Land Rights in Kenya: The Role of Law in Protection against Forced Evictions Submitted by: STEPHEN CHEGE NJOROGE Student Number: 1807480 Thesis presented for the degree of Doctor of Philosophy in the School of Law (Faculty of Commerce, Law and Management) at the University of the Witwatersrand, Johannesburg Supervised by: DR. KHULEKANI MOYO April 2024 i Declaration I, Stephen Chege Njoroge, declare that this thesis is my own work. It is submitted in fulfilment of the requirements of the degree of Doctor of Philosophy (PhD) in the Faculty of Commerce, Law and Management at the University of the Witwatersrand, Johannesburg. This thesis has not been submitted before for any degree or examination in this or any other university. I understand the University’s policy on plagiarism. Where works by other people have been used, they have been properly acknowledged and referenced. Stephen Chege Njoroge Signature: Student number 1807480 30 April 2024 This thesis has been submitted with my approval as the Supervisor. Dr. Khulekani Moyo Sign: …Signed……………………….. Date: 30 April 2024 ii Acknowledgements The journey towards completing this thesis was made possible by the assistance and guidance of several people. I express gratitude to my supervisor Dr. Khulekani Moyo for his guidance, support and valuable comments throughout my research. His constructive criticism added value to my work. I am grateful for the support from Judy Mafika on administrative matters and queries. I also benefited from the writing retreats organised by the faculty. Special thanks to my family. To my wife Pauline Chege and children, Tania Simaloi and Sean Njoroge, thank you for being a constant source of inspiration and encouraging me to put more effort and complete this work. To my parents Francis Njoroge and Lucy Simaloi, thank you for everything and may God reward you. To my father-in-law John Muthuri, thank you for not losing faith in my ability to complete this journey. I am grateful for the support and encouragement received from Prof. Edwin Abuya and Prof. Kariuki Muigua, both from the School of Law, University of Nairobi. To my colleagues at the State Department for Lands and Physical Planning, thank you immensely for your encouragement and support in numerous ways. Any shortcoming in this work remains my sole responsibility. iii Dedication This thesis is dedicated to everyone who works to make Kenya a better country. iv Kenyan Legislation Commission on Administrative Justice Act 102A of 2011. Crown Land Ordinance 1902. Crown Land Ordinance 1915. Community Land Act 27 of 2016. Environment and Land Court Act 19 of 2011. Gender and Equality Commission Act 15 of 2011. Government Lands Act Cap 280 Laws of Kenya. Housing Act Cap 117 Laws of Kenya. Judicature Act Cap 8 Laws of Kenya. Kenya National Commission on Human Rights Act 14 of 2011. Land Act 6 of 2012. Land Adjudication Act Cap 284 Laws of Kenya. Land Consolidation Act Cap 283 Laws of Kenya. Land Control Act Cap 302 Laws of Kenya. Land (Group Representatives) Act Cap 287 Laws of Kenya. Land Laws (Amendment) Act 2016. Land Titles Act Cap 282 Laws of Kenya. Land Registration Act 3 of 2012. Limitation of Actions Act Cap 22 Laws of Kenya. National Land Commission Act 5 of 2012. Order in Council 1901. Physical Planning Act Cap 286 Laws of Kenya. Registered Land Act Cap 300 Laws of Kenya. Registration of Titles Act Cap 281 Laws of Kenya. Statistics Act 4 of 2006. Treaty Making and Ratification Act 45 of 2012. Trust Lands Act Cap 288 Laws of Kenya. v Kenyan Policy Documents Republic of Kenya Eviction and Settlement Guidelines: Towards Fair and Justifiable Management of Evictions and Resettlements (2009). Republic of Kenya Sessional Paper No. 3 National Housing Policy for Kenya (2004). Republic of Kenya National Housing Policy for Kenya (2016). Republic of Kenya National Land Policy (2009). Republic of Kenya National Land Use Policy (2016). Republic of Kenya National Shelter Strategy to the Year 2000. Republic of Kenya Sessional Paper No. 5 National Housing Policy for Kenya (1966/67). South African Legislation Extension of Security of Tenure (ESTA) Act 62 of 1997. Interim Protection of Informal Land Rights Act 31 of 1996. Mineral and Petroleum Resources Development Act (MPRDA) Act 28 of 2002. Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. South African Housing Act 107 of 1997. Treaties, International and Regional Instruments African Charter on Human and Peoples’ Rights 27 June 1981, OAU Doc CAB/LEG/67/rev5. Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, UN Doc A/34/46. International Convention on the Protection and Promotion of the Rights of Persons with Disabilities (2006) UN Doc A/61/49. International Covenant on Economic, Social and Cultural Rights, GA Res 2200A (XXI) 16 December 1966, 993 UNTS 3. International Labour Organisation Convention (No 107) Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (1957) (Adopted in June 1957 by the International Labor Conference at its 40 th session, 328 UNTS 247, entered into force on 2 June 1959). International Labour Organisation Convention (No 169) Concerning Indigenous and Tribal Peoples in Independent Countries (1989) (Adopted by the International Labor Conference on 27 June 1989 and entered into force on 5 September 1991). vi Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 10 December 2008, A/RESE/63/117. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa 11 July 2003, CAB/LEG/66.6. Universal Declaration of Human Rights (1948) UN Doc A/810. General Comments and Concluding Observations Convention on the Elimination of All Forms of Discrimination against Women Committee ‘Concluding Observations: Australia’ (1997) U.N. Doc. A/52/38/Rev.1. Convention on the Elimination of All Forms of Discrimination against Women Committee ‘General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women’ (2010) UN Doc CEDAW/C/GC/28. Convention on the Elimination of All Forms of Discrimination against Women Committee ‘Concluding Observations on the Eighth Periodic Report of Kenya’ (2017) UN Doc CEDAW/C/KEN/CO/8. Convention on the Elimination of All Forms of Discrimination against Women Committee ‘Concluding Observations on the Eighth Periodic Report of Australia’ (2018) UN Doc CEDAW/C/AUS/CO/8. United Nations Committee on Economic, Social and Cultural Rights ‘General Comment No. 3: The Nature of States Parties' Obligation’ (1990) UN Doc. E/1991/23. United Nations Committee on Economic, Social and Cultural Rights General Comment No. 4 ‘The Right to Adequate Housing’ (1991) UN Doc No. E/1992/23. United Nations Committee on Economic, Social and Cultural Rights ‘General Comment No 5 Persons with Disabilities’ (1994) UN Doc E/1995/22. United Nations Committee on Economic, Social and Cultural Rights General Comment No 3 The nature of States Parties’ obligations (1990) UN Doc E/1991/23. United Nations Committee on Economic, Social and Cultural Rights General Comment No. 7 Forced evictions and the Right to Adequate Housing (1997) UN Doc E/1998/22. United Nations Committee on Economic, Social and Cultural Rights ‘General Comment No. 9 The Domestic Application of the Covenant’ (1998) UN Doc E/C.12/1998/24. United Nations Committee on Economic, Social and Cultural Rights ‘General Comment No. 14 The Right to the Highest Attainable Standard of Health’ (2000) UN Doc E/C.12/2000/4. vii United Nations Committee on Economic, Social and Cultural Rights ‘Concluding Observations of the Committee on Economic, Social and Cultural Rights’ (2008) UN Doc E/C.12/KEN/CO/1. United Nations Committee on Economic, Social and Cultural Rights ‘Concluding Observations on the Initial Report of Indonesia’ (2014) UN Doc E/C.12/IDN/CO/1. United Nations Committee on the Rights of Persons with Disabilities ‘Concluding Observations in Relation to the Initial Report of Kenya’ (2015) UN Doc CRPD/C/KEN/CO/1. United Nations Committee on the Rights of Persons with Disabilities ‘Concluding Observations: UN Report on Australia’s Review of the Convention on the Rights of Persons with Disability’ (2019) UN Doc CRPD/C/AUS/CO/1. Declarations, Resolutions, Principles and Guidelines Principles relating to the Status of National Institutions (Paris Principles) UN Doc E/CN.4/1992/43 9 October 1991. United Nations General Assembly The Final Act of the International Conference on Human Rights (1968) UN Doc A/CoNF. 32/41. United Nations General Assembly Indivisibility and Interdependence of Economic, Social, Cultural, Civil and Political Rights (1985) A/RES/41/117. United Nations General Assembly Vienna Declaration and Programme of Action (1993) 25 June 1993 UN Doc A/CoNF.157/24. United Nations General Assembly ‘United Nations Declaration on the Rights of Indigenous Peoples’ (2011) UN Doc A/RES/66/142. United Nations General Assembly ‘Basic Principles and Guidelines on Development based Evictions and Displacement’ (1997) UN Doc A/HRC/4/18. United Nations High Commission for Refugees, ‘Principles on Housing and Property Restitution for Refugees and Displaced Persons’ (28 June 2005) UN Doc E/CN.4/Sub.2/2005/17. Constitutions Constitution of the Republic of Kenya, 1969. Constitution of the Republic of Kenya 2010. Constitution of the Republic of South Africa 1996. viii Table of cases i. African Commission on Human and Peoples’ Rights Centre for the Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya Communication no. 276/2003 (2009) AHLRLR 75 (ACHPR 2009). Social and Economic Rights Action Centre (SERAC) v Nigeria Communication No. 155/96, (2001) AHRLR 60 (ACHPR 2001). Sudan Human Rights Organisation & Centre on Human Rights and Evictions (COHRE) v Sudan Communications no. 279/03-296/05 (2009) AHRLR 153 (ACHPR 2009). ii. African Court on Human and Peoples’ Rights African Commission on Human and Peoples’ Rights v The Republic of Kenya Application no. 006/2012. iii. Committee on Economic, Social and Cultural Rights IDG v Spain Communication No. 2/2014 UN Doc E/C. 12/55/D/2 2014, 13 October 2015. iv. Kenya Beatrice Wanjiku & Another v Attorney General & Another (2012) eKLR. Fatuma Khamis Bilal & 3505 others v Kenya Railways Corporation & 6 others (2021) eKLR. Federation of Women Lawyers (FIDA-K) & 5 Others v Attorney General Representing Commissioner of Lands & 2 Others (2016) eKLR. Francis Kemai & Others v Attorney General & 3 Others (2006) 1 KLR (E & L) 326. Ibrahim Sangor Osman v The Minister of State for Provincial Administration and Internal Security (2012) 2 EA 283 and 2011 eKLR. International Commission of Jurists-Kenya v Attorney General & 2 others (2011) eKLR. Isaka Wainaina wa Gathomo and Kamau Gathomo v Murito wa Indagara, Nanga wa Murito & Attorney General The Court of Appeal for Eastern Africa (1922) 23 KLR Vol. IX 102. Joseph Letuya & 21 Others v Attorney General & 5 Others (2014) eKLR. Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others (2016) eKLR. Mitu-Bell Welfare Society v Attorney General & 2 others (2013) eKLR. Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) (2021) eKLR. ix Mohammed Hussein Yakub & 5 others v County Government of Mandera & 5 others (2020) eKLR. Ole Njogo and Others v Attorney General of the East African Protectorate (1914) 5 EALR 70. Re Zipporah Wambui Mathara (2010) eKLR. Satrose Ayuma & 11 others v. Registered trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 Others Petition No 65 of 2010 (2012) eKLR. Symon Gatutu Kimamo & 587 Others v East African Portland Cement Company Limited (2011) eKLR. Susan Waithera & 4 Others v The Town Clerk, Nairobi City Council & 2 Others (2011) eKLR. William Arap Ngasia & 29 Others on behalf of the Endorois Community v Baringo County Council and Koibatek County Council Nakuru High Court application No. 214 of 1997 (unreported). William Yatich Sitetalia & Others v The County Council of Baringo Nakuru High Court application Number 183 of 2000. v. South Africa ABSA Bank Ltd v Murray and Another 2004 (2) SA 15 (C). Alexkor Limited and Another v Richtersveld Community and Others (2003) (12) BCLR 1301 (CC) Baartman and others v Port Elizabeth Municipality 2004 (1) SA 560 (SCA). Baleni v Minister of Mineral Resources 2019 2 SA 453 (GP). Blue Moonlight Properties 39 (Pty) Ltd v Occupiers of Saratoga Avenue and Others 2009 (1) SA 470 (W). Cashbuild (South Africa) (Pty) Ltd v Scott and Others 2007 (1) SA 332 (T). City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another (2011) ZASCA 47. City of Johannesburg v Rand Properties (Pty) Ltd and Others 2007 6 BCLR 643 (SCA). Government of the Republic of South Africa and Others v Grootboom and Others 2001 1 SA 46 (CC). Maledu v Itereleng Bakgatla Mineral Resources (Pty) Limited 2019 2 SA 1 (CC). x Modder East Squatters & Another v Modderklip Boerdery (Pty) Ltd, President of the Republic of South Africa & Others (2004) All SA 169 (SCA). Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg v City of Johannesburg and Others 2008 3 SA 208 (CC). Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC); 2004 (12) BCLR 1268 (CC). Richtersveld Community and Others v Alexkor Ltd and Another (2001) (3) SA 1293 (LCC). Richtersveld Community and Others v Alexkor Limited and Another (488/2001) [2003] ZASCA. Sailing Queen Investments v The Occupants La Colleen Court 2008 (6) BCLR 666 (W). Residents of Joe Slovo Community, Western Cape v Thubelisha Homes 2010 (3) SA 454 (CC); 2009 (9) BCLR 847 (CC). Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others (Centre on Housing Rights and Evictions and Another as Amici Curiae) 2011 (7) BCLR 723 (CC). xi Abstract The land question in Kenya from the colonial to the post-colonial periods has direct implications to the prevalence of forced evictions affecting individuals and communities. Land laws and policies enacted during the stated periods contributed largely to the problem of forced evictions. The independence Constitution also did not address the problem. The promulgation of the Constitution of Kenya 2010 (the Constitution) however laid the basis for protection against forced evictions. The Constitution guarantees the right to housing, which is a component for protection from forced evictions as well as the right to dignity. However, it does not make provision for protection from forced evictions in the Bill of Rights. The legislature has not enacted substantive legislation on forced evictions. The courts have made efforts, though minimally, to infuse international standards on evictions in their decisions. This thesis interrogates the Kenyan legal framework, policies and institutions dealing with land and housing to identify their inefficiencies in protecting against forced evictions and has suggested recommendations for reform. The thesis establishes that Kenyan law inadequately protects individuals and communities against forced evictions. The thesis answers questions: (i) what are the limitations of the legal and institutional framework in addressing the problem of forced evictions in Kenya? (ii) what are the legal and policy measures that are necessary to mitigate the problem of forced evictions? (iii) what can Kenya learn from another comparable jurisdiction in addressing the problem? In answering the questions, the thesis provides a synopsis of issues related to forced evictions which include access to land and security of tenure. The thesis examines the genesis of the problem of forced evictions and its prevalence on individuals living in informal settlements, indigenous communities and other communities. Importantly, the thesis evaluates the impact of forced evictions on human dignity as well as interdependence of all rights to demonstrate that forced evictions have implication to other human rights. The thesis discusses protection from forced evictions in international law through the International Covenant on Economic, Social and Cultural Rights, thematic instruments, regional human rights instruments and institutions and their relevance in incorporating international best practices towards addressing the problem of forced evictions in Kenya. The thesis also draws best practices from the South African legal framework, norms, jurisprudence and judicial developments with a view to recommending the incorporation of best practices on land rights and protection against forced evictions in Kenya. xii This study is significant and breaks new ground because it measures the Kenyan legal framework against international norms and practices in the area of land rights and forced evictions. By drawing best practices, the study highlights the limitations and deficiencies in the Kenyan legal framework and provides options for reforms. The development of an appropriate legal framework with substantive and procedural safeguards on evictions for individuals and communities in Kenya serves as the original contribution of the study. xiii Abbreviations and Acronyms ACHPR African Commission on Human and Peoples' Rights African Court African Court on Human and Peoples' Rights ADR Alternative Dispute Resolution AI Amnesty International CAEA Court of Appeal for Eastern Africa CAJ Commission on Administrative Justice CECM County Executive Committee Member CEDAW Convention on the Elimination of all Forms of Discrimination against Women CESCR Committee on Economic, Social and Cultural Rights CLA Community Land Act Crown British Colonial Government CRPD Convention on the Rights of Persons with Disabilities EAPCCL East African Portland Cement Company Limited ECHR European Court of Human Rights ECSR European Committee of Social Rights ELC Environment and Land Court ELCA Environment and Land Court Act ESTA Extension of Security of Tenure FAO Food and Agriculture Organisation FPIC Free, prior and informed consent ICESCR International Covenant on Economic, Social and Cultural Rights IHRL International human rights law ILO International Labour Organisation IPILRA Interim Protection of Informal Land Rights Act KAA Kenya Airports Authority KNCHR Kenya National Commission on Human Rights KNHREC Kenya National Human Rights and Equality Commission LA Land Act LCC Land Claims Court LLAA Land Laws Amendment Act LRA Land Registration Act LTA Land Titles Act MLPWHUD Ministry of Lands, Housing, Public Works and Urban Development MPRDA Mineral and Petroleum Resources Development Act NCWSC Nairobi City Water and Sewerage Company NLCA National Land Commission Act NLC National Land Commission OP-ICESCR Optional Protocol to the International Covenant on Economic, Social and Cultural Rights xiv Para Paragraph Paras Paragraphs PIE Prevention of Illegal Eviction from Unlawful Occupation of Land Act RLRA Restitution of Land Rights Act RTA Registration of Titles Act RLA Registered Land Act SERAC Social and Economic Rights Action Centre for Social Rights SERI Socio-Economic Rights Institute of South Africa SERs Socio-Economic Rights SC Supreme Court SCA Supreme Court of Appeal SAHRC South African Human Rights Commission The Charter African Charter on Human and Peoples' Rights TJRC Truth, Justice and Reconciliation Commission TRMA Treaty Making and Ratification Act UDHR Universal Declaration of Human Rights UN United Nations UNDRIP United Nations Declaration on the Rights of Indigenous Peoples UN-Habitat United Nations Human Settlement Programme UNGA United Nations General Assembly UNTS United Nations Treaty Series xv Table of Contents Declaration .................................................................................................................................... i Acknowledgements ..................................................................................................................... ii Dedication .................................................................................................................................. iii Kenyan Legislation ..................................................................................................................... iv Kenyan Policy Documents .......................................................................................................... v South African Legislation ............................................................................................................ v Treaties, International and Regional Instruments ........................................................................ v General Comments and Concluding Observations ..................................................................... vi Declarations, Resolutions, Principles and Guidelines ............................................................... vii Constitutions .............................................................................................................................. vii Table of cases .......................................................................................................................... viii i. African Commission on Human and Peoples’ Rights ................................................... viii ii. African Court on Human and Peoples’ Rights .............................................................. viii iii. Committee on Economic, Social and Cultural Rights ................................................... viii iv. Kenya ............................................................................................................................. viii v. South Africa ...................................................................................................................... ix Abstract ....................................................................................................................................... xi Abbreviations and Acronyms .................................................................................................. xiii INTRODUCTION.................................................................................................................... 1 1.1 Background to the Study ....................................................................................................... 1 1.2 The Nature of Land Rights .................................................................................................... 5 1.2.1 Access to Land.................................................................................................................... 5 1.2.2 Security of Tenure .............................................................................................................. 6 1.2.3 The Nature of Land Rights under Kenyan Law ................................................................. 8 1.3 Evolution of Land Law and Policy in Kenya ...................................................................... 10 1.4 Statement of the Research Problem ..................................................................................... 16 1.5 Research Questions and Hypotheses ................................................................................... 17 1.6 Aims and Objectives of the Study ....................................................................................... 18 1.7 Literature Review ................................................................................................................ 18 1.7.1 Imposition of English Law in Kenya ................................................................................ 19 1.7.2 Rights Related to Land ..................................................................................................... 