TOI MARKET: HOW MARKET TRADERS TRANSFORMED JUDICIAL FIASCO INTO A SONG OF VICTORY.

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1 Odindo Opiata TOI MARKET: HOW MARKET TRADERS TRANSFORMED JUDICIAL FIASCO INTO A SONG OF VICTORY. BACKGROUND Toi market is situated in the informal settlement known as Kibera in Nairobi, Kenya. Kibera is perhaps well known as one of the largest informal settlements in Africa and more recently as one of the sites where the popular movie, The Constant Gardener was shot. The settlement is home to over 700, 000 residents. Toi is a word that means mud in the language of the Nubians who were the first settlers in the area. The Nubians were originally from Sudan but were settled in the area by the British colonial government after the First World War. The history of the market is itself a result of a twist of history. The original traders had initially conducted their small-scale business in a place of land that the Government acquired for the purpose of putting up a courthouse in The traders were moved into the place of land that became known as Makina market. Unfortunately, not all of them could space get space in the new market and they decided to move into an adjacent open space that became known as Toi market. Initially only a few traders settled into the new market but with time the number increased and subsequently occupied and area that is approximately 6 acres. None of the traders knew the owner of the land and indeed never bothered to find out. They did not make any attempt to obtain any certificates of title because as long as they were able to conduct their business without being disturbed they saw no need for title deeds. They felt secure and that is what mattered as far as they were concerned. In 1991, tired of conducting business in the open, they took the opportunity of a Presidential visit to the area to request that a permanent market be built for them. The President acceded to their request and a market known as Kibera Hawkers Market was eventually put up. As fate would have it, the local administrators, who were the implementers of the project decided to allocate spaces in the new market to themselves, relatives and friends. Only five members of Toi market were allocated sheds in the new market leaving the majority to continue trading in the open market. In 1996 the area administrator (Chief) issues an eviction notice, even though under the law he had no such powers. The traders resisted the eviction notice and thus begun their long journey to the courts. The traders first organized themselves and 1

2 formed a committee to protect what they considered as their right to occupy the market. They visited all kinds of offices including seeking assistance from politicians but to no avail. On June 14 th 1996 the police ceiled the market and proceeded to demolish the stalls. In the meantime the committee organized the members who managed to raise a small amount of money with a view to filing a case in court. They approached Kituo Cha Sheria, a legal aid non-governmental organization that readily agreed to file a suit on their behalf. The suit was not based on explicit violations of human rights. It was simply argued on the ground that the local administrator who had issued and executed the eviction notice had no powers under the existing law to do so. When the case came up for hearing the traders attended in large numbers and many of them could not get space in the judge s chambers ( in Kenya most cases are heard in Chambers even though in this particular case the first motion was technically a chamber application that is ordinarily conducted chambers). The ruling of the application for the order of stay of eviction against the local administrator was set for the 30 th day of July Legally the case against the administrator was quite weak and this fact was clearly explained to the traders by their advocate. On the date for the ruling the traders organized themselves and hired three mini buses. In terms of strategy the traders had unanimously resolved that if the ruling went against them (which was quite likely!) they would simply board the mini buses and head for the market while singing that they had won the case! Similarly, if the ruling was in their favor they would do the same. For them it was a win-win situation. OUTCOME As expected, the court ruled that the local administrator had the right to evict the traders because they had refused to move into the new markets and that in case the traders could not claim any right of occupation since they did not have any title deeds to back their claim. The court never addressed the issue of compensation of the goods that had been destroyed during the eviction. The traders, in line with their earlier resolution, broke into songs and boarded the mini buses declaring that they had won the case. They returned to the market and continued with their businesses having decided that they were not going to vacate unless driven out by force. In the meantime they started a savings scheme not only to 2

3 boost their capital but also to act as a mobilizing tool. Faced with the resolute and united stand of the traders and fearing a backlash in case of a violent eviction, the government decided not to take any further action. In the meantime, the political situation in the country was rapidly changing with citizens becoming more assertive. In law the traders had no title but in reality nobody was willing to take any action against them. In the process a de facto security of tenure has been created and early this year the Government, through the economic stimulus program, decided to construct a permanent market for the traders. LESSON FROM THE CASE: Groups who are faced with immediate threats to their livelihood are more likely to find a reason for organizing themselves. Before being threatened with eviction the Toi traders saw no need to come together. The poor do not always see the legal system as the most effective tool of protecting their rights. That is why in the initial phases of this struggle the traders were more willing to approach political leaders even if it meant that many of these leaders had no legal authority to intervene on land allocation matters. Despite their mistrust of the legal system, community groups will always turn to the legal system as a last resort and use the outcome to further their agenda. Through innovative social mobilization in which both grassroot organizations and NGOs play complimentary roles, even a negative judicial ruling can be successfully resisted and turned into a rallying point for enforcing rights. 2. THE RAILWAY-DWELLERS CASE: HOW THE WORLD BANK WAS COOPTED TO PROMOTE THE ENFORCEMENT OF ESCR OF THE POOR BACKGROUND On January 29, 2004, the Kenya Railways Corporation issued a notice in the daily papers that it intended to demolish all structures located within 100 feet on either 3

