A REPORT SUBMITTED TO THE HIGH COURT OF KENYA (NAIROBI) BY THE KENYA NATIONAL COMMISSION ON HUMAN RIGHTS ON THE IMPLEMENTATION OF PETITION NO. 304 OF 2015 ALLOCATION OF HOUSING UNITS IN KIBERA SOWETO EAST ZONE ‘A’ REDEVELOPMENT PROJECT UNDER THE KENYA SLUM UPGRADING PROGRAMME
KENYA NATIONAL COMMISSION ON HUMAN RIGHTS KENYA NATIONAL COMMISSION ON HUMAN RIGHTS P.O. Box 74359-00200, NAIROBI ACKNOWLEDGEMENT
The implementation of the order of the High Court in Petition No. 304 of 2015 would not have been possible without the leadership, support, advice, patience, wisdom and contribution of a large number of individuals and organizations, many of whom we shall never know. These individuals and organizations spent a lot of their time and resources to ensure that Article 28 was realized in view of respecting and protecting the dignity of all.
The Kenya National Commission on Human Rights (KNCHR) is particularly grateful to the residents of Soweto East Zone ‘A’ for their resilience and courage during the entire process even when the exercise seemed too laborious and energy- sapping. Your courage to fight and stand up for your rights kept KNCHR focused, stronger and determined to ensure only the genuine beneficiaries got allocated a house.
The critical role and intervention played by Arch. Aidah Munano Principal Secretary State Department for Housing and Urban Development and Mr. Hussein Ibrahim Director of Administration (State Department of Housing and Urban Development) deserves a special mention and acknowledgement.
For the partnership and goodwill shown by the Slum Upgrading Department (SUD), Ministry of Land, Housing and Urban Development (MLHUD) under the leadership of Mr. Charles Sikuku and his team comprising of Gladys Ndogoh, Mary Ndung’u, Thomas Nyamwaro, Charles Wagura Gabriel Mbusya, Mutua Mutisya, Lydia Litunya among others. ,…
The Settlement Executive Committee (SEC) under the leadership of Bishop Raphael Handa and his able team involving Francis Omondi Ombuoghr, Hannah Wanjiru, John Mwashi, James Mokua, Symprose Auma, Rael Ondieki and Walter Hongo deserve credit.
The Soweto East ‘A’ Housing Co-operative (SACCO) under the leadership of Jacktone Onyango Otieno and his team of Vincent Obonyo, Joyce Moraa, Cyrus Mulandi, John Andale, Michael Wanjohi and Stephen Kariuki. Special thanks go to Rael Ondieki, Hannah Wanjiru, who
1 | P a g e continuously represented with a lot of commitment the special interests groups and specifically persons with disabilities and the elderly.
The implementation of the court order was no easy task which almost led to the entire Kenya National Commission Human Rights office work and services being brought to a halt for three months in order to focus, engage and resolve the housing allocation for the residents of Kibera Soweto East Zone ‘A. A lot of the Commission staff members played very vital roles behind the scenes to ensure that all went well with a great measure of both integrity and tact.
However, a number of KNCHR staff deserve special mention; under the leadership of the Chairperson Ms Kagwiria Mbogori, Vice Chair Commissioner George Morara and Commissioner Jedidah Wakonyo Waruhiu; together with the implementation team comprising Patricia Nyaundi, Maina Mutuaruhiu, Kamanda Mucheke, John Gathairu, Patrick Bonyonte, Faiza Sidi, Justin Asiago, Catherine Mbui, Lynesther Mureu among others.
Special thanks and acknowledgement goes to Faiza, Patrick and Justine for going beyond the call of duty by analysing every piece of information that they came across to ensure credibility and integrity of the entire process.
2 | P a g e
TABLE OF CONTENT
LIST OF ABBREVIATIONS ...... 5 PREFACE ...... 6 INTRODUCTION ...... 9 ENGAGEMENT: THE KENYA NATIONAL COMMISSION ON HUMAN RIGHTS AND THE ALLOCATION OF HOUSING UNITS IN KIBERA SOWETO EAST ZONE ‘A’...... 9 THE DISPUTE ...... 12 PETITION NO. 304 OF 2015: BRIEF OVERVIEW...... 12 The Parties ...... 12 The Issues: The Petitioners and Respondent...... 13 The Petitioner ...... 13 The Respondent ...... 15 The Interested Party ...... 19 The Determinations ...... 19 The Order ...... 21 THE IMPLEMENTATION FRAMEWORK ...... 22 THE ROLE OF THE KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR) ...... 22 Principle of Inclusivity ...... Error! Bookmark not defined. Interpretation of the High Court Order ...... 22 General Principles and Values ...... Error! Bookmark not defined. THE PROCESS ...... 26 THE KENYA SLUM UPGRADING PROGRAMME (KENSUP) ...... 26 Kibera Zones ‘A’, ‘B’, ‘C’ and ‘D’...... 27 Kibera Soweto East Zone ‘A’ Village ...... 30 The Settlement Executive Committee (SEC) ...... Error! Bookmark not defined. The Master Register ...... Error! Bookmark not defined. Kibera Soweto East Zone ‘A’ Housing Co-operative ...... 31 The Decanting Site ...... 32 The Housing Units ...... 34 The Vetting ...... Error! Bookmark not defined.
3 | P a g e
THE OVERSEER ...... 40 INTER-AGENCY TECHNICAL WORKING GROUP ...... 40 Post Judgment Implementation Framework (PJIF) ...... Error! Bookmark not defined. The Maze of Administrative Concerns ...... 44 Technical Stakeholder Consultations ...... 45
COMPLAINTS RESOLUTION MANAGEMENT ...... 49 Complaints and Investigation Department (CID) ...... 49 PUBLIC TECHNOLOGY ...... 57 Public Communication ...... 57 THE BALLOT AND ALLOCATION ...... 69 Securing the Balloting ...... 69 Pre-Ballot ...... 75 The Preparation ...... Error! Bookmark not defined. The Allocation ...... 82
4 | P a g e
LIST OF ABBREVIATIONS CAJ Commission for Administration of Justice
CBO Community Based Organization
DCI Directorate of Criminal Investigations
EACC Ethics and Anti-Corruption Commission
ECOSOC Economic, Social and Cultural Rights
IATWG Inter-Agency Technical Working Group
IPOA Independent Police Oversight Authority
KENSUP Kenya Slum Upgrading Programme
KNCHR Kenya National Commission on Human Rights
MCA Member of County Assembly
MLHUD Ministry of Land, Housing and Urban Development
MoU Memorandum of Understanding
NCPWD National Council for Persons with Disability
NGEC National Gender and Equality Commission
PJIF Post Judgment Implementation Framework
SACCO Savings and Credit Cooperative Organization
SEC Settlement Executive Committee
SRF Soweto Residents Forum
SUD Slum Upgrading Department
5 | P a g e
PREFACE
“Housing is a human right. There can be no fairness or justice in a society in which some live in homelessness, or in the shadow of that risk, while others cannot even imagine it”.
Jordan Flaherty.
The Kenya National Commission on Human Rights (KNCHR) is an Independent National Human Rights Institution established under article 59 of the Constitution and operationalized under the Kenya National Commission on Human Rights Act, 2011. The Commission is an accredited Status ‘A’ national Human Rights Institution. The KNCHR’s key mandate is to:
1. Promote the respect for human rights and develop a culture of human rights in the Republic of Kenya; 2. Promote the protection and observance of human rights in public and private institutions; 3. Monitor, investigate and report on the observance of human rights in all spheres in the Republic; 4. Receive and investigate complaints about alleged human rights abuses except those relating to the violations of the principle of equality and non-discrimination and take steps to provide appropriate redress where human rights have been violated; 5. Investigate or research matters in human rights and make recommendations to improve functioning of state organs; 6. Act as the principal organ of the state in ensuring compliance with obligations under international and regional treaties and conventions relating to human rights except those that relate to special interest groups protected under the law relating to equality and non-discrimination; 7. Formulate, implement and oversee programmes intended to raise public awareness of the rights and obligations of a citizen under the Constitution.
6 | P a g e
In furtherance to Section 8 of the, KNCHR’s Act was activated to facilitate the implementation of Article 43(1) (b) on the Right to accessible and adequate housing.
Pursuant to the judgment of the High Court of Kenya in Petition No 304 of 2015, the Commission was ordered by the High Court in Nairobi City County ‘to oversee the allocation’ of houses in the Kibera Slum Upgrading Project ‘ to ensure that only the ‘genuine beneficiaries’ reap from the project thereof’.
Upon receiving the High Court order the KNCHR in conjunction with the Ministry of Land, Housing and Urban Development, the Kibera Soweto East Zone ‘A’ Cooperative SACCO and the Settlement Executive Committee (SEC), embarked on an intensive consultative process towards implementation of the order of the high court. This led to the development, signing and filling of a Post Judgment Implementation Framework (PJIF) to ensure certainty, commitment, participation and transparency by all stakeholders. The PJIF established the purpose, values and principles, key activities, time lines, roles and responsibilities to guide in the implementation of the said court order. The PJIF took a human rights based approach to programming which meant that special interests like persons with disability, older persons, child headed households, among others were prioritized. The key goal was to ensure that only genuine beneficiaries from the Soweto East Zone ‘A’ benefited from project. .
KNCHR took leadership and guided the process from; review and analysis of all relevant documents, complaints management and dispute resolution, development of a web based data management system, public communication, overseeing pre-ballot, balloting, and allocation of the housing units. The balloting and allocation exercise took place on 22nd March 2016 at Nyayo Stadium.
The handing over took place on 8th July 2016 outside the newly built housing estate in Kibera.
KNCHR oversaw the allocation of 690 housing units. Of the beneficiaries 66% were men while 34% were women. Furthermore, of these beneficiaries 2% were persons with disabilities and 1% older members of society. The subject of the petition was 624 units however at the time of allocation more housing units had been completed all beneficiaries were issued with letters of offer by the Ministry and signed acceptance of the offer. They were then issued with house keys.
7 | P a g e
With the allocation and handing over of the key, the High Court order No. 304 of 2015 order issued on 5th January 2016 by Justice George Odunga now stands fully implemented. This report documents the entire process, provides insights into events that took place and is also an archive of information on the Kenya Slum Upgrading Programme (KENSUP) – Kibera Soweto East Zone ‘A’.
As we file this return to the High Court of the Republic of Kenya let us all continue to reflect on the words of John Woods,
‘’Affordable housing brings stability, economic diversity and improves the physical quality of the neighbourhood’’
Jedidah Wakonyo Waruhiu |Commissioner (KNCHR)
8 | P a g e
INTRODUCTION
THE ENGAGEMENT: THE KENYA NATIONAL COMMISSION ON HUMAN RIGHTS AND THE ALLOCATION OF HOUSING UNITS IN KIBERA SOWETO EAST ZONE ‘A’.
The involvement of the Commission in respect to the process of overseeing allocation of the housing units to the residents of Kibera Soweto East Zone ‘A’ arose pursuant to a High Court order1 in respect to Petition No. 304 of 2015 (Nairobi) dated 5th of January 2016. Justice George V. Odunga directed that,
“…the process of the allocation of the units be overseen by the representative of the Kenya National Commission on Human Rights in order to ensure that only those who are genuinely entitled to the benefit of the project reap therefrom”.
The High Court’s decision was brought to the attention of the KNCHR by both the Ministry of Land, Housing and Urban Development (hereinafter referred to as ‘’The Ministry’’) in a letter dated 12th January 2015 requesting for a meeting on 19th January 2016. Shortly thereafter; the SEC and SACCOwrote to the Commission requesting for a meeting to discuss the implementation of the court order. The KNCHR responded by holding a meeting with the SEC and SACCO headed by the respective Chairs Mr. Jacktone Otieno Onyango aka Kaparo and Bishop Raphael Handa. The Commission thereafter held a meeting with the Slum Upgrading Department headed by Mr. Charles W. Sikuku. This formed the first avenue under which the KNCHR established the working relationships between the Ministry, SEC and SACCO. The engagement helped the Commission to appreciate the background of the project and an appreciation of what was at stake.2
This consultation was closely followed by a series of inter related engagement with the Members of Parliament for Langata and Kibra Hon. Joash Olum and Hon. Ken Okoth, National Police Service
1 David Ngige Tharau (Suing on his own behalf and on behalf of the 128 residents Kibera Soweto East Zone ‘A’ Housing project) vs Principle Secretary Ministry of Lands, Housing and urban Development, The Hon, Attorney General (Respondents) and Soweto East ‘A’ Housing Cooperative (Interested) (Annexure 1) 2 Minutes of 1st Meeting between KNCHR and Ministry of Land, Housing and Urban Development dated 19th January 2016 (Annexure 2)
9 | P a g e
Langa’ta Police Station, the area MCA Hon. Maurice Akuk, the administrators of the Nairobi County City for Langata and Kibra Constituencies, Soweto Forum led by the Chair Mr. John Muhia, interested the civil society representatives led by Dr. Steve Ouma and the petitioner Mr. David Ngige Tharau. All these consultations were aimed at appreciating the view points, interests, roles and responsibilities from all parties. This assisted the KNCHR in planning, organizing and charting out a concrete, democratic negotiated, acceptable and sustainable way forward.
After consultations, stakeholders under the guidance of the KNCHR adopted the following approach towards implementation of the court order:
a) Get an overview and background of the case presented under Petition No. 304 of 2015 so as to appreciate the role of the KNCHR; b) Get the background to the Slum-Upgrading Project with a focus on Kibera Soweto East Zone ‘A’ so as to develop a better understanding of the broad principles guiding the implementation of the project between the Government, the slum-dwellers as well as other key stakeholders and interested parties; c) Engage with the Ministry of Land, Housing and Urban Development through an Inter- Agency Technical Working Group with membership drawn from the KNCHR, the Ministry, the SACCO and the SEC to guide, scrutinize all relevant documentation and negotiate the implementation process; d) Engage with Kibera Residents and address any outstanding issues, communicate the facts, share information on the role of the KNCHR and deal with any complaints raised in relation to the implications and meaning of the court order in respect to the allocation of the housing units for Kibera Soweto East Zone ‘A’; e) Put in a place a public participation and communication strategy to ensure that everyone— both the beneficiaries and none beneficiaries of Zone ‘A’—get the correct and relevant information in a timely and accessible manner especially in relation to documentation, pre balloting, balloting and house allocation exercise to minimize any misunderstanding and misinformation; f) To identify the key guiding documents and institutions for the purpose of identifying the ‘genuine beneficiaries’, the number of available housing units, roles and responsibilities of
10 | P a g e
each stakeholder, mitigate the risks and ensure a credible, transparent allocation of the houses to the beneficiaries by the Cabinet Secretary, The Ministry line with the court order; g) Reconstitute a working team within the KNCHR to ensure vigilance, integrity, communication, coordination, adequate human resource and resources, efficiency and effectiveness in respect to all matters (whether directly or indirectly) related to the court order implementation, and h) Work with the key stakeholders including the community media, politicians, administrators and security sector to ensure a thorough identification of the genuine beneficiaries, prompt communication, concrete response to complaints, successful pre balloting, balloting and actual allocation of the housing units to the Kibera Soweto East Zone ‘A’ residents.
