EVICTIONS AUDIT FINAL REPORT - KeNHA · Kwa Jomvu Eviction Audit Report i ... The structure owner in such a case was not physically displaced ... officials on 17 May 2015 or through

EVICTIONS AUDIT

FINAL REPORT

MARCH 2016 001462

Kwa Jomvu Eviction Audit Report i Issue 1/March 2016

EVICTION AUDIT AND PREPARATION OF A CORRECTIVE ACTION PLAN FOR THE MOMBASA-MARIAKANI ROAD PROJECT

FINAL AUDIT REPORT

CONTENTS

Chapter Description Page

1 BACKGROUND TO THE AUDIT 1-1

1.1 Project Description 1-1

1.2 Description of the Affected Area 1-1

1.3 Existing RAP Study 1-2

1.4 Forced Evictions Incident and Effect 1-3

1.5 KeNHA’s Response to Demolitions 1-3

1.6 The Need for Audit 1-4

1.7 Audit Objectives 1-4

1.8 Methodology 1-5 1.8.1 Preparatory Activities and Reconnaissance at the Inception Phase 1-5

(a) Preliminary consultations 1-5 (b) Site Appreciation 1-5 (c) Reporting 1-5

1.8.2 Review of Relevant Documents 1-6 1.8.3 Field Survey 1-6

(a) Courtesy Calls and Key Informant Interviews 1-6 (b) Preparatory Meeting with Committee of Evictee Representatives 1-7 (c) Training of Enumerators 1-7 (d) Community Sensitisation Meeting with Evictees 1-7 (e) Identification and Mapping of Evictees 1-7 (f) Interviews with Evictees 1-8 (g) Focus Group Discussions 1-8 (h) Disclosure Meeting with Evictees 1-8

1.8.4 Data Analysis and Reporting 1-9

2 POLICY AND LEGAL FRAMEWORK 2-1

2.1 Policy Framework 2-1 2.1.1 The National Land Policy 2-1 2.1.2 Mombasa Port Community Charter 2-1 2.1.3 Eviction and Resettlement Guidelines, 2009 2-1

2.2 Legal Framework 2-3 2.2.1 The Constitution 2010 2-3

(a) International Covenant on Economic, Social and Cultural Rights 2-3 (b) Convention of the Rights of the Child 2-3 (c) Convention of the Rights of Persons with Disability 2-4

2.2.2 The Land Act 2012 2-4

Kwa Jomvu Eviction Audit Report ii Issue 1/March 2016

(a) Principles and Values to Guide Land Management and Administration2-4 (b) Establishment of Settlement Scheme 2-5

2.2.3 The National Land Commission Act 2012 2-5 2.2.4 The Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act, 2012 2-5 2.2.5 The Kenya Roads Act 2007 2-6 2.2.6 Traffic Act Cap 403 2-7

2.3 EIB and AfDB Policies 2-8 2.3.1 EIB Environmental and Social Standards 2-8 2.3.2 AfDB Integrated Safeguard System 2-8

2.4 UN Basic Principles and Guidelines on Development Based Evictions and Displacement 2-10

(a) Compensation 2-10 (b) Restitution and Return 2-11 (c) Resettlement and rehabilitation 2-11

2.5 Gap Analysis of Kenyan Legislation to AfDB and EIB Policies 2-12

3 PROFILE OF AFFECTED PERSONS 3-1

3.1 Demolished Structures 3-1

3.2 Evictees in the Housing Category 3-3 3.2.1 Affected Population under the Housing Evictees Category 3-3 3.2.2 Household Evictees Characteristics 3-3

(a) Age Distribution of the Evictees 3-3 (b) Sex of the Evictees 3-3 (c) Marital Status and Relationship to the Household Head 3-4 (d) Family Size 3-4

3.3 Evictees in the Business Category 3-4 3.3.1 Affected Population under the Business Evictees Category 3-4 3.3.2 Rent Payable Prior to Evictions 3-5

