Evictees Awarded Over 200 Million Shillings As Damages For Violation Of Their Rights
December 1, 2011
By Nelson K. Tunoi, Advocate
Ibrahim Sangor Osman & 1,122 others v The Minister of State for Provincial Administration and Internal Security & 10 others  eKLR Constitutional Petition No. 2 of 2011 High Court at Embu A O Muchelule, J.
November, 16 2011
“…the petitioners were entitled to adequate information on the reasons of the proposed evictions and the alternative purpose the subject land was to be used had to be indicated, and the said information be given in accordance with article 35, which guarantees the right to information. The evictions were then supposed to be carried out in a manner that respected human dignity, right to life and the security of the affected…”
The High Court (Muchelule, J.) has awarded a global sum of Kshs. 224,600,000/= to 1,123 ‘Medina Evictees’ (petitioners) as damages following their eviction from unalienated public land within the jurisdiction of the Municipal Council of Garissa (2nd respondent). The court also declared that the petitioners’ fundamental rights as outlined in their petition had been violated by virtue of the eviction from the alleged public land and the consequential demolition of property by the respondents.
The petitioners had occupied the subject land since the 1940’s, initially as grazing land but in the 1980’s they put up permanent and semi-permanent dwellings in which they were living prior to eviction. Sometime in December 2010, the Garissa District Commissioner, in the company of administration police and some unidentified youth informed the petitioners that they had come to prepare the grounds for the construction of a ring-road and warned that any homestead that fell along the road would be demolished. They proceeded to mark the area where the purported road would pass. There was no further communication from the relevant authorities and the petitioners’ attempts to seek audience with them regarding the scheduled eviction and demolition became futile.
About three weeks later, a group of armed administration police officers in riot gear and unidentified youth arrived in the area under the command of the Garissa Central District Officer, and proceeded to demolish some of the houses and structures erected on the purported Government Land. The ‘demolition squad’ returned a second time under the authority of the Deputy Mayor of the Municipal Council of Garissa and continued with the exercise. The petitioners’ attempt to resist the eviction was violently crushed by the police.
It was established in court that no written notice was served on the petitioners, the respondents had no court order and they did not engage the petitioners in any consultation or explanation. It was submitted that too that a total of 149 houses and structures were demolished and the petitioners were forced to live in make-shift temporary structures, exposing them to elements and vagaries of nature, health risks, insecurity and lack of basic human necessities such as food, water and sanitation. Several children dropped out of school as their parents had to seek alternative accommodation elsewhere. The petitioners had sought audience with the relevant authorities following the eviction but all was in vain.
The petitioners consequently filed a petition before the High Court seeking several declarations and orders, among them, that the forcible, violent and brutal eviction through the demolition of their homes without according them alternative settlement was a violation of their fundamental rights enshrined under the Constitution and that the respondents be permanently restrained from evicting the petitioners without provision of alternative shelter mutually agreed upon with the petitioners. The alleged violations of the fundamental rights in the petition included the right to life (Article 26), right to inherent human dignity and security of the person (Articles 28 & 29), right to access to information (Article 35), economic, social and specific rights (Articles 43 & 53 (1) (b) (c) (d)) and the right to fair administrative action (Article 47). Those rights were also enshrined in various regional and international instruments: the International Conventions such as the African Charter on Human and People’s Rights (ACHPR), International Covenant on Economic, Social and Cultural Rights (ICESCR- Articles 11, 13), International Covenant on Civil and Political Rights (ICCPR- Article 17) and the Universal Declaration of Human Rights. These instruments formed part of the Laws of Kenya by virtue of Article 2 (5) & (6) of the Constitution. The petition was not challenged by the respondents.
The court observed that the Constitution provided that the Bill of Rights applied to all and bound all State organs and all persons (Article 20), and that it was a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights (Article 21 (1)). Further, all State organs and public officers had a duty to address the needs of vulnerable groups within the society i.e. women, children and the elderly (Article 21 (3)). The Court thus held that the purported 21 days’ notice by the respondents was both unreasonable and insufficient in the circumstances. It further stated that petitioners were entitled to adequate information on the reasons of the proposed evictions and the alternative purpose the subject land was to be used had to be indicated, and the said information be given in accordance with Article 35, which guarantees the right to information. The evictions were then supposed to be carried out in a manner that respected human dignity, right to life and the security of the affected.
The court observed that there was no written notice served upon the petitioners and no adequate information given concerning the usefulness of the road vis-à-vis the petitioners’ occupation of the land, and there was no indication that they would be afforded alternative settlement. Further, for the evictions to be justified pursuant to the relevant provisions of the international instruments ratified by Kenya, they ought to be carried out in the most exceptional circumstances after all feasible alternatives to eviction were explored in consultation with the affected community and after due process afforded to the individual or group. The forced eviction was a violation of the fundamental right of the petitioners to accessible and adequate housing as enshrined in article 43(1) (b) of the Constitution, and more important, the eviction rendered the petitioners vulnerable to other human rights violations.
Regarding the remedies available to the petitioners in the circumstances, the court relied on the United Nations General Assembly (Resolution 60/147 of 21/3/2005), which provided that a proper remedy for forced evictions was to return the victims as close as possible to the status quo ante. The judge also made reference to the persuasive South African authority Tswelopele Non-Profit Organization & Others v City of Tshwane Metropolitan Municipality, 2007 SCA 70 (RSA), where the court considered forced eviction as a violation of the right to have access to adequate housing as enshrined in Article 26 (1) of the South African Constitution and held that the proper remedy was the resolution of the status quo ante and ordered the occupiers to get their shelters back and further ordered the respondents to jointly and severally reconstruct them. Thus, the court observed that the petitioners were entitled to the declarations sought in the petition, and made an order compelling the respondents to return the petitioners to the subject land, reconstruct reasonable residence and alternative accommodation for them, which would include all the amenities and facilities subsisting at the time of the eviction and demolitions. The court further ordered a permanent injunction retraining the respondents from future evictions and demolitions unless the law was followed. Although the petitioners did not disclose the value of what was lost in the evictions or any other expense, and considering the fact that the petition was not defended by the respondents, each of the 1,123 petitioners was awarded a sum of Ksh. 200,000/= in damages against the respondents, jointly and severally, including the costs of the petition.
The petitioners were represented by Mr Mbugua Mureithi and the Amici Curia represented by Mr Odindo Opiata.