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Protecting the right to housing in Kenya: An analysis of legal frameworks challenges and recommendations

The right to housing is one of the most important and pertinent rights espoused in the Constitution of Kenya under its bill of rights. Article 43(1)(b) provides that, ‘every person has the right to accessible and adequate housing, and to reasonable standards of sanitation’. Article 53 of the same constitution furthers this particular right and ensures every child’s right to shelter.

The right to housing additionally is not a right that exists on its own but furthers and coexists with other rights such as the right to privacy and security. It can therefore be adduced that the right to housing should be inclusive of the rights aforementioned inter alia. However much this right is stated and entrenched in a number of international instruments coupled with the Constitution of Kenya 2010, it happens to be one of the least protected rights in Kenya as it is violated on a daily basis, things like forced evictions being the order of the day.

It is therefore of the utmost importance to scrutinize and analyze this particular right so as to reduce the exacerbated amounts of its violation both in law and its practice and also to bolster it to attain vision 2030 goals and sustainable development goals.

Nature, scope and contents of the right to housing

The right to housing happens to be one of the social economic rights which has its roots in the International covenant on Economic, social and cultural rights (ICESCR) which came into force in 1966 and happens to be one of the most ratified treaties in existence. This particular treaty has an entire section on the right to housing, this demonstrates the global recognition of the importance of the right to housing.

The African Charter does not on the other hand recognise Social economic rights which also include the right housing, however commissions established under article 30 whose work is to promote rights, the commission relying on Serac V Nigeria came to infer that the charter recognizes the right to housing however much implicitly and that it is connected to the right to life, right to property and right to health within the charter.

In the repealed constitution of Kenya 1969, the right to housing was not recognized and this led to a plethora of problems that exacerbated these violations, upholstered impunity to those who violate it and limitation of these freedoms to those who need it such as the poor and downtrodden. For instance, in the case of Paul Mungai & 20 others V Attorney General & 3 others, in which the earned judge stated that the right to life under the repealed constitution section 71 was limited to mere human existence and or limitation to this particular existence but not to other rights that go with it as could be deduced from the limitation to the rights under section 71(2). These other rights that go with the right to life under the repealed constitution included the right to housing and in this case, one could view from the decision how this right has been forgone as not important to human existence, whilst it is important to human existence as it is part of the basic needs.

However, much Kenya ratified the ICESCR, in its formative years after independence it did little to no providing assurance to the right to housing and hence housing problems since colonial times continued to pile on leading to a very underdeveloped rural areas and urban centers riddled with informal settlements and squatter populations. After the constitution of Kenya 2010 was promulgated one of the things it sought to achieve was making socio-economic rights one of the non-redeemable rights to attain an egalitarian society both economically and socially. From these one could infer that this right is applicable to everyone, regardless of their social or economic status, and that the government has an obligation to ensure that this right is respected, protected and fulfilled.

Furthermore, the right to housing as stated earlier is not a right that exists in a vacuum on its own but is closely linked to other rights such as the rights to security, privacy, health, sanitation and water. All rights are interrelated in this way and one violation could indeed lead to the violation of other(s). This interdependence of rights is shown and emphasized by the Vienna Declaration.[1] For instance the violation of this right through arbitrary evictions could lead to the people evicted having health problems since they are subject to nature now and things like cold nights could lead to Pneumonia and Tuberculosis, additionally they might lack sanitation and clean water which every human being deserve. It has been noticed that street children in Nairobi a bulk of them lack formal education because they do not have people who take care of them, this violates article 53 on Children’s rights both on housing and education and goes against the provisions of the Children’s act 2022.

In Satrose Ayuma & 11 others V Registered trustees of the Kenya Railways Staff Retirement Benefit Scheme & 3 others,[2] the violation of the right to housing through evictions lead to a wide violation of internationally recognized rights such as right to education, food, health inter alia.