11 | P a g e
THE DISPUTE
PETITION NO. 304 OF 2015: BRIEF OVERVIEW.
The matter arose from a petition filed by Mr. David Ngigi Tharau (together with 128 Others) who moved to the High Court seeking for an injunction among other orders, to stop the balloting process that was scheduled for 21st July 2015 that was to allocate624housing units to the Kibera Soweto East Zone ‘A’ slum dwellers under the Kenya Slum Upgrading Programme
The Parties
The Petitioners were residents of Soweto East Zone “A” in Kibera within Nairobi City County in the Republic of Kenya, who claimed to have been selected as participants for the Kibera Slum Upgrading Project (hereinafter referred to as “the Project”) undertaken by the 1st Respondent under the auspices of KENSUP and jointly funded by the Government of Kenya and the UN Habitat in 2001. The Project encompassed the provision of housing and improved housing conditions for the residents in the former Kibera Constituencies (this area affects residents in the now Langata and Kibra Constituencies), Nairobi City County.
On 17th July 2015, the Petitioners filed a petition before the Constitutional and Human Rights Division of the High Court in Nairobi. The Petition was supported by the affidavit and a supplementary affidavit both sworn by Mr. David Ngige Tharau on 17th July and 16th November, 2015 respectively. He petitioned against The Ministry. The SACCO was later enjoined as an interested party.
12 | P a g e
The Issues: The Petitioners and Respondent.
The Petitioners cited the following provisions of the law in support of the Petition:-
a) Article 21(1) of the Constitution which enjoins that the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights. b) Article 22 which provides the legal standing before a court of law for any person claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed or threatened. c) Article 23(3) & (4) granting jurisdiction to the High Court, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or a fundamental freedom in the Bill of Rights. d) Article 43 which spells out the economic and social rights including the right to accessible and adequate housing, and to reasonable standards of sanitation and; e) Article 50 guaranteeing the right to a fair hearing by application of law before an open court or an independent and impartial tribunal.
The Petitioner
The Petitioners contended that they were never involved in the various forums, meetings and processes, including enumeration, leading to the then imminent allocation of housing units to certain individuals. The Petitioners averred that they were never privy to the aforesaid meetings and did not participate therein. It was their case that the composition of the membership of two (The Ministry and SACCO) key institutions set up to drive the program was fraught with illegalities and inconsistencies with the members being selected on ethnic basis and with no provision for periodic elections.
They claimed that after the residents were relocated to a decanting site in Langata area, the Respondents abdicated their responsibility of running and managing the site in respect to services (water and sanitation) as agreed and instead surrendered this duty to the SEC, the SACCO, the Estate Elders and the Block representatives whose elections were unknown.
13 | P a g e
They averred that upon relocation, the three blocks of flats which remained unoccupied were filled by unknown persons who were non-residents of the Soweto East Zone ‘A’ village. The Petitioners further averred that no compensation was offered to the Soweto East Zone ‘A’ village residents as had been agreed and that they were left without any opportunity to engage in income generating activities. It was therefore the Petitioners’ case that the wrongful and fraudulent actions by the Respondents had caused the Petitioners pain and anguish of unlawful deprivation of their right to housing.
It was further averred that when the Respondents were on the verge of relocating the said residents back to the refurbished and completed units through the SEC and the SACCO, the unit prices were set way above the financial standing of the Petitioners and other residents contrary to the promise of constructing affordable housing for the residents. That the Respondents had thus created a situation where the Petitioners had been priced out of the ownership of the individual units after being relocated from the decanting site without alternative places to go. It was therefore contended that the Respondents failed to ensure equity and fairness in the balloting exercise for the individual units and that further, they turned a blind eye to the corrupt activities of the SEC, the SACCO and the other ad hoc Committees ostensibly set up for purposes of assisting the residents to access the newly constructed housing units.
Besides having failed to recover the blocks allocated to strangers and the imposition of illegal terms of occupancy, the Petitioners accused the Respondents of failing to prevent and/or acquiescing in the illegal alterations of the membership of the SACCO which they claimed had been infiltrated by strangers who were not members of the Kibera Soweto East Zone ‘A’ village but who were determined to occupy the units. The Petitioners contended that the aforesaid acts amounted to a violation of the Constitution, Article 43 thus the Petitioners’ rights had been contravened by being denied the due process and protection under the Laws of Kenya.
In the foregoing premises, the Petitioners sought the following orders:
a) That the Honourable Court do issue a declaration under Article 165 (3)(b) and Article 23 (3)(a) that the rights of the Petitioners to a fair hearing and fair administrative action and
14 | P a g e
consequently right to housing as contained in the Bill of Rights were denied, violated and infringed upon by the 1st and 2nd Respondents. b) An injunction restraining the Respondents from conducting any balloting in relation to the units for residents of Soweto East Zone ‘A’ scheduled for the 21st day of July 2015 and in the event that the same had been conducted, an Order of Certiorari to quash the decision of the Respondents in conducting balloting for the completed Units for residents of Soweto Zone ‘A’ scheduled for the 21st day of July 2015. c) A permanent injunction restraining the Respondents from conducting any balloting in relation to the units for residents of Soweto East Zone ‘A’. d) A permanent injunction restraining the Respondents from forcefully evicting the residents of Soweto Zone ‘A’ from the decanting site. e) An Order of Mandamus to compel the Respondents to conduct a vetting exercise to confirm the genuine residents of Soweto East Zone ‘A’ eligible for allocation of completed units in the slum upgrading program. f) An order of Mandamus to compel the Respondents to conduct a proper sensitization program with the Residents of Soweto Zone ‘A’ for the purposes of determining and placing a fair valuation for the pricing of the Completed Units for the benefit of the Soweto East Zone ‘A’ Residents. g) Such other and/or further orders and/or directions as the Honourable Court may deem just and equitable to grant. h) Cost of the Petition.
The Respondent
In their opposition to the Petition, the Respondents contended that whilst the Petitioners claimed to be residents of Soweto East Zone ‘A’, a critical analysis of their records indicated that some of the Petitioners were actually strangers in the project as their details could not be traced in the Master Register 3 of the residents of Soweto East Zone A. Further, it was the Respondents’
3 Master register, 2004 see Annexure 3
15 | P a g e contention that various inconsistencies arose from the details provided by the Petitioners which put the authenticity of their claims in doubt.
It was denied that the bona fide residents of Soweto East Zone ‘A’ were not selected as alleged by the Petitioners but were enumerated and issued with a unique enumeration card4 and their details captured in the Master Register. The Respondents stated that the planning and enumeration process started in 2004 where various sensitization forums and community engagements were undertaken and that the respondents played no role in the selection of officials or members of the SEC as the same was done by the residents. It was further contended that the Respondents had no authority over the activities of the interested party because the Government only offers assistance in the formation of the said cooperatives.
The Respondents denied having abdicated their responsibility of managing the decanting site and averred that they had an operational office in the estate and addressed issues arising in the course of the residence at the decanting site. They asserted that all the genuine residents of Soweto East Zone ‘A’ who were at the decanting site and who had no rent arrears and had complied with the agreed criteria qualified to get a unit in the newly constructed houses at Soweto East Zone ‘A’. They averred that and towards this end, a Steering Committee was formed in April 2014 and three Working Groups were formed namely the Vetting, Allocation and Grievances Sub-Committees and the allocation criteria was adopted in a meeting held in August 2014. They further argued that notifications to interested applicants for ownership of houses was open to all residents at the decanting site including the Petitioners.
It was averred that the Petitioners had never complained to the respondents of the tenure of SEC and neither complained when the elections were held in 2004 and 2006 respectively. That in any event, the Petitioners ought to have presented their claims to the Grievances Committee before seeking redress in court. It was the Respondents’ position that the price of the housing units was negotiated by the representatives of SEC, the Respondents, the Interested Party and the local leaders, and that they were way below the actual market cost per unit hence the Petitioners’ claims are untenable. The Respondents further averred that the agreed allocation criteria was
4 Sample of enumeration card (‘Annexure 4’)
16 | P a g e communicated to the Petitioners through various forums, including newspaper, public barazas, and the Petitioners were misleading the court with frivolous allegations.
The Respondents contended that all the residents at the decanting site were notified to clear their outstanding rent arrears which was a determinant in the allocation of the new units, but some of the Petitioners who had rent arrears amounting to hundreds of thousands of shillings failed to clear the same and should thus not be given priority at the expense of those who had no rent arrears. It was disclosed by the Respondents that the relocation from the decanting site to the new units was to be done in phases and all the residents could not be taken to the new units at once. However, physical verification was done between 15th and 19th of June 2015 and the Petitioners were invited to participate hence the calls for a repeat of the verification exercise were untenable.
The Respondents affirmed that they had developed various policy guidelines to achieve their purpose including the Kenya Slum Upgrading Programme Implementation Strategy5. The slum upgrading process at Soweto Kibera East Zone ‘A’ was thus participatory, fair and within the confines of the law and the Memorandum of Understanding6 between the Government of Kenya and the residents of Kibera Soweto East Zone ‘A’ hence the reliefs sought by the Petitioners were devoid of merit and unjustified and only aimed at delaying the process of the housing relocation.
It was submitted on behalf of the Respondents that the process was participatory, consultative and transparent as was expected of any public process. That there was evidence in terms of minutes over what transpired from inception of the project till the end. That in any case, public participation does not mean that everyone affected by the project must be consulted. Public participation, it was submitted, means that the stakeholders were actually involved in the project. On the concept of public participation reliance was placed by the Respondents on the case of Moses Munyendo & 908 Others vs. Attorney General7
5 UN-Habitat and the Kenya Slum Upgrading Programme – Strategy Document. Accessed at https://unhabitat.org/books/un-habitat-and-the-kenya-slum-upgrading-programme-strategy-document/# 6 Memorandum of Understanding between Government of Kenya and Resident of Kibera Soweto East Zone ‘A’ dated 26th November 2010 (‘Annexure 6’) 7 Nairobi HC Petition No. 16 of 2013 (Unreported)
17 | P a g e
The Respondents implored the High Court to find that there was sufficient public participation in light of the fact that the SEC was involved at all stages. The Respondents argued that the Petitioners had failed to prove that their non-derogable rights under Article 25 had been violated. With respect to the rights under Article 43, it was submitted that the project is evidence that the Respondents had met their obligations under Article 43 of the Constitution.
The Respondents further maintained that Slum Upgrading is one of the key pointers on the provision of decent and affordable housing as demonstrated above. With respect to Article 50, it was submitted that the Petitioners did not lodge their complaints before the Grievances Committee as was expected of them. In any event, the Petition at hand, argued that the Respondents, did not demonstrate genuine claims. That whereas the law places the burden of proof on the person who alleges, the Petitioners had not given any proof of who the strangers were at the decanting site, neither had they presented proof of the alleged strangers intended to benefit at their expense. The Respondents submitted that it is not enough to just state violations, there should be precision on the violations and proof of the said violations. In this respect reliance was placed on the case of Annarita Karimi Njeru vs. Attorney General8
The Respondents submitted that the prayer to permanently bar the Respondent from conducting the balloting for the units was mischievous as it sought to stop a lawful process.
With respect to the prayer for mandamus, it was submitted that the Courts cannot supervise or micromanage any institution but rather determine whether the Respondents’ actions were lawful as opposed to taking a decision that might be interpreted to mean that the Courts were running a particular institution. Mandamus is an order directed at a public body to perform a public duty and reliance was placed on Kenya National Examinations Council vs. Republic ex parte Geoffrey Gathenji Njoroge and 9 Others Civil Appeal No. 266 of 1996 [1997] eKLR.
It was, therefore, the Respondents’ position that there was nothing illegal or unconstitutional in the Respondent’s actions and as such the High Court cannot issue the orders sought. The Respondents thus urged the Court to dismiss the Petition with costs.
8 (1979) KLR 154; (1976 -80) 1 KLR 1272
18 | P a g e
The Interested Party
The Interested Party, Soweto East Zone ‘A’ Housing Cooperative Society Limited, submitted that apart from two people, all the residents of Kibera Soweto East Zone ‘A’ Housing Project were satisfied with the manner in which the project was handled and were ready to participate in the balloting. It was averred that all the stakeholders and intended beneficiaries of the Project, including the Petitioners, participated in all activities and meetings in furtherance of the Project. It was disclosed that though it was a pre-condition for the beneficiaries of the project to belong to the SACCO, the Petitioners were not members of the SACCO and therefore could not question the authority of the Interested Party. The Interested Party implored the court to find that it ought to be allowed to do its work and allocate the houses to qualified members through balloting as unanimously resolved by the residents.
The Determinations
Upon analysis of the facts and evidence placed before it, the Honourable High Court made the following findings:-
a) That no particulars had been furnished by the Petitioners to prove the infiltration of the allocation process by strangers and thus the Court lacked a basis on which to gauge the veracity of such allegations. b) That whereas the Petitioners contended that they never participated in the selection or election of the SACCO officials, the fact that they did not contest the Interested Party’s locus until later when the units in question were due for allocation did not augur well for their bona fides. The court stated that ‘One cannot, therefore, help but get the feeling that the Petitioners’ grievances may well be informed by the intention to delay the occupation of the premises by those who may well be deserving of the same’. c) On public participation, the Court held that it was upon the Petitioners to satisfactorily prove that the actions taken by the Respondents were not consultative and lacked the ingredients of public participation. Apart from mere allegations, there was no concrete evidence on the basis of which favourable findings could be made in the favour of the
19 | P a g e
Petitioners. The Court held that it was not a requirement that all the stakeholders must be heard. What was important, was that ‘an opportunity be availed at which the stakeholders can reasonably put across their views for consideration by the authorities’. d) On the Right to accessible and adequate housing, the Court fully associated itself with the finding of Majanja, J in Richard Were & 11 Others vs. Permanent Secretary, Ministry of Health & 3 Others [2013] KLR in which he expressed himself inter alia as hereunder:
“…the State’s obligation under Article 43(1) (b) is not to give houses to specific applicants but to provide a framework under which citizens may have access to housing…The right to housing under Article 43(1) (b) is framed in terms of ‘access”…It is also fair to add that fundamental rights and freedoms are not absolute they must take into account the rights of others…”.
