This column is dedicated to the study of the rule of law in Kenya. While academic debates continue about how to define the rule of law, its absence is almost always universally acknowledged. Like good leadership, it is most appreciated when absent.
An element of the rule of law that is not disputed is that the exercise of arbitrary power must be constrained by subordinating it to well-defined, established and enforceable laws. Today, we study the exercise of arbitrary power, unconstrained even in the presence of well-defined and established laws.
On May 16, we woke up to the news that the government had, in the thick of the night, demolished the houses belonging to over 100 families in Ruai, Nairobi. These families were forced to spend the night in the cold after they were ordered out of their houses at 9pm the previous night.
The government explained that the demolitions in Ruai and those that occurred in Kariobangi, that left almost 5000 residents homeless, were necessary as it sought to reclaim a disputed 3000-acre piece of land to pave way for expansion of the Dandora Sewerage Treatment Plant.
The sewerage plant was built in 1980 and was initially meant to serve 80 per cent of the city’s residents. Rapid urbanisation in the area has therefore necessitated the Plant’s expansion. Encroachment onto the land has unfortunately hampered the development. As a result, the treated effluent does not meet required quality standards due to overloading.
Consequently, demolitions to reclaim the land in Ruai were already underway in April. The residents claim to have however obtained a court order halting the planned evictions. Regarding the Kariobangi demolitions, Justice Samuel Okong’o had issued orders temporarily restraining the government from evicting the Kariobangi residents until their application was determined.
There is a lot more that clouds the demolition saga. The government compulsorily acquired the original 5000 acres that hold the contested 3000 acres from the Embakasi Ranch shareholders. The land was to be reserved for the building of stabilisation ponds for Nairobi’s wastewater. The Nairobi City Council (NCC) only utilised 500 acres and left the 4500 remaining acres unattended and unfenced.
The NCC then passed a resolution to resettle squatters on 1600 acres of the 3000-acre property in question. Some of the squatters were people with legitimate resettlement claims; having lost land during the upgrading of the Mathare 4A slums and the upgrading of the Mathare 4A school.
Some politicians nonetheless saw this as a gerrymandering opportunity to fortify support in the area by filling it with their supporters and brought in truckloads of people to get land in the area in what became, a free-for-all exercise.
The law on evictions
This brief account illustrates the complicated and competing interests in relation to the property. While some may indeed have illegally acquired the property, others were legitimately resettled on the land and could be said to have had a legitimate expectation that they would enjoy exclusive ownership or at least occupation of the property, without any disruption, including, from the government.
Untangling these interests to establish the legitimate from the illegitimate is a difficult task of evaluating competing claims – a function of the courts. The courts will therefore first ascertain whether the one in possession of the land has a legitimate claim to the land.
In the event that they do, their right to property is sacrosanct, and can only be limited as provided for in the Constitution. In this case, dispossession of property can only be for a public purpose or in the public interest. Article 40 of the Constitution mandates that that owner is paid promptly; the compensation is full and just; and that any person that has an interest in that property has access to a court of law.
The government’s claim in this case is that the individuals are settled on public land and that the property was unlawfully acquired and therefore that no legitimate interest could ever have been acquired in the land.
The government argues that the State can therefore evict the occupants and that the requirement for just, prompt and full compensation does not arise. It is important to note that even if one is found to have unlawfully occupied public land, there is a law of basic minimums that protects the rights of the evictee.
Basic minimums: The Land Laws (Amendment) Act of 2016
The Land Laws (Amendment) Act of 2016 provides guidance as to the procedures on evictions from land in a manner that does not contravene the Constitution of Kenya, 2010. The reason for this amendment law is that there were many instances in our history when powerful forces arbitrarily dispossessed people of their property. There were also innumerable instances when evictions were conducted in an inhumane manner that was disrespectful of the individuals’ right to life and dignity.
Where individuals are found to have unlawfully occupied public land, the Act stipulates that the National Land Commission must notify all affected persons in writing, by notice in the Gazette and in one newspaper with nationwide circulation, and by radio announcement, in a local language, at least three months before the eviction.
The Act also states that any person served with such notice may apply to Court for relief against the notice. The court may then choose to confirm the notice and order the person to vacate; cancel or alter the notice as it sees just; suspend the operation of the notice for a period as it sees fit or; order for compensation of the evictees.
Section 152(G) provides for the mandatory procedures during eviction. These are the basic minimum requirements that every single eviction should meet. To begin with, all persons taking part in evictions should identify themselves. They should then proceed to present formal authorisation for the evictions and where groups of people are involved, government officials or their representatives should be present during the eviction.