The scope of the right to housing in Kenya includes various aspects such as: Adequate living conditions, which refers to the physical attributes of housing like its location and infrastructure. Based on adequate living conditions, Kenyans have been living in poor living conditions especially in the capital city with makeshift houses and informal settlements which lead to whole areas of sprawling slums. For instance, Kibera which happens to be one of the biggest slums in Africa and in the world happens to hold more than a quarter million people in a relatively small area. Additionally there are an estimated 2.5 million people in the city who are slum dwellers which translates to 60 percent of the city’s population who sit on 6 percent of the land in the city.[3] Therefore it can be deduced that such a big population sitting on a small piece of land coupled with issues like poverty will be very ripe for people to live in subhuman conditions with no access to clean water, sanitation and even security. Areas like Kibera, Mathare and areas in Eastlands have long been infamous for crimes with little to no police access, which again makes it ripe for other human right violations.

Security of tenure happens to be one aspect of the right to housing which refers to the legal right to occupy a property without fear of eviction or forced displacement. Security of tenure in the past has really proven to be shaky especially for poor people and marginalized groups as there have been countless examples of evictions, for instance during the crippling Covid 19 Pandemic in 2020, which brought the whole country to a standstill, there were evictions in areas like Kariobangi in which more than 8000 people were displaced despite a court order restraining authorities from conducting such activities. Furthermore, in May 2020 more than 1500 people were removed from their houses forcibly in Ruai in the dead of night, during curfew hours and amid heavy rainfall, the affected families were not sheltered from the rain and had been sleeping out cold in the rain.[4] During the same year there were 59 cases of forced evictions and destruction of property by mainly the Kenya Forest Services. In Kapkok forest, indigenous communities like the Sengwer were forcibly evicted from their homes and dwellings.[5] These problems have yet to be solved to date, furthermore cases of displacements during the national upheavals caused by 2007-8 post-election violence, which rendered more than 600,000 people displaced because of the violence and lost their properties in the process, however much this happen more than a decade ago subsequent governments have done little to relocate these people to their original homes and most of them still live a squatters in public land where they can be removed at any time and some have just added to the ever growing slum population in the cities and their surrounding areas.

Affordability is another important aspect, in that housing must be affordable, translating to that it should be available to all individuals and communities at a cost that is not burdensome and allows them to access other basic needs such as food and clothing. There is a lack of affordability of housing which is a major issue in Kenya, there are a number of factors that contribute to these problems including rapid urbanization in that many people are moving from rural to urban areas in search of economic opportunities and better standards of living, this high pressure of people has led to housing prices to skyrocket making it unaffordable to the masses. Additionally, with these high pressures on people, the demand and supply of housing have not been at the same pace in which there is a high demand and little to no supply which leads to prices rising. Developers often focus on building high-end properties which are out of reach for most people.

In slum or informal settlement areas there is inadequate infrastructure such as water, electricity and transportation has made it difficult for the government and private developers to build affordable housing.

The high cost of land in urban areas is really high making it difficult for builders and developers to build affordable houses, the government however much they have tried implementing policies by the creation of land banks and special economic zones has failed to curb these problems, and the progress to curb it has been really slow. Many Kenyans also lack good finances as more than half of the population living in urban areas live in poverty, therefore they do not have access to purchase, build or mortgage a house. To curb these problems associated with the lack of affordable houses the government should step in and implement a range of measures such as the construction of affordable housing, subsidizing the prices of these houses for the poor and marginalized and also providing access to affordable financing options.

Housing rights violations

Forced evictions continue to be the bane to housing rights in Kenya and it has been a recurring issue since Kenya became independent as it is a clear indication of how far Kenya is from realizing socio-economic equality, in which acts like these demonstrate the contravention of these rights by the rich and powerful against the poor and marginalized in the society. International law under the ICESCR condemns forced evictions and views them as a violation of human rights. The evolving nature of Kenyan Jurisprudence has gone on to show how the courts have started dealing with cases of forced evictions. In the 2011 case of  Ibrahim Sangor Osman V Minister of State for Provincial & Internal Security and 3 others , the high court stated that forced evictions are unconstitutional, despite this legal ruling forced evictions to continue to happen, for instance in 2011 Syokimau evictions which rendered 229,000 people homeless which the Kenya Airport Authority sought, the problem was not the evictions but rather how they were carried out as the evictees had not been given alternative shelters.[6] In the Kabete area also Nairobi City council demolished more than one hundred homes and 470 stalls without giving notice and providing alternative shelters for the evictees. These had devastating effects on women and children as they were left to be subject of nature. This issue still happens to be looked at by the Kenyan government and courts.[7]

