IBRAHIM SANGOR OSMAN.... .................PETITIONER (ON HIS OWN BEHALF AND ON BEHALF OF 1, 122 EVICTEES OF MEDINA LOCATION, MUNICIPAL COUNCIL OF GARISSA) ~VS~ THE HON MINISTER OF STATE FOR PROVINCIAL ADMINISTRATION & INTERNALSECURITY

IBRAHIM SANGOR  OSMAN.... .................PETITIONER 

(ON HIS OWN BEHALF AND ON BEHALF OF 1, 122 EVICTEES OF  MEDINA LOCATION, MUNICIPAL COUNCIL OF GARISSA) 

~VS~

THE HON MINISTER OF STATE FOR PROVINCIAL ADMINISTRATION & INTERNALSECURITY

This Petition was filed on 23/2/2011 by the Petitioner on his behalf and on behalf of 1,122 persons (all hereinafter referred to as (“the Petitioners”) who were evicted from Bularika, Bulamedina, Sagarui, Naima, Bulanagali and Gesto (commonly known as “Medina location”) on 24th, 30th and 31st December 2010 by the officers of 1st and 2nd Respondents.  Those evicted included children, women and the elderly.  Some of the children were school-going.  The Petitioners were evicted from unalienated public land in respect of which title deeds have not been issued.  It had been occupied by the Petitioners since 1940s, initially as grazing land but in the 1980s they put up permanent and semi-permanent dwellings in which they were living prior to eviction. On 3/12/2010 the District Commissioner, He came along with a bulldozer and four saloon cars. In the vehicles were administration police officers and a group of unidentified youths.  The District Commissioner informed the Petitioners that he had come to prepare the ground for the construction of a ring-road and warned that any homestead that fell along the road would be deemed to be on Government land and would be demolished.  The team proceeded to mark the area where the purported road would pass, and left thereafter.  There was no further communication, On 24/12/2010 a group of armed administration police officers in riot gear and unidentified youths arrived under the command of  the District Officer, Garissa Central and, without warning, begun to demolish the houses and structures of the Petitioners which they claimed to be on Government land.  This left the Petitioners homeless On 31st December, 2010 the Petitioners had become so agitated that they were now resisting the demolitions.  The police officers used tear gas and physical violence to evict and eject them. No written notice had been served on the Petitioners.  The Respondents had no court order, and they did not engage the Petitioners in any consultation or explanation. The Petitioners were forced to live and sleep in the open or in make-shift temporary structures and were exposed to the elements and vagaries of nature, health risks, insecurity and lack of the basic human necessities such as food, water and sanitation 

The petition sought the following orders and declarations: 

a) violation of their fundamental right to life guaranteed by article 26 (1) and (3) of the constitution of Kenya, 2010 and Article 11 of the ICESCR;  

b) nature is a violation of their fundamental rights to inherent human dignity and the security of the person guaranteed by articles 28 and 29 ( c ), (d) and (f) of the Constitution of Kenya, 2010;

c) violation of their fundamental right of access to information guaranteed by article 35(1) of the Constitution of Kenya, 2010

d) violation of their fundamental right to protection of property guaranteed by article 40 (1), (3) and (4) as read with article 21 (3) of the Constitution of Kenya;  

e) violation of their fundamental rights to accessible and adequate housing, reasonable standards of sanitation, health care services, freedom from hunger and the right to clean and safe water in adequate quantities guaranteed by article 43 (1) read with articles 20 (5) and 21 (1), (2) and (3) of  the Constitution of Kenya 2010;  

g) violation of their fundamental rights to physical and mental health, and the fundamental right to physical and moral health of the family under articles 16 and 18 of the ACHPR read with article 2 (6) of the Constitution of Kenya 2010

h) violation of the fundamental 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 guaranteed by article 53 (1) (b), ( c ), (d) and (2) read together with article 21 (3) of the Constitution of Kenya 2010 and article 28 of the ACHPR read with article 2 (6) of the Constitution of Kenya 2010;  

i) violation of the fundamental rights of the elderly persons to the pursuit or personal development, to live in dignity, respect and freedom from abuse and to receive reasonable care and assistance from the State guaranteed by article 57 (b), ( c ) and (d) as read with article 21 (3) of the Constitution of Kenya 2010;  

i) That the Petitioners are entitled to general, aggravated, exemplary and punitive damages against the Respondents jointly and/or severally;  Under article 43, the Petitioners were entitled to the fundamental rights to accessible and adequate housing, and to reasonable standards of sanitation, health care, clean and safe water in adequate quantities and education.  Under article 47 the Petitioners were entitled to be given written reasons regarding these evictions.  Adequate information on the reasons of the proposed evictions and the alternative purposeful the land was to be used had to be indicated.  This information was to be given in obedience of article 35 which guarantees the right to information.  Kenya ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) on 3/1/1976 and consequently became bound to respect, protect and enforce the rights therein, including the right to adequate housing and the related prohibition of forced evictions as guaranteed by article 11 of the Covenant and the right to education as guaranteed under article 13.Kenya ratified the International Covenant on Civil and Political Rights (ICCPR) on 23/3/1976.  By its article 17, forced evictions are prohibited. Article 8 of the Universal Declaration of Human Rights and the Basic Principles and Guidelines on the Right to a Remedy and Reparatin for Victims of Gross violations of International Human Rights Law and Serious Violations  of International Humanitarian Law adopted by the United Nations General Assembly (Resolution 60/147 of 21/3/2005) state that a proper remedy for forced evictions is to return the victims as close as possible to the status quo ante.  They state that:   “restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law occurred.”

The Supreme Court of the Republic of South Africa provides persuasive authority in this regard.  In the case of on-Profit Organization & Others v City of Tshwane Metropolitan Municipality, the court considered forced eviction as a violation of the right to have access to adequate housing as enshrined in article 26 (1) of the Constitution of the Republic of South Africa.  In doing so, the court held that the proper remedy was the resolution of the status quo ante and ordered that the occupiers must get their shelters back and that the Respondents should, jointly and severally, be ordered to reconstruct them.    

The Respondents are further commanded to reconstruct reasonable residences and/or alternative accommodation and/or housing for the Petitioners.  Such residences, accommodation and/or housing should have all the amenities, facilities.