3.4 Incomes and Expenses Prior to Eviction 3-5 3.4.1 Income Sources 3-5

3.5 Persons with Disability 3-6

4 THE EVICTION PROCESS AND ITS IMPACTS 4-1

4.1 Responses from the Survey on the Eviction Process 4-1 4.1.1 Eviction Notice 4-1 4.1.2 Assistance received after Evictions 4-1

4.2 Impacts on Housing and Related Services 4-2 4.2.1 General Impacts 4-2 4.2.2 Implications of Reduced Incomes on Housing 4-2 4.2.3 Reported Cases of Homelessness as a result of the Eviction 4-2

4.3 Impacts on Occupations and Incomes 4-3

4.4 Status of Re-establishment of Structures 4-4

4.5 Impacts on Supplementary Financial Resources 4-5 4.5.1 Impact on Savings and Existing Capital 4-5 4.5.2 Impact on Credit Facilities 4-5

Kwa Jomvu Eviction Audit Report iii Issue 1/March 2016

4.6 Other Losses 4-5

4.7 Impacts on Children 4-5

4.8 Impacts on Health 4-6 4.8.1 Injuries and Sickness during Evictions 4-6 4.8.2 Impacts on Nutrition 4-6 4.8.3 Trauma and Uncertainty 4-7

4.9 Looting Incidences 4-7

4.10 Specific Challenges Faced by Widows 4-7

4.11 Impacts on Social Structure 4-8

4.12 Comparison of Valuation Report and the Audit Survey 4-8

5 PUBLIC CONSULTATIONS AND PROJECT DISCLOSURE 5-1

5.1 Background 5-1

5.2 Analysis of objectives from the stakeholder participation process 5-2 5.2.1 To determine the impacts that emanated from the evictions 5-2 5.2.2 To obtain possible corrective action that can be integrated in the CAP 5-2 5.2.3 Promote transparency to minimise grievances 5-2 5.2.4 Minimise risk of poor coordination through establishment of communication channels and redress mechanisms 5-2

5.3 Summary of Consultation Outcomes 5-3 5.3.1 Discussion on loss of Business Stock 5-3 5.3.2 Discussion on Loss of ‘Loose’ Assets 5-3 5.3.3 Discussion on Possible Income Restoration options with the evictees 5-3 5.3.4 Discussion on Availability of Resettlement Sites 5-3 5.3.5 Discussion on Employment Opportunities 5-3

6 CONCLUSIONS AND RECOMMENDATIONS 6-1

6.1 Audit Findings 6-1 6.1.1 Loss of Structures 6-1 6.1.2 Impacts on Loss of Income 6-1 6.1.3 Impacts on Health 6-2 6.1.4 Homelessness as a result of the Evictions 6-2 6.1.5 Immediate Availability of Alternative Land for Resettlement 6-2

6.2 Evictees Expectations 6-2

Kwa Jomvu Eviction Audit Report iv Issue 1/March 2016

LIST OF ACRONYMS

AfDB Africa Development Bank BCS Broad Community Support CAP Corrective Action Plan CSOs Civil Society Organizations EIB European Investment Bank ESIA Environmental and Social Impact Assessment FGDs Focus Group Discussions GoK Government of Kenya KeNHA Kenya National Highways Authority KfW Kreditanstalt für Wiederaufbau ISUDP Integrated Spatial Urban Development Plan LHS Left Hand Side MYS Mombasa Youth Senate NGO Non Governmental Organisation NLC National Land Commission PAPs Project Affected Persons RAP Resettlement Action Plan RAPS Road Asset Protection Section RHS Right Hand Side RRT Rapid Response Team TA Technical Assistance UN United Nations UNHRC United Nations Human Rights Commission

Kwa Jomvu Eviction Audit Report i Issue 1/March 2016

DEFINITION OF TERMS Categories of Evictees: a) Owner Occupied Structures:-The evictee is also the owner of the structure. In some cases, the

evictee also had tenants residing in the same structure as described under the terms “multiple use structures”.

b) Non-Resident Structure Owner: The structure owner whose structure was demolished and the tenant evicted. The structure owner in such a case was not physically displaced but he/she lost the structure and any assets that he/she had stored within it;

c) Tenant: An evictee who lived in a premise owned by another individual and had an agreement to pay

monthly rent to the structure owner.