21 1.7.3 Best Practices in Dealing with Forced Evictions.............................................................. 23 1.8 Research Methodology ........................................................................................................ 27 1.9 Focus and Scope of the Study.............................................................................................. 28 1.10 Outline of the Chapters ...................................................................................................... 28 CHAPTER 2: .......................................................................................................................... 31 PREVALENCE OF FORCED EVICTIONS IN KENYA ................................................. 31 2.1 Introduction ......................................................................................................................... 31 2.2. Theoretical Framework ....................................................................................................... 33 2.2.1. Interdependence of All Rights ......................................................................................... 33 2.2.2 Impact of Forced Evictions on Human Dignity................................................................ 35 2.3 Forced Evictions in the Kenyan Context ............................................................................. 38 xvi 2.3.1 Land and Title Holding in Kenya ..................................................................................... 42 2.3.2 Land Tenure in Kenya ...................................................................................................... 43 2.3.3 Classification of Land in Kenya ....................................................................................... 46 2.3.3.1 Public Land .................................................................................................................... 46 2.3.3.2 Private Land ................................................................................................................... 47 2.3.3.3 Community Land ........................................................................................................... 48 2.4 Forced Evictions in Informal Settlements ........................................................................... 51 2.4.1 Prevalence of Forced Evictions in Informal Settlements in Kenya .................................. 53 2.4.1.1 Susan Waithera & 4 Others v The Town Clerk, Nairobi City Council & 2 Others ...... 56 2.4.1.2 Ibrahim Sangor Osman v The Minister of State for Provincial Administration and Internal Security................................................................................................................... 58 2.5 Forced Evictions of Indigenous Peoples ............................................................................. 60 2.5.1 Definition of Indigenous Peoples ..................................................................................... 60 2.5.2 Prevalence of Forced Evictions of Indigenous Peoples .................................................... 63 2.5.1.1 The Ogiek Community .................................................................................................. 65 2.5.1.2 The Endorois Community ............................................................................................. 72 2.6 Forced Evictions of other Communities .............................................................................. 76 2.6.1 The Mijikenda Community of the Kenyan Coast ............................................................. 76 2.6.1.2 Federation of Women Lawyers (FIDA Kenya) & 4 Others v Attorney General as Representing Commissioner of Lands & 2 Others .............................................................. 80 2.7 Conclusion ........................................................................................................................... 82 CHAPTER 3: .......................................................................................................................... 84 INTERNATIONAL LEGAL FRAMEWORK FOR PROTECTION AGAINST FORCED EVICTIONS ................................................................................................... 84 3.1 Introduction ......................................................................................................................... 84 3.2 The Status of International Law under the Kenyan Constitution ........................................ 86 3.3. The International Covenant on Economic, Social and Cultural Rights (ICESCR) ............ 89 3.3.1 Protection from Forced Evictions under the ICESCR ...................................................... 89 3.3.1.1 Security of Tenure ......................................................................................................... 92 3.3.1.2 Protection from Forced Evictions .................................................................................. 94 3.4 Thematic Instruments Protecting Against Forced Evictions ............................................... 98 3.4.1 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) ............................................................................................................................ 98 3.4.2 Convention on the Rights of Persons with Disabilities .................................................. 100 3.5 Regional Human Rights System on Protection against Forced Evictions ......................... 102 3.5.1 African Charter on Human and Peoples’ Rights ............................................................ 102 3.5.2 Forced Evictions Jurisprudence by the ACHPR ............................................................. 104 3.5.2.1 The Social and Economic Rights Action Centre for Social Rights (SERAC) v Nigeria Case.................................................................................................................................... 104 3.5.2.2 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on Behalf of Endorois Welfare Council v Kenya Case ................................ 107 3.5.2.3 Sudan Human Rights Organisation, Centre on Housing Rights and Evictions v Sudan Case .................................................................................................................................... 109 3.5.3 Jurisprudence by the African Court on Human and Peoples’ Rights ............................. 111 3.6 Conclusion ......................................................................................................................... 113 xvii CHAPTER 4: ........................................................................................................................ 115 KENYAN LEGAL FRAMEWORK FOR LAND RIGHTS AND PROTECTION AGAINST FORCED EVICTIONS .............................................................................. 115 4.1 Introduction ....................................................................................................................... 115 4.2. Land Tenure Before Colonialism ..................................................................................... 116 4.3 The Historical Perspective on Forced Evictions ................................................................ 118 4.3.1 Land Legislation Regime in Colonial Kenya ................................................................. 120 4.3.2 The Case Study of the Indigenous Maasai Community ................................................. 125 4.4 The Role of Law in Forced Evictions in the Post-Colonial Period ................................... 128 4.4.1 The Independence Constitution ...................................................................................... 129 4.4.2 The Constitution of Kenya 2010 .................................................................................... 131 4.4.3.1 The Nature of Responsibilities/ Duties ........................................................................ 135 4.4.3.1.1 The Obligation to Respect ........................................................................................ 136 4.4.3.1.2 Obligation to Protect ................................................................................................. 136 4.4.3.1.3 Obligation to Fulfil ................................................................................................... 138 4.5 The Right to Property under the Constitution ................................................................... 138 4.6 Legislation that Protect against Forced Evictions in Kenya .............................................. 140 4.6.1 Land Laws (Amendment) Act ........................................................................................ 140 4.6.2 The Fair Administrative Action Act ............................................................................... 144 4.6.3 The Community Land Act .............................................................................................. 145 4.7 The National Policy Framework on Forced Evictions and Housing ................................. 147 4.7.1 Evictions and Resettlement Guidelines 2009 ................................................................. 147 4.7.2 The National Land Policy ............................................................................................... 149 4.7.3 National Land Use Policy ............................................................................................... 150 4.7.4 The National Housing Policy ......................................................................................... 151 4.8 Conclusion ......................................................................................................................... 152 CHAPTER 5: ........................................................................................................................ 154 KENYAN INSTITUTIONAL FRAMEWORK FOR PROTECTION AGAINST FORCED EVICTIONS ................................................................................................. 154 5.1 Introduction ....................................................................................................................... 154 5.2 Role of Institutions in Protection against Forced Evictions .............................................. 155 5.3 The Role of the Judiciary in Protecting against Forced Evictions .................................... 157 5.4 Remedies available in Unlawful Eviction Cases ............................................................... 160 5.4.1 Declaratory Orders ......................................................................................................... 160 5.4.2 Structural Interdicts ........................................................................................................ 163 5.4.2.1 Application of Structural Interdicts by the Courts....................................................... 164 5.4.2.1.1 Satrose Ayuma & 11 others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 others case ..................................................................... 164 5.4.4.2 Mitu-Bell Welfare Society v Attorney General & 2 Others Case ................................ 165 5.5 The Role of the Legislature in Protecting against Forced Evictions ................................. 170 5.6 The Role of Institutions under the Executive Arm in Protection against Forced Evictions ............................................................................................................................................ 172 5.6.1 Ministry of Lands, Public Works, Housing and Urban Development (MLPWHUD) ... 