RIGHT TO HOUSING UNDER THE CONSTITUTION OF KENYA The right to housing comprises an intricate part in the realization of one of the most basic needs of a human being, shelter. Everyone has the right to a decent standard of living as stated in the Universal Declaration of Human Rights, a document that has attained the status of jus cogens due to its wide acceptance. Essential to the achievement of this standard is access to adequate housing. It has been said that housing fulfills physical needs by providing security and shelter from weather and climate.
It fulfills psychological needs by providing a sense of personal space and privacy. It fulfills social needs by providing a gathering area and communal space for the human family, the basic unit of society. It also fulfills economic needs by functioning as a center for commercial production. Due to various factors including insufficient financial and natural resources, population growth, political upheavals, and rural- urban migration, a vast population of Kenyans especially those living in urban areas end up homeless or in informal settlements. Dr. P. L.
O Lumumba in his speech during the World Habitat forum in 2004 described the lengths to which people unable to afford adequate housing go to provide shelter to themselves and their families. He said that some of them end up seeking refuge in, “slums areas, squatting in informal settlements, old buses, roadside embankments, cellars, staircases, rooftops, elevator enclosures, cages, cardboard boxes, plastic sheets, aluminum and tin shelter. ” According to a UN Habitat study done in 2008, 60-80 percent of residents in Nairobi, Mombasa and Kisumu, live in informal settlements.
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In fact, the same study shows that while 60 percent of Nairobi’s populations live in informal settlements, their homes occupy only 5 percent of the total land area of the city and its environs. Although right to adequate shelter is a human right, this does not imply that the government is obliged to provide each of their citizens with land and an appropriate house to live in. This is dependent on the laws and policies of each individual country. In Kenya, the debate about the justifiability of housing and some other socio-economic rights seems to be over with the passing of the 2010 Constitution.
This is because the constitution has provisions that seek to protect the provision of these rights to every citizen as will be discussed in the next part. 1. 1 The Constitution of Kenya, 2010 When Kenya gained independence in 1963, every Kenyan was relieved to have finally been freed from the yoke of colonialism. The independent Kenya adopted a constitution that had majorly British influence but that seemed to suffice during those early ‘teething years’. But as years passed by, the biting reality that the country had been taken over by neo-colonialists hit home.
The independence constitution was not sufficient to protect the general public from the vicious acts and decisions of those in power. There was need for constitutional reform. Kenyans have long struggled for constitutional reform. They struggled because they suffered under an oppressive system of government. Their human rights were suppressed. The power of the state was concentrated in one person, the president. First regions and then local governments were stripped of all their powers. At the center, the president dominated all institutions of the state. Cronyism substituted for politics.
Merit counted for little. The law was frequently abused by the government and the exercise of power was unpredictable and arbitrary. The judiciary had failed to protect the constitution and the rights of the people. The civil service and other executive organs lost independence. There was corruption, plundering both of the state and a captive private sector, on a massive scale. The new constitution therefore had to be a document that remedies the shortcomings of the independence constitution. The drafters of the new Constitution aimed to restore the confidence of the citizens with their government.
One of the salient features of the 2010 constitution is the incorporation of a strong and comprehensive Bill of Rights. It contains a number of rights, which were missing from the independence constitution, including rights to official information, environment, economic and social rights, and rights of consumers, et cetera. The 2010 Constitution strengthens the achievement of the human rights by limiting the restrictions that may be placed on rights and by establishing a strong mechanism for the enforcement of rights. It also provides for an independent commission of human rights to protect and promote rights and freedoms.
Of importance to this research are the Economic and Social rights. Article 43 provides for each person’s right to: a) The highest attainable standard of health b) Accessibility and adequate housing and to reasonable standards of sanitation. c) Freedom from hunger and to have adequate food of acceptable quality. d) Clean and safe water in adequate quantities. e) Social Security. f) Education. Amongst this list of rights is the right to housing. Forced evictions of persons living in unplanned settlements and slums are a common feature of urban development.
People living in these informal settlements live at the margins of society. Land is generally an expensive investment in Kenya therefore only a few can afford it. Those who cannot afford it opt to rent apartments or houses or rooms from property owners but there are some who cannot still afford this kind of arrangements and so set up their housing structures on any free land that they come across, regardless of whether it is private land or public land set out for other purposes. This latter group of people is the ones who fall victim to forced evictions.
Article 2(5) and (6) of the constitution general rules of international law and any treaty or convention ratified by Kenya form part of the laws of Kenya. Kenya ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) on 3/1/1976 and consequently became bound to respect, protect and enforce the rights therein, including the right to adequate housing and the related prohibition of forced evictions. It is with this backing of the law that victims of forced evictions that are not conducted in the manner stipulated in both domestic law and international law are able to defend their right to housing through the courts. ------------------------------------------- [ 2 ]. Article 25(1) which states in part, “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care…” [ 3 ]. Nicholas Okemwa, Forceful Evictions and the Right to Adequate Housing(2011)16 ; The Bench Bulletin 58 [ 4 ]. Dr. P. L. O Lumumba, Powers of Urban Authorities over Settlement Control: The Kenyan Case. He presented this paper during the world habitat forum organized by un-habitat held on the 13th –17th September 2004 at the Barcelona, Spain [ 5 ].
Preliminary Results of the 2009, National Population and Housing Census. [ 6 ]. Draft Eviction an Resettlement Guidelines, 2010. [ 7 ]. Commentary on the Kenyan Constitution, (Consolidation of 15 articles in the East African Standard). [ 8 ]. Article 35 [ 9 ]. Article 42 [ 10 ]. Article 43 [ 11 ]. Article 46 [ 12 ]. Article 24 is the only article that provides for the specific procedure to be followed for a right contained in the Bill of Rights to be limited. This is unlike in the independence constitution where each right was immediately followed by a claw-back clause. [ 13 ]. Article 11
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