On-line version ISSN 1609-073X
Afr. hum. rights law j. vol.12 n.2 Pretoria 2012
Associate Professor, Rhodes University, South Africa
The article explores the opportunities that the new constitutional dispensation in Kenya has created for the protection against unlawful eviction of poor populations living in urban centres. It analyses the content of the right to accessible and adequate housing as provided for in article 43 of the Constitution of Kenya and articulated in various international instruments, and traces how this provision has been applied in the eviction cases that the Kenyan courts have decided. From this analysis, the article suggests that the new constitutional dispensation has opened up possibilities for rights enforcement that the courts as well as administrative organs should take advantage of. It also makes tangible suggestions on how to improve rights litigation in this regard, such as affirming the rights of access to courts and seeking further judicial oversight prior to any eviction and the promulgation of enabling legislation.
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* LLB (Nairobi), LLM (Pennsylvania), MA (Notre Dame), LLD (Fort Hare); firstname.lastname@example.org. I am indebted to Gustav Muller and to the two anonymous reviewers for their insightful comments.
1 See A Nyongesa 'More airport homes knocked down' Daily Nation Nairobi 13 November 2011 http://allafrica.com/stories/201111140346.html (accessed 15 November 2011); [ Links ] F Ayieko 'Questions linger over Syokimau demolitions' Daily Nation Nairobi 17 November 2011 http://www.nation.co.ke/Features/DN2/Questions+linger+over+Syokimau+demolitions/-/957860/1274186/-/topwvz/-/index.html (accessed 2 December 2011).
2 See W Oeri 'Hundreds left homeless in Nairobi demolition' Daily Nation Nairobi 19 November 2011 http://www.nation.co.ke/News/Hundreds+left+homeless+in+Nairobi+demolition/-/1056/1275716/-/2efc9i/-/index.html (accessed 2 December 2011); L Barasa 'Fury as homes near Nairobi military base pulled down' Daily Nation Nairobi 23 November 2011 http://allafrica.com/stories/201111230361.html (accessed 2 December 2011).
3 See A Abdullahi 'Demolitions: Battle of 'haves and have not'' Daily Nation Nairobi 20 November 2011 http://allafrica.com/stories/201111210053.html (accessed 2 December 2011).
4 See 'Minister condemns demolition as house team adjourns hearing' Daily Nation Nairobi 25 November 2011 http://allafrica.com/stories/201111251338.html (accessed 10 December 2011).
5 Among those who testified before the Joint Parliamentary Committee was the Commissioner of Lands who alleged that the title deeds held by Syokimau residents were 'fake'. See A Amran 'Commissioner of Lands admits Syokimau title deeds were fake' East African Standard Nairobi 25 November 2011 http://www.standardmedia.co.ke/InsidePage.php?id=2000047278&cid=4&story =Commissioner%20of%20Lands%20admits%20Syokimau%20title%20deeds%20were%20fake (accessed 2 December 2011); V Kimutai 'Lands boss says fraudster paid Sh 1.3million to legitimise Syokimau deals' East African Standard 1 December 2011 http://www.standardmedia.co.ke/business/insidePage.php?id=2000047591&cid=4& (accessed 10 December 2011). See also D Opiyo 'Lands officials sent packing in shake-up' Daily Nation Nairobi 4 December 2011 http://allafrica.com/stories/201112040025.html (accessed 10 December 2011).
6 In para 18 of UN Committee on Economic Social and Cultural Rights General Comment 4, UN Doc E/1992/23, adopted on 12 December 1991, the Committee affirmed that 'instances of forced evictions are prima facie incompatible with the requirements of the [International Covenant on Economic, Social and Cultural Rights] and could only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law'.
