With evictions planned by government set to resume soon following a stern warning by the Minister of Lands, and the animated speeches (Jesus Kalembe Ndile….is that what oblivion does to a politician?!?) by MPs opposing the evictions, largely drawn from Eastern Province, who represent some of the areas to be or already affected and probably have personal interests in the lands too, it would be important at this juncture to examine the issue of eviction guidelines.
This is as a result of the recent revelations in the media that the Minister is set to table eviction guidelines aimed at coming up with a policy and possibly a piece legislation to govern evictions so as to ensure that even as evictions take place the same are done in a humane way.
A discussion of the eviction guidelines is quite old to my knowledge, the civil society has been trying to engage government to fast track these guidelines for quite some time now but clearly the technocrats and politicians at the Lands Ministry and in the previous government, did not feel as though the guidelines were important up until now – when I guess it is politically convenient and relevant!
Even as the government lagged in embracing and fast tracking these guidelines, there has been significant progress in the courts which has all but rendered the guidelines part of Kenyan law. In, Satrose Ayuma & 11 Others vs. Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 2 Others Constitutional Petition 64 of 2010, (eKLR) Justice Musinga granted an injunction to stop the 'constructive eviction' of residents of Muthurwa Estate, having been guided by the United Nations Basic Principles and Guidelines on Development Based Displacement and Evictions
In Susan Waithera Kariuki & Others vs. Town Clerk, Nairobi City Council & Others Nairobi Petition Case No. 66 of 2010 (Unreported)(eKLR) Justice Musinga in a ruling delivered on 4th March 2011, stated; “Kenya should develop appropriate legal guidelines on forced eviction and displacement of people from informal settlements so that if people have to be evicted from such settlements the act is done without violating people’s constitutional rights and without causing extreme suffering and indignity to them. It is apparent that the requirements set by the United Nations of the High Commissioner for Human Rights relating to forced evictions as quoted herein-above have not been put in practice in this country. These are sound legal principles which, in my view, ought to be applied in our constitutional interpretation in respect of people’s right to adequate housing. The State has a positive obligation under Article 43(b) of the Constitution to adopt and implement a reasonable policy, within its available resources, which would ensure access to adequate housing over time.”
I stand corrected but such authoritative declarations by a superior court of law, recognizing a set of internationally recognized principles, ought to be respected by a government that claims to abide by the rule of law. What certainly stupefies all of us is that, the fact that these guidelines were recognized by the court never stopped the recent spate of evictions that rendered many homeless and others watched in utter disbelief as they were literally bulldozed back to poverty.
Even as the Minister goes on with the planned tabling of the guidelines, what ought to be imperatively examined is how to keep the conduct of government in check whenever it, its agents and servants tend to disrespect due process as they carry out or oversee violent evictions and implement developmental policies.
The diffidence that has a characterized the quest of protection of rights by many hardworking Kenyans against a government that has an impressive record of utter disregard to the rule of law ought to be a thing of the past. It is imperative that all and sundry stand up and ensure a respect of the courts, and an observance, respect, protection, promotion and a fulfillment of the rights and fundamental freedoms of the citizenry.
Our Gun Brandishing Deputy Chief Justice
As much as I would have let the discourse take its course, I am tempted to delve into the hottest news in town! Blogosphere and social media is awash with caricatures of the Deputy Chief Justice either brandishing a weapon or carrying a bag full of heavy excalabry weaponry and am certainly tempted to come up with one myself but on second thought, I beg to pass. The DCJ faces one of those, Oh shit why did I do that?’ moments, that we many a times face at different phases of our lives. A celebrated lady properly qualified for her current position, there is no doubt about the DCJ’s capabilities and the inspiration she has become for many young female lawyers and women folk. How she reacts to this will either increase the dignity and respect she already has, or completely erode it. Am glad that the Chief Justice has taken the matter up in his administrative capacity as chair of the JSC as it too is an issue that can either increase the trust that Kenyans have in this new look judiciary or erode it to the disdain with which it was once held. If indeed she threatened the security officer with a weapon, then she ought to face the consequences of her actions specifically for the sake of our judiciary. In the meantime, I will sit back and enjoy the satire, creative humor, twist and hilarity…..
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