Battle lines drawn as slum dwellers take on city tycoons and politicians

One of the most significant court battles since the new Constitution was adopted begins in Nairobi this week when a coalition of campaigners moves to cancel dozens of dubious title deeds in the slums held by powerful and wealthy individuals.

The campaigners will seek to assert the rights of hundreds of thousands of residents to the land on which they live in a move that could transform the city’s land tenure system and represent the biggest step yet towards upgrading the city’s informal settlements.

The case is expected to shine a light on the shadowy – and highly profitable – world of slum landlords and expose the political opportunism that saw successive governments hand titles to well-connected individuals at the expense of Nairobi’s estimated 2.65 million slum dwellers.

The matter is expected to come before the courts on Wednesday, exactly one year after the Sinai fire tragedy that claimed 119 lives and illuminated to Kenyans and the world the shocking conditions under which a majority of urban residents live. (Read: Sinai fire victims sue for damages)

“Take it from me, this will be explosive,” says Senior Counsel Paul Muite.

The case has been brought by Muungano wa Wanavijiji, a coalition of NGOs that has been campaigning for the rights of the invisible majority of Nairobi’s residents who live in crowded shacks on the fringes of the city, daily facing the threat of eviction without notice.

Former Kituo Cha Sheria executive director Jane Weru, who is now a director at Muungano wa Wanavijiji and has been advocating the rights of slum dwellers since the early 1990s when a wave of land-grabbing saw the eviction of thousands, is confident about the group’s prospects.

“This is a good case. We will be raising the question of the right to housing and sanitation which is enshrined in the Constitution. We will also be querying the process followed in making these land allocations,” she said.

“The law under the old constitution was clear that if land was to be allotted to an individual, it should have been sold by public auction. In many of these cases, the parcels were simply dished out to cronies of the powers-that-be. The land was issued for the establishment of light industries. None of these were built on the parcels in question and the Commissioner of Lands was supposed to have recalled the titles. That should happen now.”

Besides these remedies, the coalition, which is represented by Prof Yash Pal Ghai’s Katiba Institute through lawyer Korir Sing’oei, will ask the National Land Commission to investigate the process through which the questionable titles were handed out with a view to their cancellation and the possible prosecution of the culprits.

Nairobi has one of the most acute urban housing crises in the world. Sixty-five per cent of the city’s population live in slums, which occupy only five per cent of the capital’s land mass, according to UN-Habitat.

The crowding and poor sanitation levels are unlike anything witnessed around the world. In Nairobi, about 318 households or about 1,177 people on average, occupy one acre in the slums, compared to two households per acre in the upmarket Runda estate or one per acre in Muthaiga.

By contrast, only 78 households live on one acre in the Kisenyi slum of the Ugandan capital Kampala.

The Kenyan capital’s slums are even more congested than some of the world’s most notorious slums such as Dhaka in Bangladesh, whose informal settlements house about 891 people per acre.

Experts warn that the failure of planning, which has resulted in Nairobi’s massive urban housing crisis, is a ticking time bomb that could sow instability.

“The difference between Kenya and other governments in the region is that neighbouring countries allocate land to cater for housing of the poor,” says Peter Ngau, a professor of urban and regional planning at the University of Nairobi.

“From the 1980s to the 1990s, there was no housing project aimed at the poor in the country. The recent National Housing Corporation scandal, where houses meant for the middle class were allocated to top government officials, illustrates the problem. Agencies such as the NHC should be spearheading construction programmes for the poor,” Prof Ngau said.

“Expansion plans of facilities such as the airport should take into account how to relocate the poor. There should be no development of industries without that going hand-in-hand with housing development near those industrial parks. It is vital that we take a systematic approach.”

The Constitution endorsed in August 2010 explicitly assures citizens of the right to housing. The text is taken almost word for word from the Bill of Rights of the South African constitution.

Article 43(1a, b) states: “Every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care [and] to accessible and adequate housing, and to reasonable standards of sanitation.”

The Bill of Rights in South Africa has helped the poor win access to health care for common diseases, and in the landmark government of the Republic of South Africa and Others vs Grootboom and Others case, slum dwellers successfully argued that even when they were being evicted from private land, the state had a constitutional obligation to resettle them.

