The governance of land, the most lucrative asset in Kenya, has become an impediment to the economic, political, and social development of Kenya and Kenyans. Large scale corruption in land governance is highlighted daily, from unfortunate family disputes to allegations of land grabbing by former officials and recently, Presidents.
Public institutions, meant to be protected by the state, are at the forefront of the fight against corruption in land governance. Public schools are specifically vulnerable to land-grabbing, given that most public schools do not have land titles, and sit on large parcels of land. Mwamdudu Primary School is just one of such schools currently in the process of fighting for the land it has been on since 1966.
The land Mwamudu Primary School sits on was originally allocated to an Indian Settler in 1908. As the land was never settled on or developed, a community of Duruma settled on the land, eventually allocating areas for public utility development. In 1966, land the community had allocated and donated for the purposes of a public school was developed, and the Mwamdudu Primary School was started.
In 2007, due to the vast amounts of unoccupied and undeveloped land that had been allocated by the British Protectorate in Kenya, then President Mwai Kibaki issued a directive that all absentee lands would be claimed back by the Government, and open for sale. In light of this, the Mwamdudu community sent requests to the Government to have the land they occupied allocated to them on the basis of adverse possession. While waiting for a response, and without notice, Colfax Holdings Ltd claimed they owned title to the land on which the school and the entire community sits on. The community never got a response from the Government.
In lieu of adjudication on the land, Colfax has resulted to forcibly evicting the community. The company has slowly excavated land from underneath the hill the community rests on, resulting in the destruction of homes and other buildings. In some cases, explosives have been used to destroy homes. For the school, the company has excavated soil around the boundary of the school, resulting in the school being surrounded by a cliff. Continued excavation has resulted in unstable ground, causing injuries including broken and fractured limbs.
The actions undertaken by Colfax are in violation of Articles 53(b), 62(4), and 28, collectively protecting and promoting the right of children to free and compulsory education and the protection of public land respectively, while stating that every person has inherent dignity and the right to have that dignity respected and protected. While Kenya does not have legislation specifically on forced evictions, Courts have found such actions unconscionable, and constituting serious obstacles to the enjoyment of other rights, and specifically basic rights to food, education, and basic healthcare.
Forced evictions must 1) be attributable directly or indirectly to the state, and 2) have an element of force. The states failure to intervene and halt the Colfax from forcibly evicting the Mwamdudu community indirectly.
levels blame on the state for the evictions. The irreparable demolition of homes in the community, including those demolished by explosives and the excavation of soil, is the element of force needed to identify what Colfax is doing as forcibly evicting the Mwamdudu Community from their land. Basic human rights, such as rights to food, education, and basic healthcare, are compromised by forced evictions.
For the Mwamdudu Community, the violation of their right to land, and access to their land destroys their livelihood, culture, and communities they have built over a century. It has threatened and destroyed their ability to enjoy other economic, social and political rights envisioned by the spirit and letter of the Kenyan Constitution.