That to deny all deserving residents of Soweto East Zone ‘A’ their Right to Housing simply because the Petitioners had for one reason or another not been accommodated in the said project cannot be warranted. What the Court ought to do was to ensure that those of the Petitioners’ who deserve have their interests catered for within the parameters which are reasonable. e) The Court further held that the housing project was meant to benefit those who genuinely deserved to reap the benefits of the project. Care had therefore to be taken to ensure that those who deserved to benefit from the project benefited. The Honourable Judge made a finding that it could not, therefore, be ruled out that “there was a possibility that some people who were not justifiably entitled to the housing units could find their way into the said housing units” and that the foregoing scenario had to be avoided at all costs. f) The Court declined to make an order as to costs.
20 | P a g e
The High Court Order
On the 5th January 2016, the Court ordered as follows:-
“Whereas I decline to grant the orders sought herein, in order to ensure transparency of the project, I direct that the process of the allocation of the units, the subject of these proceedings, be overseen by the representatives of the Kenya National Commission on Human Rights in order to ensure that only those who are genuinely entitled to the benefit of the project reap therefrom.”
The KNCHR was therefore seized of this High Court order to ‘oversee the process of allocation of units in order to ensure that only those who are genuinely entitled to the benefit of the project reap therefrom’. It’s important to restate the High Court’s emphasizes;
a) That only those who genuinely deserved would benefit from the project; and b) That the KNCHR was to oversee the process of allocation.
All this was aimed to ensure that both the process and outcome was transparent. It is further important to note that the High Court did not give any further guidelines or parameters beyond this pronouncement to anyone including the KNCHR on who, how, where or when to implement this order. This therefore meant that the KNCHR had to fully internalize and understand the meaning of the High Court order within the context of the Soweto East Zone ‘A’ Housing Project.
21 | P a g e
THE IMPLEMENTATION FRAMEWORK
THE ROLE OF THE KENYA NATIONAL COMMISSION ON HUMAN RIGHTS (KNCHR)
The KNCHR adopted the values and principles of HRBA to develop the implementation framework. Guidance was further provided by various relevant principles espoused in the Constitution including the national values and principles of governance in Article 10 (2) where all state organs and persons are obligated to respect the rule of law, participation of the people, human dignity, human rights, equity, social justice, non-discrimination, integrity, transparency and accountability; Article 23(3) which bestows upon all state organs and public officers the duty to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalized, and members of particular ethnic, religious or cultural communities; Article 28 which recognizing the inherent dignity of every person; Article 43(1) which guarantees every person the right to “accessible and adequate housing and to reasonable standards of sanitation”; and Article 47 which protects the right to fair administrative action which should be expeditious, efficient, lawful, reasonable and procedurally fair. The KNCHR also relied on the other Constitutional provisions of Articles 53 (children), 54 (persons with disabilities), 56 (youth) and 57(elderly), the Children Act9 and the Persons with Disabilities Act10
Interpretation of the High Court Order
According to the Oxford English Dictionary, ‘oversee’ means ‘to supervise especially in an official capacity’. The Miriam Webster Dictionary defines oversee as ‘watch and direct in order to be sure that a job is done correctly.’ In Black’s Law Dictionary, ‘supervisor’ means ‘one having authority over others’. A manager or overseer therefore oversees, in the literal sense, and connotes the authority to watch, manage and direct the work to ensure that it is done properly.
9 No 8 of 2001 Laws of Kenya 10 No 14 of 2003 Laws of Kenya
22 | P a g e
From the above definition, The KNCHR understood that it had been mandated by the High Court to manage the initial consultations that would lead to the eventual and actual allocation of the housing units for the Kibera Soweto East Zone ‘A’ beneficiaries. In line with the High Court Order, the KNCHR understood that one of its key duties was to ensure that this process had to be done in an open and fair manner, and that only the genuine beneficiaries got housing units eventually. The KNCHR therefore took the view that the onus placed on it by the High Court was that of a neutral arbiter in a process that had been subjected to litigation (not once) and where the High Court had pointed out that there could have been cases of disingenuous people slipping into the housing project. It was therefore the KNCHR’s role to make every effort within its powers and mandate, and as far as was practically possible, to ensure that any irregularity did not occur at the allocation of the housing units.
Therefore, to enable the KNCHR’s court-sanctioned ‘overseer’ authority on the allocation, the KNCHRs powers and mandate as enshrined in the Constitution Articles 59 and 252 as read together with Sections 26 and 8(c) and (e) of the Kenya KNCHR on Human Rights Act, 2011 (Revised 2012) was invoked. This was namely:
a) To monitor, investigate and report on the observance of human rights and make recommendations to improve functioning of state organs; b) To conduct audit of any private or public institutions on human rights compliances, and also require special report on the implementation of the principle of equality and equity including gender equity; c) To adjudicate matters relating to human rights through conciliation, mediation and negotiation and d) To summon, require statements to be given under oath, obtain by any lawful means any information including requisition of reports, records, documents and any information from any person including governmental authorities, compel production of such information, by order of court enter upon any establishment or premises, adjudicate on matters, interview any persons or group of persons, call upon any person to meet with the Commission or its staff and attend a sessional hearing of the Commission.
23 | P a g e
Contextually, the Commission interpreted its powers in the discharge of this specific High Court Order to include the power to:
a) Observe/watch and administer the ballot and allocation process; b) Direct the Ministry, the SEC, the SACCO , the Residents and any other interested party to ensure due process; c) Adjudicate any human rights complaints arising out of the allocation process; d) Make recommendations to improve the ballot and allocation process for the next zones B, C and D in order to avoid the delays experienced in the Zone A11; e) Report back to the High Court on the observance of human rights in the ballot and allocation process and give a final report of the process to all the interested parties, and f) In the event of disobedience of a directive by any party in the course of the implementation of the High Court Order, initiate contempt proceedings against the offending party.
The KNCHR took the view that the Honourable Court retained residual supervisory jurisdiction over the implementation exercise and could from time to time give direction and guidance, either on being moved by any party or suo moto, until successful completion of the exercise. The KNCHR thus took an interpretation that the KNCHR did not only have the power to observe and direct the ballot and allocation of the housing units but that it also was equally enjoined to report on the observance of human rights principles and transparency in the allocation process.
The KNCHR also took a keen interest in the Court’s observation that “With respect to the right to accessible and adequate housing...what the court ought to do is to ensure that those of the petitioners” who deserve have their interests catered for within the parameters which are reasonable. Taking this into account, the KNCHR’s authority to oversee the implementation of the High Court Order within the parameters of its mandate was further interpreted to entail an obligation to report back to the Honourable Court on the transparency and fairness of the allocation process. The KNCHR noted that the High Court had made it clear that there may have been some few people who had been wrongfully allocated housing units in Kibera Soweto East
11 This will be contained in a separate comprehensive report on the right to accessible and affordable housing that heavily draws from the lessons of Kibera Soweto East Zone ‘A’ Housing Project.
24 | P a g e
Zone ‘A’ and in the words of the court, ‘this scenario must be avoided at all costs’ since ‘the project is meant to benefit those who genuinely deserve to reap the benefits of the project12’.
From the foregoing, it can be stated that although the High Court pointed out that there could have been cases of a few people who might have illegally benefitted from the housing project, the same could not negate the fact that the Ministry, the potential beneficiaries, as well as other key stakeholders had demonstrated that they had taken a lot of care to ensure that those who genuinely deserved to benefit from the project did actually benefit.
To ensure that there was full commitment towards the implementation of the High Court order and that the implementation process was clear, understood and not derailed nor delayed, the KNCHR in consultation with the other parties developed a Post Judgment Implementation Framework (PJIF)13 which was signed by four parties namely; The Ministry, SACCO, SEC and the KNCHR.
Key Recommendation No. 1: Where a court has touched on an agency which was not part of the petition in a very material matter at hand, (a) there should be a duty of care by the court and seek the presence of that particular agency during the day the judgment will be read. This way the government institution is not ambushed nor manipulated by a court decision that it was neither party nor privy to. At the bear minimum, the said institutions should be served with all the pleadings and judgment to begin appreciating the nature of the suit.
(b) Further, where specific orders are given on a highly emotive issues of public interest, the court needs to ensure that it establishes an accountability mechanism that keeps the court informed and more importantly implemented by way of an agreed post judgment implementation framework.
12 See Para 38 of the Judgment. 13 Post Judgment Implementation Framework dated 23rd February 2016 and filed in court on the 25th February (‘Annexure 7’)
25 | P a g e
THE PROCESS
THE KENYA SLUM UPGRADING PROGRAMME (KENSUP)
The Kenya Slum Upgrading Programme was initiated in 2001 and formally commissioned in January 2003 by the r President (Rtd) H.E. Mwai Kibaki when the Government of Kenya and the UN-Habitat signed a Memorandum of Understanding (MoU) in which the Government of Kenya committed to systematically upgrade slums in the urban areas in compliance with Millennium Development Goal 7 by 2020. The memorandum, dated 15th January 200314, was signed by the Hon. Eng. Raila A. Odinga on behalf of the Government of Kenya who was then Minister of Roads, Housing and Public Workds and Mrs. Anna Tibaijuka the then Executive Director of UN-Habitat on behalf of the UN- Habitat. The programme was anchored on a number of objectives which included:
a) To improve the livelihoods of people living and working in slums and informal settlements in the urban areas of Kenya by promoting and facilitating the provision of secure tenure; improved housing; income generation; and physical and social infrastructure, including addressing the problems and impacts of HIV/AIDS; b) To institutionalize a broad range of shelter related policies including the creation of institutions and mechanisms for sustainable financing of slum upgrading and shelter related infrastructure; c) To operationalize the concepts decentralization, partnerships, consultation, stakeholder participation, consensus building, leadership and the empowerment of beneficiary communities in the slum upgrading projects and; d) To strengthen and enhance the capacity for research, planning, implementation, monitoring, evaluation and replication of shelter and human settlement programmes at the government, local authority and community levels.
14 See copy of the MOU attached and labelled ‘Memorandum of Understanding between Government of Kenya and UN Habitat dated 15th January 2003 ‘Annexure 8’
26 | P a g e
Besides Kibera, the slum upgrading programme also targeted slum and informal settlements in the Country.
Kibera Slum Upgrading Project
The Kibera slum is Nairobi’s largest informal settlement. Prior to 2010, it was thought to be the largest slum in Africa housing between 1 to 2M inhabitants. , Most of the residents in Kibera live in abject poverty with very poor infrastructure including housing, water and sanitation, healthcare, roads, electricity, schools among others. Residents of Kibera mostly live in tined or mud-walled rooms with corrugated roofs. The houses are usually congested and often the small roomed houses accommodate 8 or more people. 15,
Kibera is made up of the following villages; Soweto East, Kianda, Gatwekera, Kisumu Ndogo, Lindi, Laini Saba, Silanga, Undugu, Makina and Mashimoni, Kichinjio, Raila, Soweto West, and Kambi Muru (see map below).
15 Kibera facts and information. Downloaded from http://www.kibera.org.uk/facts-info/
27 | P a g e
FIGURE 1: A MAP OF KIBERA16
The Master Register17The socio-economic mapping of Kibera was done in 2004 through a joint collaboration of KENSUP (under the Ministry) and the UN Habitat. Soweto East Village was identified to be the pilot project area for the Kenya Slum Upgrading Programme. The village was demarcated into four zones namely A, B, C, and D to facilitate enumeration in 2005. The enumeration compiled key information on both tenants and structure owners which captured household data such as names of household heads, members, their next of kin and their national identity card numbers. Each household head was issued with an enumeration card/Unique Identity Card showing their name, photograph, structure number, Unique ID number, size of household, national Identification number and date of birth. This critical data was compiled into a Master Register and copies of the same retained by the Slum Upgrading Department and the SEC.
The enumeration process was participatory and involved various public sensitization forums and engagement with residents and other stakeholders.
16 http://mapkiberaproject.yolasite.com/maps-and-statistics.php
17 See Copy of Master Register labelled ‘Annexure 4’
28 | P a g e
From this exercise, a total of 6,377 bonafide residents of Kibera Soweto East Zone ‘A’. It is important to note that this Master Register was the key document on identification of genuine beneficiaries.
In order to facilitate the implementation of the slum upgrading project in Kibera Soweto East Zone ‘A’ and in line with the principles of accountability, inclusivity and in compliance with the KENSUP Implementation Strategy, several institutional mechanisms were put in place. At the national level, an Inter-Agency Coordination Committee (IACC) was established with membership drawn from various Ministries and the then Nairobi City Council. A Programme Implementation Unit (PIU), and a SEC were also established.
The process was guided by, among other things, the Kenya Slum Upgrading Programme Implementation Strategy (2005-2010), the 2010 Memorandum of Understanding and the 2015 National Slum Upgrading and Prevention Policy (still awaiting Cabinet approval)18.
The Settlement Executive Committee (SEC)
The SEC is an institution at the community level charged with the responsibility to mobilize and sensitize the community to participate in the Slum Upgrading initiatives. It is therefore the link between the project implementing agency and the beneficiaries. The Kibera Soweto East Zone “A” SEC is composed of seventeen (17) elected representatives drawn from different stakeholders mainly by the members living and/or working within the settlement. It draws representation from; Community Based Organizations, Faith Based Organizations, Persons with Disabilities, Youth, Non- Governmental Organizations, Widows and Orphans, Structure Owners, Tenants and three co- opted members to including the area Chief, the Deputy County Commissioner and the Member of the County Assembly.
18 National Slum Upgrading and Prevention Policy Annexure ‘11’
29 | P a g e
Kibera Soweto East Zone ‘A’ Village
As per the enumeration done in 2004/5 by the Physical Planning Department of the Ministry of Lands (as it was then known), Kibera Soweto East had a population of 19,318 (comprising of 16,899 tenants and 2,419 structure-owners). The structure owners were individuals who had institutions including religious, educational, economic (shops or rentals), cultural and social holdings. Soweto East was further divided into four Zones namely A, B, C and D (see map below19) to facilitate a systematic implementation process.
This meant that for Soweto Zone ‘A’ housing to be fully implemented, the Ministry of lands had committed to building at least 7,233 housing units. Therefore as at January 2016, Soweto Zone ‘A’ still had a deficit of 6,411 units. At this pace it meant that the Ministry would take about 8 years
19 Source: UN-HABITAT. 2008. Soweto East Redevelopment Proposal
30 | P a g e
(2024 if 822 units were built annually!) to merely complete Zone ‘A’ alone! Further, given that it had taken over 12 years since the hope was planted in 2004, the stakes were now very high.