The court further held that the state was obliged to take positive action to meet the needs of those living in extreme conditions of poverty, homelessness or intolerable housing by providing services such as the provision of water and the removal of sewage.

The petitioners in the Kenya case will be asking for more than those in the South African civil suit.
The contention of the rights campaigners is that the slum dwellers should not be evicted at all because the purported owners of the land on which they sit hold illegal titles.

Lined up on the opposite side will be some powerful politicians and businessmen who benefited from the land allotments, setting the stage for a titanic battle.

A review of the paperwork from the Lands ministry shows how the process of irregular allocations of land, which was conducted on a low scale from 1972, intensified from the late ‘80s and hit a peak between 1991 and 1995.

Well-connected politicians and businessmen approached the Commissioner of Lands after establishing that the areas occupied by slum dwellers did not have any registered title owners. They were then issued with titles to the land.

But a provision of the Registration of Titles Act (Chapter 281) required them under the “special conditions of the grant” of title to develop the land within a fixed period.

It states that the land shall “only be used for light industrial purposes” and requires that the grantee submits “within six calendar months [detailed plans for buildings and drainage system] and shall within 24 months of the actual registration of the grant complete the erection of such buildings and the construction of the drainage system in conformity with such plans .…”

Most of the recipients of the land did not make any developments on it and certainly did not establish any industries.

Despite the law forbidding them from subdividing, selling or charging the land to banks, documents seen by the Sunday Nation indicate that these slum landlords secured loans running into billions of shillings from the parcels on which slums sit.

All these irregularities will form part of the arguments by the coalition’s lawyers calling for cancellation of the titles.

“We will be questioning not just the actions of the public sector but also will ask questions of banks which used depositors’ money to lend to these people on the strength of titles of land which was clearly occupied by other people,” Ms Weru said.

The plaintiffs will be ranged against a second layer of slum tycoons, the people who erect the actual shacks and charge rent from occupants on the land in question.

This group, which operates with the assistance of the provincial administration, has amassed fabulous wealth by providing the most basic housing facilities with no accompanying services like sewage and water.

It is a multi-billion shilling business, with rents ranging between Sh1,500 to Sh3,000, and because of the massive crowding and huge numbers of houses per acre, the monthly income for these shack landlords is huge.

In a 2003 UN-Habitat report, Rental Housing: An essential option for the urban poor in developing countries, researchers concluded that the urban poor in Kenya are among the world’s most exploited.

“In Mexico, landlords in self-help settlements certainly did not make much money in the 1980s and it does not seem as if the situation is very different in South Africa. Ownership of property in inner Johannesburg was certainly unprofitable for all except the most exploitative landlords. And, few landlords renting out backyard accommodation are going to get very rich because the average rent in places like Soweto is extremely low.”

The situation in Nairobi is different, they said: “A major exception is represented by the slums of Nairobi where it is argued that renting out unauthorised housing is extremely lucrative. Annual capital returns on one 10-room structure were as high as 131 per cent, implying that the cost of building a room for rental purposes can be recuperated in nine months.”

The money is shared out with government officials, an expense the report labels “high transaction costs”.

“Each time new construction or improvements to existing structures are being carried out, the local administrator in charge of allocation, usually the chief of the area, must receive payment, otherwise the construction or improvements will not be sanctioned. But, nonetheless, these are spectacularly high profit rates, achieved only by supplying appallingly poor shelter on land for which they have paid very little (if anything at all) and tolerated only because powerful public officials and politicians are among the principal landlords.

“Many landlords in Nairobi are in fact capitalising on substantial government subsidies, in the form of free public land. The high profit rates enjoyed by landlords indicate that only a minor part of these subsidies, if anything at all, trickles down to the tenants.”

For the 40 years in which slums have been a fixture of the urban landscape, slum dwellers have largely been an invisible group. They commanded attention briefly when major fighting broke out following the last elections. They have quietly borne the hardships and privations of life in the squalor of the fringes of more developed areas for decades.

On Wednesday, that will change when they are expected to throng the courts to present a landmark civil suit which will provide a fascinating test for Chief Justice Willy Mutunga’s reforming Judiciary.