Since 2018, the Kenyan government has evicted more than 50,000 people from Mau forest lands and at least 6000 people are living in makeshift shelters in harsh conditions in Narok County and they have not been relocated or compensated as required by Kenyan and International laws.[8] The Mau forest complex has been an area that has had various human rights violations in the past decade, with housing rights violations like evictions without notice being the day. The president, Dr. William Ruto has said however that his government plans to resettle more than 35,000 Mau evictees in 2023.[9] In October 2022 however, a three-judge bench in the Narok environment and land courts stated that the government were justified in evicting these Maasai Mau forest residents, this was after 35,000 evictees argued that they had valid title deeds and that the area was a trust land and not a gazetted forest.[10] There is also a lack of reliable data on issues like forced evictions which continues to be a challenge to monitor these housing rights violations.

The Kenyan constitution 2010 calls for a focus on vulnerable groups in the country such as marginalized groups, people with disabilities, youth and women inter alia. In fact, Article 21(3) of the Constitution states that, “All State organs and all public officers have the duty to address the needs of vulnerable groups within society, including women, older members of society, and persons with disabilities, children, and youth, members of minority or marginalized communities, and members of particular ethnic, religious or cultural communities.” These groups of people are hit the hardest when these rights are violated so it is necessary to give them a first priority, for instance, children, evicted children have a higher mortality rate than other children and so do elderly people who are weak and fragile and need constant medical attention.

Women, who are also vulnerable groups have experienced unequal distribution of land which is a major challenge in Housing rights. This, however, is in contravention of the Constitution which calls for equality and happens to be emanating from harmful cultural practices hence in lieu of these women are affected mostly by eviction since they cannot claim ownership of land. Additionally, there are discriminatory practices that women face in the housing market, real estate developers and landlords are really hesitant on selling or renting a house to women especially those who are single mothers. Such situations push women to live in unsafe condition that is prone to crimes such as rape and also areas where proper sanitation are inadequate.

Key challenges to the enforcement and implementation of the right to housing

Demand for proper and affordable housing has continued to rise without the requisite movement on the supply side. While the well-to-do individuals continue to put up houses all over the country, those who are financially challenged are continually hit hard by a lack of affordable housing. In particular, the slum dwellers are the most affected when it comes to housing challenges as they are constantly subjected to illegal forced evictions from their homes which leave most of them homeless. Other challenges that prevent the implementation of the right to housing include inadequate public participation, corruption, and poor infrastructure among others. 

  • Illegal forced evictions

Evictions and demolitions are not entirely illegal when they are carried out as per the law and in conformity with the provisions of the International Covenants. However, the government and other private institutions carry out illegal forced evictions, leaving poor Kenyans homeless amid bad weather conditions. Evictions are carried out for various reasons. They include housing purposes, improving infrastructure, urban resettlement, programs, and land expropriation for public use. In lieu of sustainable urban planning and inclusive social policies, forced evictions appear to have become a common practice to facilitate development and conservation initiatives.

Most of these evictions are conducted with no court order, no consultation with affected communities, and no written three months advance warning.[11] Kenya’s 2009 Evictions and Resettlement Guidelines require notice to be written or published in the official government gazette 90 days before. The most heartfelt eviction and demolition occurred in Kibera where thousands of people were left homeless. The Kenya Urban Roads Authority(KURA) demolished the Kibera building in a bid to relieve traffic congestion in Nairobi.[12] The Kenya National Commission on Human Rights(KNHCR) called the forced eviction a violation of the law and an unfortunate breach of trust and bad faith by KURA. Another massive illegal eviction was conducted in Mukuru Kwa Njenga, to clear the way for the Nairobi Expressway.[13] Many people lost their personal belongings as others were subjected to homelessness in the midst of the seasonal rains.  At least some people lost their lives also in the demolished buildings and children were injured. Until today, people who were left homeless have neither been compensated nor moved to better, accessible, and affordable houses.