Committee of Community Representatives: A group of 19 individuals that were mobilized after the evictions to represent the evictees. Evictees: Persons who were physically displaced from the project footprint as a result of demolition of their structures by the Government of Kenya (GoK) officials on 17 May 2015 or through self demolition after observing the demolitions of their neighbours’ structures by GoK officials. For purposes of this assignment, the evictees are restricted to the persons who were physically displaced as a result of the eviction or threat of eviction within the project footprint of the proposed Mombasa-Mariakani Road that occurred on 17 May 2015. Multiple use structures: These are structures whereby one is likely to find multiple categories of evictees living in the same building. In such a case, the structure has one owner but with multiple rooms for a combination of any of the following uses:

Residential rooms for the structure owner; Business premise for the structure owner; Residential rooms for a tenant Business premise for a tenant; In some cases, residential rooms for a business tenant and / or his staff.

Project Affected Persons: For purposes of resettlement studies, persons who are physically or economically displaced or relocated as a result of land take for development projects. In the case of this assignment, the evictees are assumed to have been part of the group of PAPs that was or are to be targeted under the resettlement program developed under the Resettlement Action Plan (RAP) studies for the Mombasa-Mariakani Road Project. “Space” Landlord: An individual who was receiving “land rent” from a structure owner to utilize the space within the area of interest for the assignment. According to the affected persons, the rent was allegedly used to contribute to the land rates that the space land lord was paying to the Government of Kenya. This category was only recognized as a possible source of grievances to the compensation process and not as a group due to compensation as a result of the Kwa Jomvu Eviction, as the target area is government land under the jurisdiction of the Kenya National Highways Authority (KeNHA) and not private land subject to land rates by the County Government of Mombasa. MPESA: mobile phone-based money transfer service provided by Safaricom. M-Pesa allows users to deposit, withdraw, transfer money and pay for goods and services using a mobile phone (Cell phone).

Kwa Jomvu Eviction Audit Report 1-1 Issue 1/March 2016

1 BACKGROUND TO THE AUDIT

1.1 Project Description

The Government of Kenya, through the Kenya National Highways Authority (KeNHA) is undertaking the rehabilitation and expansion of 41.4 km road between Mombasa and Mariakani in Eastern Kenya, which forms part of the Northern Road Corridor, in south east Kenya. This almost 2,000 km long Corridor connects the Port of Mombasa directly to the landlocked countries of Uganda, Rwanda, Burundi, and forms an essential connection to South Sudan, the Democratic Republic of Congo and parts of northern Tanzania. The project will expand the current predominantly single carriageway to a dual carriageway with 4-6 lanes, relieving the road from the current congestion, where transit times currently reach up to 3-5 hours during peak hours.

The project entails the dualling of the Mombasa-Mariakani Road in 2 (no.) lots:

Lot 1: Mombasa-Kwa Jomvu 11.4 km which has secured funding from the African

Development Bank; Lot 2: Kwa Jomvu-Mariakani 30.3 km with proposed funding form KfW/EIB. The prime objective of the project is to improve transport of import and export goods, and passenger traffic along the Northern Corridor by decongesting the traffic to and from the Port of Mombasa. It is envisaged that the Project will also improve the level of service and reduce travel times; improve road safety and increase accessibility to Mombasa, its port and international airport.

1.2 Description of the Affected Area

Kwa Jomvu is located along Mombasa Nairobi road (A109). The area is approximately 11 KM from Mombasa Central Business District. The demolitions took place between (Km 10+700 to Km 11+450) of the project road, primarily on the road reserve. The eviction area comprises of 3 villages, namely; Kwa Jomvu Madafuni, Narcol and Ngamani Voi. The villages are found in Changamwe Sub County of Mombasa County. The area is primarily occupied by formal business on the rear section of the road and informal business structures with a few housing units along the road reserve. The informal settlements patterns within the road reserve are mainly influenced by proximity to the road network that offers easy access to business opportunities to thrive. Commercial activities in the project foot print include; motor vehicle spare part shops (for both second hand and new), kiosks, bars and restaurants, garage, open air shades selling coconuts and seedling, khat (miraa), Mpesa shops etc. Business enterprises at the back of the project foot print include warehouses housing a number of clearing and forwarding companies. Figure 1.1 below provides a view of the area.


