Forced evictions and demolitions of informal settlements in Kenya have been on the increase in recent days due to urban redevelopment and claims that such installations pose a security threat in light of current terror threats, particularly in Nairobi, Kenya’s capital city. Most forced evictions have been carried out without due notice and in a brutal manner.
A UN-HABITAT report notes that over 60% of the population in Nairobi live in slums. This percentage represents a majority of people living in informal settlements, who apart from being poverty stricken also form a significant part of the city’s workforce. Therefore, there is need to find a balance between curbing insecurity and conducting urban developments without exacerbating the already fragile economic conditions of those to be evicted. For the State to live up to the 2010 Constitution’s transformative goal, echoed by, inter alia, the entrenchment of the right to housing in Article 43 of the Constitution, it needs to find lasting solutions to this problem.
Recognising the plight of those forcefully evicted, Kenyan courts have held that without following the proper legal procedures, adequate consultation and providing alternative housing or compensation, forced evictions are illegal. One of the main landmark cases on the issue is that of Mitu-Bell Welfare Society v Attorney General & 2 others  eKLR. Despite being a 2013 decision, the case is worth revisiting owing to the increase in forced evictions and the fact that the case has seldom been written about despite having set a powerful judicial precedent for the carrying out of forced evictions in Kenya.
The case concerned the forced eviction and demolition of the homes of thousands of families from an informal settlement called Mitumba village near Wilson Airport in Nairobi, where they had lived for more than 19 years. The respondents claimed that the demolitions were carried out because the settlement posed a security threat due to the presence of Kenyan troops in the war in Somalia. The community moved to court seeking a declaration that the forced eviction was in contempt of previous court orders not to evict and was also illegal without due notice, compensation or relocation. They also contended that the forced eviction violated their constitutional rights to housing (Article 43), respect for human dignity (Article 28) and their right to equality and non-discrimination (Article 27).
Since no legislation or guidelines have been developed so far on the carrying out of evictions in Kenya, Justice Mumbi Ngugi turned to international law. This, she argued, was made possible by virtue of Articles 2(5) and (6) of the Kenyan Constitution, which incorporate general rules of international law and any treaty or convention that Kenya has ratified into Kenyan law. In particular, the judge invoked paragraphs 15 and 16 of the guidelines on evictions in UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 7: The right to adequate housing (Art.11.1): forced evictions.
After analysing the facts of the case, the judge held that the forced eviction and demolition of the petitioners’ homes without a relocation option and without following the proper procedures violated their constitutional rights. The judge also opined that the selective demolition of the informal settlements alone and not the multi-storied buildings surrounding it violated the right to non-discrimination and equal protection of the law. It was based on a false assumption that “terror only resides in the downtrodden informal settlements” in Kenyan cities. She thus proceeded to make an order that the respondents should, within 60 days, provide shelter and access to housing for the former residents of Mitumba village.
The decision in Mitu-Bell has been cited in many subsequent judgments on forced evictions. However, the growing number of forced evictions, including the recent eviction of hundreds of slum-dwellers in Kenya’s Mathare slum, illustrates the need for the law to be clear and seek preventative solutions rather than the courts doing damage control after peoples’ rights have already been violated. This therefore necessitates, among other things, a resuscitation of the Evictions and Resettlement Procedures Bill, 2012 which has been pending before parliament for three years now.