Table 1: Information on Kibera Soweto East Village20
ZONE A ZONE B* ZONE C* ZONE D* Total Area (Ha) 6.9 6.6 3.6 4.5 21.3
Population 4,709 3,256 4,331 19,318
No. of structures ? 522 410 588 2,396
No. of structure 973 409 941 551 2,419 owners No. of tenants 6376 3,004 4,361 3,989 16,899
No. of persons 20 18 19 16 73 with disability
Kibera Soweto East ‘A’ Housing Co-operative
A number of housing cooperatives were established in 2007 by the then Ministry of Housing with the support of the then Ministry of Cooperatives to mobilize resources which would assist the residents of slums and informal settlements to own houses. The Kibera Soweto East ‘A’ Housing Co-operative was one such initiative geared towards assisting residents of Kibera to secure decent and affordable housing. Other Co-operatives within the Kibera Soweto East Village include , Kibera Soweto East Zone ‘B’ Housing Co-operative, Kibera Soweto East Zone ‘C’ Housing Co-operative and Kibera Soweto Easne ‘D’ Housing Co-operative.
20 Source: UN-HABITAT. Soweto East Redevelopment Proposal.
31 | P a g e
The Soweto East ‘A’ Housing Cooperative Limited was formed on 29th May, 2007 and officially registered on 29th June, 2007 vide Registration Certificate No. CS 1145. The main reasons for the formation of the cooperatives were:21
a) To eventually own and manage houses developed in the slum upgrading programme; b) To promote engagement in income generating activities and any other livelihoods related activities with the goal of intensifying the fight against HIV/AIDS; c) To safeguard/protect the interests of the residents from outside forces; d) To ensure residents’ full participation, ownership and sustainability of the upgrading process; and e) To give beneficiaries structures of official engagement as well as an avenue for collective legal redress if or when the need arose.
As at 2nd November, 2015, the Kibera Soweto East ‘A’ Cooperative had a membership of 1,766 with the active members being 1,234. The membership had merely grown with 299 members only in two years! That is about 150 members annually. However, it should be noted that the active members had grown tremendously with 1,038 members making housing savings. The total monies collected for registration, share capital, savings and interest amounted to KES 147, 675,309. The Decanting Site.
To facilitate the construction of the housing units, a decanting site was built to move and house residents who were occupying the demarcated area for redevelopment in Kibera Soweto East Zone ‘A’. This site was to serve as a temporary holding ground for residents as the new housing units were being constructed the decanting site is located next to the Lang’ata Women’s Prison.
In a Memorandum of Understanding (MoU) between the Government and the Residents of Kibera Soweto East Zone ‘A’ Village entered into committed the government to upgrading slums by providing affordable houses for citizens. In addition, the MoU bound the residents to inter alia:
a) Move to the decanting site or any other alternative place sourced for them;
21 Kenya Slum Upgrading Programme KENSUP Guidelines for the Formation of Cooperatives in Kibera (April 2005) (Annexure 10)
32 | P a g e
b) Move back to the Soweto East Zone ‘A’ on tenant purchase scheme once the houses and related infrastructure were ready for occupation; c) Pay rent by the 10th of every month without fail; d) Seek arbitration in case of disagreements among the parties.
The MoU was to enter into force on execution and remain valid until completion of re-developed houses at Soweto East Zone ‘A’ or termination by either party by giving three months’ notice in writing. It was signed by each resident relocated from demarcated site and the then Permanent Secretary Ministry of Housing.
Kibera Soweto East Zone ‘A’ Residents moving to the de-canting site (Courtesy: Nation Media Group)
The decanting site was completed in 2009 and willing residents relocated immediately. The decanting site has 632 housing units in seventeen five storey blocks. 1,200 households were relocated to the decanting site with an estimate population of 5,000 persons. Others sought alternative accommodation.
However, the construction on the vacated site was to start immediately but was halted by the High Court in Petition No. 498 of 2009 by the structure owners who did not want their structures to be demolished within the demarcated areas. However, the case was dismissed on 5th December 2011 in favour of the government paving way for redevelopment.
33 | P a g e
Aerial view of the decanting site: (Courtesy: http://ke.geoview.info/kibera_resettlement_decanting_site, 48161279w)
The Re-development project
The construction work of the new houses and related infrastructure was officially launched on 6th March 2012. The project comprises of 822 housing units, 245 commercial stalls, a multipurpose center and support infrastructure and related civil works. Of the 822 housing units, 144 are three- roomed units, 570 are two roomed units and 108 are one-roomed units. As at the time of filing the Petition 304 of 2015, 624 units had been completed and ready for occupation. Of the 624 units, 144 are three-roomed units and 480 are two-roomed units. The remaining 198 units were completed by the time the petition was heard and finally determined.
34 | P a g e
Model of the completed Soweto Zone ‘A’ housing project. (Photo: courtesy ©2016 Knchr).
Pricing of housing units
There was a series of consultations between the community22 and the Government led by the then Ministry of Land, Housing and Urban Development before arriving at the negotiated prices. The negotiated prices by the community was informed by the then prevailing economic status of the target beneficiaries.
22 People representing the interest of the target groups for housing project.
35 | P a g e
The cost per unit was therefore significantly below the actual market value (see table below).
The market value and negotiated prices23.
Size of Housing Unit Market Value (KES) * Negotiated price (KES)
1 room 1,500,000 600,000
2 rooms 2,500,000 1,000,000
3 rooms 3,500,000 1,350,000
The repayment period for the houses was set for 25 years at an interest rate of 3% on a reducing balance. It is important to note that the sale of the housing units at the community negotiated prices was approved by the Cabinet.
The Principal Secretary Ms. Arch. Aida Munano, Ministry of Land, Housing and Urban Development with the Eng. Evans Kurgat (in white cap) and Hannah Wanjiru Muriuki of SEC (iin yellow jacket)
23 Adopted from the Ministry documents: Price Analysis of Kibera Soweto East Zone ‘A’ Housing development project: Valuation by Chief Valuer.
36 | P a g e on an inspection visit of the completed housing units at Kibera Soweto East Zone ‘A’ village(Courtesy: KNCHR Public Affairs and Communication Department) The Allocation Process Prior To Petition No 304 Of 2015
House Application
The Ministry issued 1,591 forms to potential beneficiaries to apply for the houses on 8th July 2014 indicating their choice of housing unit. The closing date was initially on or before 21st July 2014 but this was later extended to 31st July 201424. 1,500 individuals returned the application forms and were therefore considered as the potential beneficiaries for the 624 units.
In April 2014, there was a stakeholders’ meeting (with representation from Slum-Upgrading Department, Members of Parliament - Kibra and Langata, the Langata MCA and Civil Society) which then became the Steering Committee with a mandate to oversee the allocation and re-settlement process. The Steering Committee then formed three working sub-committees with specific terms of reference to oversee the various aspects of the said allocation and re-settlement. These sub- committees were the Vetting, the Allocation and the Grievance Sub-Committees25.
The steering committee developed and adopted the house allocation criteria to identify the genuine beneficiaries26 . The criteria was:
a) The beneficiary must have been a resident of Soweto East, Zone ‘A’ and therefore his or her name must be in the master register of 2005;
b) The beneficiary must have been enumerated and issued with a unique ID;
c) The beneficiary should be a member of the Kibera Soweto East ‘A’ Co-operative and
d) The beneficiary must have deposited at least 10% of the applicable price of the house applied for in the Kibera Soweto East ‘A’ Housing Co-operative.
e) Residents at the decanting site must be up to date with rent payment;
24 See letter from MoLHUD to Residents dated 7th July 2014 (Annexure 12) 25 Replying Affidavit of Charles Wafula Sikuku dated 6th October 2015 26 See minutes of Allocation and resettlement subcommittee meeting held on 30th April 2014 at NHIF boardroom attached as (Annexure 16)
37 | P a g e
f) Each household was to benefit from only one housing unit as per Government policy.
In addition to fulfilling the allocation criteria, the beneficiary must have shown interest to be allocated a housing unit through application.
The ministry, SEC and the SACCO undertook various public sensitization forums at the decanting site, Kibera and Transcom House with the aim of updating residents of the planned relocation and housing allocation criteria.
On 25th May 2015 the Ministry issued a notice to all applicants27 to attend a physical verification exercise28. The Notice was issued and posted at the Chief’s office and decanting site. A vetting team which was drawn from both the Ministry, SACCO, and the SEC, was set up to oversee the vetting process.29 The exercise was conducted between 15th and 19th June 201530. In this vetting exercise, the vetting team was guided by the agreed house allocation criteria.
There were 1,492 individuals who appeared for vetting between the 15th and 19th June 2017. The applicants were required to provide the following documents:
a) Original national identity card; b) Original unique identity card; and c) Cooperative passbook indicating the amounts saved.
The decanting site residents had additional requirements;
d) Last receipt of rent payment and e) House allocation letter.
Following the vetting process a total of 698 applicants were found to be compliant as follows; 545 applicants for the available 144 (three roomed) units, 44 applicants qualified for the 480 (two
27 Those who responded by filling and returning the application forms. 28 See Notice signed by Director, Slum Upgrading Project and dated attached as annexure 13 and labelled as ‘Notice issued by the Director, KENSUP’ 29 See minutes on profiling of Kibera Soweto East Zone ‘A’ Housing redevelopment project held on 10th June 2015 at NHIF Parking, 5th Floor (Annexure 14) 30See minutes of meeting on sale of housing units under Kibera Soweto East Zone ‘A’ held on 3rd July 2015- at NHIF parking 5th Floor boardroom (Annexure 15)
38 | P a g e
roomed) units. However, among the applicants who had applied for the three roomed units 109 applicants had not paid up the applicable10 % deposit for the three-roomed unit but met the minimum required deposit for a two roomed unit, if they chose to take one.
Table No….
Date Enumeratio Decantin Completed Units Applicatio Returne Physical Balloting s n g Site n Forms d Forms Vetting 2005 6,376 2007 2009 High Ct 498 2012 5,000 Construction begins 2013 2014 1,591 1,500 2015 High Ct 144 48 0 62 1,492 54 15 69 304 (3 0 4 5 3 8 roo (tw me o d ro unit om s ed uni ts) 2016 KNCHR 144 57 10 82 0 8 2 Process summary
The balloting process was set for July 2015 but this was halted due to the Petition 304 of 2015 until the 5th January 2016 when the Petition was determined and the High Court ordered the KNCHR to ‘oversee’ the allocation of these housing units for the people of Kibera Soweto East Zone ‘A’.
39 | P a g e
THE OVERSEER The Commission undertook stakeholder’s’ mapping to determine relevant actors to be involved towards effective implementation of the order; besides those mentioned by in the judgement. This was to enhance the principle of transparency and participatory approach in compliance with the order. Therefore, the Commission reached out to the Ethics and Anti-Corruption Commission31, National Registration Bureau 32 and Ministry of Cooperatives33.
A meeting was held with the SEC and SACCO on 18th January 2016 under the leadership of the Commission Secretary, Patricia Mande Nyaundi. This was meant to introduce and invite the Commission to the process.
Two meetings were also held at the Ministry’s headquarter on 19th and 29th January 2016 to enable the KNCHR appreciate the history and map-out the houses allocation process under the leadership of Commissioner, Jedidah Wakonyo Waruhiu.
After the engagements with the Ministry, the SEC and the SACCO it was agreed that in subsequent meetings that other stakeholders would come on board. The KNCHR took over the leadership from the Ministry henceforth to oversee the housing allocation. The Commission proceeded to convene the first stakeholder’s meeting where an Inter-Agency Technical Working Group (IATWG) was established to guide the overall process to implement the High Court Order. The IATWG was comprised of at least two representatives34 from the four key stakeholders.
It was in the meeting of the 29th January 2016 that the Ministry officially handed over to the KNCHR the allocation process where Commissioner Jedidah Wakonyo Waruhiu became the Chairperson.
31 To advise and take up corruption issues that may be raised in course of the process.
32 Analysis and authentication of personal document (certificates) in preparation of the list of beneficiaries.
33 Advise on Cooperatives especially on the Soweto East ‘A’ Housing Cooperative on the legal framework and processes governing co-operatives 34 KNCHR (Faiza Latif Hassanali Sidi, Patrick Bonyonte and Justice Asiago), the Ministry (Thomas Nyamwaro and Gabriel Mbusya), SEC (Bishop Raphael Handa, Francis Omondi and Hannah Wanjiru Muriuki) and SACCO ( Jacktone Otieno Onyango and Joyce Moraa Mochama).
40 | P a g e
A joint meeting with all stakeholders was convened and held on 2nd February 2016 at the KNCHR headquarters. It was during these subsequent meetings that a consensus was reached to develop a post judgment framework and a communication strategy to inform the residents of Soweto about the judgment and the steps so far. IATWG was born out of the foregoing stakeholders’ meeting with the following objectives:
a) To provide the necessary background information that was useful to aid in highlighting a brief history of the Kenya Slum Upgrading Project and its relevance to the Kibera Soweto East Zone ‘A’ Housing Project; b) To provide a brief interpretation and enunciate the KNCHR’s role and powers in the implementation of the Court Order; c) To spear-head the verification of data held by the Ministry on the Kibera Soweto East Zone ‘A’ Project; d) To develop the guiding principles and values for the balloting and allocation exercise; and e) To develop an Action Plan for implementation in the form of a calendar of activities.
Appreciating the enormity of the task bestowed upon it by the High Court and further acknowledging the need for transparency and openness in the housing units allocation exercise, the KNCHR took the view that it was impliedly enjoined to keep the High Court and the general public appraised of this process. It was thus resolved, that a Post-Judgment Implementation Framework would be signed by all concerned parties for eventual filing in Court. After a lot of negotiations, back and forth including the intervention of the KNCHRs Vice Chair, Commissioner George Morara Monyoncho to ease the tensions, the Framework was agreed upon and was to be implemented by the KNCHR; the Ministry, the SEC and SACCO and developed by the KNCHR’s Redress Department under the leadership of Mr. Victor Kamau35.