7 See eg R Oppong 'Re-imaging international law: An examination of recent trends in the reception of international law into national legal systems in Africa' (2006) 30 Fordham International Law Journal 296 (arguing that trends seem to be changing in favour of the application of international law in domestic courts in Africa); T Collingsworth 'The key human rights challenge: Developing enforcement mechanisms' (2002) 15 Harvard Human Rights Journal 183 (discussing the enforcement of international human rights law through the Alien Torts Claims Act (ATCA) in the domestic United States courts); M Ruteere 'Politicisation as a strategy for recognition and enforcement of human rights in Kenya' (2006) 7 Human Rights Review 6 (suggesting that socio-economic rights can only become a reality at the domestic level if politicised); JO Ambani 'Navigating past the "dualist doctrine": The case for progressive jurisprudence on the application of international human rights norms in Kenya' in M Killander (ed) International law and domestic human rights litigation in Africa (2010) 25.
8 See eg M Pieterse 'Possibilities and pitfalls in the domestic enforcement of social rights: Contemplating the South African experience' (2004) 26 Human Rights Quarterly 882.
9 This is what 'ownership' entails in property law. See AM Honoré 'Ownership' in AG Guest (ed) Oxford essays in jurisprudence (1961) 112-124; see the disputing thesis in J Penner 'The bundle of rights picture of property' (1995) 43 UCLA Law Review 711.
10 The notion of 'constitutional property' is well developed in South African law. See the cases of First National Bank of SA Ltd t/a Wesbank v Commissioner, South Africa Revenue Service 2002 4 SA 768 (CC); Zondi v MEC for Traditional and Local Government Affairs 2005 3 SA 589 (CC). See also AJ van der Walt Constitutional property law (2011).
11 For a discussion of the reform process that culminated in the creation of the Second Republic, see L Juma & C Okpaluba 'Judicial intervention in Kenya's constitutional review process' (2012) 11 Washington University Global Studies Law Review 287.
12 See S Liebenberg 'Needs, rights and transformation: Adjudicating social rights in South Africa' (2006) 17 Stellenbosch Law Review 5.
13 International Covenant on Economic, Social and Cultural Rights, GARes 2200, A/21, UN Doc A/63/6 16 December 1966.
14 GA Res 41/128 (1986). See also F Stewart 'Basic needs strategies, human rights, and the right to development' (1989) 11 Human Rights Quarterly 347. See also B Hamm 'A human rights approach to development' (2001) 23 Human Rights Quarterly 1005 (arguing that human rights and development are interdependent); and S Marks 'The human right to development: Between rhetoric and reality' (2004) 17 Harvard Human Rights Journal 137 (discussing the United States' persistent refusal to recognise development as a human right).
15 See P Ocheje 'In the public interest: Forced evictions, land rights and human development in Africa' (2007) 51 Journal of African Law 173.
16 See C Wafula 'Kimunya: I cannot promise end to demolitions' Daily Nation Nairobi 17 November 2011 http://allafrica.com/stories/201111160160.html (accessed 2 December 2011).
17 See generally G Schubert The public interest: A critique of the theory of a political concept (1960); W Leys 'The relevance and generality of "the public interest"' in C Friedrich (ed) The public interest (1967) 237. See also E Bodenheimer 'The use and abuse of the "public interest"' in Friedrich (above) 191.
18 At least, in South Africa the principle of 'meaningful engagement', which compels the public authority to engage with the community facing eviction and attempts to find a solution to the problems which the eviction sought could have solved, is now engrained in the law. See Residents of Joe Slovo Community Western Cape v Thubelisha Homes 2010 3 SA 454 (CC) and Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg v City of Johannesburg 2008 3 SA 208 (CC).
19 See S K Bailey 'The public interest: Some operational dilemmas' in Friedrich (n 17 above) 96.
20 Ocheje (n 15 above) 205.
21 S Liebenberg 'Human development and human rights, South Africa country study' Human Development Report 2000, Background Paper 11 http://hdr.undp.org/en/reports/global/hdr2000/papers/sandra%20liebenberg.pdf (accessed 20 December 2011).
22 See K Otiso 'Forced eviction in Kenyan cities' (2002) 23 Singapore Journal of Tropical Geography 253; J Audefroy 'Eviction trends worldwide and the role of local authorities in implementing the right to housing' (1994) 6 Environment and Urbanisation 16.