172 5.6.2 The National Housing Corporation ................................................................................ 173 5.6.3 The National Land Commission ..................................................................................... 174 xviii 5.7 The Role of County Governments in Protection against Forced Evictions ....................... 176 5.8 The Role of Independent Commissions in Protection against Forced Evictions .............. 181 5.8.1 Kenya National Commission on Human Rights (KNCHR) ........................................... 182 5.8.2 Commission on Administrative Justice (CAJ)/Ombudsman .......................................... 184 5.9 Conclusion ......................................................................................................................... 186 CHAPTER 6: ........................................................................................................................ 187 BEST PRACTICES FROM A COMPARABLE JURISDICTION: PROTECTION AGAINST FORCED EVICTIONS IN SOUTH AFRICA ......................................... 187 6.1 Introduction ....................................................................................................................... 187 6.2 South African Legal Framework for Protection against Forced Evictions ....................... 190 6.2.1 The Constitution of South Africa ................................................................................... 190 6.2.1.1 Protection against Forced Eviction under the Constitution ......................................... 191 6.3 Legislative Framework for Protection against Forced Evictions ...................................... 195 6.3.1 Prevention of Illegal Eviction from and Unlawful Occupation ...................................... 195 6.3.2 Extension of Security of Tenure (ESTA) ....................................................................... 205 6.4 Protection of Informal Land Rights In South Africa ......................................................... 207 6.4.1 Interim Protection of Informal Land Rights Act (IPILRA) ............................................ 207 6.4.1.1 Baleni v Minister of Mineral Resources Case ............................................................. 208 6.4.1.2 Richtersveld Community & Others V Alexkor Limited & Another Case ..................... 212 6.5 The Process for Lawful Evictions in South Africa ............................................................ 215 6.5.1 Meaningful Engagement ................................................................................................. 215 6.5.2 The Role of Municipalities in Evictions ......................................................................... 220 6.5.2.1 Joinder ......................................................................................................................... 220 6.5.2.2 Provision of Alternative Accommodation ................................................................... 228 6.6 Conclusion ......................................................................................................................... 233 CHAPTER 7: ........................................................................................................................ 236 FINDINGS, CONCLUSION AND RECOMMENDATIONS ......................................... 236 7.1 Conclusion ......................................................................................................................... 236 7.2 Major Findings of the Study .............................................................................................. 237 7.2.1 Security of Tenure .......................................................................................................... 237 7.2.2 Protection from Forced Evictions and Related Rights ................................................... 238 7.2.3 Prevalence of Forced Evictions in Kenya ....................................................................... 240 7.2.4 Best Practices in Protection against Forced Evictions .................................................... 242 7.2.5 Limitations of the Kenyan Policy, Legal and Institutional Framework on Evictions .... 245 7.3 Recommendations ............................................................................................................. 246 7.3.1 Tenure Reform ................................................................................................................ 246 7.3.2 Need for Infusion of International Standards and Best Practices in Protection against Forced Evictions ................................................................................................................ 247 7.3.3 Constitutional and Legislative Reform to Regulate Evictions ....................................... 248 7.3.4 Institutional Reforms ...................................................................................................... 250 7.3.5 Community Empowerment............................................................................................. 251 7.4 Areas for Further Research ................................................................................................ 252 BIBLIOGRAPHY ................................................................................................................ 253 Books ....................................................................................................................................... 253 xix Chapters in Books .................................................................................................................... 255 Journal Articles ........................................................................................................................ 259 Lectures ................................................................................................................................... 264 Reports/ Executive Orders/Bills .............................................................................................. 264 Unpublished papers and Internet sources ................................................................................ 267 Newspaper Source ................................................................................................................... 269 1 CHAPTER 1 INTRODUCTION 1.1 Background to the Study One of the contemporary problems related to land rights in Kenya is forced evictions. Individuals and communities have had to grapple with this phenomenon of which recourse to the law can provide pragmatic solutions to the problem. Kenya has an obligation to put in place laws and policies that recognise, respect and protect the rights of individuals and communities within their territories in line with international human rights obligations to protect them from forced evictions. The problem began at the onset of colonial rule. Kenya, among other African countries, accommodated a large population of European settlers who forcefully evicted and dispossessed local native communities of their lands. 1 Since then, forced evictions have been prevalent among occupants of informal settlements, indigenous peoples and other rural communities. Forced evictions that are prevalent in urban areas caused by conflicts in land rights, non- payment of excessive land and house rents, and urban redevelopment. 2 Evictions are also prevalent among indigenous peoples and rural communities. 3 The colonial policies, laws and practices were exploitative, discriminatory, dehumanising and were only concerned with the land and natural resources rather than the welfare of the indigenous peoples who lived on such lands. 4 The quest for development from the colonial period to the present in African countries and Kenya in particular, has always had implications on indigenous peoples’ land rights. 5 The land problem can be traced from the colonial tenure system that made Kenyan native communities tenants at the will of the British Crown (the Crown). 6 That entailed that 1 JCN Ashukem & C Ngang ‘Land Grabbing and the Implication of the Right to Development in Africa’ (2022) 22 African Human Rights Law Journal 404. 2 KM Otiso 'Forced Evictions in Kenyan Cities’ (2002) 23(3) Singapore Journal of Tropical Geography 252. 3 AK Barume Land Rights of Indigenous Peoples in Africa with Special Focus on Central, Eastern and Southern Africa (2014) 89-132. 4 Report of the African Commission's Working Group on Indigenous Populations/ Communities Extractive Industries, Land Rights and Indigenous Populations'/Communities' Rights, East, Central and Southern Africa (2017) Adopted by the African Commission on Human and Peoples Rights at its 58th Ordinary Session April 2016, the Gambia [8]-[11]. 5 Ibid 9. 6 HWO Okoth-Ogendo Tenants of the Crown: Evolution of Agrarian Law and Institutions in Kenya (1991) 1-10. Okoth-Ogendo refers to the British colonial government as the British Crown. 2 Africans only had user rights and not legal rights to the land that they customarily owned. 7 Kenyan communities could not exercise any right to sell, lease, and enter into any treaty or arrangement for a title they were considered not to possess. Along the ten-mile coastal strip, the Crown devised methods to legitimise compulsory acquisition of land causing landlessness among the inhabitants at the coast. 8 The colonial handling of land was the source of contestation over land and the problem of tenure insecurity that exists among communities to date. The Constitution of Kenya (the Constitution) 9 recognises the right to an adequate standard of living which includes the right to housing. 10 Rights and fundamental freedoms are inherent to every individual and place upon all governments a role to respect, protect and fulfil them. 11 Regional and international human rights instruments recognise the right to property among other land related rights. 12 The International Covenant on Social Economic and Cultural Rights (ICESCR) recognises the right to adequate standard of living including housing and the continuous improvement of living conditions. 13 The African Charter of Human and Peoples' Rights (the Charter) as a regional human rights instrument provides a guarantee to the right to property. 14 The right to property is a bulwark in protection against forced evictions. The role of the African Charter in protection against evictions will be discussed in Chapter 3. 15 7 Ibid 12. 8 T Ojienda & M Okoth, 'Land and the Environment' in PLO Lumumba et al (eds) The Constitution of Kenya: Contemporary Readings (2011) 159. 9 Republic of Kenya The Constitution of Kenya (2010). 10 Article 43(1) (b) which provides that ‘every person has the right to accessible and adequate housing, and to reasonable standards of sanitation.’ 11 PK Mbote Fallacies of Equality and Inequality: Multiple Exclusions in Law and Legal Discourses (2013) 4-5. 12 African Charter on Human and Peoples' Rights 27th June 1981 UNTS 1520 (the Charter). Article 14 provides that the right to property shall be guaranteed. The right can only be encroached only in the general interest of the community or public need. Apart from the Charter, it is important to note that most of the international human rights instruments e.g. the ICCPR and ICESCR are silent on the right to property. The issue of the right to property is mainly regulated by municipal law. 13 The International Covenant on Social Economic and Cultural Rights (ICESCR) (adopted 16 December 1966, entered into force on 3rd January 1976) UN Doc A/6316 Article 11. 