenya with Bunge La Mwananchi Movement

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