In early May 2021, more than 10,000 people were evicted from their homes without a 90-day advance warning, being left to sleep in the open for weeks.[14]  These selfish actions of eviction from the government illustrated acts of unfairness since most people were subjected to harsh rainy weather conditions. No alternative housing was provided despite the government’s dusk-to-dawn Covid19 curfew requiring people to stay indoors or risk penalties.[15]

Each Kenyan has the right to adequate, decent and affordable, housing as provided in Article 43 of the Constitution.[16] However, this right is limited by incompetence in government departments charged with the responsibility of seeing to it that each citizen enjoys this right. The cause of all these evictions also results from people in the governments who are given the mandate to register and issue title deeds to the rightful owners. The delays lead to the emergence of very many fake title deeds, and the rightful owners of lands are evicted unfairly from their lands and houses.

  • Corruption

Corruption has rampantly ruined the benefits that Kenyans should be enjoying from affordable housing as the wealthy people continue to bag a share of land in the country. A disheartening example is one that occurred in 2012, where there were claims that the National Housing Corporation(NHC) officials illegally allocate houses to themselves.

The judiciary plays a significant role in the actualization of the right to housing. In cases where there occurs a violation of the right to housing, then those affected resort to a court of law to obtain an order of injunction. In most cases, it is the poor individuals who are subjected to forced evictions and demolition of their houses by the state in the name of the construction of infrastructure or the rich people in the country. The same courts of law have been accused of corruption.[17] With a corrupt judicial system, the rich tend to obtain court orders in an easy way to evict poor people from their houses or the poor will lose their suits in court.

  • Non- compliance with the construction regulations

      This is a critical challenge that has arisen especially in the recent past following the falling down of very many houses constructed in a haphazard way. The increase in demand for housing has paved the way for greedy people to construct houses that are unfit for human occupation.[18] These houses are thereafter charged low prices to attract tenants quickly. It is quite saddening to even see some people live in some of those buildings not knowing that they are sitting on a ticking time bomb. The questions which we then ask ourselves are, who allowed such negligence to thrive? Who is to blame for the shoddy constructions existing?

A heartfelt tragedy occurred in Huruma where a storey building fell leaving many Kenyans dead, others injured and those who survived left homeless.[19] After this tragedy, the National Construction Authority(NCA) was blamed for not executing its mandate.[20] However, the NCA chairman  in an interview stated categorically that the NCA mandate is only executed during the construction and it issues the certificate of compliance if the construction  meets all the requirements. On completion, the occupation certificate is issued by the county government after confirmation of the buildings’ integrity is flawless. The ministry of lands carries out audits in the building now and then to analyze its state. All these actions carried out and a building still falls? No way. It is high time that it needs to come to light that these people receive bribes. These people have laid their guards down in their inspection job, and thought more of their stomachs, hence receiving money popularly known as ‘kifunga macho’ for the building activities to take their usual cause without interference.

  • Inadequate public participation

             The Kenya Slum Upgrading Programme which was initiated in  2004 and the Kenya Informal Settlement Improvement Project initiated in 2011  showed evidence of public participation but very minimally. The level of involvement in the decision making of the communities affected in regard to the housing right is critical as they are the people who reside in the informal sectors.