14 The African Charter (note 12 above) Article 14. The Article provides for the right to own, hold and dispose of property; MK Mbondenyi International Human Rights and their Enforcement in Africa (2011) 21. Mbondenyi opines that protection and promotion of human rights cannot be effectively discussed without recognising the efforts done at the regional level. 15 Section 3.5.1 of Chapter 3. 3 Individuals and communities live in conditions that do not uphold their rights and are either forcefully evicted or are threatened with forceful evictions. 16 The evictions take place where persons are involuntarily removed from their land either directly or indirectly through acts by the state or by non-state actors. The possibility of residing in a place, residence or a particular house is usually limited and insecure. 17 The United Nations (UN) Committee on Economic, Social and Cultural Rights (CESCR) 18 has defined forced evictions as 'the permanent removal against their will of individuals, families and or communities from the homes which they occupy without the provisions of, and access to, appropriate forms of legal and other protection.’ 19 The components of forced evictions have been elaborated in the following manner: …forced evictions constitute gross violations of a range of internationally recognised human rights, including adequate housing, food, water, health, education, work and security of the person, security of the home, freedom from cruel, inhuman and degrading treatment, and freedom of movement. Evictions must be carried out lawfully, only in exceptional circumstances, and in full accordance with relevant provisions of international human rights and humanitarian law. 20 Forced evictions happen in both developed and developing countries and can be attributed directly or indirectly to actions by the State and actions by non-state actors. States are responsible due to specific decisions, legislations, policies and omissions to prevent forced evictions committed by the State or non-state actors. 21 Forced evictions are connected to tenure insecurity or lack of formal title to land as well as development and infrastructure initiatives done by the State and non-state actors. 22 Land is a factor of production and land rights are linked to other rights that are enjoyed by both individuals and groups. Forced evictions have socio-economic, cultural and political consequences. They include individual and social impoverishment, homelessness, physical 16 F Kariuki, S Ouma & R Ngetich Property Law (2016) 418-421. 17 Ibid 419. 18 The CESCR is a UN body composed of independent experts who monitor the implementation of social economic and cultural rights by member states to the International Covenant on Economic, Social and Cultural Rights (ICESCR). 19 CESCR ‘General Comment No 7, Forced Evictions and the Right to Adequate Housing’ (1997) UN Doc E/1998/22 Para 3. 20 United Nations General Assembly (UNGA) ‘Basic Principles and Guidelines on Development based Evictions and Displacement’ (1997) UN Doc A/HRC/4/18 [Para 6]. 21 UN Habitat Forced Evictions – Towards Solutions? Second Report of the Advisory Group on Forced Evictions to the Executive Director of UN-Habitat (2007) < www.unhabitat.org> accessed 24 February 2018 [1]. 22 Ibid 3. 4 and psychological trauma, loss of traditional lands and important historical sites, loss of lives and livelihoods, among others. 23 Forced evictions that are justified by development initiatives, which are supposed to benefit all people, mostly affect the people who have no formal title to land. Legitimate reasons that may justify evictions include development and infrastructural projects, land acquisition for development purposes, urban redevelopment, control of proliferation of slums, privatisation in housing and land, among others. 24 Forced evictions are also justified by mining and extractive activities, zoning and urban planning, large scale land acquisition, non- recognition of titles to land and housing which includes unsettled land claims, discriminatory laws and practices, poverty which leads to people living in informal settlements especially owing to rural urban migration among other reasons. 25 International human rights law (IHRL) does not prohibit all evictions. 26 Prohibition of forced evictions by IHRL does not apply to evictions carried out in accordance with the national laws that conform to international human rights standards. In some instances, it is necessary to displace people from hazard-prone land to protect their lives, but the State agents should carry out the displacement in a humane manner. 27 In instances where courts rule in favour of an eviction or national legislation provides for evictions, the evictions become unlawful evictions if States or non-state agents do not adhere to international law norms and state obligations. 28 This chapter describes land rights under Kenyan law and evaluates evolution of land law and policy as essential factors for laying the basis for the problem of forced evictions. It lays out the statement of the problem, the research questions, significance of the study and research methodology. The chapter reviews the literature to be investigated and the gap of knowledge to be filled under the themes of imposition of English law, rights related to land and best practices in dealing with forced evictions. The chapter also provides the conceptual framework of the study and the scope of the study. 23 Otiso (note 2 above) 253-256. 24 United Nations High Commissioner for Human Rights (UNHCHR) Forced Evictions and Human Rights (2014) accessed 21 May 2018 [3] - [4]; Otiso (note 2 above) 253- 256. 25 Basic Principles and Guidelines on Development Based Evictions and Displacements (note 20 above) Paras 5, 8 & 9. 26 UNHCHR 2014 (note 24 above) 5. 27 Ibid. 28 Ibid. 5 1.2 The Nature of Land Rights Land rights bestow on an owner the liberty to deal with the property as they deem fit. This is because property denotes the bundle of rights that someone has over land. The rights can be summarised in terms of land tenure which entails the methods through which individuals or groups acquire, hold and dispose of land rights. 29 Land is an important aspect of life in society since it supports food production, security and the livelihoods of individuals and communities. 30 The following part discusses the aspects of access to land and security of tenure as important components of land rights. 1.2.1 Access to Land Access and land ownership is a central aspect of development and political change. Indeed, most of the development that has taken place in African countries and Kenya in particular is related to the use of land. 31 Consequently, the need to effectively address the challenge posed by forced eviction cannot be overemphasised. This is because land is an important factor for economic, social and cultural development. The Sector Plan for Land Reforms underscored this fact, and states that: …land as a factor of production is the most important natural resource that Kenya is endowed with. It is critical to economic, social, political and cultural development. It is also considered as the principal source of livelihood and material wealth by playing host to natural resources. Secure access to land, sustainable land use planning and equitable distribution of land remains immensely important for food and nutrition security, employment, growth of industries, attraction of foreign investors, foreign exchange earnings and generally the socio-economic development of the country. 32 Land is linked to sovereignty and has implications on the cultural, spiritual and religious lives of people. 33 Secure land rights should exist, especially in the absence of formal title to land. Individual landholders comprise a minority of the population and secure land rights are only enjoyed by a few people. 34 Land rights for the majority are insecure for a number of reasons. Firstly, the creation of private land rights from trust land owned by communities without their 29 PK Mbote & C Odote 'Innovating Tenure Rights for Communities in Informal Settlements: Lessons from Mukuru' in C Odote and PK Mbote (eds) Breaking the Mould, Lessons for Implementing Community Land Rights in Kenya (2016) 55. 30 M Akech 'The Environment and the Courts in Kenya' 2006 The Environment and Land Law Reports 3. 31 C Juma 'In Land We Trust: Introduction' in C Juma & JB Ojwang (eds) In Land We Trust: Environment. Private Property and Constitutional Change (1996) 1. 32 Republic of Kenya Sector Plans for Land Reforms 2013-2017 (2013) 1. 33 PK Mbote 'The Land Question in Kenya: Legal and Ethical Dimensions' in EW Gachenga et al (eds) Governance, Institutions and the Human Condition (2009) 224. 34 Ibid 223. 6 consent, and secondly the creation of private holdings in group ranch areas without considering compatibility and interests of the broader community. 35 Insecure land rights have also been created by dispossessions associated with historical land injustices, exclusions and marginalisation of communities. 36 Land is a cross-cutting issue, and impacts on a significant number of human rights protected under both domestic constitutions and under international human rights legal framework. 37 Land rights have been established in the international legal framework that relate to land access not only for individuals but also for particular groups, such as indigenous peoples and numerous rights such as housing, food, water affected by access to land. The general principles of international law such as equality and non-discrimination in ownership provide protections that relate to access to land. 38 The implication is that forced evictions affect other rights such housing, food, water and work. 1.2.2 Security of Tenure Land tenure refers to the rights that individuals and communities have over land and land based resources in relation to people, time and space. Land tenure defines the range of persons who control and manage land and land resources. 39 Land tenure best captures the right to property and formal tenure connotes the nature and contents of property rights, and determines how individuals hold land and land resources and the conditions under which the land is held. 40 It has been defined as the terms and conditions in which rights to land are acquired, used, disposed of or transmitted. 41 According to the Food and Agricultural Organisation (FAO), land tenure constitutes a web of intersecting interests which includes overriding interests by sovereign and overlapping interests when different parties share different rights in the same land. Land tenure further 35 Ibid. 36 HWO Okoth-Ogendo 'The Tragic African Commons, a Century of Expropriation, Suppression and Subversion' in Land Reforms and Agrarian Change in Southern Africa: An Occasional Paper Series (2002) 5-9. Okoth-Ogendo argues that Africa’s rural poor people operate under conditions of tenure insecurity which is a direct outcome of a century of suppression, subversion and marginalisation. The indigenous land tenure regimes were rendered incapable of performing important social and economic functions. 37 E Wickeri & A Kalhan 'Land Rights Issues in International Human Rights Law' (2010) 4 (1) Malaysian Journal on Human Rights 16-17. 38 Ibid. 39 K Muigua, D Wamukoya & F Kariuki Natural Resources and Environmental Justice in Kenya (2015) 133. 40 FT Kalabamu ‘Limits of Incremental Land Tenure Reform in Botswana’ in R Home (ed) Local Case Studies in African Land Law (2011) 117-118. See also Mbote & Odote (note 29 above) 55. 41 Republic of Kenya Sessional Paper No 3 of 2009 on National Land Policy (2009) 15. 