23 Otiso (n 22 above) 262.
24 As above.
25 See R Stren 'Urban policy and performance in Kenya and Tanzania' (1975) 13 Journal of Modern African Studies 271. See generally M Lipton Why poor people stay poor: A study of urban bias in world development (1977); G Breeze Urbanisation in newly developing nations (1966).
26 See IK Mwangi 'The nature of rental housing in Kenya' (1997) 9 Environment and urbanisation 143.
27 Ocheje (n 15 above) 190.
28 See K Macharía 'Slum clearance and informal economy in Nairobi' (1992) 30 Journal of Modern African Studies 221.
29 S Leckie 'The UN Committee on Economic Social and Cultural Rights and the right to adequate housing: Toward an appropriate approach' (1989) 11 Human Rights Quarterly 522 542.
30 See eg Human Rights Watch Double standards: Women's property rights violations in Kenya (2003).
31 See T Risse & K Sikkink 'The socialisation of international human rights norms into domestic practice: Introduction' in T Risse et al (eds) The power of human rights: International norms and domestic change (1999) 1.
32 GA Res 217A (III), UN Doc No A/810 71 (1948).
33 S Leckie 'The right to housing' in A Eide et al (eds) Economic, social and cultural rights: A textbook (1995) 111.
34 There is a measure of achievement in this regard, among a range of states. Eg, in South Africa one might point to the Social Assistance Act 13 of 2004 and Social Security Agency Act 9 of 2004 and, in India, to the National Rural Employment Guarantee Act (2005) as legislative interventions that support socio-economic rights. See F Coomans 'Some introductory remarks on the justiciability of economic and social rights in a comparative constitutional context' in F Coomans (ed) Justiciability of economic and social rights: Experiences from domestic systems (2006) 7.
35 GA Res 2200A (XXI), 21 UN GAOR Supp (No 16) 52, UN Doc A/6316 (1966).
36 GA Res 34/180,34 UN GAOR Supp (No 49) 193, UN Doc A/34/46 (1979).
37 OAU Doc CAB/LEG/67/3 re 5, reprinted in C Heyns & M Killander (eds) Compendium of key human rights documents of the African Union (2007) 29 (adopted 27 June 1981).
38 (2001) AHRLR 60 (ACHPR 2001) (SERAC). This decision has been reviewed by many commentators. See eg D Shelton 'Decision regarding Communication 155/96 (Social and Economic Rights Action Centre/Centre for Economic and Social Rights v Nigeria)' (2002) 96 American Journal of International Law 937; G Bekker 'The Social and Economic Rights Action Centre and Centre for Economic and Social Rights v Nigeria' (2003) 47 Journal of African Law 107; D Olowu An integrated rights-based approach to human development in Africa (2009) 62; S Liebenberg Socio-economic rights: Adjudication under a transformative constitution (2010).
39 SERAC (n 38 above) para 60.
40 SERAC (n 38 above) para 63.
41 In South Africa, the Constitutional Court in Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC) para 35 stated that adequate housing meant 'more than bricks and mortar'. See G Miller 'Impact of section 26 of the Constitution on the eviction of squatters in South African law' unpublished dissertation, University of Stellenbosch, 2011 75.
42 The Global Shelter Strategy to the Year 2000, Report of the Executive Director, UN Comm on Human Settlement, UN Doc H/C11/3 para 9 7 (1988).
43 See United Nations Report of the United Nations Conference on Human Settlement (Habitat II) (1996), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G96/025/00/PDF/G9602500.pdf?OpenElement.
44 n 43 above, para 40(b).
45 M Stone Shelter poverty: New ideas on housing affordability (1993) 314.
46 General Comment 4 para 8.
47 See A Durand-Lasserve 'Informal settlements and the Millennium Development Goals: Global policy declaration on property ownership and security of tenure' (2006) 2 Global Urban Development 1 http://www.globalurbandevelopment.org/GUDMag06Vol2Iss1/Durand-Lasserve%20PDF.pdf (accessed 15 December 2011).
48 See generally UN Habitat Enabling shelter strategies: Review of experience for two decades of implementation (2006) http://ww2.unhabitat.org/programmes/housingpolicy/documents/HS-785.pdf (accessed 15 December 2011).