35 Principle Legal Officer with the support of his team Ms. Janet Kabaya and Mr. Solomon Matista.
41 | P a g e
Commissioner George Morara Monyoncho (standing) flanked by Victor Kamau ( in blue tie), Mary Ndung’u, Bishop Handa and Francis Omondi and Faiza Sidi (extreme left) addresses a consultative meeting at the KNCHR Head Office between KNCHR Officials and representatives from the Ministry, the SEC and the SACCO (Courtesy: KNCHR Public Affairs and Communication Department)
Post Judgement Implementation Framework
It is important to note that the negotiations leading to the adoption of the joint Post-Judgement Implementation Framework were not easy. At the initial stages of engagement, they were punctuated with tension, mistrust, including walkouts and suspicion amongst the various stakeholders and interested parties. At the early stages, virtually every stakeholder viewed any suggestion by another as either overreaching or an encroachment on their domain. Consequently, even the most plainly innocuous requests or suggestions were at times viewed with suspicion and could be easily turned down without any effort to review their utility in the process. For example, initial suggestions by the KNCHR of accessing records and information within the custody of the other stakeholders (the Ministry, the SEC, the SACCO, the Petitioner, the Soweto Forum, Hon.
42 | P a g e
Akuk, among others) which would be useful in helping implement the Court Order were not enthusiastically welcome. This information was finally shared but in a slow and sometimes emotionally strained manner.
Sustained engagement, patience, shuttle diplomacy, negotiations, among other strategies eventually yielded understanding and progress. In fact, in the course of implementing the court order, the utility of the signed PJIF tool was hailed by all stakeholders as the turning point as it became a very useful document that managed most expectations. The PJIF ensured that all stakeholders were accountable to each other and to their mandates as elucidated in the document. The signing of the tool by all the actors on 23rd February 2016 and the filing of the same in the High Court on 25th February 2016 invited some considerable measure of trust, commitment and sense of direction among all affected parties. The objectives of the filed PJIF was:-
a) To demonstrate consensus and commitment to the process by all parties; b) To insulate the process and accord it the needed legitimacy by maintaining it within the ambit of judicial oversight; c) To keep the High Court appraised of the agreed upon framework on the process of balloting and allocation; d) To enable any party that may have, at any time in the course of the implementation process, feel aggrieved by any unforeseeable reason, seek redress in the High Court; and e) For general public information and record.
The PJIF enabled KNCHR to spearhead the process of implementing the High Court Order with more certainty and legitimacy. However, even with the development and filing of the PJIF, a number of unforeseen or emerging factors had to be taken into consideration. Some of these factors included;
a) The need to take into account special and vulnerable interests; persons with disabilities, the elderly, and child headed households; b) The need to develop a criteria to accommodate the absentee beneficiaries occasioned by either death or distance;
43 | P a g e
c) Cases of double allocation and the question of refund of the extra payment made to the SACCO and ; d) How to address the extra number of qualified beneficiaries beyond the 624 available housing units as at the time of the petition.
All the factors identified above, coupled with the continuous challenges of consensus building, occasioned a change of timelines from what was indicated in the PJIF as filed in court. Noteworthy, the balloting date shifted from 15th March 2016 to 22nd March 2016.
Building of Administrative Linkages
To effectively discharge this Court-mandated role, the KNCHR engaged all stakeholders who showed an interest or concern in the Soweto Zone ‘A’ housing units. Under the leadership of commissioner Jedidah and with special support of the officers from the Commission and especially Maina, Faizah and Patrick, the Commission was able to reach out to all the stakeholders. These included leadership at all levels from the Ministry including the Permanent Secretary, the SEC, SACCO, the security [including the County Commander, the Officer Commanding Police Division (OCPD) and the Officer Commanding Station (OCS)], local administrative (including the Assistant County Commissioners and chiefs), Nairobi City County and the local political leaders in Lang’ata and Kibra constituencies. . The consultative meetings were held in different locations ranging from the Ministry offices, the KNCHR offices, Nyayo House, County and Security Offices and Nyayo National Stadium.
These engagements eventually led to picketing on 14th March, 2016 during the Soweto Forum and it was led by Hon. Akuk. It took place at the Ethics and Anti-Corruption Commission (EACC), The Ministry and the KNCHR offices. The KNCHR maintained an open-door communication and feed- back policy.
44 | P a g e
The Stakeholder Consultations
The 1st stakeholders meeting was held on 1st February 2016 which officially brought the key stakeholders on board. The meeting resolved the following:
1. An Inter-Agency Technical Working Group (IATWG) was established; 2. KNCHR was to assume leadership of the process under the chairmanship of Commissioner Jedidah; 3. KNCHR was to develop a draft PJIF for discussion and adoption in the subsequent meeting; and
The meeting also saw to an extensive discussion around the house allocation criteria which would guide the IATWG in reviewing data to identify genuine beneficiaries.
The mandate of the IATWG was to:
I. Review all relevant information with a view to generating a provisional list of beneficiaries for approval by the Stakeholders Meeting; II. Receive and process any other issues and information on behalf of the stakeholders; III. Report the findings to the Stakeholders for consideration and adoption.
A 2nd stakeholders meeting was held on 8th February 2016 and the resolutions are as follows:
1. The draft PJIF was adopted 2. KNCHR was to meet the representatives from the Ethics and Anti-Corruption Commission and National Registration Bureau to brief them on the matter at hand and invite them to the subsequent meetings.36 3. The SACCO was to convene a Special General Meeting (SGM) for all members on 9th February 2016 to update the members of the judgement and the role of KNCHR in the housing allocation process.
36 See minutes of 2nd Stakeholder’s Meeting held on 8th February 2016 at KNCHR Offices Located at CVS Plaza 1st Floor (Annexure 17)
45 | P a g e
A 3rd stakeholders meeting was held on 26th February 2016.
1. A brief of the SACCO AGM held on 9th February was given; 2. The issue on double allocation in respect to the Railway Housing Project. The IATWG was tasked to review both KENSUP and the Railway Housing Project data, and table findings before the stakeholders; 3. The need to take into account special and vulnerable interests; persons with disabilities, the elderly, and child headed households. It was resolved that the SEC representative of special interest Rael Ondieki together with KNCHR officers to identify Special Interest Groups; 4. The need to develop a criteria to accommodate the absentee beneficiaries occasioned by either death or distance. It was agreed that KNCHR to develop administrative forms which would be tabled and approved in the stakeholder’s forum.
The 4th Stakeholder meeting was held on 29th February 201637.
1. The IATWG presented its report. The number of genuine beneficiaries was identified to be 697 against the 624 units which were the subject of the petition; 2. The KNCHR tabled the Special Interests Group report; 3. The KNCHR tabled administrative forms to enable proxies to ballot on behalf of the deceased and the absentee beneficiaries; 4. A review of the PJIF timelines to allow the stakeholders and especially the KNCHR to complete all key tasks, documentation, forms, the digital registration, ballot and unit allocation infrastructure; and 5. It was agreed that a minimum of 14 days Public Notice would be issued before balloting and allocation.
37 See minutes of 4th Stakeholder’s Meeting held on 29th February 2016 held at KNCHR Offices located at CVS Plaza 1st Floor (Annexure 19)
46 | P a g e
The 5th stakeholder consultation meeting was held on 3rd March 2016 to finalize on logistical and security issues.38
A special meeting was held to update the Permanent Secretary, Ms. Arch. Aidah Munano on milestones achieved in the implementation of the court directive. The meeting was to also enable the Permanent Secretary appreciate the process in light of the issues brought to her attention by the CSOs and the MCA Highrise Ward. Some of the major issues raised were; the role of the CSOs in the ballot and allocation exercise who had been part of the process but had along the way abdicated their seat in the SEC. The PS appealed to the political leaders to set aside their political difference and focus on the development for the benefit of Kibera residents by enhancing political goodwill since the residents had been waiting for over 10 years to realize the dream to own a house. It was resolved that the CSOs representation was well taken care of under the SEC.
A second special meeting was held on 19th March 2016 upon the request of the Secretary, Housing Mr. Patrick Bucha due to the persistent petitions directed to the Ministry yet the matter was under the jurisdiction of the KNCHR. A number of issues were clarified including the fact that unless anyone went to the High court to challenge the ongoing process the KNCHR was not going to stop. The meeting was informed that since the number of potential beneficiaries were much higher than the subject 624 units, the stakeholders proposed that more units be availed for allocation from the newly completed 198 units.
While the meetings with the various stakeholders did play an important role in helping the KNCHR to continuously build consensus, there was need to continue with the internal administrative processes; admit and process new and emerging complaints within the Complaints and Investigations Department.
38 See minutes of 5th Stakeholder’s Meeting held on 3rd March 2016 held at KNCHR Offices located at CVS Plaza 1st Floor (Annexure 20)
47 | P a g e
Table 2: Series of events summary
2016 1st Week 2nd Week 3rd Week 4th Week Januar Court Meet MLHUD Meet SRF Receive y decision Meet SEC/SACCO Interpret Court complaints Meet MLHUD decision MLHUD handover Receive Meet Petitioner complaints Februa 1st 2nd stakeholder 3rd stakeholder 4th ry stakeholder SGM SACCO Meet County stakeholder Meet CSOs Signing PJIF administrators Meet EACC Receive Filing PJIF Letter to EACC Letter to complaints Establish IATWF Letter to NRB Charity Receive Receive Sweepstake complaints complaints Meet Charity sweepstake Letter to IEBC Receive complaints March 5th 6th stakeholder Demonstration Receive stakeholder Meet Security Meet County complaints Meet NRB Meet PS administrators Balloting Meet County Names to NRB Names to NRB Allocation administrator Receive Pre ballot Community s complaints Receive radio Meet County Pre ballot complaints Commander notice/SMS Ballot Receive Community radio reminder/SMS complaints Community Names to radio NRB Ballot Notice Community radio April Receive Receive Receive Receive complaints complaints complaints complaints KNCHR Notice
48 | P a g e
COMPLAINTS RESOLUTION MANAGEMENT
Complaints and Investigation Department (CID)
The KNCHR put in place a complaints and grievances team that received all complaints which seemed to be rising since 9th February 2016. A total of 158 individuals and groups lodged complaints as follows:
David Ngige Tharau Mr. David Ngige Tharau who was the petitioner in Petition No. 304 of 2015 lodged a complaint on 18th January 2016 through an undated letter. He alleged that the Kibera Housing project was riddled with corrupt dealings which he claims to have already filed with the Directorate of Criminal Investigations (DCI) at Langata police station. David had various physical and telephone conversations in respect to this allegation and shared some of the documents that he had given DCI.
After a series of consultative meetings, the Petitioner was generally satisfied with the strategies that the KNCHR had adopted to implement the court order. He attended the members Special General Meeting for the Soweto East A Housing Co-operative Limited where he addressed the members and committed to facilitate the process on allocation of houses. The KNCHR further requested and he agreed to become one of the observers on 22nd March 2016 for the balloting exercise. He observed and shared a feedback report39.
Soweto Residents Forum The Soweto Residents Forum (SRF) is a communally constituted group drawn from Kibera. Most of the members drawn from the decanting site who didn’t comply and therefore missed out in the initial ballot and house allocation process. They complained through a memorandum, various meetings alone and with Hon. Akuk and picketing. They alleged that, inter alia, their right had been violated by being excluded from the ballot process, corruption in the SACCO, the criteria and the tenant purchase scheme had not been agreed upon, the Decanting site was in a pathetic state due
39 David Ngige Observer Report to KNCHR on Ballot and Allocation Process. See Annexure 21
49 | P a g e to poor sanitation, no garbage collection and no water. They felt discriminated due to their economic limitations as they were not able to raise the money. In details, they alleged that:
a) Against the Ministry i. Fraudulent enumeration: The enumeration process that kick-started the project was flawed and as a result outsiders were fraudulently included in the Master Register. They demanded fresh enumeration. ii. Breach of the Project MoU by the Ministry: The Ministry had abandoned the terms of the MoU where it had been agreed that the Kibera slum upgrading project houses would either be for purchase, rental or rent to own. They averred that since most of them could not afford to purchase the houses, they preferred rental or rent to own. That the Ministry had unilaterally abandoned their preferred options and imposed the house-purchase option only for which they were not eligible. They demanded that they be allowed to choose their preferred mode of occupation. They also contested the manner in which the prices of the houses were determined claiming that they were not consulted and that the prices were too high and unaffordable to them. iii. Decanting site: That unknown people who are strangers to the project had been illegally allocated houses in the decanting site hence denying the bona fide beneficiaries; that the Ministry had neglected the decanting site which was now replete with garbage while the water and sewerage system had been rendered dysfunctional; that majority of the tenants in the decanting site were poor and unable to meet their rental obligations since their livelihoods had been disrupted by the relocation from their original structures where they earned their living; and that they risked being evicted from the decanting site since they were no longer eligible for allocation of the new houses. b) Complaints against the SEC and the SACCO
That SEC was illegitimate as it did not represent the interests of all residents and that the members were illegally in office due to lack of regular elections as required; that SEC had engaged in massive
50 | P a g e corruption and irregularities; and that the SACCO leaders lacked legitimacy, were fraudulent and had irregularities in the running of the SACCO as follows;
i. That the officials were high-handed, failed to conduct free and fair elections and continued to perpetuate their stay in office through coercion and fraudulent means; ii. That the officials have connived with some residents, brokers and moneyed outsiders to issue fraudulent Unique ID cards and SACCO nomination forms with a view to transferring ownership of project houses to persons outside the master register; and iii. That the officials had made numerous unauthorized cash withdrawals from the SACCO’s bank account for their personal benefit.
The KNCHR noted that most of the issues in respect to corruption had been canvassed and determined in the High Court Petition and could therefore not be reopened unless new evidence emerged. Of significance, most of the SRF members were parties to High Court petition.
With respect to the cooperative nomination forms, this matter had also been raised in court. Further, the KNCHR found out that the forms had irregularities in their issuance which was confirmed by the SACOO officials who were contacted. The SACCO also confirmed that due to this, the same had been nullified and a notice in the local dailies published. It’s important to note that these forms would not have impacted in any way the allocation process as the control point was to ballot only with the names appearing in the master register. Therefore nominees were not valid at this point as that was an internal SACCO matter.
51 | P a g e
Key Recommendation No. 2: To forestall any future mischief of illegitimate people sneaking in through ‘nominees’, the KNCHR advised the Ministry to inbuilt a property protection mechanism with the mortgage agreements on sale or transfer at two levels;
i. No transfer or sale of the house for a period of twenty five years. The same was partially adopted and incorporated as a condition in the letters of offer for sale drawn by the Ministry40; and/or
ii. If transfer was to happen the same should only be to the other family members registered in the Master Register. The assumption being that this was a family house which was aimed at benefiting the household NOT the individual who was placed first in the register or senior or representing the household at the time of enumeration.