7 constitutes complementary interests where parties share the same interests to land and competing interests in instances where different parties contest the same interests in a particular parcel of land. 42 Security of tenure to land is defined as ‘the degree of security which guarantees legal protection against forced evictions, harassment and other threats.’ 43 Security of tenure is necessary for development and poverty reduction as well as assisting in accessing socio- economic rights (SERs). Tenure security is the certainty that will be accorded to an individual's right to land in circumstances of challenge. FAO elaborates the aspect of security of tenure by stating that: …security of tenure is the certainty that a person's right to land will be recognised by others and protected in different challenges. People with insecure tenure face the risk that their right to land will be threatened by competing claims, and even lost as a result of eviction. Without security of tenure, households are significantly impaired in their ability to secure sufficient food and enjoy sustainable rural development. 44 Wickeri and Kalhan observe that security of tenure in the form of formal legal, customary or religious rights can provide more predictability and secure access to fundamental rights. 45 Wickeri and Kalhan further note that without secure land rights, individuals and communities live under the constant threat of arbitrary evictions. 46 Evictions impact a range of fundamental human rights, both civil and political rights as well as SERs. 47 The problem of tenure insecurity can be traced from the dispossessions that took place when the Crown took over the affairs of the country as her colony. 48 The Crown seized land and evicted the native occupants and settled them elsewhere especially on non-productive land. The Crown used legal theories, especially the doctrine of terra nullius, which entails, empty land, which entails land that was not occupied or not rationally exploited, could be 42 Food and Agricultural Organisation (FAO) FAO Land Tenure Studies 3, Land Tenure and Rural Development accessed 5 March 2017 [7]-[8]. 43 General Comment No. 7 (note 19 above) Para 3. The CESCR observes that security of tenure does not necessarily require ownership but protection is guaranteed because of occupation. 44 FAO (note 42 above) 18. 45 Wickeri & Kalhan (note 37 above) 17 46 Ibid. 47 Ibid 22-23. 48 C Polsinelli 'Right to Land-Right to House and Adequate Standard of Living' in Human Rights Litigation and the Domestication of Human Rights Standards in Sub Saharan Africa AHRAJ Casebook Series 1 (2007) 147- 151. 8 expropriated to justify the dispossessions and evictions. 49 The second method involved the imposition of the notion of private property. 50 The aspect of private property replaced the traditional communal nature of landholding which in turn led to expropriation of the native communities’ land rights. 51 Onalo argues that registration of title and possession of title documents to land enables an individual to enjoy security of tenure and exclusive possessory rights over land. 52 Onalo further argues that holders of a formal title to land are assured of ownership with ease since registration of title documents ascertain the tenure, the mode of land holding, the size or acreage. 53 Ogolla and Mugabe observe that the policy of the government has been to replace customary tenure of land holding with a modern or private tenure through adjudication and registration of titles to improve security of tenure. 54 Despite efforts to assert private tenure to land, customary land tenure is still dominant and persists because customary norms, values and practices are still vibrant in areas where registration of titles has been completed. 55 1.2.3 The Nature of Land Rights under Kenyan Law The Constitution, legislation, policy and institutional arrangements in Kenya are inadequate in protecting people from forced evictions as will be demonstrated below. 56 The Constitution has an elaborate Bill of Rights and makes general provisions on access to land that seek to guarantee security of land rights. The Constitution also designates land tenure into public, private and community. 57 An in-depth analysis of the three categories of land tenure in Kenya is discussed in Chapter two of this thesis. 58 Though the Constitution makes provision on 49 K Sing’oei ‘Disarming the Leviathan: Endorois Decision and the Search for Inclusive Social-economic Rights in Kenya’ in Judicial Enforcement of Social-economic Rights under the New Constitution: Challenges and Opportunities for Kenya (2011) 314. 50 Polsinelli (note 48 above). 51 PK Mbote Property Rights and Biodiversity Management in Kenya: The Case of Land Tenure & Wildlife (2002) 1-10; Mbote (note 11 above) 22. 52 P Onalo Land Law and Conveyancing in Kenya (1986) 173. 53 Ibid. 54 BD Ogolla & J Mugabe 'Land Tenure Systems and Natural Resource Management' in C Juma & J.B Ojwang (eds) In Land We Trust: Environment, Private Property and Constitutional Change (1996) 97. 55 Ibid. 56 Satrose Ayuma & 11 Others v. Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 Others Petition No 65 of 2010 Para 79. The High Court observed that Kenyan law was inadequate in governing evictions whether forced or otherwise. The court had to consider international law and emerging jurisprudence from other countries. The court observed that it was good practice to seek guidance from international law in instances where municipal law is silent and/or inadequate in addressing an issue. 57 Articles 61-64 of the Constitution. 58 Section 2.3.3 of Chapter 2. 9 access to land and elaborates the three forms of land tenure, it does not make provision relating to protection from forced evictions. 59 The Kenyan legal framework includes the Constitution. The Constitution establishes independent commissions, the Kenya National Human Rights and Equality Commission (KNHREC). 60 The legislations regulating land use and these include the Land Registration Act (LRA), 61 the Land Act (LA), 62 the National Land Commission Act (NLCA) 63 and the Community Land Act (CLA). 64 The main institutions that regulate land use include the Ministry of Lands, Public Works, Housing and Urban Development, 65 the National Land Commission (NLC) 66 and the Environment and Land Court (ELC) established under the Constitution and the enabling legislation, the Environment and Land Court Act (ELCA). 67 The policy documents include the National Land Policy, 68 the National Land Use Policy 69 and the National Housing Policy. 70 The Constitution provides that land should be ‘held, used and managed in a manner that is equitable, efficient, productive and sustainable in accordance with the principles of equitable access to land and security of land rights.’ 71 Land is to be held, used and managed in accordance with the principle of among others, security of land rights and equitable access to land. 72 The Constitution recognises SERs which include the ‘right to accessible and adequate housing, and to reasonable standards of sanitation.’ 73 59 OA Angote ‘Evictions in Kenya: Which Way under the New Constitution and the Land Laws (Amendment) Act 2016?’ (2018) 2(2) Journal of Conflict Management and Sustainable Development 61-62. 60 Article 59 of the Constitution establishes the Kenya National Human Rights and Equality Commission (KNHREC). Sub-Article 4 provides that parliament shall enact legislation to restructure KNHREC into two or more separate commissions. 61 Act 3 of 2012. 62 Act 6 of 2012. 63 Act 5 of 2012. 64 Act 27 of 2016. 65 Republic of Kenya Executive Order No. 1: Organisation of the Government of the Republic of Kenya (2023) 31. 66 The NLC is established under Article 67 of the Constitution. The enabling legislation is the NLCA Act 6 of 2012. 67 The ELC is established under Article 162 (2) b of the Constitution. The enabling legislation is the ELCA Act 19 of 2011. 68 The National Land Policy (note 41 above). 69 Republic of Kenya National Land Use Policy (2016). 70 Republic of Kenya Sessional Paper No. 3 National Housing Policy for Kenya (2016). 71 Article 60 (a) and (b) of the Constitution. 72 Ibid. 73 Ibid Article 43 (1) b. 10 The Constitution defines both land and property. 74 The definition given to property connotes both rights and interest to land. The right to property is an important component of the Bill of Rights. Every person has the right to own property either individually or in association with other people. The Constitution provides that ‘parliament shall not enact a law that would arbitrarily deprive a person of property or limit or restrict the enjoyment of any right.’ 75 Deprivation of property by the State should only be accompanied by prompt payment of just compensation to the owner. In case of any dispute in exercise of the power of eminent domain by the State, the law allows access to the courts for redress. 76 The right to property as a component of protection from forced evictions will be discussed in Chapter 4 of this thesis. 77 The following section evaluates the evolution of land law and policy in Kenya. 1.3 Evolution of Land Law and Policy in Kenya Kenyan communities had their own legal systems that governed land management based on their customs and practices in the pre-colonial period. Community leaders, clan elders and chiefs exercised authority in enforcing the system. 78 The system of land holding was based on clan solidarity where public interests could not be subordinated to private interests. There existed lineal heritage where land could pass from one generation to another. 79 The conquest of the Kenyan territory and the introduction of English property law that laid emphasis on private ownership of land subdued the traditional tenure system that had been established over decades. 80 The British conquered East Africa in the late 1880s, declared it a protectorate known as the British East Africa Protectorate and subsequently declared Kenya as a colony in 1920. 81 The communities were declared tenants at the will of the Crown. 82 The 74 Ibid Article 260. It defines land to include the surface of the earth and the subsurface rock, any body of water on or under the surface, marine waters in the territorial sea and exclusive economic zone, natural resources completely contained or under the surface and air space above the surface. It has defined property to include any vested or contingent rights to, or interest in and arising from land or permanent fixtures on or improvements to land. 75 Article 40 (1) and (2) of the Constitution. 76 Ibid Article 40 (3). 77 Section 4.5 of Chapter 4. 78 PLO Lumumba & L Franceschi The Constitution of Kenya 2010: An Introductory Commentary (2014) 263. 79 KM Doyle 'Customary Land Rights in Kenya in the Context of History: From Colonial through Independence, From Jomo Kenyatta to Uhuru Kenyatta' in C Odote & PK Mbote (eds) Breaking the Mould, Lessons for Implementing Community Land Rights in Kenya (2016) 11. 80 L Juma ‘Ethnic Politics and the Constitutional Review Process in Kenya’ (2002) 9 Tulsa Journal of Comparative and International Law 480-481. 81 Doyle (note 79 above) 12. 11 Crown asserted that it had the original title to the entire territory, and not the local people who had been in occupation for centuries. 83 The term Crown land entailed land that was under the control of the King of England by virtue of treaties, conventions and agreements between the Crown and the native local communities. Introduction of English property laws and policies eroded the traditional land tenure patterns. 