Figure 1.1: Snapshot of the Eviction Area

Source: Google Map The affected structures were located within the road reserve for the proposed project. This reserve has been earmarked as part of the construction corridor for the proposed road expansion. In addition to this, the current use for the road reserve was to provide for a wayleave for utility services such as electricity transmission lines, water supply and sewerage pipelines, fibre optic cable and all the related appurtenant structures. A clear road reserve is also useful in enhancement of the safety of traffic on the road pavement as well as other road users especially the pedestrians. Encroachment on road reserves by businesses and residences also results in dumping of solid wastes on the reserves leading to poor sanitation and related public health risks due to poor environmental health conditions. In view of the above, for KeNHA to effectively deliver its mandate in the road sector, the Authority has a Road Asset Protection Section (RAPS) within the Planning and Environment Department that is charged with responsibility of safeguarding the Authority’s road assets including the road reserves. The RAPS therefore works to ensure that there is no encroachment on road reserves hence providing a supportive function towards planning and enhancement of safety of all road users. From consultations with KeNHA, it emerged that the Authority through its RAPS has in the past issued several notices to encroachers to vacate the road reserve. However, in most cases, encroachers usually come back to the road reserve after some time and Kwa Jomvu area has not been an exception. KeNHA reported that they had copies of notices to vacate the road reserve at Kwa Jomvu as evidence of their attempts to keep the road reserve clear of encroachment in the past.

1.3 Existing RAP Study

The road reserve features substantial encroachment along certain sections. Reclaiming the road reserve, coupled with realignment of the road will necessitate land acquisition and relocation of project affected persons (PAPs) which will trigger involuntary resettlement. To militate against this, a RAP study was undertaken in 2014 with a proposed Right of Way (ROW) of 60m.


In this regard, KeNHA through its Design & Construction Department, procured consultancy services from AECOM to prepare a Resettlement Action Plan (RAP) for the proposed project road in compliance to the safeguard policies of development partners. The RAP has already been elaborated by KeNHA and is expected to be revised and improved so as to better reflect Lenders’ standards regarding: Eligibility/entitlement clarifications; Vulnerability definitions; Weighting and ranking amongst PAPs; Effective and sustainable livelihood restoration measures for affected street hawkers and

informal stand-keepers; Governance; Representativeness; Stakeholder engagement in the RAP implementation; and Access to information, grievance and meaningful consultation. The finalised RAP constitutes a signature condition for KfW and EIB.

1.4 Forced Evictions Incident and Effect

In January 2015, scores of residents and business owners in Jomvu informal settlement received 30-day eviction notice from KeNHA informing them that their homes and businesses occupied public land reserve for road construction1. A reminder notice was further issued sometime in April 2015. The illegal structures for demolition were marked with yellow crosses. According to the Amnesty International Report, evictees stated that they were not consulted regarding the evictions and beyond the notices, had received no information about the eviction process, resettlement and compensation. On 17 May 2015, KeNHA with the assistance of the County Commissioner’s office and OCPD Changamwe Police Station, conducted partial demolition of illegal structures at Kwa Jomvu area (Km 10+700 to Km 11+ 450) that had encroached on the road reserve2. The demolition impacted several, although not all, of the marked structures. In light of the demolishers’ warning of returning the following day, people tore down personal structures on their own account in order salvage valuable building material for reuse3. The entire forced evictions incident and impacts on the evictees was recorded in detail in the report issued by Amnesty International on 5/10/2015 titled "Driven out for Development: Forced evictions in Mombasa, Kenya.”

1.5 KeNHA’s Response to Demolitions

Immediately after confirming the incident, efforts were put in place to document the impact after the demolitions on 23 July, 2015. However, this was not fruitful as some of the people affected organized themselves and destroyed all the data that was collected which had names of those affected and their losses4. This situation made KeNHA to change the approach to access the same data through seeking engagement with the affected persons.

