Mass evictions in the context of COVID 19: Has the Government of Kenya contravened International Law?

By Anita Nyanjong

Perhaps one of the most chilling effects of the COVID-19 global health pandemic is the erosion of the gains made in the advancement of human rights. Evidence of a decline in human rights is occurring in many jurisdictions around the world, Kenya included. One of the more recent chilling events is the forcible eviction of more than 8,000 residents of Nairobi's Kariobangi Sewerage Farmers Slum, Korogocho Market, Kisumu Ndogo and Nyayo village. The resident of these slums were forcibly evicted from their homes on the 4th of May for allegedly illegally occupying public land. Despite the residents obtaining a court order from the Environmental and Lands Court, halting all evictions in respect of these slums, the Nairobi City Water and Sewerage Company in the wee hours of dawn, forcibly evicted the inhabitants and allegedly tore up the court orders presented to them by the slum dwellers. Approximately 600 homes were razed by bulldozers, families were separated, schools and churches demolished, and children, women and the old slept in the cold Nairobi nights, vulnerable to COVID-19.

Indeed, Kenya's history is replete with incidents of forceful , mass evictions particularly against those believed to be occupying public land. The absence of a secure land tenure system, a vital necessity in securing the right to adequate housing, is a significant cause of the forcible evictions. Further, corruption within the land sector has exacerbated the problem, with  powerful personalities  acquiring illegal properties, such as public land and  forest reserve areas. Previously, these powerful networks colluded with land registry officials and issued valid title deeds to unsuspecting buyers. Although the law requires compensation to buyers, especially when the government is acquiring property for public use, those who have valid legal titles in areas previously designated as public land do not fall within this category. Consequently,  many forcibly evicted dwellers are left destitute and homeless, without any recourse to legal remedies.

While the government of Kenya might argue that the current evictions are and meant to reclaim Government land the circumstances of their execution leave a lot to be desired. At the heart of the Constitution of Kenya and the Bill of Rights is the right to adequate housing. This right, elucidated in Article 43 (1) (b) provides that every person in Kenya has the right to accessible, adequate housing including a reasonable standard of sanitation. This right requires Kenya to put in place measures to ensure that all citizens enjoy this right, and any measures that curtail citizens’  enjoyment of this right is against the Constitution. It is also inconceivable that the Government of Kenya would have any justification for carrying out evictions within the densely populated slums and still have an expectation of combatting the COVID-19 deluge.  Globally, recommended procedures of combatting the transmission of COVID 19 require social distancing, hand washing, self-quarantine, or isolation. These requirements are not easily met in many informal settlements in Kenya due to overcrowding and lack of access to running water. Inevitably, those currently evicted from the informal settlements are likely to suffer irreparable harm and exposure to COVID 19 virus, without the provision of alternative accommodation.

The United Nations Special Rapporteurs on adequate housing and on the situation of human rights defenders in May this year, urged Kenya to halt all evictions during the COVID-19 crisis and to protect the safety of human rights defenders working to protect the rights of those evicted. The Special Rapporteur, while reminding Kenya of its obligations under international law, called on Kenya to guarantee the rights to adequate shelter, food, and clothing to those evicted and find a long term plan to address the perennial problem of forced evictions.  Indeed, this is not the first time that the UN has raised concerns about Kenya with regard to forced evictions. In July 2018, UN human rights experts condemned the  Government of Kenya for the massive evictions of residents of the expansive Kibera informal settlement. During that time,  approximately 30,000 people were rendered homeless and schools were razed to the ground, leaving more than 2000 children without schooling, and scores of others without access to food, water,  housing, security not to mention the mental trauma that accompanies such an immense loss. Today, there are news reports of impending evictions in middle-class neighbourhoods in Kenya, where the Kenya Forest Service has alleged encroachment and is now threatening to evict more than 20,000  homeowners occupying land adjacent to the Ngong Forest.

Kenya has a stellar record regarding ratification and domestication of regional and international treaties. The International Covenant on Economic Social and Cultural Rights, as well as the African Charter on Human and Peoples' Rights, call for restraint in the execution of forcible evictions. These laws require that no one is rendered homeless or vulnerable to other forms of human rights violations as a result of the evictions. Further, The UN Basic Principles and Guidelines on Development Based Evictions and Displacement call upon Governments to conduct any evictions in a manner that respects the rights and dignity of people. This guiding framework notes the timeframe for carrying out evictions, which must not be carried out at night, as is the practice in Kenya, nor during bad weather. Further, evictees must be provided with adequate notice of any impending evictions. The Government of Kenya did not meet these requirements for the evictions of residents of the Nairobi Slums. It is more concerning that these evictions were done in the COVID-19 context when most have lost their means of livelihood; the consequences for their human rights is catastrophic.

The Government of Kenya has violated international human rights law and humanitarian law by forcibly evicting residents of the Korogocho Market, Kariobangi Sewerage Farmers Farmers Slum, Nyayo village, and Kisumu Ndogo. International law requires evictions to be conducted in exceptional circumstances, and full justifications be provided when carried out. International law lays a framework for carrying out evictions and notes that evictions must be authorised by law, carried out in accordance with international human rights law, undertaken for the promotion of the general welfare, reasonable and proportional, and those evicted are compensated, and carried out in accordance with the UN Basic Principles and Guidelines on Development Based Evictions and Displacement. It appears, that the justification provided by the Government of Kenya does not meet these criteria and therefore actions leading to the evictions of the slum residents are in serious violation of their human rights and international law.  

Anita Nyanjong is a  Doctoral Candidate at the Center for Human Rights at the University of Pretoria. Her research interests include feminism and justice. She is also the Regional Coordinator for the Eastern Africa Child Rights Network. Twitter @AnitaAchieng