Osman v Minister of State for Provincial Administration & Internal Security and Ors eKLR  (16 November 2011)
The High Court of Kenya has held that the forced eviction of 1,122 people was a violation of the right to adequate housing enshrined in the Kenyan Constitution and a number of other rights, and made injunctions compelling the government to return the evictees to their land and to reconstruct reasonable housing for the community.
In December 2010, local and district administration officials and police visited communities at Medina, Kenya, stating that a ring road would be constructed in the area and that houses in the affected area would be demolished. No written information was provided, no court process was undertaken and subsequent attempts by the community to communicate with the authorities were unsuccessful.
On 24 December 2010, armed police and unidentified youths arrived at the community and, without warning, began to demolish houses which they claimed were on government land. The evictions continued on 30 and 31 December 2010 and, when the community resisted, police used tear gas and violence as part of the eviction.
One hundred and forty-nine houses were demolished, affecting 1,122 people, including children and the elderly. No alternative accommodation was provided; in fact, the community was prevented even from salvaging any of their possessions. The community was left in the open without shelter, food, water or sanitation, and the education of the children was interrupted.
The community filed a petition alleging breaches of the Constitution of Kenya, seeking injunctive relief and damages. The community was represented by the local human rights organization Hakjjamii (www.hakijamii.com), while a number of organizations associated with the international human rights network ESCR-net appeared as amicus curiae.
The Kenyan Constitution of 2010 recognises civil and political rights and economic, social and cultural rights, and makes both justiciable. It also applies international human rights covenants signed by the Kenyan government as the law of Kenya.
The High Court found that the evictions breached a number of rights in the Kenyan Constitution of 2010, including the rights to: life; the inherent human dignity and security of the person; access to information; protection of property; accessible and adequate housing, reasonable standards of sanitation and health, freedom from hunger and access to clean and safe water; and the rights of older persons.
The court also held that the evictions violated the right to adequate housing under the ICESCR, the protection against arbitrary or unlawful interference with privacy, family or home under the ICCPR, and rights protected in the African Charter on Human and Peoples' Rights.
The court noted that the appropriate remedy in cases of forced eviction is restitution, which should restore victims to the position before the violation of human rights. The court ordered that the authorities return the land to the community and construct alternative accommodation.
The court also issued an injunction permanently restraining authorities from further evictions until the law was followed.
In reaching its decision, the court emphasized the interdependence of civil and political rights and economic, social and cultural rights.
The court drew heavily on the General Comments of the UN Committee on ESC Rights relating to adequate housing and forced evictions, and on the Concluding Observations of the UN Human Rights Committee relating to forced evictions in Kenya. The court also drew on the seminal decisions of the Constitutional Court of South Africa relating to forced evictions.
Relevance to the Victorian Charter
The factual situation of this eviction, although sadly common in the global south, is not replicated in Victoria today. However, it does not follow that forced evictions, as defined in international human rights law, do not occur in Victoria.
The decision affirms that forced evictions may constitute a violation of a number of civil and political rights that are recognized in the Victorian Charter, including the protection of privacy (s 13), access to information (s 15) and right to life (s 9). Charter jurisprudence has already recognized that evictions may violate the right to privacy.
The decision emphasizes the interdependence of all human rights. It also reinforces that court enforcement of ESC rights plays a role in constraining arbitrary and unlawful administrative actions of the state, a role that is entirely consistent with the function of courts in the Australian system.
This stands in stark contrast to the deeply flawed findings of the recent review of the Victorian Charter by the Scrutiny of Acts and Regulations Committee of Parliament, which recommended ESC rights should not be added to the Victorian Charter because it would necessarily involve courts commenting on resource allocation by government in a way that is inconsistent with the functions of courts in Victoria.
The decision is available at http://kenyalaw.org/Downloads_FreeCases/Embu_Pet_2_2011.pdf.
Hugh Mannreitz is a Melbourne-based lawyer