Evictions and Demolitions on Public land – the legal Procedure
To avoid a stereotypical, superficial reporting on demolitions and evictions, the information below should help. This is the summary of some of the most important legal rules.
Firstly, it is the National Land Commission which must notify the unlawful occupiers of land at least three months prior to the eviction. This must happen with four different means: In writing, in the Gazette, in a newspaper with national circulation and on radio.
This is provided for in section 152 C of the Land Act 2012.
In the light of this provision, was it legal to demolish 300 shops in a market near Moi Girls High School in Nairobi on June 5th, 2018, just a few days after rape cases in that school were reported?
Most probably not. The official in charge of the operation even sidestepped that question; he told the KTN reporter it was not within his mandate to talk about a notice “of two weeks or so”, as the reporter had put it. And that was all that was explained. A well-informed reporter may have asked a better question and not been satisfied with the sidestepping answer.
This is the KTN report on youtube.
How to inform the Affected Citizens
Apart from the period of notice, there are many detailed questions, that the media can ask when an official claims to have the affected evictees duly notified. Most importantly: Have they been informed “in writing”? According to advocate Steve Ogolla, this need is met if there is a notice in a public place or served, for example to the resident or merchant association leaders. The three month period makes sense to assure the citizens’ rights: According to section 152 F of the Land Act, any person or business served with an eviction notice may apply to Court for relief against it. The court may confirm, alter or suspend the notice or add something to it; it may also order compensation to be given to the affected.
Strict Rules during Evictions
Then, during eviction, there are strict rules that have to be followed – and frequently they are not followed. We have witnessed bulldozers appearing unexpectedly in the middle of the night, with unknown construction workers shouting alarm to everybody to get out of their way. Then they violently destroy whatever is in the way of the road that is to be built. This is illegal. The rules that have to be followed are laid down in Sec 152 G Land Act. They are worth being read paragraph by paragraph:
- “Those who perform the eviction must identify themselves and they must present the formal authorization for their act.” Paras (a) and (b) of Sec. 152 G Land Act
- “If a group and not just one business or person is affected, a representative of the government office must be present during the eviction.” Para (c) of Sec. 152 G Land Act
Property must be protected
Also, the eviction must “include special measures to ensure that there is no arbitrary deprivation of property or possessions as a result of the eviction” (Para f of Land Act 152 G)
Was this done when bulldozers came on April 10, 2018 to destroy kiosks in Nairobi-Ngara who were in the way of the proposed new matatu station? They began the operation at 7 a.m., and on TV, you could see shop owners trying to salvage property while the bulldozers were in action. This is in complete contravention of the laid out law on the procedure for demolitions.
The County Director of Operations justified it anyway, in this report on Citizen TV on the same morning.
People must be respected
- The dignity, the right to life and the security of those affected must be respected. Para (d) of Land Act Sec. 152 G
- All persons who are vulnerable must be specially protected, like women, elderly, children, persons with disabilities. Para (e) of Land Act Sec. 152 G
- The eviction should “include mechanisms to protect property and possessions left behind involuntarily from destruction;” and it should “give the affected persons the first priority to demolish and salvage their property.” (Para g and I of Land Act Sec. 152 G )
This legal rule is most certainly not followed if the bulldozers appear out of the blue in the middle of the night, like in the case of the road from Kisumu to Dunga on December 16, 2017 (see picture on top and the Report in The Star on the case – which didn’t ask the questions)
Is it necessary like this? Is it proportional like this?
A very important and far reaching rule is that any eviction should “respect the principles of necessity and proportionality during the use of force”. Para (h) of Land Act Sec. 152 G
This paragraph gives journalists a lot of opportunity to follow-up questions to the officials in charge: Is it really necessary to do it this way with these means and at that time? In most cases that were reported the answer would be no.
And is it proportional to demolish 300 kiosks which have been standing there for years, just a few days after the rape cases at Moi’s Girl School, unannounced? To answer with “yes” would mean there were no alternatives. But a three-month service of security guards around the school could have had the desired effect – and avoided the unlawful and unannounced destruction of the market in Kibera. Again, in the news reports the police officer leading the destruction procedure was defending it – and he was not challenged by the journalists. They did not ask if the act of the administration was proportionate.
(Authors of this page: RoGGKenya Editor with Brandon Otieno, Jennifer Githu and Steve Ogolla)