1. ‘CITIES WITHOUT CITIZENS’ – KENYA’S CONTRADICTORY NEGOTIATIONS TOWARDS THE RIGHT TO THE CITY PROF. ALFRED OMENYA, B.ARCH, M.ARCH, PHD SAO PAULO 12 TH NOVEMBER 2014 www.ecobuild-africa.com

2. 1. SITUATED DEFINITION - RIGHT TO A LOCAL PLACE Intro-Conclusion: Right to the city, as ‘right to a local place’ and to ‘the totality of the urban’ in addition to right to basic services. In Kenya focus on generalized national citizenship weakens this ‘right to local places’; necessitating the concept of citizenship to be further localized. Local citizenship is linked to national and localized history that is expressed through land ownership alienating non- land owning residents from their citizenship rights.

3. 1. SITUATED DEFINITION - RIGHT TO A LOCAL PLACE Intro-Conclusion: The two cases demonstrate how urban residents negotiate claim making and construct their citizenship in methods that move beyond the authorities’ ideas of urban areas as mere centers for service provision & markets for commodities. Urban places should be looked at beyond being sites for service provision, to total theatres of life that produce situated political citizenship. We conclude that in Kenya there is need to deepen the usufruct aspects of the city.

4. 2. RIGHT TO ‘THE URBAN PLACE’ LOST IN PLETHORA OF OTHER RIGHTS Chapter One of the Constitution of Kenya 2010 entrenches fundamental and socio-economic rights and freedoms. Central to fundamental rights is the assertion that sovereignty is vested in the people. People may choose to exercise their right to self-governance directly or through an elected government. The constitution creates only two levels of government - national and county, making the exercise of self-governance at urban level vague. In practice cities in Kenya still are mere sites of service provision. Therefore, urban citizenship and right to the city per se do not exist in Kenya.

5. 3. CITIZEN PARTICIPATION EXIST IN LAW BUT WEAK IN PRACTICE County Governments Act 2012 mandates participation in preparation of the County Integrated Development Plans; The Public Finance Act requires participation in preparation of county budgets, which includes urban budgets; this Act also creates equalization fund, which is meant to address the needs of vulnerable and marginalized groups; The Urban Areas and Cities Act, which requires participation in urban governance and management; establishes the citizens’ forum; requires that Urban Boards receive petitions from citizens; requires public participation in development of Integrated Urban Development Plans, land use plans and urban budgets, amongst others.

6. 4. KIBERA - FROM SQUATTERS ON STATE LAND TO RIGHT HOLDERS Government has taken into consideration the rights of squatters to an urban location / right to a local place. The need to modernize the railway was going to result in displacement of residents around the railway reserve. Studies were undertaken by various civil society organizations to support the rights of the residents. The legal framework, when this process started, was weak; spaces for negotiation were limited. Interventions initially based based on international best practices for evictions and World Bank Guidelines rather than the Kenyan Law: spaces for negotiation identified by the residents and their supporters.

7. 4. KIBERA RESIDENTS - FROM SQUATTERS ON STATE LAND TO RIGHT HOLDERS This situation was to change in 2010 with the enactment of the new Constitution. Major partners in this project, Kenya Railways and the World Bank, then accommodated civil society inputs. Alternative standards for the railway reserve & unprecedented plan, spearheaded by the civil society organizations, Haki Jamii, representing residents and Pamoja Trust, consulting for the Kenya Railway Corporation to resettle some of the evictees within the railway reserve; which had been reduced. Resettlement plan also includes development of business premises to protect the residents’ livelihood.

8. 4. KIBERA RESIDENTS - FROM SQUATTERS ON STATE LAND TO RIGHT HOLDERS The right to housing and right to earn a living; therefore homes and businesses have been protected to a good degree. It is noteworthy that even though the residents had occupied public land they are to be duly compensated for removal. Although it was not necessarily considered from usufruct perspectives - from the use value - it came close, to the extent that people’s social networks and ways of life were considered necessary for protection.

9. 4. KIBERA RESIDENTS - FROM SQUATTERS ON STATE LAND TO RIGHT HOLDERS

12. 5. NEGOTIATION THROUGH LITIGATION - FORCEFUL EVICTIONS IN GARISSA, KENYA A community of 1,122 residents in Garissa filed a case seeking to have the government prevented from evicting them from their homes. The residents had occupied the land since the 1940s Forceful evictions declared unconstitutional Displaced persons claimed and received damages in line with the constitution, in addition to an order for government to resettle them on account of violation of a whole lot of their socio-economic rights, and also destroying their homes without providing appropriate alternative accommodation as required by law. The damages also extended to financial compensation for loss of livelihood.

13. 5. NEGOTIATION THROUGH LITIGATION - FORCEFUL EVICTIONS IN GARISSA, KENYA

15. Residents claimed that there were violations of their rights through forcible, violent & brutal eviction by the demolition of homes without being accorded alternativeshelter. Other violations: o Rights to accessible and adequate housing, reasonable standards of sanitation, health care services, freedom from hunger, clean and safe water in adequate quantities and education were violated; o Right to life; o Rights to physical and mental health, and physical and moral health of the family.

16. 5. NEGOTIATION THROUGH LITIGATION - FORCEFUL EVICTIONS IN GARISSA, KENYA o Rights of children to basic nutrition, shelter and healthcare and protection from abuse, neglect and all forms of violence and inhuman treatment and to basic education o Rights of the elderly persons to the pursuit or personal development, to live in dignity, respect and freedom from abuse with reasonable care and assistance from the State was also infringed

17. 5. NEGOTIATION THROUGH LITIGATION - FORCEFUL EVICTIONS IN GARISSA, KENYA High Court ruled that demolitions and evictions violated the petitioners’ fundamental & socio-economic rights: Right to inherent human dignity & the security of the person Right to access to information Right to fair administrative action Right to protection of property Right of the elderly to pursue personal development, to live in dignity, respect & freedom from abuse; & to receive reasonable care

18. 5. NEGOTIATION THROUGH LITIGATION - FORCEFUL EVICTIONS IN GARISSA, KENYA It is a fundamental duty of the State to: Observe, respect, protect, promote and fulfill fundamental rights & freedom; To address the needs of vulnerable groups within the society. The State to: Return petitioners (residents) to their land & reconstruct their homes and/or provide alternative housing; Pay each petitioner approx. $2,000 in damages; Provide emergency alternative housing, food, clean & safe drinking water, sanitary facilities & health care services; Provide information on the status of land regularization