Road that divides: Legal battle looms as Kibera residents oppose highway

MONDAY OCTOBER 10 2016

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In Summary

• The battle highlights the precarious situation faced by slum dwellers globally who have no legal rights to the land they have occupied for decades.
• There are only two government schools in Kibera for more than 50,000 children, according to Map Kibera, which has digitally mapped the slum.
• He argued that the government started placing red markings on buildings earmarked for demolition, without consulting residents or offering them compensation.

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When Peter Nyagesera’s sisters died, leaving him to raise their nine orphaned children, he felt drawn to help other single mothers and street children living in the narrow alleyways of Kibera slums.

Nyagesera, 40, and his wife started clearing a swampy dump site on the edge of the Nairobi slum by hand, laying soiled rags and plastics out to dry in the sun before burning them.

A decade later, the former dump site is a clean, gravelled playground, where children in green school uniforms play tag alongside a dining hall where they eat rice and cabbage for lunch — for many, their only hot meal of the day.

“If it were not for this centre and other centres like this, most kids would be roaming the streets,” Nyagesera told the Thomson Reuters Foundation, sitting in the school dining room.

But if the government wins two court cases initiated by residents against its plan to build a road through Kibera, the children may be back on the streets, said Nyagesera.

The battle highlights the precarious situation faced by slum dwellers globally who have no legal rights to the land they have occupied for decades, thwarting their efforts to invest in essential services, like education, to improve their lives.

Nyagesera fears a government victory in the cases, one of which is to be heard on October 18, may result in children having to scavenge for food again while their parents walk to upmarket areas in search of casual work, washing clothes or working on building sites.

Some 100 metres away, yellow diggers pour earth into trucks at the start of a road that is slated to slice through the slum, bulldozing 10 schools, including Nyagesera’s, along with thousands of homes, churches, clinics and graveyards.

There are only two government schools in Kibera for more than 50,000 children, according to Map Kibera, which has digitally mapped the slum.

Most children attend some 330 informal schools.

Kibera is one of Africa’s oldest, largest and celebrity-favoured slums, just five kilometres from Nairobi city centre.

Tours of the bustling slum became popular after actress Rachel Weisz won several awards for her portrayal of an activist working in Kibera in the 2005 film The Constant Gardener.

OMINOUS FUTURE

Along the century-old railway line, stalls selling broken electronics and vegetables blast out music to attract passing customers.

Women wash and hang clothes between low-slung roofs as children play and men sit chatting on its tightly-packed earthen streets, retreating at night to their one-roomed, mud-walled homes, most of them powered by stolen electricity.

A 2009 census recorded Kibera’s population as 170,000 although the numerous charities working to provide food, water, toilets and medical care estimate it at up to one million.

Nyagesera, who filed one of the two petitions against the road works, won a temporary injunction from Nairobi’s High Court in February.

He argued that the government started placing red markings on buildings earmarked for demolition, without consulting residents or offering them compensation.

He believes officials have been bribed to change the route of the road to bypass the properties of influential residents, highlighting the challenges of improving lives in slums without secure tenure.

“It is my mortal fear that somebody has interfered with the development plan of Kibera either for personal or political gain,” his court petition states, describing how youths marked the route using an undated, unsigned survey map.

The Kenya Urban Roads Authority (Kura), one of the respondents in the case, dismissed the allegations as rumours, saying it is following the route laid out in a 2013 government map.

The Attorney-General, another respondent, declined to comment as the cases are in court.

A second group of residents from the marginalised Nubian community won another court injunction in August, arguing they have nowhere to go if the road is built through their land, given to them by British colonialists a century ago.

“Young men kept coming and causing nuisance in the wee hours of the night announcing they would demolish the houses,” their petition states.

Three residents told the Thomson Reuters Foundation their properties were marked with red paint after February’s injunction, by more than 50 rowdy young men wearing reflective yellow Kura jackets.

“They even painted one old man,” said Mongare Nyakundi, headmaster of Love Africa School. “He was painted red all over when he asked them what they were doing.”

FAILED PLEDGE

The police used tear gas in June to control a crowd that was trying to stop buildings being marked for demolition.

“They ( police) told me, ‘My friend, if you try to bring any (trouble), you will ‘eat’ bullets,"' recalled one resident, Samuel Sabwa, who was later arrested for creating a disturbance.

Kura spokesman John Cheboi said the road agency has respected the court orders and residents were arrested for trying to burn the contractor’s machinery.

Kibera residents have known about the road building project for years and talks between Kura and their representatives are ongoing, Cheboi said.

“It is not that we are inhuman,” he said. “We will give them some allowance to enable them to move, to obtain residence elsewhere. We are not forcing them out.”

The government has demolished numerous luxury homes and a gigantic supermarkets in recent efforts to decongest the rapidly-growing city of Nairobi by expanding major roads.

In a country plagued by decades of unbridled corruption, it is often hard to tell whether the property owners knowingly encroached on public land or if they were the victims of conmen who made a quick shilling by selling land they didn’t own.

“The government gives us the chance to compensate people who have title deeds because those are the real owners,” said Cheboi, tracing the road on a map of Nairobi criss-crossed with fluorescent lines highlighting Kura’s latest projects.

“But if you are just a squatter, then you are just given an allowance.”

Officially, everyone who lives in Kibera is a squatter, as its corrugated iron shacks, perched next to open sewers, are built on public land.

Kibera was first inhabited in the early 20th century by Nubian soldiers from Sudan who fought for the British and were rewarded with 4,000 acres on the outskirts of Nairobi.

They never received title deeds. With independence in 1963, other communities moved in, jostling for scarce housing.

The Nubians were evicted from much of what they call Kibra — Nubian for forest — in the 1970s and 1980s to make way for middle class housing estates.

While campaigning for the 2013 elections, President Uhuru Kenyatta promised the Nubians title deeds.

But the plan was shelved following opposition from other Kibera residents.

“We are waiting to be awarded this land,” said Mohamed Abubakar, a Nubian who lives with his mother, wife, children and numerous relatives in a spacious, leafy compound built by his father.

“Once we are scattered, I think the community will be done ... We’ll lose our values, our culture, our language.”

LEGAL PROVISION

Kenya introduced legislation in August laying out the steps for communities to acquire titles to their ancestral land, which makes up about two-thirds of the country.

“Their history is clear — they (Nubians) have always occupied Kibera,” said Luke Obala, an expert on urban land conflicts at the University of Nairobi.

He said the State should provide the court with evidence of its plans to give them alternative land or compensation.

Mass evictions are common across Nairobi, where the majority of its four million residents live in slums.

There is tensions between Kenyans who want the right to property to be respected and campaigners focusing on the welfare of the poor, whom, they argue, often have no choice but to become squatters because the State has not provided affordable housing.

International law regards forced eviction as a gross violation of human rights, regardless of whether or not the land was occupied legally.

Such evictions often push people into extreme poverty, posing a risk to the right to life itself, says the United Nations.

Kenya introduced a law in August that says people illegally occupying public land should only be evicted after receiving three months notice in writing, in a national newspaper and via the radio in a language they understand.

But the law does not oblige the government to consult affected people or offer them alternative housing or compensation, said Amnesty International activist Naomi Barasa.

“It does not have the capacity to safeguard the victims of forced evictions,” she said.   

Nyagesera fears for the 11 orphans who live in his school.

“They will have nowhere to go,” he said, trying to quieten exuberant children running up and down during break time. “Children are going to suffer.”

Thomson Reuters Foundation