  • Poor infrastructure

When the construction of houses is completed, and they are ready for occupation, other factors such as reliable water supply and electricity, proper sanitation, excellent transport systems, and health care facilities are looked into by those looking to occupy them.[21] Therefore, people tend to occupy houses that are located in areas with proper infrastructure, even if they are in poor conditions. Additionally, Kenya has not created adequate infrastructure to enhance the protection of the right to housing from interference by third parties and frequent threats from natural and human-made risks contrary to Articles 1 and 2[22] of the ICESCR.[23]

  • Financial constraints

       The rent and property pricing are skyrocketing day after day at a very fast rate, leading to the deterioration in the number of affordable houses in Kenya.[24] With the increase in Kenya’s population especially in the urban settings, most people have been forced to move to the slums in search of affordable houses for settlement. Additionally, the failure of the government to provide a law that controls the cost of building materials is a challenge to the right to housing. Property developers have decried the high costs of construction materials. The high costs of these materials have limited the construction of affordable houses. These costs may either way not reduce if the government does not provide incentives to property developers.

Recommendations

Kenyan courts rely on international authority for guidelines on eviction requirements. Therefore, enactment of the Eviction and Resettlement Bill of 2012 should be called upon to provide clear and proper guidelines for eviction in Kenya.[25] The legislation will categorically provide for public participation in the eviction and ensure that those to be evicted are given a proper alternative for settlement. Additionally, the state should recognize community land through the enactment of the Community Land Bill of 2013.[26] This will ensure that people are not arbitrarily evicted from their houses without an alternative.

The state should also ensure that the slum upgrading projects are fair and transparent. The communities living in the informal sector should be given a hand in decision-making since they are the ones affected. Registration of those evicted should be done so as to ensure that they regain their houses after being refurbished without causing chaos and uncertainty.

Additionally, full compliance and enforcement of existing policies, rules, and regulations are proposed to stop further deterioration of housing conditions in the country. Implementation of slum upgrading through evictions, demolitions, and relocation should be done in a way that respects the dignity of slum residents and is in line with both national and international laws of justice.[27]

As the law provides, an independent judiciary shall interpret the Constitution properly and uphold the right to housing. This was seen while ruling out the Mitubell[28] and William Musembi[29] cases, Mumbi J ensured that the provisions of the Constitution were enforced to the latter by ruling out that the state was liable for violating the rights of Citizen as it went contrary to Article 43 of the Constitution. However, the Court of Appeal reversed this judgement, not upholding the right to adequate housing, but stating that the court lacked power to supervise its judgement.[30] The judiciary is a body that each person relies on for justice and therefore, the Judicial Service Act needs to be revised to allow for more strict prosecution to a judge committing the act of corruption.

In the case of William Musembi & 13 others v Moi Education Co. Ltd &3 Others[31], the police were also found for participating in the illegal forced evictions of people. Some participated in the eviction itself while others provided protection for those who demolished the houses of the poor people. That being said, it is necessary that the actions of the police are regulated, and strict measures enforced on those who abuse them. That way the rule of law shall be upheld.

In furtherance to that, governmental bodies assigned with the mandate of controlling the construction of houses until occupation in the country need to be in coordination. Laws should be formulated to allow these state agencies to conduct their mandates in a coordinated manner. The powers of the NCA should also be increased to allow for the arrest of those landlords who do not comply with the laws put in place during construction.[32] The provisions of the NCA Act should also be revised so as to allow for the demolition of houses that do not meet the required capacity for human occupation.

Amidst the high economic status of the country, poor Kenyans are not likely to afford proper housing. Therefore, the government should allocate resources for the provision of adequate housing. Additionally, it should make sure that state officials and agents do not violate the right to housing. Those found in corruption cases regarding housing right should be charged heavily in a court of law.

An amendment needs to be made in Article 43 of the Constitution[33] to incorporate a provision that prohibits arbitrary evictions and demolitions of one’s home without the necessary procedures being followed.[34]

In conclusion, this is a monster that needs to be fought by not only the government by each Kenyan. The spirit of nationhood should override greed, corruption and ignorance. Each stakeholder to ensure the right to affordable housing is upheld should rise and work with accountability and transparency. That way in no time, the Constitution of Kenya will have prevailed.