4 side of the railway line in Kibera starting on March 3 rd March The rail line is five kilometers long and passes through the entire community of Kibera. After several attempts to stop the evictions bore no fruits,, over eighty residents living on the rail line operational corridor filed a case in the High Court against the Kenya Railways Corporation 1, seeking an injunction to restrain the Railways from forcibly evicting them. The suit argued that the plaintiffs, who were all long-term residents or traders along the rail line, were issued with temporary occupancy licenses by the Railways and such licenses had not expired. Furthermore, the threatened evictions, it was argued, would be in contravention of the Railways Corporation Act, Children's Act and international procedures that prohibit forced and arbitrary evictions. On February 27, Judge, having found that the Plaintiffs did not have locus standi to bring the action, nevertheless proceeded to issue an order temporary order of injunction with the condition that the plaintiffs should return to court within ten days with concrete suggestions on the period of time the needed to move from the railway line. When the matter went back to court the Judge issued another order restraining the Railways from evicting the Plaintiffs for another three weeks. He further directed that Kenya Railways and the affected residents should enter into negotiations and actively explore the possibility of a negotiated time frame for the applicants to relocate. In the meantime the eviction notice had been suspended following intense national and international pressure. OUTCOME Negotiations between the community and Kenya Railways continued with the residents insisting that a clear and realistic relocation plan be developed. Eventually the whole eviction plan was abandoned and the World Bank entered into an agreement with the Government of Kenya under which it agreed to finance the relocation plan. A consultancy firm was selected to undertake the assignment. In 2006 a consultative relocation action plan was finalized and approved by the Government of Kenya. The Plan was modeled around the World Bank Involuntary Resettlement Procedures and specifically called for the construction of footpaths, residential houses and markets for those who were to be affected by the eviction. It marked the first time that a comprehensive relocation plan was being applied to 1 Maina Ngare Nderu and 87 Others v. Kenya Railways Corporation, Civil Suit No. 189 of

5 address urban evictions in the country. Although the Plan is yet to be implemented, the Government has abandoned eviction as an option. LESSONS The case demonstrated that where litigation is used as part of a multifaceted strategy that includes community mobilization and negotiation, the possibility of implementing economic and social rights can be enhanced. Where there is absence of domestic legal framework, affected persons can resort to the procedures of multi lateral financial institutions like the World Bank and the International Finance Corporation to enforce economic and social rights. 3. THE ENDOROIS CASE: HOW INDIGENOUS PEOPLE CAN ENFORCE THEIR ECONOMIC AND SOCIAL RIGHTS THROUGH REGIONAL HUMAN RIGHTS INSTITUTIONS. BACKGROUND The Endorois is a minority indigenous group in the Rift Valley Province, Kenya. Its population is estimated to be around 60,000. Their ancestral land is around a lake known as Lake Bogoria. The group considers the Lake as central to their religious and traditional practices. Their customary rights over the lake remained unchallenged until 1973 when the Government of Kenya decided to turn the lake into a national reserve. The community was promised compensation in the form of land, money, schools, bursaries and jobs for the youth. But the promises were never kept. In 1974 the Government forcibly evicted the community. This forced the community to form the Endorois Welfare Management Council. Initially the Council approached the local and central government demanding a share of the revenue from the Lake which was a major tourist attraction. But this was not to be. In 2002 the community moved to the High Court claiming inter alia the non implementation of the agreement to compensate them. The High Court dismissed their case arguing that there was no such thing as community rights and further argued that there was no proper identity of the people who were affected by the setting aside of the land. The Court further asserted that Kenyan law could not 5

6 address any special protection of a people s land based on historical occupation and cultural rights. Their appeal to the Court of Appeal was similarly dismissed. With the support of a local NGO ( the Centre on Minority Rights Development) and an international NGO ( the Minority Rights International), the community filed a reference before the African Commission on Human and People s Rights in They sought several declarations and sought for restitution of their land and compensation. THE OUTCOME In its ruling the Commission found the Government of Kenya to be in violation of Articles 1, 8, 14, and 22 of the African Charter on Human and People s Rights. It further recommended that the Government should recognized the rights of ownership the Endorois and restitute them their ancestral land; ensure that the Endorois have unrestricted access to the lake and surrounding areas for religious and cultural rights and for grazing their cattle; pay adequate compensation for the loss suffered; pay royalties to the Endorois from existing economic activities and ensure that they benefit from employment within the Reserve; grant registration to the Endorois Welfare Committee; engage in dialogue with the complainants for the effective implementation of the recommendations and report on the implementation of the recommendations within three months from the date of notification. On February 2 nd 2009 the AU ratified the Commission s ruling. The Government of Kenya through its Minister of Lands has promised to implement the ruling of the Commission. LESSONS Collaboration between national human rights and international human organizations is vital in ensuring the success of implementation of economic, social and cultural before regional and international human rights institutions as most national organizations often lack the necessary technical knowledge. The African Commission that is often considered as a toothless bulldog has demonstrated that it is possible to enforce cultural rights through carefully argued submissions. 6

7 African countries are beginning to in the forefront of implementing economic, social and cultural rights by respecting the rulings of the Commission. 7