Finally, on the other governance and corruption allegations of the SACCO, the KNCHR noted that EACC had been invited to be able to take on those issues. Any crucial information collected during the period would be shared with EACC for their own follow-up. Further, the local Cooperative representative who is an independent government official and who must be present in all SACCO meetings was invited to:
(i) Assist the SACCCO (if the same was not happening) and (ii) Observe the ballot and allocation exercise.
40 See Letter of Offer from Ministry of Land, Housing and Urban Development : Conditions of Offer No’s 1, 5 and 8 (Annexure 21)
52 | P a g e
The Demonstration
Some Kibera residents demonstrating outside the main gate of KNCHR Head Office (Courtesy: KNCHR Public Affairs and Communication Department)
On 14th March 2016, at around 2:00 pm, around 70 members of the SRF led by the Highrise MCA Hon. Maurice Akuk held a protest demonstration at the KNCHR Offices, Nairobi during which they expressed their dissatisfaction with KNCHR responses to their grievances. They insisted on nullification of the process until all their grievances were addressed.
The KNCHR held a meeting with twelve (12) representatives of the group under the leadership of Commissioner George Morara Monyoncho and Kamanda Mucheke while the rest of the demonstrators waited outside. The KNCHR reiterated that it could not re-open the issues that had already been determined by the High Court and that its role remained overseeing the house allocation to ensure only genuine people benefitted.
53 | P a g e
The KNCHR however assured the protestors that it was committed to addressing all the legitimate concerns within the framework of the court mandate. The leaders of the protestors promised to avail to the KNCHR evidence of the new complaints raised including, irregular nomination forms, double allocation in the Railways Project and omission of some of their members from the list of beneficiaries. These complaints were subsequently addressed and are captured elsewhere in this report.
Highrise MCA Hon. Maurice Akuk (in white cap and yellow reflector jacket) leading the demonstrators inside the KNCHR office with Commissioner George Morara Munyoncho and Kamanda Mucheke (opposite on the left) (Courtesy: KNCHR Public Affairs and Communication Department)
Soweto Youth Group The Soweto Youth Group, a CBO, claimed that they used to operate from Soweto East Village (Zone A) in Kibera before they were relocated to the decanting site to pave way for the construction of
54 | P a g e the project houses. They were led by Micheal Wanjohi who is the chairperson of Soweto Residents Forum. Before the relocation, they earned their living through waste management for the community. Upon relocation, the Ministry contracted the group to carry out waste management at the decanting site. This contract would enable the youth pay their rent at the decanting site and also pay the mortgage deposit to the SACCO. The group claimed that the Ministry reneged on its contractual obligations and stopped remitting payments to the group. As such, they were unable to pay their rent and house deposits to the SACCO leading to their disqualification from the current house allocation.
The KNCHR raised the issue with the Ministry in respect to meeting their contractual obligations and also to put the group into consideration in the next housing phases. The Ministry did not deny their obligation and the group was paid their dues in March 2016.
Nyaribari Masaba Women Group The group consists of twenty one (21) women who claimed that they were structure-owners who had been contributing to the SACCO through one of their former members, a Mrs Teresia Boraa Bisongaa (ID 3338933, Unique number 004612/B1), as she was the only person present during the enumeration process.
This matter was discussed at the stakeholders meeting on 25th February 2016. It was noted while the claim of being a structure owner was valid, Teresia had not applied for allocation in 2014 and therefore did not fulfil one of the conditions as espoused in the 2015 petition. The KNCHR recommended that the group be considered in the next housing phase.
Complaints handling The Commission received complaints through the Complaints and Investigation Department under the leadership of Kamanda Mucheke41. The complaints were received through walk-in, telephone, SMS, letters, email, newspapers, social media-Twitter and Facebook. All complaints were listened to individually, as a group and responses given to all. In summary, the Commission received a total
41 Principle Human Rights Officer together with his team Ms. Veronica Wanjiku Mwangi, Ms. Catherine Mbui, Mr. Bonn Odero Opiyo and Ms. Joyce Ndunge
55 | P a g e of 180 individual complaints of which 18 were admissible for further investigations, 21 complaints were on people alleging they have qualified to get houses and were left out of the final list, 9 related to application to the Commission to be allowed to ballot on behalf of persons who could not be not available during the balloting day.
Over and above handling the complaints raised above the KNCHR, through its Public Affairs and Communication Department and Information Communication and Technology Unit also sought to enhance public participation for both the beneficiaries and the wider Kibera community through print, electronic and social media platforms as briefly discussed below.
56 | P a g e
PUBLIC engagement and communication
To keep the potential beneficiaries and the general public aware of the activities in the ballot and allocation process, the KNCHR together with the key stakeholders adopted a number of publicity, communication and information dissemination strategies. These included; pinning up public notices in strategic locations within Kibera 42, live community radio talk shows, use of SMS43 newspaper adverts and social media platforms (website, Facebook and Twitter). It is important to note that any information for communication to the public was discussed and approved by the stakeholders, due to the sensitivity of the process.
Public Notices Public Notices and information pertaining to the process e.g. the Notice of date of balloting and requirements and the Provisional List of beneficiaries were pinned at different sites in Kibera Soweto East.
42 KNCHR reception, Laini Saba Chief’s Camp, Soweto Resource Centre and the Decanting Site 43 Free short code number 22359
57 | P a g e
Patrick Bonyonte from KNCHR pins up the list of potential beneficiaries at the Laini Saba Chief’s Camp while members of the public look on. (Courtesy: KNCHR Public Affairs and Communication Department)
Live Community Radio The KNCHR worked closely with Pamoja FM which is a community radio station located at the heart of Kibera.
On 8th March 2016, the KNCHR undertook the first radio live talk show which was slated for 7.00 a.m. to 8.00 a. m.
The show was hosted by radio presenter Phillip Muhaki aka Simba Mulawatu with a focus on the history of the Kibera housing project, the role of the KNCHR, the High Court decision implications, the criteria, the ballot and allocation process including the timelines. The show was attended by
58 | P a g e
Commissioner Jedidah Wakonyo Waruhiu, Director Charles Sikuku and SEC Secretary Francis Omondi.
During the show, the following issues were discussed:
a) General mandate of the KNCHR in monitoring enjoyment of human rights; b) Overview of the slum upgrading project and its inception under the leadership of the Ministry of Lands, Housing and Urban Development; c) The High Court delivered on 5th January 2016 ruling which appointed KNCHR as the overseer of the balloting and allocation process; d) A narration of the personal experience from a resident of Kibera realising the dream of accessing decent housing and e) What the KNCHR was doing to oversee the implementation the order of the high court delivered on 5th January 2016
59 | P a g e
Commissioner Jedidah Wakonyo Waruhiu (extreme left) in Studio at Pamoja FM Radio Station, Kibera. (Courtesy: KNCHR Public Affairs and Communication Department)
On 14th March 2016 after the demonstration by a section of Soweto East Residents opposing the allocation of houses, Pamoja FM called the KNCHR for a brief telephone interview that was broadcasted live to share views and issues regarding the demonstrations. During the 10-minute interview, Commissioner George Morara Monyoncho affirmed that the process was open to such petitions to ensure transparency and KNCHR was still committed to listening to all grievances and addressing them ahead of the ballot and allocation day to be held on 22nd March 2016.
On 21st March 2016, a day to the balloting and allocation date, the KNCHR, the Ministry, SEC and SACCO were in studio again to share with the public the milestones and feedback from the pre- balloting exercise that had taken place on 19th March, 2016. The forum also gave an opportunity to both stakeholders and the public in addressing the emerging issues. The stakeholders were
60 | P a g e represented by Commissioner Jedidah Wakonyo, Victor Kamau, Charles Sikuku, Francis Omondi, Jacktone Otieno Onyango.
On 22nd March 2016, during the balloting and allocation day, Pamoja FM conducted live interviews targeting beneficiaries, observers and wide range of stakeholders to get their views on the entire process and to keep the general public updated on the process
Social Media a) Twitter The Commission established an online communication strategy named #sowetohousingKIBERA to engage the public on the activities leading up to the balloting and allocation day. The platform offered an opportunity for the public to get information and feedback and regarding the entire process.
61 | P a g e
62 | P a g e
The hashtag tweets ran from 9th March to the 22nd March 2017 with the highest trending days being the 16th March and 19th March 2016. Besides, there were also general twitter messages sent by KNCHR through its official twitter handle @HakiKNCHR.
.
63 | P a g e
Ken Okoth, MP Kibra @okothkenneth Thank you @HakiKNCHR for this open process
#sowetohousingKIBERA @AmnestyKenya @HivisasaKibera @PamojaFMradio
*************************************
Ken Okot Ken Okoth, MP Kibra @okothkenneth @HakiKNCHR has helped resolve #sowetohousingKIBERA by court order. God bless the residents in the new homes!
*************************************
Jack Kathia @jackziy the rich should stop taking advantage of the small opportunities given to the poor by the government #SOWETOHOUSINGKIBERA
*************************************
#MyLittleThing @Kimaani Soweto residents contended the project had been marred by corruption and fraud. Was this looked into? @HakiKNCHR? #SOWETOHOUSINGKIBERA
*************************************
KNCHR @HakiKNCHR #sowetohousingKIBERA After 12yrs of waiting, now they have secured their houses. 697 households! @okothkenneth #KOT
Ken Okoth, MP Kibra @okothkenneth
64 | P a g e
Sample Feedback Tweets
@Stella moh @moh_stella Mar 18
We want,the tomorow balloting 19|03|2016, at kilimani pr stoped #sowetohousingkibera @maskani254 @Eacckenya @hakiknchr
*****************************************
Maskani Ya Taifa @Maskani254
.@moh_stella @EACCKenya @HakiKNCHR stop balloting until all voices are heard
and transparency ensured. @parawakili #sowetohousingKIBERA
****************************************
Maskani Ya Taifa @Maskani254
But, who went against the agreement? @HakiKNCHR needs to meet aggrieved
community members. #sowetohousingKIBERA
****************************************
Siri Kali Ya Kenya @MPigsAreWrong
Siri Kali Ya Kenya Retweeted Jedi Wakonyo Waruhiu
Should citizens keep quiet when they feel @HakiKNCHR isn't representing them? #sowetohousingKIBERA @parawakili
65 | P a g e
Print Media The KNCHR placed a notice informing the public of the balloting and allocation date and requirements in the Daily Nation and People Daily on 11th March 2016.
The media also featured news relating to the balloting and allocation exercise most notably the demonstration on the 14th of March 2016 by the Soweto Resident Forum and two page article about the 12 year wait that the Residents of Kibera Soweto East Zone ‘A’ had to endure before finally moving into their new housing units on the 31st March 201644
44 See annexure No. 22
66 | P a g e
Email To allow for further correspondence with the beneficiaries as well as the members of the general public, a common email address, [email protected], was created. A total of 42 emails from prospective beneficiaries and interested persons were received. Most of them were from residents seeking clarification of their names missing from the notice that was pinned 14th March, 2016 in Soweto. Through the email, the KNCHR was also able to make and receive official communication from the potential beneficiaries especially those that were out of the country and needed to appoint proxies to represent them.
Free SMS Platform – No. 22359 The Commission has a free SMS Platform 22359 which is used by the Commission in its communication with the public. The SMS platform played a pivotal role in facilitating communication with the beneficiaries and stakeholders during the entire process of implementing the Court Order.
The Kibera Soweto Zone ‘A’ members were the first to benefit from the SMS platform in a very large scale. This platform is free and it could be used by any individual to communicate with the KNCHR as many times as possible either on their own motion or in response to a communication from the KNCHR.
This platform was used for communication in respect notices to events (SGM, pre ballot and ballot days), information, receiving complaints and giving feedback among others. This system was also freely availed to the other key stakeholders who wanted to share specific information with the residents of Soweto Zone ‘A’. For example the SACCO used the platform to whip its members for a Special General Meeting on short notice The Ministry also successfully used the platform to notify the allotees to collect the letters of offer.
Further, the system was used rapidly and came in handy given the tight time schedule and the numerous activities that were taking place at the same time. The biggest challenge at the beginning was to gather all the telephone numbers of all potential beneficiaries which was done by the ICT team. This information was generated from the Ministry, SEC and SACCO. Initially the KNCHR had a high none responsive rate due to the fact that many of the numbers had changed or
67 | P a g e were not operational. However, as the awareness of the exercise and confidence towards the KNCHR grew, many validated their numbers. The SMS platform turned out to be the cheapest and fastest mode of communication for all.
This system was monitored 24/7 under the leadership of John Gathairu, and his team45. This system generated a huge log of communication which is still digitally captured.
Political Dialogue- Engagement with Political Leadership There was deliberate and targeted consultation with the political leadership in this area as the people’s representatives who included the Members of Parliament Hon. Joash Olum (MP- Langata Constituency) and Hon. Ken Okoth (MP-Kibra Constituency) and Hon. Maurice Akuk (MCA-Highrise Ward). The purpose of the engagements was to share and update them in respect to what the KNCHR was undertaking, the challenges at hand. Moreover, the engagements sought to understand the concerns of the political leaders and how they could rally their constituents to support the process. . A key issue raised during this shuttle diplomacy was that there was need to for the KNCHR to expedite the housing allocation process which had taken an inordinately long. They noted that the entire process of upgrading started in 2005 and there was need for the intended goal to be realised. This engagement and their reciprocal engagement with the residents of Zone ‘A’ helped ease the negative political pressure much of which was based on propaganda.
45 Steven Otieno and Agnes Makau
68 | P a g e
THE BALLOTING AND ALLOCATION PROCESS
Securing the Balloting
Securing the ballot was a critical stage of the housing allocation process because it determined who balloted and the category (two or three roomed unit) of house for balloting hence the allocation. The KNCHR together with the key stakeholders therefore took a raft of measures to ensure that only those who were genuinely entitled benefited and that there was a guarantee of transparency and fairness at every stage in the process. The KNCHR was guided by the national values and principles of governance in Article 10 (2) where it states, the respect for the rule of law, participation of the people, respect human dignity and rights, equity, social justice, non- discrimination and integrity. The following measures were taken:
Review of critical and key reference records The KNCHR obtained from the Ministry, SEC and SACCO various critical documents that were held in safe custody;
1. MoU between Government and UN Habitat, 2. The master register, 3. The provisional list of beneficiaries (those scheduled for ballot but stopped by the court order) and analysis report of vetting process 4. Details of the petitioners (HC No. 304 of 2015) as captured in the master register, 5. Approved housing allocation criterion, 6. sample of original enumeration card, 7. Sample of house application forms , 8. Number and type of the available units , 9. Minutes and relevant reports with a particular focus on agreed house allocation criteria, cut of date (of 19th June 2015),nature of ownership and stakeholders’ workshop report (17th to 22nd March 2014) 10. The National Slum Upgrading and Prevention Policy Sessional Paper No 2 of 2016 11. List of Officials from SEC and SACCO
69 | P a g e
12. Certificate of registration of Soweto East Zone A Housing Co-operative , 13. Kenya Railways Resettlement Action Plan Project Beneficiaries, 14. Internal memos, among others.