BIBLIOGRAPHY

1. Abatena, H. (197). The significance of planned community participation in problem solving and developing a viable community capability, Journal of Community Practice, 4(2) ,13-34

2.Constitution of Kenya

3. National Construction Authority Act, No 41 of 2011

4. UN-Habitat (2016). Slum Almanac2015-16: Tracking Improvement in the Lives of Slum Dwellers.

5. Wafula, N. (2004). Affordable housing in Kenya: A case study of policy on informal sector. 3rd FIG Regional Conference Jakarta,3-7 October 2004, Indonesia.


[1] Vienna Declaration adopted by consensus at the world conference on human rights on 25th June 1993. 

[2] 77Satrose Ayuma and 11 others v Registered trustees of the Kenya Railways staff retirement benefits scheme and 3 others petition 65 of 2010

[3] ‘ Kibera Facts and Information’,<https://www.kibera.org.uk/facts-info/#:~:text=Kibera%20Facts%20%26%20Information,the%20biggest%20in%20the%20world.> accessed 18 feb 2023

[4] United Nations Human Rights, ‘COVID-19 crisis: Kenya urged to stop all evictions and protect housing rights and defenders’( United nations, 22 may 2020)<https://www.kibera.org.uk/facts-info/#:~:text=Kibera%20Facts%20%26%20Information,the%20biggest%20in%20the%20world> accessed 18 February 2023

[5] United Nations Human Rights, ‘KENYA: LEAVING NO ONE BEHIND IN THE COVID-19 CRISIS’(United Nations, December 2020)<https://www.ohchr.org/sites/default/files/Documents/Countries/KE/OHCHR-DC_December2020.pdf> accessed 18 february 2023

[6] Hakii Jamii, “Assessment of the Realization of the right to housing in Kenya 2011-2012”(2012)<https://www.humanitarianlibrary.org/sites/default/files/2013/07/assessment.pdf> accessed 18 february 2023

[7] Ibid

[8] Human Rights Watch, ‘Kenya: Mau Forest Evictees’ plight intensifies’(July 23, 2020)<https://www.hrw.org/news/2020/07/23/kenya-mau-forest-evictees-plight-intensifies> accessed 18 february 2023

[9] Robert Kiplangat, ‘Government to resettle Maasai Mau evictees’(nation,January 29,2023) <https://nation.africa/kenya/counties/narok/government-to-resettle-35-000-maasai-mau-evictees-410342> accessed 18 february 2023

[10] Ibid

[11] Enforcement of the Right to Housing under the Kenyan Constitution: A Critical Analysis of the reasonableness standard/ test applied in the enforcement of this right.

[12] Human Rights Watch, Nairobi evicts 8000 people ad mist a pandemic and curfew

[13] theguardian.com/global-development/2021/dec/08/how-nairobis-road-for-the-rich-resulted-in-thousands-of-homes-reduced-to-rubble

[14] supra

[15] supra

[16] Article 43 of the Constitution of Kenya

[17] Ethnic and Anti-corruption Commission, “A Study on Corruption and Ethics in the Judiciary Sector” (2004) Research and Transformation Department Ethic and Anti-Corruption Commission 41, <http://www.eacc.go.ke/docs/Judicial%20study%20-%20Full.pdf> Accessed on 11th August 2018.

[18] IBAN, The platform for IB Practitioners

[19] ibid

[20] ibid

[21] <https://www.haofinder.com/blog/5-challenges-facing-affordable-housing-in-kenya>

[22] Article 1 and 2 of ICESCR

[23] Kinuthia- A Critical Evaluation of the Right to Housing in Kenya

[24] Ibid.

[25] Supra.

[26] Supra.

[27] Supra.

[28] Mitu-Bell (n47) para73

[29] William Musembi(n44) para85

[30] See Kenya Airport Authority v Mitu Bell Welfare Authority & 2 others[2016]eKLR

[31] William Musembi &13 Others v Moi Education Co Ltd &3 others

[32]< https://www.inclusivebusiness.net/ib-voices/challenge-facing-kenyan-housing-sector>

[33] Article 43 of the Constitution

[34] Supra.

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