The Act goes on to echo the Constitution in finding that evictions should be carried out in a way that respects the dignity, right to life and security of those affected. The process should include special measures to ensure the protection of vulnerable groups such as women, children, the elderly and people with disabilities.
The process should ensure that there is no arbitrary deprivation of property and it should include mechanisms to protect property and possessions left behind involuntarily from destruction. The people involved should only resort to the use of force where it is necessary and the force applied should be proportional. Finally, and importantly, the evictees should be given the first priority to demolish and salvage their property.
The law seems clear. At each juncture, it ensures that at the least, the inherent dignity of the evictees and their right to have their dignity respected and protected is not violated as a result of the eviction. Why then would evictions occur even after the court had suspended the process and there are obviously complicated legal issues that need adjudication?
Why would evictions happen under the cover of darkness? How, in such rushed circumstances, would all the minimum requirements be met? How would a process taking place in the dark ensure that there are special procedures to protect the vulnerable: the sick, the elderly, the women, children and persons with disabilities?
How would one ensure the non-arbitrary destruction of property or the proper use of force? Was there time to ensure that the evictees could salvage their property? Most importantly, in the light of the pandemic, were the decision-makers cognizant of what the loss of a home would mean? With a curfew and the localised lockdowns in place, how would the affected find shelter?
The powerlessness of law
The genius of the Kenyan law school experience is its unrivalled course on dissociation. Lawyers learn to appreciate that the written law might have absolutely no power in real life. Though this might be shocking at first, a good law student becomes accustomed to it. Court orders are incessantly disobeyed, and rules are ignored.
Data sourced from V-Dem Dataste version 10; accessed at https://www.v-dem.net/en/data/data-version-10/
The above graph demonstrates how often the Kenyan government complies with important decisions from courts with which it disagrees. The result is dismal. For most of our history, including post-independence, the government has had no regard for the judiciary’s pronouncements. The years between 2010 and 2019 have seen an improvement yet the government has not even made the transition to ‘seldom compliance’.
The reason is because, in this society, law disintegrates when confronted by power. Impunity is knitted into our social fabric. It is ubiquitous and banal how those with authority transgress the law. We expect the rule of law to crumble when challenged by power and we can recount countless experiences as evidence of this.
The problem however is that the rule of law concerns itself with rights; and rights are the business of lawyers. The sanctity of these rights is the heart of the legal profession, just as saving lives is the core duty of the medical profession. For this reason, it is emphatically the duty of lawyers to tirelessly safeguard the rule of law.
The eviction scene was heart breaking. Pregnant women, children and the elderly huddled underneath their dismantled houses, sheltering from the rain. One man wondered why young men pickpocketing phones in the city centre should be asked to abide by the law if the government would act against a court order.
The gentleman’s question is pertinent to this discussion. Of what value are those basic minimums enumerated in the Act if those in charge can act with such unbridled impunity? What is the merit of constitutional rights? If the State itself can disregard so blatantly, the orders of a Court, what is to engender compliance among people, for the same court?
The Covid-19 pandemic has revealed the stark reality that the social contract between the rulers and the ruled is broken. While the evictions would have still been unjust in a non-pandemic world, the pandemic amplifies our perception of the injustice infinitely. Under the pandemic’s gaze, the legal “normal” that dissociates written law from the socially permissible starts unravelling. Our transgressions against the rule of law are drastically illuminated.
How can it be that state power can determine that it is right, proper or justified to dehumanise thousands of the already weak and powerless in this way. When the framers of the US Constitution talked about how all men were equal before the law, they of course did not include women or black people within the scope of these lofty ambitions. Black people to them were not men. Perhaps state power thinks of the poor in the same way. Not really men and women worthy of protection by the Constitution.
However, the watering down of the rule of law is a double-edged sword that cuts both ways. It might consolidate power among the few, but it also threatens order and social cohesion. Without order, there is only anarchy and with anarchy, there is no state.
It is our responsibility to ensure that power, in whatever form, is subjugated to the law. Without this, our work towards cultivating the rule of law in this country is futile. The evictions were unfortunate. Regrettably, the sum of these unfortunate events could be catastrophic in the long run. We may be creating very soon many Mohamed Bouazzi and George Floyd revolutions and when they occur, we should not ask why?
This article is part of a long series of articles on the rule of law in the context of politics and ethics. The views expressed here are personal and do not represent institutional views. The series is researched and co-authored by:
• Karim Anjarwalla, Managing Partner of ALN Anjarwalla & Khanna, Advocates
• Wandia Musyimi, Research Associate at ALN Anjarwalla & Khanna, Advocates
• Kasyoka Mutunga, Research Associate at ALN Anjarwalla & Khanna, Advocates
• Prof Luis Franceschi, Senior Director, Governance & Peace, The Commonwealth, London