49 UN Habitat (n 48 above) 161.
50 Para 8(a) General Comment 4.
51 See Amnesty International, Kenya The unseen majority: Nairobi's two million slum dwellers (2009) http://www.amnesty.ca/dignity/resources/Slums_Kenya_AFR32005009.pdf (accessed 20 December 2011).
52 As above.
53 Arts 21(1) and (2) Constitution of Kenya, 2010.
54 Art 21 (3) Constitution of Kenya, 2010.
55 As above.
56 African Union, Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women, CAB/LEG/66.6/Rev 1 (2003). For discussions on key aspects of the Protocol, see M Nsibirwa 'A brief analysis of the Draft Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women' (2001) 1 African Human Rights Law Journal 40.
57 Art 16 African Women's Protocol (n 56 above).
58 See SBO Gutto 'Beyond justiciability: Challenges of implementing/enforcing socio-economic rights in South Africa' (1998) 4 Buffalo Human Rights Law Review 79.
59 See F Viljoen 'National legislation as a source of justiciable socio-economic rights' (2005) 6 ESR Review 6.
60 See A Eide & A Rosas 'Economic, social and cultural rights: Universal challenge' in Eide et al (n 33 above) 15; P Hunt Reclaiming social rights: International and comparative perspectives (1996) 7.
61 See eg V Sripati 'Towards fifty years of constitutional and fundamental rights in India: Looking back to see ahead 1950-2000' (1998) 14 American University International Law Review 413.
62 Sripati (n 61 above) 451; J Cassels 'Judicial activism and public interest litigation in India: Attempting the impossible' (1989) 37 American Journal of Comparative Law 495; E Christiansen 'Adjudicating non-justiciable rights: Socio-economic rights and the South African Constitutional Court' (2006) 38 Columbia Human Rights Law Review 321.
63 See Vienna Declaration, World Conference on Human Rights, Vienna, 14-25 June, UN DOC A/CONF, 157/24 (Part I) 1993.
64 See M Pieterse 'Coming to terms with judicial enforcement of socio-economic rights' (2004) 20 South African Journal on Human Rights 383; M Kende 'The South African Constitutional Court's embrace of socio-economic rights: A comparative perspective' (2003) 6 Chapman Law Review 137.
65 See generally T Maluwa 'The incorporation of international law and its interpretational role in municipal legal systems in Africa: An exploratory survey' (1998) 23 South African Yearbook of International Law 45.
66 See UN Habitat The Right to Housing, Fact Sheet 21 (2009) http://www.ohchr.org/Documents/Publications/FS21_rev_1_Housing_en.pdf (accessed 30 September 2012).
67 Para 10 General Comment 3 (5th sess 1990) The Nature of States Parties Obligations (art 2(1) of the Covenant) UN Doc E/1991/23.
68 For these debates, see K Young 'The minimum core of economic and social rights: A concept in search of content' (2008) 33 Yale Journal of International Law 113. See also D Bilchitz 'Giving socio-economic rights teeth: The minimum core and its importance' (2002) 119 South African Law Journal 484; D Bilchitz 'Towards a reasonable approach to minimum core: Laying foundations to future socioeconomic rights jurisprudence' (2003) 19 South African Journal on Human Rights 1; K Lehmann 'In defence of the Constitutional Court: Litigating socio-economic rights and the myth of minimum core' (2006) 22 American University International Law Review 163.
69 Liebenberg (n 38 above) 151. The test is established in the cases of Grootboom (n 41 above) and Minister of Health v Treatment Action Campaign (No 2) 2002 5 SA 721 (CC). See also A Sachs 'Judicial enforcement of socio-economic rights: The Grootboom case' (2003) 56 Current Legal Problems 579.
70 Liebenberg (n 38 above) 151.
71 Arts 20(5)(a), (b) and (c) Constitution of Kenya, 2010.
72 See eg L Onyango & R Hume 'Land law, governance and rapid urban growth: A case study of Kisumu, Kenya' in R Hume (ed) Local case studies in African land law (2011) 39 40 (arguing that the colonial legacy and regulatory systems in Kenya have shaped the current urban forms).