All these documents were studied and the relevant information extracted and used to inform the Commission on the history of the process. This helped the commission develop guiding principles and framework respond to complaints arising out of the process of the Kenya Slum Upgrading Project in respect to Zone ‘A’.
It is also important to note that documents received from other stakeholders i.e. the civil society like minutes, nomination forms, among others were also studied and taken into consideration.
From all the information extracted from the records, it is worth noting that that the Ministry, SEC, SACCO had already invested a lot of time and resources in developing the criteria, verification, complaints management to ensure that only deserving cases benefitted from the project. This was a good starting point which fitted perfectly within the parameters of the court order based on this history and taking cognizance of the judge’s observations that…,
‘’it could not, therefore, be ruled out that there is a possibility of some people who are not justifiably entitled to the units finding their way into the said units. That scenario must be avoided at all costs….’’ Justice George K. Odunga.
The key documents and processes for determining the ‘genuine beneficiaries’ and that informed the final list were;
a) Approved house allocation criteria: 1. Master Register (Possession of Unique ID) 2. Ability to raise 10% of the approved price of the unit applied for (Deposit with the SACCO) 3. Must have applied for the house (House application form)
70 | P a g e
4. Must have been physically vetted (Register for vetted beneficiaries) 5. Rent compliance for those residing at the Lang’ata decanting site (Rent Receipt as at 19th June 2015) 6. One household one unit.
Additional measures included; physical identification of double allocations, verification with the National Registration Bureau in respect to death names and identification card number and, categorization of the nature of special interest (names, nature of disability, older members of society, registration with the National Council for Persons with Disabilities (NCPWD) ) and processing of all new complaints. These measures were rigorous and added another verification layer to the initial vetting process to ensure only genuine beneficiaries succeeded.
Verification process.
This process started with the review of the provisional list that was developed by the ministry prior to the Petition 304 of 2015. This list was derived from the house applications in July 2014 and those who availed themselves for physical verification exercise that took place from 15th June to 19th June 2015.
The Inter-Agency Technical Working Group converged at the Slum Upgrading Department with a view to verify and generate the provisional list against the approved house allocation criteria, house application forms and the register of verification. The following were the findings
i. All the 697 identified beneficiaries in the provisional list were duly enumerated and in the master register of 2005; ii. 47 persons were identified as applicants who had met the criteria but not in the provisional list and therefore included in the final balloting list iii. 20 person were in the provisional list but had not cleared rent arrears or cases of double allocation. They were removed from the final list. iv. 109 had applied for three roomed unit were responsive on the criteria except that the deposit in the cooperative was less than the 10 % of the expected amount for the three- roomed unit applied for. The stakeholders agreed that they be given an opportunity to ballot for the two roomed units upon acceptance since they had the minimum required deposit for the two roomed unit. v. The final list approved and released together with the notice for balloting had 697 persons. However, before the allotting day 7 persons were identified as double allocations.
The persons who were identified as “double allocation” (due to marriage or siblings) were informed and interviewed. They were informed of the need to comply with the government policy
71 | P a g e of not benefiting twice from government projects. They signed waiver documents46. Those who had already benefited from the Railway Project were put on notice to forfeit either the RAP or Zone ‘A’ project. This condition was affirmed in the Letter of Offer47.
The Commission oversaw the allocation of 690 housing units. Of the 690 units, 144 were three roomed units, 546 were two roomed units.
The allocation of houses took into account the principles of non-discrimination and inclusivity as outlined below:
a) Persons with disability and older members of society.
Recognition and sensitivity was exercised towards persons with disabilities and older members of society in respect to their housing allocation. The process of identifying this category was not easy despite the fact that in the SEC there was a disability representative Miss Rael Ondieki. . A physical meeting with the SEC representative was held with the KNCHR officers to verify their status (physical, mental, because many had not registered with the NCPWD. Some of those who presented themselves were accepted while a number were rejected as it was hard to determine the nature of disability. Those who were over seventy (70) years old48 and most vulnerable were considered as elderly. The elderly were determined by use of their national ID card (where available) and physical outlook especially during the pre-ballot process. In total there were fourteen (14) PWDs and five (5) older members of society. They were all advised and encouraged to register with the NCPWD to ensure their recognition, visibility and benefit from other government initiatives like tax relief. Unfortunately due to the limitations of time and the fact that the data was not properly disaggregated during the ballot day a few older members of society were spotted
46 See Annexure No. 23 47 See Paragraph No. 5 48 Note the Constitutional parameter of 60 years could not be used as the numbers would have been overwhelming. Therefore a more senior level was adopted to facilitate a special focus towards the elderly of the elderly.
72 | P a g e
Key Recommendation 3: Those who have registered with NCPWD should be given mortgage relief based on their disability to reduce on their mortgage burden
The allocation was predetermined by consulting the specific individuals to identify the specific unit of their choice that was conducive and friendly to their respective physical conditions. The category was exempted from going through the balloting process. Based on this special interest allocations, stakeholders allocated the officials from SEC and SACCO units at strategic positions per block to ensure that they then served as vanguards and human rights monitors to ensure that the occupation of this group within these blocks was respected and addressed in case anything arose after the allocation.
Finally, it was unfortunate, the category of gender especially in respect to the emerging issues of widows could not be dealt with because it became a highly emotive and politicized issues that would have jeopardized the entire process. Therefore, stakeholders unanimously agreed this category to go through the balloting process.
Key Recommendation 4: There is need to further disaggregate master register data with respect to; age, (youth and older persons of society), gender (widows and widowers), persons with disability (including type), and child headed households among others. This will ensure crucial information like NCPWD identifications or other vulnerability identification i.e. cash transfer are built in to ensure special protection is enhanced during the allocation process in future for the deceased persons.
There are those who were enumerated as household head but deceased as at the time of balloting. They are bona fide beneficiaries who could not partake in the balloting exercise. It was important to the outset, that the next of kin be identified as captured in the master register and benefit.
73 | P a g e
This was critical because the next of kin were widowed or orphaned hence vulnerable. This was an extremely important category because the legal right would have easily been compromised on the face of the record. It was also a delicate category because this was one of the avenues that could easily be used to corrupt and extinguish the rights of those left behind. This was especially critical because these were made more vulnerable by their inability to appreciate their legal rights, intimidation and extreme poverty. Those who claimed death of spouse or parent, were asked to petition the Commissioner. The first principle was that they were in the Master register under the person they claimed to be deceased. Secondly, they were asked to present documents (death, birth or marriage certificates) and thirdly presented the other criterion requirements and documents. Only one case was rejected in this category as they were not registered under the deceased unique ID nor were they in the master register.
The KNCHR took administrative action and developed a next of kin form 49 that the next of kin filled and signed. This was to assist them because they did not have any letters of administration which would have taken a long time and therefore missed out on the household allotment. They were eighteen (18) such cases that participated in the ballot.
Key Recommendation 5: There is need for the Ministry in consultation with stakeholders to develop guidelines on how to substitute the survivors so that they can be legitimate legal representatives based on the master register.
Absentee Beneficiaries Absentee beneficiaries are those who were not present during the balloting day on account of sickness, those out of the country and bereaved. To take care of this group, the Commission developed a Proxy Form which was administered up on production of evidence to include hospital admission documents, copy of stamped passport on exit and burial permit. The Proxy form had to commissioned or notarized as verification of the information supplied to the KNCHR.
49 Annexure No. 24
74 | P a g e
The Preparation for balloting and allocation exercise
However, before the balloting and allocation day, a series of meetings took place between the KNCHR and a number of key stakeholders to create an enabling environment. These meetings were useful in ensuring that:
a) There was agreement on the criteria to be used so that only genuine beneficiaries got a housing unit at the Kibera Soweto East Zone ‘A’; b) There was broad consensus among the beneficiaries as well as other stakeholders on the balloting and allocation exercise; c) The voices of those who had been left out from the initial process had been considered; d) The balloting and allocation exercise was a success; e) There was continuous consultation among key stakeholders; and f) Any emerging or unforeseen issue was promptly addressed or responded to.
Pre-Ballot exercise
The Pre-Ballot process organised by the stakeholders was held on 19th March 2016 at Kilimani Primary School. The purpose of the pre ballot was to:
i. Pre-test the ballot process system; ii. Carry out physical verification of the potential beneficiaries; iii. Prepare the potential beneficiaries on how the ballot process and allocation will entail; and iv. Diffuse the tension before the actual ballot and allocation date.
75 | P a g e
KNCHR Officials (Faiza Sidi centre with yellow t shirt and Joseph Otieno next with black hat) verifying documents of potential beneficiaries at a pre-balloting meeting in Kilimani Primary School, Nairobi City County (Courtesy: KNCHR Public Affairs and Communication Department)
The pre-balloting day also served as an important avenue of engagement between the stakeholders and the community to clear up misconceptions and misinformation that existed concerning the housing project.
The exercise gave the stakeholders the opportunity to enhance the actual balloting and allocation exercise as follows:
a. The layout of the balloting and allocation venue; b. The process of physical verification of beneficiaries to ensure it was done in a transparent and efficient manner
76 | P a g e
c. To test the efficiency of the digital system d. The effectiveness of the communication platforms e. Allocation of duties and responsibilities to stakeholders f. Security arrangement
A pre-balloting briefing session with potential beneficiaries at Kilimani Primary School, Nairobi City County (Courtesy: KNCHR Public Affairs and Communication Department)
Printing of Ballots To avoid infiltration and enhance accountability of the process, the ballot papers were printed in different colours. This was to ensure that there was no mix up.
The table below illustrate the number and type of ballots printed:
S/NO Type of units Number of Number of Number of ballots printed units applicants
77 | P a g e
1. Three roomed 144 545 144 with house actual house units numbers.
401 marked No
2. Two roomed 546 43 546 ballots marked with house units numbers
Getting the Ballot Papers Ready: Commissioner George Morara ( in suit), Commissioner Jedidah Wakonyo (seated) and looking on Patrick Bonyote, ECOSOC Department at KNCHR Head Office (Courtesy: KNCHR Public Affairs and Communication Department)
To enhance transparency, on 21st March 2016 of the ballot and allocation day, ballots were marked with each unit based on the specified colours 50 , counted, verified, signed by three observers present, sealed in envelops and kept in safe custody. The ballots that had been affirmed
50 See Sample Ballot Papers labelled Annexure 27
78 | P a g e for the special interest groups and officials were also identified, counted, verified, linked to each allottee, signed, sealed in a special envelop and placed in safe custody. This process was undertaken under the leadership of KNCHR Commissioners Jedidah Waruhiu, George Morara and Mr Charles Sikuku from the Ministry. B boxes colours were also earmarked to differentiate the type of rooms available for balloting. They were transparent and had already been shown to the potential beneficiaries.
The Observers Public perception of the integrity of the ballot was very key. To ensure this, the KNCHR which took sole leadership of designing the ballot and allocation process, saw the need to also hold the KNCHR internally accountable. The stakeholders approved the involvement of observers to assess and document the balloting and house allocation process.
Seven observers were identified who were drawn from: the Commission for Administration of Justice (CAJ)51 and the National Gender and Equality Commission (NGEC)52; Independent Police Oversight Authority (IPOA) 53 ; the National Council for Persons with Disability 54 ; UN-Habitat; Department of Cooperatives55 and the Petitioner, Mr David Ngigi Tharau. Unfortunately not all the targeted observers were able to make through the entire process 56 which included; three briefings, pre-ballot, securing the ballot, and the ballot and allocation day.
During the ballot and allocation day, all the observers present were announced and presented to the potential beneficiaries. They inspected the ballot register, and the digital system to ensure no one had yet been allocated, sealing and inspecting of the ballot papers and boxes respectively, opening of the two ballot envelops, interviewing the potential beneficiaries at random, monitoring and documenting the entire ballot and allocation process. We received observation reports from the representatives of IPOA and the Petitioner. It is important to note that the mere presence of
51 Bob Munoko 52 Langat Philip 53 James Olola 54 Godfrey Ochieng 55 Fred Sitati 56 UN Habitat
79 | P a g e independent observers throughout the allocation process contributed significantly to reassuring the potential beneficiaries, ensuring that the allocation process was fair and transparent.
Sitting immediate left Mr. Charles Sikuku, Housing Director, The Ministry, the Observers from IPOA, NGEC and hidden Department of Cooperatives verifying the ballot at the KNCHR Head Office (Courtesy: KNCHR Public Affairs and Communication Department)
Security Management Therefore physical security in the form of security officers was in place. For good measure, first aid was also considered. There were therefore a number of individual and group meetings with both the Nairobi City County administrators and security agencies for Langata and Kibra Constituencies. Further, two crucial security meetings were held at the Nyayo Stadium venue on 17th March 2016 to agree on the physical administrative and security appropriate to Nyayo stadium and on 21st March 2016 where the security leaders were briefed by the stakeholders on
80 | P a g e the preparations for the allocation to enable them develop their security protocols. The individual meetings with the County security administrators also focused on ensuring that all appreciated the importance of this exercise, the court directive and also the values and principles that were to govern all to ensure that all rights and freedoms were respected and protected.
Commissioner Jedidah Wakonyo Waruhiu of KNCHR chairing the security meeting. On her left is Mr. Mohammed Ibrahim, Director Administration. Others are Charles Sikuku, Director Housing, KNCHR Vice Chair, George Morara Monyoncho, and Mr. Elijah Mwangi OCPD Langata (Courtesy: KNCHR Public Affairs and Communication Department)
81 | P a g e
The Allocation
Registration and Verification of Documents The allocation was conducted at the Nyayo National Stadium, Basketball Arena on 22nd March 2016. By 7.30am beneficiaries had arrived and ready for the balloting and allocation exercise.
Step 1:
Verification of documents by stakeholders’ at the entry point to restrict unwanted entrants to the venue.
Step 2:
Involved registration and validation of the beneficiaries, in person and through proxy to confirm the necessary documentation before accessing the venue/arena, and issued with colour-coded papers that represented their sitting areas with regards to which rooms they had applied for. For instance, yellow was the symbolic colour of three rooms responsive applicants, blue symbolized the three rooms non- responsive applicants and green symbolized the two room responsive applicants.