84 The laws and policies gave exclusive rights to the Crown on land that was occupied by Kenyan communities. The implication was that the Crown alienated land, forcefully removed and relocated them to lands that were unproductive. 85 Kangethe observes that following colonisation by the Crown, white farmers forcefully displaced Kenyan communities from productive areas and settled there, giving rise to the ‘white highlands.’ 86 The white highlands referred to land that had been alienated to the white settlers. The white highlands had a tropical climate suitable for cash crop farming. Wayumba describes the white highlands and demonstrated the reasons that justified alienation of land for the benefit of the Crown by stating that: … the highlands of Kenya had a temperate climate and provided scope for high veld pastoralism. There were also other parts of the country with a tropical climate, suitable for various tropical raw materials such as; cotton, rubber, cocoa, coffee and sugar cane. Because of its peculiar geography and variation in climate, Kenya seemed to represent a confluence of several streams of colonial development both temperate and tropical. 87 The Crown enacted laws to govern land registration, a departure from informal communal ownership into formal individual ownership. 88 The laws governed private land, trust land as well as government land. The Crown restructured property rights in the reserves where communities were concentrated by introducing individual tenure and intensifying agricultural 82 Okoth-Ogendo (note 6 above) 1-5. 83 Ibid. 84 J Lonsdale & B Berman ‘Coping with the Contradictions: The Development of the Colonial State in Kenya, 1895-1914 20 Journal of African History (1979) 498. See also S Wanjala ‘Recurrent Themes in Kenya’s Land Reform Discourse since Independence’ in S Wanjala (ed) Essays in Land Law: The Reform Debate in Kenya (2000) 28. 85 T Kanogo Squatters and the Root of Mau Mau 1905-63 (1987) 8-10. 86 D Kangethe An Evaluation of the Effects of Land Tenure on Land Use in Kenya: Evidence of Bondo, Busia and Siaya Districts (2012) 2. 87 G Wayumba ‘The White Highlands and the Establishment of the African Settlement Schemes in Kenya’ (2019) 5(6) International Journal of Innovative Studies in Sciences and Engineering Technology 47. 88 In a bid to guarantee security of tenure, the Crown enacted several legislations. They included the Crown Land Ordinances of 1902 and 1915. The Crown Land Ordinance became the Government Land Act, Cap 280 Laws of Kenya. The Land Titles Act of 1908 administered land along the Kenyan ten-mile coastal strip. The Crown further enacted the Registration of Titles Act in 1920. 12 production in other areas through the Swynnerton Plan (the Plan). 89 The intention of the Plan was to ensure that the communities on their small plots realise sufficient returns so that they abandon demand for redistribution of land that the Crown held. 90 An in-depth analysis of the Plan and laws, both colonial and post-colonial, are discussed in Chapter 4 of this thesis. 91 The outbreak of the Mau Mau war in 1952 against the Crown was mainly due to land grievances. 92 The war was also brought about by the destruction of traditional land tenure patterns and increase in pressure on land occupied by Kenyan communities, which was largely unproductive. 93 Berman asserted that the war was a defensive struggle to stem the tide of land losses and open access to the sphere of commodity production blocked by the State’s development policies, the European settlers and wealthy African farmers. 94 The rebellion ended in 1960 at the onset of the Crown’s agreement to grant independence to Kenya. The Bill of Rights that was negotiated at independence and adopted as part of the Independence Constitution did not guarantee land rights but instead, lay emphasis on the 'willing buyer willing seller' approach instead of restitution of land that had been alienated. The country was even offered credit to facilitate the buyouts. 95 During the time when independence was inevitable, the Crown ensured that individualisation of land tenure and status quo was enhanced through legal and policy framework. Lenaola et al., elaborates the essence of retention of the status quo by stating that: …at the time that independence became inevitable, the colonial government sought to retain the legitimacy and security of this property regime by encouragement and co-option of an indigenous elite which had come to benefit from it. The African sector that took over control of the country following independence were those that would also gain the most by the continuity of the economic and political colonial system. 96 The Registered Land Act (RLA) 97 was enacted upon independence in 1963 and was principally meant to unify the existing systems of land registration. 98 The land registration 89 Swynnerton RJM A Plan to Intensify the Development of African Agriculture in Kenya (1954). 90 Okoth-Ogendo (note 36 above) 69. 91 Section 4.3.1 of Chapter 4. 92 B Berman Control and Crisis in Colonial Kenya: The Dialectic of Domination (1990) 361-371. 93 Kanogo (note 85 above) 125-155. 94 Berman (note 92 above) 363. 95 Doyle (note 79 above) 13. 96 I Lenaola, H Hadley H. Jenner & T Wichert ‘Land Tenure in Pastoral Lands’ in C Juma and JB Ojwang (eds) In Land We Trust: Environment, Private Property and Constitutional Change (1996) 238. 97 Cap 300 Laws of Kenya (now repealed). 98 Onalo (note 52 above) 177. 13 legislation included the Registration of Titles Act (RTA), 99 Land Titles Act (LTA) 100 and the Government Land Act (GLA). 101 The RLA did not achieve unification of the registration regimes and operated alongside the RTA, LTA and GLA until repeal of the four legislations by the LRA in 2012. The RLA, similar to RTA, LTA and GLA recognised individual land tenure and was an embodiment of English property law to the detriment of indigenous peoples and communities whose communal way of life was incompatible with its provisions. 102 Post-independence Kenya did not have a land policy until the formulation of the National Land Policy (the Policy) in 2009. 103 The Policy is significant because it articulates principles that were adopted by the Constitution. The Policy recognises that the land question had manifested itself in many ways which included fragmentation, breakdown in land administration, disparities in land ownership and poverty. 104 The land question also led to problems which include deterioration of land quality, squatting and landlessness, disinheritance of individuals and groups, tenure insecurity and conflict among others. 105 The Policy did not address the problem of forced evictions adequately. The Policy recognises that for the country to establish a firm foundation for land policy reform, the Constitution should protect human rights for all, genuine historical and current land injustices should be resolved and there should be security of tenure. 106 The Policy also recognises that protection of human rights for all and more particularly the rights of women, minorities, children and persons with disabilities with respect to access and ownership of land is an important aspect. 107 The individuals and groups affected by forced evictions are a vulnerable segment of Kenyan society, and are in most cases discriminated against. The Policy states that the 1969 Constitution (the independence Constitution) 108 did not make recognition of land as a unique entity and just categorised it with other categories of property. 99 Cap 281 Laws of Kenya (now repealed). 100 Cap 282 Laws of Kenya (now repealed). 101 Cap 300 Laws of Kenya (now repealed). 102 T Ojienda Land Law and Conveyancing: Principles and Practice (2015) 17; Lenaola et al (note 96 above) 239-241. 103 The National Land Policy (note 41 above) IX. 104 Ibid 8-9. 105 Ibid. 106 National Land Policy (note 41 above) 11. 107 Ibid. 108 The 1969 Independence Constitution was repealed by the Constitution of Kenya 2010. 14 The Policy set out the ideal situation for efficient and equitable framework for land ownership, management and management under a constitutional dispensation by stating that: …in an ideal situation, a constitution should set out broad principles for the governance of land, and establish an efficient and equitable institutional framework for land ownership, administration and management. Land policy reforms are not likely to succeed in the absence of such a sound constitutional framework. Accordingly, land reforms should be accompanied by constitutional reforms if they are to be effective. 109 The Policy states that the need for land reforms arose from failure by the independence Constitution to establish an efficient, accountable and equitable institutional framework for land ownership, administration and management. 110 The failure had various implications on land relations which contributed to the problem of forced evictions. They include mass disinheritance of communities and individuals of their land, inequitable access to land, particularly for minority groups and constitutional protection of private property rights after illegitimate acquisition. 111 The Policy informed largely the provisions on land in the current Constitution. The Bill of Rights in the Constitution makes elaborate provisions on land and environment. 112 The Constitution elaborates the principles of land policy. 113 It further classifies land as private, public and community and establishes the NLC which is mandated to recommend policy on land to the national government, manage public land on behalf of the national and county governments and address historical land injustices. 114 Pursuant to the provisions relating to land in the Constitution, parliament enacted land legislations which include the LA, the NLCA, the LRA, and the ELRA. There have also been efforts to address the land problem. However, the hypothesis in this research is that the problem of forced evictions has not been adequately addressed by law and policy. One of the efforts to address the land question was the creation of the Truth, Justice and Reconciliation Commission (TJRC). TJRC was established by the Truth Justice and 109 The National Land Policy (note 41 above) 12. 110 Ibid. 111 Ibid. 112 Chapters 4 and 5 of the Constitution; MK Mbondenyi ‘The Bill of Rights’ in PLO Lumumba et al (eds) The Constitution of Kenya: Contemporary Readings (2011) 61-97; T Ojienda & M Okoth, 'Land and the Environment' in PLO Lumumba et al (eds) The Constitution of Kenya: Contemporary Readings (2011) 153-179. 113 Article 60 of the Constitution provides that land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable. 114 Ibid Chapter 5. 15 Reconciliation Act 115 which gave it the mandate to establish a record of human rights abuses by the State since the attainment of independence, explain the causes and recommend prosecution of the perpetrators of human rights violations and reparation for the victims of human rights abuses. 116 The TJRC found that the Crown used both illegal and irregular methods including forced evictions of communities from their land, entrenching laws, policies and practices that had long term implications with regard to land dispossessions from communities. 117 The TJRC also made an important finding that the provincial administration had committed injustices including forced evictions, and recommended that the administration should be involved in the efforts to address the land related problems. 118 The establishment of the TJRC was a culmination of the Kenya National Dialogue and Reconciliation process of 2008 which recommended that land and historical injustices be addressed. 