73 See G Wasserman 'Continuity and counter-insurgency: The role of land reform in decolonising Kenya 1962-1970' (1973) 7 Canadian Journal of African Studies 133.
74 The 1897 East African Order in Council that applied the Indian Transfer of Property Act of 1881 and Indian Land Acquisition Act of 1894 to Kenya allowed the Commissioner of the Protectorate to grant permission for European occupation of land. See MPK Sorrensen Origins of European settlement in Kenya (1965). See also W Morgan 'The White Highlands of Kenya' (1963) 129 Geographical Journal 140; N Carey Jones 'The decolonisation of the White Highlands of Kenya' (1965) 131 Geographical Journal 186.
75 See D Ellis 'The Nandi protest of 1923 in the context of African resistance to colonial rule in Kenya' (1976) 17 Journal of African History 555.
76 See S Wanjala Essays on land law (2000) 9.
77 See D Anderson & D Throup 'Africans and agricultural production in colonial Kenya: The myth of the war as a watershed' (1985) 26 Journal of African History 327 333.
78 As above. See also B Berman Control and crisis in colonial Kenya: The dialectic of domination (1990) 305.
79 Secs 30 & 31 of the Ordinance. See also S Wanjala 'Land and resource tenure, policies and laws: a perspective from East Africa' paper read at the Pan-African Programme on Land and Resource Rights inaugural workshop, Cairo, Egypt, 25-26 March 2002.
80 See generally HWO Okoth Ogendo Tenants of the crown: Evolution of agrarian law and institutions in Kenya (1995).
81 Isaka Wainaina v Murito (1922) 9 KLR 102 (the plaintiffs had claimed ownership of a parcel of land on the basis that they had purchased it from the Ndorobo tribe before the European settlement).
82 The details about the revolt and the politics behind it can be found in F Furedi The Mau Mau in perspective (1989); T Kanogo Squatters and the roots of Mau Mau 1905-63 (1987); W Maloba Mau Mau and Kenya: An analysis of a peasant revolt (1998).
83 See P Karanja 'Women's land ownership rights in Kenya' (1991) Third World Legal Studies 109 121; J Haberson 'Land reform and politics in Kenya' 1954-70' (1971) 9 Journal of Modern African Studies 231 233.
84 A Haugerud 'Land tenure and agrarian change in Kenya' (1989) 59 Africa 61 63.
85 See generally HWO Okoth-Ogendo 'African land tenure reform' in SN Hinga & J Heyer (eds) Agricultural development in Kenya: An economic assessment (1976).
86 See Government of Kenya Report of the Commission of Inquiry into the Illegal/ Irregular Allocation of Public Land (GoK, Nairobi, 2004) (Ndungu Report). See also R Southall 'The Ndungu Report: Land and graft in Kenya' (2005) 103 Review of African Political Economy 142.
87 See eg L Juma 'Ethnic politics and the constitutional reform process in Kenya' (2002) 9 Tulsa Journal of Comparative and International Law 471.
88 See D Satterthwaite 'Evictions: Enough violence, we want justice' (1994) 6 Environment and Urbanisation 3.
89 See J Klopp 'Pilfering the public: The problems of land grabbing in contemporary Kenya' (2000) 47 Africa Today 7.
90 L Ochola 'Eviction and homelessness: The impact on African children' (1996) 6 Development in Practice 340.
91 See J Klopp 'Remembering the destruction of Muoroto: Slum demolitions, land and democratisation in Kenya' (2008) 67 African Studies 295.
92 As above.
93 See H Charton-Bigot & D Rodriguez Rorres Nairobi today: The paradox of a fragmented city (2010) 48.
94 See O Oculi 'The role of economic aspirations in elections in Kenya' (2011) 35 Africa Development 13 19. See also Juma (n 87 above).