The Digital System As opposed to the manual processes, the KNCHR preferred the use of digital systems to enhance the ballot process; the system brought about timeliness and accuracy (reducing fraud) and processing, easy analysis and enforced data security. This started with the compilation of data on the intended beneficiaries; Master register, SACCO, national identity card numbers, telephone numbers and special interests groups. Through this digital system it was much easier to detect any cases of irregularities—like double allocation—while offering an opportunity to minimize the possibilities of infiltration by unauthorized persons during the balloting and allocation day. The beneficiary list was encrypted and the potential beneficiaries classified into two categories;
i. Those who qualified for a three roomed unit totalling five hundred and forty five (545) and ii. Those who qualified for a two roomed unit totalling forty three (43)
82 | P a g e
Next the housing units were encrypted into the digital system which would later be linked through the ballot during the allocation to each individual based on the three classifications (one, two or three roomed units).
KNCHR Officials registering the beneficiaries ahead at Nyayo National Stadium Stage 2 (Courtesy: KNCHR Public Affairs and Communication Department)
Opening Ceremony The balloting and allocation exercise was officially opened by the Cabinet Secretary Prof. Jacob Kaimenyi. In his opening speech, the Cabinet Secretary mentioned that the government had built the completed housing units and indicated that further units shall be constructed. He noted that
83 | P a g e the government in consideration of the beneficiaries’ social status subsidised the units to make then affordable.
"A majority of the beneficiaries earn less than KES 5,000 a month that is why the Government subsidized the mortgage of the houses to three per cent (3%) through a payment period of 25 years…The three-roomed house would cost KES 1.35 million and the two-roomed house KES 1 million.”
Prof. Jacob Kaimenyi, the Cabinet Secretary, Ministry of Land, Housing and Urban Development arriving at Nyayo Stadium to preside over the balloting and allocation exercise. (Courtesy: KNCHR Public Affairs and Communication Department)
84 | P a g e
Prof. Kaimenyi addressing the beneficiaries of the Kibera Soweto East Zone ‘A’ Housing Units on March 22nd 2016 at Nyayo Stadium (Courtesy: KNCHR Public Affairs and Communication Department)
Unsealing of the Ballots and actual balloting. Commissioner Jedidah Wakonyo Waruhiu took beneficiaries through the balloting and allocation procedures as shown below:
STEPS
1. Blloting for those who had complied for three rooms; 2. Those who applied for two rooms would ballot for placement. 3. Those who missed a house from the three rooms ballot would then ballot first for the two rooms; 4. Three roomed non-responsive applicants would then ballot for the remaining two roomed units
85 | P a g e
Procedure:
1. One picks a ballot, opens and shows the clerk in charge of the specific ballot box whether they have got three rooms or ‘try two rooms’; 2. If one has got ‘Try two rooms’ move to the ballot box with two rooms and pick another ballot. 3. Once one has picked a ballot that indicates ‘three rooms’ or ‘two rooms’ then you move to the web based system allocation for registration and allocation of the room 4. Move to the Public Affairs and Communication (PAC) for a picture which would show the face STEP 3 and ballot paper indicating the number of rooms 5. Give the ballot paper to the clerk
6.1. Leave the arena.
In line with the above processes, the role of the observers’ were specifically to:
a) Observe the registration and verification of documents; b) Seal the ballot boxes; c) Unseal the envelopes containing the ballot papers; d) Observe the actual ballot and allocation process; e) Write and submit the balloting and allocation observation report to stakeholders.
86 | P a g e
Observers at the Nyayo Stadium during the balloting and allocation day. (Courtesy: KNCHR Public Affairs and Communication Department)
87 | P a g e
Cabinet Secretary Prof. Jacob Kaimenyi after putting in the yellow ballots and shuffling them in the box (Courtesy: KNCHR Public Affairs and Communication Department)
It is important to note that those potential beneficiaries who were identified during registration or stated the special needs, such as the elderly, nursing or expectant mothers, mothers with small children, sick or disabled were given priority to ballot first while following the laid down procedures.
88 | P a g e
Commissioner George Morara Monyoncho holding a one week old baby (nicknamed Baby Haki Tume) while his mother picks up a ballot for a house: She got a two roomed house. Looking on are, from L to R, Commissioner Jedidah Wakonyo, Commissioner Shatikha Chivusia and Cabinet Secretary Prof. Jacob Kaimenyi (Courtesy: KNCHR Public Affairs and Communication Department)
Balloting Challenges:
Further, during the picking of ballots, it was brought to the attention of stakeholders’ one of the potential beneficiaries had tried to pick a three roomed ballot twice. She was stopped just as she was about to pick her second ballot and immediately put under disciplinary action. (Her recourse was: She would ballot only if she told the truth). This occurrence was very sensitive since each person only had only one chance. She refused to own up and even became unruly. She was finally forced to leave the arena without balloting and asked to follow-up her matter at the KNCHR head office.
The Demonstration While the ballot and allocation was taking place inside the arena, a few residents from Kibra staged a demonstration outside the Nyayo Stadium gate. The security officers kept vigil and did not stop them from picketing so long as they did the same peacefully without disrupting the general public
89 | P a g e since it was near a bus stop. After a while, the picketers activities fizzled away without any further incidence.
E-Allocation and Digital Analysis
The observers inspecting the system before the allocation of houses for the beneficiaries of the Kibera Soweto East Zone ‘A’ on March 22nd, 2016 at Nyayo Stadium (Courtesy: KNCHR Public Affairs and Communication Department)
a) Real Time
The digital (web-based) system which was developed by the KNCHR ICT Unit made the entire process open, efficient and provided the necessary statistics on demand. Though the numbers were many each stage moved according to plan. The system enabled real-time computation of data for 651 applicants who came either in person or through proxy, which was at 93.4% representation. We were also able to compute the percentage of persons with disability, elderly, and SEC and SACCO Officials which was 5.53%.
90 | P a g e
b) No Show
At the end of the entire process which was around 4pm, the officials of SEC and SACCO were asked to assist follow up the potential beneficiaries (1.07%) who had not turned up. Later they all came to the KNCHRs office, indicated why they were unable to show up and allowed to participate in the ballot process in the same fair and transparent manner.
c) Updated Features
The information that was in the Master register was 12 years old and therefore didn’t reflect current information about the beneficiary who had now been allocated a house.
The web based system was to enrich the allocation exercise with information that would assist to identify the beneficiaries. This included:
i. Mobile numbers; ii. Occupation; and iii. Facial picture which were attached to the respective beneficiary’s profile and allocation unit.
d) Financial Resources
The implementation of the court order required vast resources to ensure that all aspects were taken care of. Unfortunately none of the stakeholders’ had anticipated such a court order, hence there was no specific budget allocation for the process. This meant that all parties looked for own resources however minimal to ensure the success of the process. However, despite all these financial limitations, all the stakeholders had to work without or a limited budget.
91 | P a g e
THE OUTCOME
The three months exercise aimed at implementing the High Court order No.304 of 2015 was finally drawing to a close with the ballot and allocation finally done. The Web based system captured all the essential data on the balloting and allocation exercise.
The data may be analysed in various perspectives including: number or nature of house allocation, gender, next of kin details, houses not allocated, attendance list, special interest, among others. A few examples of the data captured are provided below.
FIGURE 2: INDIVIDUAL ALLOCATION
92 | P a g e
FIGURE 3: HOUSE ALLOCATION PER GENDER: FE/MALE
93 | P a g e
FIGURE 4: PROXY LIST
FIGURE 5: OLDER MEMBERS OF SOCIETY
94 | P a g e
FIGURE 6: PERSONS WITH DISABILITY SUMMARY
FIGURE 7: SEC AND SACCO OFFICIALS SUMMARY
95 | P a g e
96 | P a g e
THE JOYOUS CULMINATION: THE HANDING OVER CEREMONY A formal official handing over ceremony was initially scheduled to take place between 1st March and 8th March 2016. However due to unavoidable circumstances, it was slated on the 5th May 2016 at the site of the new houses where there was immense celebrations and funfair.
The ceremony was graced by dignitaries and guests led by the Cabinet Secretary in charge of Land, Prof. Jacob Kaimenyi who officially represented H.E President Uhuru Kenyatta. Other guests included the Governor of Nairobi Dr. Evans Kidero, the Permanent Secretary in charge of the State Department of Housing and Urban Development Arch. Aidah Munano, the Kenya’s Permanent representative to UN Habitat Prof. Sam Ongeri, Executive Director of UN Habitat Dr. Joan Clos, the Member of Parliament for Kibra Constituency, Hon. Ken Okoth and the KNCHR leadership led by Commissioner George Morara and Commissioner Jedidah Wakonyo Waruhiu. The latter was the unrelenting stewardess and team leader of the KNCHR’s led process.
In his speech read by Prof. Jacob Kaimenyi, the President of Kenya, H.E Uhuru Kenyatta reiterated from the onset that the new houses were just a beginning of a future total transformation of Kibera and its environs. He noted that the well planned houses were built at a total cost of Kshs 2.9 billion.
“The handover of these houses is a dream come true for Kibera residents who previously lived in poor housing conditions characterized by overcrowding, poverty, unemployment, insecurity, exclusion from planned physical development and squalid environment”, the President said. He further said that “Every Kenyan has a fundamental right to access warm, safe and secure home with clean running water, sanitation and electricity”.
During the handover ceremony of the slum upgrading project houses, which was a collaborative initiative between the Kenyan government and the UN Habitat, the President reconfirmed the deduction of corporate tax from 30% to 20% for developers who construct at least 1000 low cost housing units or more. This tax incentive is to encourage mass housing development in order to bridge the annual housing deficit which currently stands at 200,000 units and is growing.
The President made a commitment that effective financial year 2017/2018, the Government will commence the re-development of Soweto Zone ‘B’ houses. This was indeed a welcome gesture
97 | P a g e that will require follow-up from the stakeholders and the respective duty bearers from government ministries, departments and agencies.
On her part, the Permanent Secretary in charge of the State Department of Housing and Urban Development Architect Aidah Munano, emphasized that the Kibera housing project had gone through such a long journey since its launch on 5th March 2012. She further said that its culmination in the handing over ceremony, was proof that with positive collaboration by all stakeholders it is possible to achieve what might seem impossible.
She said that the project is built on 10.6 acres and comprises of 822 housing units, 239 commercial market stores, a youth center, and social hall and associated external works, and parking areas. She gave details of the tenant purchase scheme as; one (1) roomed units at a cost of Ksh 600,000, two (2) roomed units at Ksh 1m, three (3) roomed units at Ksh 1.3m and a market stall at Ksh 326,000. She said that the houses were offered at an interest rate of 3% and mortgage repayment period of 25 years to make it possible for beneficiaries to pay effectively.
She singled KNCHR for commendation following its “leadership and the overseer role in the process of houses allocation that ensured only the genuine beneficiaries got the houses allocation”. She noted the “allocation process was above board and in accordance with the court ruling”.
The Executive Director of UN Habitat Dr. Joan Clos in his remarks said that the Nairobi based UN Habitat office was proud to be associated with such a practical and successful project. He said his office will support the endeavors of having Phase B completed and scaled up in the least record time. He urged the showcasing of the Kibera Slum Upgrading Project by the Government at the global scene as it is a pragmatic case study for other parts of the world- a “lesson that housing for the poor can be provided efficiently and at minimum cost” he said.
The Kenya’s Permanent representative to UN Habitat Prof. Sam Ongeri said that “without proper planning for housing, health services, education, security, food, energy, climate change and waste management, our Cities will remain unsustainable” like it had been in Kibera before the Slum Upgrading Project.
98 | P a g e
During the colourful handover ceremony, the Nairobi County Governor, Dr. Evans Kidero noted that 70% of people living in Nairobi resided in the informal settlement. He further said that the current population in Nairobi stood at 4 million and by 2050 it is expected to hit the 14 million mark.
“Currently the housing gap is at 500,000 and we are only able to build 35,000 houses as a County government. We have 25,000 acres which we will make available for people who are able to help us build affordable housing” the Governor said in a call for a public private partnership”.
Speaking for the Kenya National Commission on Human Rights and on behalf of the Commission’s Chairperson Kagwiria Mbogori, Commissioner George Morara lauded the government for completing the 1st Phase of the project, but urged for an increased momentum in completing the remaining phases.
“We acknowledge the commitment of the Ministry of land, housing and urban development towards the realization of the right to accessible and affordable housing as provided for under Article 43 of the Constitution to people living in slum areas country wide” Morara said.
He further said that those who were getting the opportunity to own a house during the handover ceremony are a group of people who are not expected to buy or own a house in a housing market scenario that continues to remain out of reach for majority of Kenyans.
“Today’s ceremony is going to see a number of Kenyan families living in Kibera experience a new dawn of dignity where flying toilets will be replaced by flushing toilets. The younger generation and the children who are moving into these new houses will begin a new life of dignity and respect as they grow up away from the indignities that their parents or guardians had to endure before…. the right of a child to shelter is now assured”, he echoed.
“Today marks a great example where the words development and human rights means the same thing. This is indeed a spirit of vision 2030 when we talk of investing in people in order to improve quality of life”, he said to the delight of the gathering.
99 | P a g e
“690 households will be transformed by the power of the key, the key to their future, this is going to be the key to their home. It is also going to be a key to dignity”, KNCHR Vice Chairperson further stated.
Ms Anne Wanjiru a representative of the houses beneficiaries, who wore a dress dazzling with Kenyan flag colours said;
“I thank the Government for this project that was initially thought that it would be the same as the Nyayo High Rise project where the houses that were meant for the dwellers were taken or given to those who are well off”.
And while she waved her allocation key amidst some dancing moves of joy, she dared the invited government officials, KNCHR and other guests at the function for a house warming ceremony at her new house. This gesture was met with deafening laughter and ululations from the crowd.
Her remarks were further echoed by the Member of Parliament for Kibra Constituency, Hon. Ken Okoth who told the beneficiaries of the houses that they must be wary and careful of any outsiders masquerading as brokers, who would entice them with money so that they can relinquish their houses.
The ceremony ended with a tour of the new houses and the symbolic handing over of keys to special interest groups such as persons with disability, older members of society and the youth. The symbolic handover was led by the Cabinet Secretary in Charge of Land together who was flanked by the KNCHR team leader Commissioner Jedidah Wakonyo.
100 | P a g e
”Now, that is my new humble abode”. Ms Anne Wanjiru (holding key), a representative of the houses’ beneficiaries, seems to tell CS Prof. Kaimenyi and Governor Kidero to the amusement of Commissioner Jedidah Waruhiu and others.
101 | P a g e