119 The government established the Commission of Inquiry into the Land Law System of Kenya on Principles of a National Land Policy Framework and the Constitutional Commission on Land and the New Institutional Framework for Land Administration (the Commission) in 1999. The government formed the Commission upon realisation that Kenya had been operating without clear policy guidelines concerning land. The Commission delivered its final report to the public in 2002. 120 The Commission did not address the aspect of forced evictions though it made recommendations regarding other aspects relating to land. The government also established the Commission of Inquiry into the Illegal/Irregular Allocation of Land (the Commission) in 2003 to investigate illegal and irregular allocation of public land. 121 The Commission’s main mandate was to inquire into illegal and irregular allocation of public land, to provide recommendations to the government for restoration of the illegally and irregularly allocated land, and to offer other solutions that were 115 Act 6 of 2008. 116 Ibid Sections 5-8. 117 The Truth Justice and Reconciliation Summary Report (2013) accessed 28 February 2018. 118 Ibid. 119 M Mbaru 'The Independent Review Commission on the 2007 Elections: Its Impact on Institutional Reform' in the International Commission of Jurists Kenyan Section The Rule of Law Report (2008) 2-6. 120 Republic of Kenya Report of the Commission of Inquiry into the Land Law System of Kenya on Principles of a National Land Policy Framework, Constitutional Position on Land and New Institutional Framework for Land Administration (2002). 121 Republic of Kenya Report of the Commission of Inquiry into the Illegal/Irregular Allocation of Land (2004) 1-2. 16 appropriate. 122 The Commission made findings that are relevant to this study. Firstly, the Commission recommended that Kenya should devise a secure system of issuance of formal titles to land. 123 Secondly, the Commission established that illegal allocations of public land had contributed to an increase of informal settlements. 124 The Commission recommended that the government should initiate programmes to address the problem of informal settlements by utilising recovered public land to establish decent and affordable housing schemes. 125 The recommendation relating to the right to housing within informal settlements can help mitigate forced evictions. Notwithstanding the recommendations by the two commissions, Kenya has no clear guidelines that address the problem of forced evictions and realisation of land rights for people whose tenure to land is insecure. This study seeks to provide a thorough understanding of the current legal framework and contribute to the development and designing of a framework that provides solutions to mitigate forced evictions by proposing appropriate reforms. 1.4 Statement of the Research Problem The purpose of this research is to contribute towards the development of a legal and policy framework that will curb forced evictions, or ensure that where such evictions are inevitable, they are conducted according to the applicable human rights norms. International law prohibits State laws from embarking on arbitrary evictions. Domestic and international obligations bind Kenya to desist from forced evictions. The CESCR, the treaty body that monitors State compliance with ICESCR has further observed that all persons should possess a degree of security of tenure, which offers a guarantee against forced eviction. 126 The obligations to protect against forced evictions and other related rights such as the right to housing are contained in several international legal instruments. These include the UDHR, the ICESCR and thematic instruments such as Convention on the Elimination of all Forms of Discrimination against Women 127 and the Convention on the Rights of Persons with 122 Ibid. 123 Ibid 189. 124 Ibid 191. 125 Ibid; R Southhall ‘The Ndung’u Report: Land & Graft in Kenya (2005) 103 Review of African Political Economy 146-151. 126 UN CESCR ‘General Comment No.4: The Right to adequate Housing’ (1991) UN Doc E/1992/12 Para 8. 127 Convention on the Elimination of all Forms of Discrimination against Women (1979) UN Doc A/34/46. 17 Disabilities. 128 The obligations are also contained in soft law standards instruments relating to forced evictions and the right to housing which include the UN Declaration on the ‘Rights of Indigenous Peoples’, 129 the UN Basic Principles on Development Based Evictions and Displacements 130 and the UN Principles on Housing and Property Restitution for Refugees and Displaced Persons. 131 The instruments contain good practices that can guide States, and even though they are not legally binding, they remain very persuasive in providing content to the international, regional and domestic norms binding on states. Despite having adequate guarantees in international instruments on protection against forced evictions, the challenge has been to incorporate the international guarantees in national legislation and practice. 132 Kenya, like many other countries lacks policies and laws to adequately address the scourge of forced evictions. Since one of the key foundations of the Policy is to resolve genuine historical and current land injustices, 133 it is imperative that law and policy play a major role in protection against forced evictions. The land problem began at the onset of colonial rule and was perpetuated by laws and policies that have existed since then. Ineffective land laws have indeed contributed to the escalation of the problem of forced eviction rather than mitigating it. 1.5 Research Questions and Hypotheses This thesis analyses land rights in Kenya and the role played by the law in protection against forced evictions. To tackle the problem, the study hypothesises that land title holding is largely indefeasible and absolute because the legal framework favours and protects formal title holders. 134 Additionally, there have not been efficient laws and an accountable institutional framework for land ownership and management that can protect individuals and communities from forced evictions. In order to facilitate a comprehensive approach in investigating this problem, the research seeks to answer the following main question: 128 International Convention on the Protection and Promotion of the Rights of Persons with Disabilities (2006) UN Doc A/61/49. 129 UNGA ‘United Nations Declaration on the Rights of Indigenous Peoples’ (2011) UN Doc A/RES/66/142. 130 Basic Principles and Guidelines on Development based Evictions and Displacement (note 20 above). 131 UNHCHR, ‘Principles on Housing and Property Restitution for Refugees and Displaced Persons’ (28 June 2005) UN Doc E/CN.4/Sub.2/2005/17. 132 M Langford & JD Plessis Dignity in the Rubble? Forced Evictions and Human Rights Law (2006) accessed 23 March 2018 [2]. 133 The National Land Policy (note 41 above) 10-11. 134 The land laws were enacted to protect the first registration of land and especially the provision that enjoyment of absolute and indefeasible title was not hampered by mistake or fraud. An example is Section 27 of the RLA Cap 300 Laws of Kenya (now repealed). 18 1. What are the limitations of the legal and institutional framework in addressing the problem of forced evictions in Kenya? The following sub-questions will assist in answering the main question: 1. What are the legal and policy measures that are necessary to mitigate the problem of forced evictions? 2. What can Kenya learn from a comparable jurisdiction in addressing the problem of forced evictions? 1.6 Aims and Objectives of the Study This research is premised on the notion that the law should at the very least address the problem of land rights and forced evictions in Kenya. The study intends: 1. To evaluate the Kenyan law in relation to land tenure and the problem of forced evictions. 2. To analyse the Kenyan constitutional and legislative framework and the attempts that the Kenyan Government has made to protect individuals and communities against forced evictions. 3. To analyse the inadequacies of the Kenyan legal framework and proffer suggestions for reform in the law and the legislative framework for Kenya in dealing with the problem of forced evictions. 4. To evaluate the human rights issues and practices provided in international law in respect of land rights and forced evictions and their relevance for addressing forced evictions in Kenya. 5. To study the related laws in a comparable jurisdiction, jurisprudence and judicial developments with a view to recommending the incorporation of best practices on land rights and mitigation of forced evictions into the Kenyan legal system. 1.7 Literature Review There exists significant literature on the subject of land rights and forced evictions. This thesis does not pretend to pioneer research on the same. There are numerous studies that seek to evaluate the land question in Kenya. 135 However, there are few studies that have evaluated 135 C Juma & JB Ojwang (eds) In Land We Trust: Environment. Private Property and Constitutional Change (1996); PK Mbote, C Odote, C Musembi & M Kamande Ours by Right. Law, Politics and Realities of 19 the question of land rights in relation to forced evictions and even fewer that seek to address the role of law in protecting persons without formal title to land. This study reviews the literature under the themes of imposition of English law, rights related to land and best practices in dealing with forced evictions. 1.7.1 Imposition of English Law in Kenya Imposition of English law as a consequence of colonialism had implications on land holding and tenure systems. It is imperative to begin by establishing the concept of private property and how it came into being. The colonisation process had adverse effects on the interaction of the native people and their natural resources which include land. The effects of the establishment of colonial rule affected both population and production. 136 The population was affected by concentration of native people into reserves and production was affected by massive exploitation of resources that were found in the land. 137 Land tenure before the advent of colonialism was communal in nature. The traditional practice was that different ethnic communities’ exercised ownership to land collectively implying that land portfolio could be described as ‘communitarian property.’ 138 Legal instruments were used to give effect to the land rights of settlers. 139 Land alienation was also carried out through political processes that were given binding force of law through legal instruments. This is the origin of the instrumentalist tradition in property law. 140 Okoth- Ogendo observes that the Crown asserted that Europeans and not the local people had the original title to land within the Kenyan territory. The Crown, upon declaration of original title to the territory, was not only to resolve the issue of acquisition of land for public purposes but also transformed the tenure aspect as a key strategy for exploiting the country’s resources. 141 Community Property in Kenya (2013); P Onalo Land Law and Conveyancing in Kenya (1986); JB Ojwang The Common Law, Judges Law: Land and Environment Before the Kenyan Courts (2014); Okoth-Ogendo (note 6 above); Kariuki et al (note 16 above); Mbote (note 33 above); Mbote (note 51 above); Okoth-Ogendo (note 36 above); Kanogo (note 85 above); Ojienda (note 102 above) among others. 136 Mbote (note 51 above) 59. 137 Ibid. See also Kanogo (note 85 above) 1. Kanogo alludes to the fact that colonial rule led to alienation of African lands for European settlements and development of settler plantations tha