95 See K Oman 'Mau forest evictions leave Ogiek homeless' Cultural Survival 3 October 2005 http://www.culturalsurvival.org/news/karin-oman/mau-forest-evictions-leave-ogiek-homeless (accessed 15 December 2011); A Barume 'Indigenous battling for land rights: The case of Ogiek in Kenya' in J Castellino et al (eds) International law and indigenous people (2005) 365.
96 See C Bodewess & N Kwinga 'The Kenyan perspectives on housing rights' in S Leckie (ed) National perspectives on housing rights (2003) 221 223. Kenya is not alone in this regard. See United Nations Human Settlement Programme (UN-Habitat) report, Forced evictions - Towards solutions (2005).
97 See R Wangui 'Who is to blame for inhumane evictions?' Daily Nation Nairobi, 8 December 2011 http://allafrica.com/stories/201112080085.html (accessed 20 December 2011).
98 Committee on Economic, Social and Cultural Rights, General Comment 7, Forced evictions and the right to adequate housing (16th session, 1997) UN Doc E/1998/22, annex IV 113 (1997) reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.6 (2003).
99 Para 8(a) General Comment 4.
100 See para 1 Commission on Human Rights Resolution 1993/77, http://www.unhabitat.org/downloads/docs/1341_66115_force%20evic%20chr1.htm (accessed 2 December 2011).
101 General Comment 7.
102 In the Preamble to Resolution 2004/28, the Commission recommended that 'all governments ensure that any eviction that is otherwise deemed lawful is carried out in a manner that does not violate any of the human rights of those evicted' (my emphasis).
103 n 102 above, para 3.
104 As above. See also para 43, UN Basic Principles and Guidelines on Development-Based Evictions and Displacement, A/HRC/4/18, http://www2.ohchr.org/english/issues/housing/docs/guidelines_en.pdf (accessed 24 September 2012).
105 See eg African Commission in SERAC (n 38 above); European Committee on Social Rights in ERRCv Greece (Complaint 15); Constitutional Court of South Africa in Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC) and more recently in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd & Another 2012 2 SA 104 (CC).
106 A few examples here include the South African prohibition of forced eviction from homes provided for in art 26(3) of the Constitution of the Republic of South Africa, 1996, and South Korea's Relocation Assistance Statute Act 9595 of 2009.
107 High Court of Kenya, Nairobi, Petition 66 of 2010 (2011) KLR 1, http://kenyalaw.org/Downloads_FreeCases/80847.pdf (accessed 20 December 2011).
108 Art 2(6) now provides that '[a]ny treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution'.
109 2001 1 SA 46 (CC).
110 2003 6 BCLR 638 (T). In the discussion, the judge refers to the Supreme Court of Appeal judgment. This is an error which needs to be corrected. The Supreme Court of Appeal judgment is reported in 2004 6 SA 40 (SCA), and the correct title of the case is President of the Republic of South Africa & Another v Modderklip Boerdery (Pty) Ltd. Note that this matter went all the way to the South African Constitutional Court and the judgment is reported in 2005 5 SA 3 (CC). Also, the Constitutional Court decision was on the right of access to justice.
111 High Court of Kenya, Embu, Constitutional Petition 2 of 2011 (unreported).
112 See eg Pattni & Another v Republic (2001) KLR 262 where the courts, although willing to 'take account of the emerging consensus of values' embodied in the international human rights instruments, maintained that such laws were only of persuasive value.
113 See Ambani (n 7 above); T Kabau & C Njoroge 'The application of international law in Kenya under the 2010 Constitution: Critical issues in the harmonisation of the legal system' (2011) 44 Comparative and International Law Journal of South Africa 293.
114 For some in-depth discussion of what constitutes international law, see H Thirlway 'The sources of international law' in M Evans (ed) International law (2007) 115.
115 See eg D Klein 'Theory of the application of customary international law of human rights by domestic courts' (1998) 13 Yale Journal of International Law 334.
116 Here again, one cannot help but lament a lack of proper referencing that makes the judgment hard to read and the court's reasoning difficult to follow.
