Kenya: Mau Evictions - Follow the Law

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The Nation (Nairobi)

OPINION
6 October 2008
Posted to the web 7 October 2008

Bernard Kibet
Nairobi

There are about 1,962 bona fide land owners in the Mau, and they have proof of ownership -- title deeds.

The Registered Land Act, Cap 300 of the laws of Kenya, in section 27 (a) provides that the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land. There have been allegations that the titles were illegally acquired.

Whoever makes such claims should move to a court of law to order cancellation of such titles.

He or she must satisfy the court that the titles were acquired by fraud or mistake as provided by section 143(1) of the Registered Land Act. However, where such titles are as a result of first registration, they cannot be cancelled even if acquired fraudulently.

In the absence of proof of fraud or mistake in the allocation of land, the option the Government is left with is to compulsorily acquire the land after fully and promptly compensating the owners.

The law that governs land acquisition is contained in the Constitution and the Land Acquisition Act. The Constitution, the supreme law in Kenya, prohibits the compulsory acquisition of one's property until certain conditions are satisfied.

Section 75 of the Constitution sets the following conditions:-

a) The taking of possession or acquisition is necessary in the interests of defence, public safety, public order, public morality, public health, town and country planning or the development or utilisation of property so as to promote the public benefit; and (b) The necessity to acquire the lands must afford reasonable justification for the causing of hardship that may result to any person having an interest in or right over the property; and (c) Provision is made by a law applicable to that taking of possession or acquisition for the prompt payment of full compensation.

The commissioner must serve a copy of the notice of intention to acquire the land on every person who appears to him or her to be interested in the land. In essence, the commissioner must serve a copy of the notice on each of the 1,962 Mau land owners.

Kenya is a State party to the International Covenant on Economic, Social and Cultural Rights (the Covenant). Article 11(1) of the covenant prohibits forced evictions unless in exceptional circumstances.

In those circumstances in which forced evictions could be carried out without violating international law, certain requirements must be adhered to:-

Firstly, the State must ensure that all feasible alternatives are explored in consultation with the affected persons, with a view to avoiding, or at least minimising the need to use force.

Secondly, evictions should not result in rendering individuals homeless or vulnerable to the violation of other human rights.

Finally, in those cases where eviction is considered justified, it must be carried out in strict compliance with additional relevant provisions of International Human Rights Law and in accordance with general principles of reasonableness and proportionality.

The committee established under the covenant expressly enumerated relevant provisions of International Human Rights Law by which State must abide by.

These include:-Opportunity for genuine consultation with those affected;Adequate and reasonable notice to all affected persons prior to the scheduled date of eviction;All persons carrying out the evictions to be properly identified;

Evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise.

Mr Kibet is a lawyer.

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