Kenya: Garissa Community Wins Land Rights Battle

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Kenya: Garissa Community Wins Land Rights Battle
By: Dann Okoth, The Standard (Nairobi)
02 December 2011

When Ms Deka Jele’s home in Medina, Garissa County was demolished by the local County Council in December 2010, she thought all was lost. However, one year down the line, Jele can now afford to smile, thanks to a landmark court decision in her favour.

In an unprecedented ruling delivered at the High Court in Embu, on 16 November, Judge A O Muchelule ordered that Jele and 1,122 other residents of Medina be restored to their land and each resident to receive Sh200,000 each as compensation amounting to over Sh200 million (€1.8 million). The court further compelled the Government to reconstruct reasonable residences and alternative accommodation for the petitioners.

"Such residences, accommodation and housing should have all the amenities, facilities and schools that were existing on the land at the time of the evictions and demolitions," the court ordered.

Trail of Destruction

"I feel reborn," said an elated Jele last week. "For once justice has been done and the poor have had their day in court," she added. The residents had gone to court to petition the Government to restore them to their ancestral land and to restrain the state and its agents from further evicting them from the land.

Until that fateful day on December 31, 2010, the sleepy hamlet, seven kilometers west of Garissa town, had been relatively peaceful. But a contingent of administration police officers accompanied by area DC and Garissa County council askaris descended on the village.

"They arrived without warning, armed to the teeth, in lorries and bulldozers," recalled Bula Medina resident, Mr Ibrahim Sankoro, 70.

"Before we could find out what was happening they had descended on us with batons, kicks and blows, tear-gassed the village and assaulted women," he says. After the operation that lasted more than two hours was over, the authorities went away, leaving in their wake a trail of destruction and a number of unanswered questions.

In all, 145 structures were demolished throwing at least 3,000 families in the cold. At the time villagers estimated that between 10, 000 and 15,000 residents would be affected once the eviction notice is implemented. The scene left behind resembled a post-apocalyptic wasteland with overturned structures, twisted iron sheets and scattered household goods littering the village.

Brutal Eviction

But last week, the court ruled that the violent and brutal eviction through demolition of homes of the petitioners without according them alternative shelter or accommodation leaving them to live in the open exposed to the elements and vagaries of weather is a violation of their fundamental right to life guaranteed by article 26(1) and (3) of the Constitution and Article 11 of International Covenant on Economic, Social and Cultural Rights to which Kenya is a signatory.

The court also ruled that the forcible eviction through demolition of homes, without court orders and without according them an opportunity to salvage any of their belongings was a violation of their fundamental right to protection of property guaranteed by article 40(1), (3) and (4) of the Constitution.

More significantly it is the first ruling to specifically order the Government to reconstruct shelter and other amenities for the evictees and also award punitive damages.

"These are important developments and constitute a significant new direction in our jurisprudence," says Mr Odindo Opiata of Economic and Social Rights Centre who represented the Amici Curia (friends of the court submission) in the case.

"We are of course aware that enforcing these orders will be a challenge but we are prepared for the same and that is the next phase. We intend to continue working closely with all our partners to seek effective ways of ensuring full implementation," he added.

The verdict breaks ground on some key important areas that hitherto had not been touched on by previous rulings on evictions, including a finding that forced eviction violates the right to health care services, freedom from hunger and the right to clean and safe water in adequate quantities guaranteed by Article 43(1) read with Articles 20(5) and 21(1), (2) and (3) of the Constitution.

The court also found that forced eviction violates the right to fair administrative action guaranteed by Article 47 of the Constitution and the right to physical and mental health, and the fundamental right to physical and moral health of the family under Articles 16 and 18 of the ACHPR read with Article 2(6) of the Constitution of Kenya, 2010.

Those evicted included school going children, women and the elderly. But they would find reprieve in the court’s ruling that the forced eviction violates the rights of children to basic nutrition, shelter and healthcare and protection from abuse, neglect and all forms of violence and inhuman treatment and to basic education guaranteed by Article 53(1)(b), (c), (d) and (2) of the Constitution.

Confidence in Legal System

A finding that forced eviction violates the rights of the elderly persons to the pursuit of personal development, to live in dignity, respect and freedom from abuse and to receive reasonable care and assistance from the State guaranteed by Article 57 cushioned the old people that were affected by the evictions.

"The court’s decision restored my confidence in our justice and legal system," says Mr. Hassan Ibrahim Alale, secretary of Bula Medina Community Association.

"More importantly, it sends a strong message out there to those who violate the rights of vulnerable communities that the new dispensation will protect them," he added.

Indeed, the landmark ruling could potentially set the precedent on how such matters will be arbitrated and decided in the courts of law.

Original article:

Find the Embu Court ruling on Landpedia’s Library:

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