117 An additional constitutional measure that supports this proposition is found in art 132, which enjoins the President to ensure that 'the international obligations of the Republic are fulfilled through actions of the relevant cabinet secretaries'.
118 See Maluwa (n 65 above).
119 Eg, sec 26(3) of the South African Constitution provides that '[n]o one may be evicted from their home, or have their home demolished, without an order of the court made after considering all relevant circumstances'. See also Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC).
120 Susan Waithera (n 107 above) 9.
121 See H Ayodo 'Slum dwellers now demand decent housing' East African Standard 28 October 2011 http://www.standardmedia.co.ke/insidePage.php?id=%202000045793&cid=159&story =Slum%20dwellers%20now%20demand%20dec ent%20housing (accessed 2 December 2011).
122 In the United States, serious concerns have been raised about the possibility of indigent persons faced with prospects of eviction being denied equal access to justice. See M Rabiee 'Activists push for right to counsel in US civil cases' Voice of America 2 December 2011 http://www.voanews.com/english/news/usa/Activists-Push-for-Right-to-Counsel-in-US-Civil-Cases-134933063.html (accessed 15 December 2011). See also R Kleinman 'Housing Gideon: The right to counsel in eviction cases' (2004) 31 Fordham Urban Law Journal 1507; A Scherer 'Why people who face losing their homes in legal proceedings must have right to counsel' (2004) 3 Cardozo Public Law Policy and Ethics Journal 699. In Europe, however, the right to counsel in civil cases has been recognised largely due to the interpretation that the European Court of Human Rights has given to the fair hearing provisions (art 6) in the European Convention on Human Rights (4 November 1950). See J Frowein 'Recent developments concerning the European Convention on Human Rights' in J Sundberg (ed) Laws, rights and the European Convention on Human Rights (1986) 11 24.
123 See S Kangara 'Syokimau: Real estate professionals, lawyers and surveys highly culpable' Daily Nation 8 December 2011, http://allafrica.com/stories/201112080078.html (accessed 20 December 2011).
124 P Hoffman 'To judge the judgments' Mail & Guardian 2 December 2011 32.
125 Sec 34 of the South African Constitution provides that '[e]veryone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum'. See also L Juma 'Mortgage bonds and the right of access to housing in South Africa: Gundwana vStoke Development 2011 (3) SA 608' (2012) 37 Journal of Juridical Science (forthcoming).
126 2000 1 SA 409 (CC).
127 2 0 0 5 2 SA 140 (CC).
128 2011 3 SA 608 (CC).
129 Art 40(3) (my emphasis).
130 Art 20(3).
131 Art 20(4).
132 Art 24(1).
133 See Juma (n 126 above).
134 See sec 26(3) Constitution of the Republic of South Africa, 1996.
135 See para 16 Conclusions and Recommendations of the Committee on Economic Social and Cultural Rights, Kenya, UN Doc E/C.12/1993/6 (1993) (my emphasis).
136 See Question 257 Kenya National Assembly Official Hansard 30 June 1999.
137 Waithera (n 107 above).
138 High Court of Kenya, Bungoma, HCCC 65 of 2004 (unreported).
139 As above.
140 Audefroy (n 19 above) 18. See also J Kim 'The displaced resident's right to relocation assistance: Towards an equitable urban redevelopment in South Korea' (2010) 19 Pacific Rim Law and Policy journal 587 for a discussion of how legislative intervention together with a renewed urban development approach have improved access to housing in South Korea's major cities.
141 D Clark 'The World Bank and human rights: The need for greater accountability' (2002) 15 Harvard Human Rights Journal 205 (suggesting that resettlement programmes cannot adequately compensate for the losses that evictees suffer).
142 Clark (n 141 above) 20.
143 See City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties (n 105 above).
144 There are restrictive measures that are imposed by legislation such as the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301), which regulates tenancies in business premises, and the Rent Restriction Act (Cap 296), which deals with rental policies, controls practices in residential housing and sets out the legal rights and obligations of both landlord and tenant. See Mwangi (n 26 above) 141 148.
145 Samoei (n 144 above).
146 As above.
147 See, generally, Ambani (n 7 above).