Tuesday, May 05, 2009
By Charles Khamala
Kenyan Lawyer, Charles Khmala seems to think that the proper role of government in society should not only be protecting our lives and property, but guaranteeing freedom from homelessness.
Historically, the Kenya government’s raison d’être justifying evictions from road reserves, railway lines, forests and power way leaves is the danger people living near these public utilities face. Yet failure to provide any low-cost housing causes encroachment upon unoccupied land, including public utilities. By 2005, according to UN-Habitat, 2 million poor people comprising 55% of Nairobi’s total population crowded into 199 informal settlements, half the city’s total land surface. Curiously, rent control is ineffective in protecting temporary structures from illegal distress or forced eviction.
It is necessary to evaluate whether the approach in the proposed 2007 Kenyan Draft Land National Policy, of providing affordable and secure housing indirectly through democratic community structures which recognize customary land rights rather than directly through judicial enforcement of rent restriction legislation, fulfils the country’s international obligations.
Article 25 of the Declaration of Human Rights recognizes “everyone’s right to a standard of living adequate for the health and well-being of himself and of his family including…. housing and the necessary social services and the right to social security even in the event of…lack of livelihood in circumstances beyond his control.” Represented in Article 11(1) of the International Covenant on Economic Social and Cultural Rights the right to an adequate standard of living entails that “state parties will take appropriate steps to ensure the realization of the right, recognizing to this effect the essential importance of international co-operation based on free consent.” Adequate housing means more then a roof over one’s head. It also includes secure tenure and basic facilities all of which must be affordable. Hence the right to housing is a derivative of the right to health and in turn, life. It is a survival right which the state is obligated to secure through free but sensible economic and political maneuvering.
Individual land titles were granted by law over collective ownership, essentially because collective ownership resulted in careless attitude for property. It is possible that the usurpation of aboriginal lands by the colonial master contributed to landlessness in colonial Kenya. The result was a large swathe of homeless people who squattered on state and private property. As a result, landlord’s powers to remove trespassers were only curtailed using rent restriction, introduced to prevent tenants from becoming homeless amid looming urban housing shortages during war times.
Although the independence struggle was waged for land and freedom, our settlement retained capitalist private property rights, which seemed applicable to only politicians in power who understood the cravings and fruits of private property, but masked their desire with African collective ownership of property.. Proclaiming African socialism, as the right to an adequate standard of living was the primary social right, consequently, it became democratically unreasonable to utilize criminal trespass law to prosecute people for encroachment on private, and state land.
To solve the menacing squatter settlements, Kenya’s 2004 National Housing Policy adopts World Bank “slum upgrading” and “sites and services”, a semblance of measures introduced in the last century to contain the squatter scenario administratively. The measures may well mean that residents are subjected to real estate free market shock therapy even if the intention is to bring sanity to the long discredited government urban land use planning.
The 2007 Draft National Land Policy may have appeared to ambiguously reconcile residential premises rent controls with collective land forum mechanisms. While the 2007 Landlord and Tenant Bill purportedly introduces rent restriction to informal settlements, it may have indexed the protection of property on the philosophy of market forces, which may create problems for squatters who not only lack the understanding of the workings of the market economy in its unforgiving quest to allocate resources properly, but worried about the attendant corrupt practices that go along with such liberal policies.
However, property rules tactically restrict performance of actions indirectly through dividing the country spatially into defined regions and locations. Thus land is held either privately, in common or by the government. The technique our liberal democratic constitution deploys is to empower landowners to determine its user. Municipal land comprises common space including roads, parks and social amenities allocated for specific public utilities which prioritize access to markets or recreation. Attempts to perform unauthorized activities, like holding of unlicensed public demonstrations, hawking, or constructing temporary shelters may warrant removal or attract trespass prosecution. Access to government land is restricted to persons with official collective purposes. A human rights problem arises where occupants cannot afford to own, rent or license land. Expensive and insecure tenure contradict the public interest to maintain security.
Neither scholars nor practitioners agree on the origins, causes or solutions to inadequate levels of housing. But there could be one common sense reason- poverty or if you like, supervised states plunder as in Kenya and other African countries. Irrespective of the ideological arguments determining use and value of property, it is clear that Kenyan legal scholars who support the Draft National Land Policy’s call for a needs-based approach that would effectively enhance a human-face rental market regime. In the short-term, Kenyan constitutional courts are urged to adopt creative decisions to interpret the right to life so as to include the right to own property.
Beyond the legal dimension, governmental consultation with community groups can facilitate implementation of sustainable solutions to Nairobi’s forced eviction epidemic. In the long-term responsive governance entails greater inquisition by the Housing Ministry and both rent tribunals in maintaining comprehensive information registers of protected rental premises, involvement of rent inspectors in negotiating lease agreements and prosecution for breach.
Charles Khamala is a Kenyan Lawyer and writes for www.AfricanLiberty.org