1 Amnesty International, Driven out for Development: Forced evictions in Mombasa, Kenya 2 Joint Lender’s Monitoring Mission September 2015, Aide memoire 3 Amnesty International, Driven out for Development: Forced evictions in Mombasa, Kenya 4 KeNHA Incident report, October 2015


KeNHA held a meeting with the evictees on 13 August 2015 at Bangladesh Catholic Hall which allowed the affected persons to share their frustrations and opinions. The forum culminated in formation of a special committee established to support the evictees and KeNHA in determination of impacts, guide on appropriate remedial action to be undertaken and participate in the grievance redress system. As reported by KeNHA through a meeting held between them and GIBB Africa (Appendix I), a Corrective Action Plan (CAP) for the evictees was developed. As part of the activities for development of the CAP, KeNHA through NLC (National Land Commission) engaged a registered land and asset valuer to conduct valuation of the affected structures. The valuation report identified 94 structure owners. In this regard, KeNHA has prepared cheques to be paid to these structure owners, except six (6) that needed further verification.

1.6 The Need for Audit

Following the demolitions, the European Investment Bank (EIB) notified KeNHA that the demolitions amounted to forced evictions of the Project Affected Persons (PAP’s); and equally a contradiction of their rules and procedures for compensation and relocation of PAP’s. In this regard, efforts were put in place to document the impact of the forced evictions. However, this has not concluded to date and contradicting figures have been mentioned with respect to the overall number of demolished structures and impacted population. A joint mission by EIB/KfW/AfDB to the project site was conducted between 16 and 18 September 2015 together with representatives from the local authorities, Civil Society Organizations (CSOs) and individuals from the affected communities. The outcome of the mission confirmed that there was contradicting figures with regard to the overall number of impacted persons. The need for an audit arose from the concerted decision of all lenders and KeNHA to facilitate a speedy and high-quality ex-poste assessment of the impact provoked by the evictions, as well as to enable the award of due remedy and compensation regarding harm done. To this end, it was agreed that Technical Assistance (TA); by way of an external consultant; was needed in the development of a Forced Evictions Audit Report and consequent Corrective Action Plan to remedy the impacts arising from the evictions.

1.7 Audit Objectives

The audit objectives were to: Conduct a survey and determine all persons affected by the forced evictions; Identify any gaps between the process, the valuation envisaged and other assistance to

be provided, and the relevant EIB & AfDB standards and safeguards that would be expected to apply in the updated and approved RAP;

Provide recommendations on actions required in going forward so as to top up where there are gaps, capturing all affected persons and meeting the level of entitlements required under EIB & AfDB standards;

Provide recommendations on action required to effectively ensure that livelihoods levels return to ex ante levels until the project’s RAP implementation kicks in;

Provide suitable arrangements for any outstanding urgent cases where lives may be at risk by recommending appropriate alternative income restoration arrangements in line with EIB & AfDB principles and standards and relevant requirements under Kenyan law;

Recommend fast actions for vulnerable people to reduce the hardship they are suffering until remedial compensation is implemented;

Prepare an Eviction Audit Report.


1.8 Methodology

The Audit methodology consisted of a combination of approaches namely, desktop reviews, door to door surveys and stakeholder engagement through meetings. The key activities conducted were: Preparatory activities and reconnaissance at the Inception Phase; Collation and review of records availed to the audit team; Field survey that included:

Courtesy calls and key informant interviews; Sensitisation of evictees on the field survey activities; Identification and mapping of evictees through issuance of codes, taking photographs

and record of GPS co-ordinates; Interviews with evictees through administration of questionnaires; Focus Group Discussions (FGDs) with select groups of evictees; Disclosure of names of representatives of affected businesses and residences as

identified during the survey through a public disclosure meeting; Data analysis, verification and reporting.

1.8.1 Preparatory Activities and Reconnaissance at the Inception Phase The inception study was conducted between 7 and 11 December 2015. The activities included: (a) Preliminary consultations

Preliminary consultation was conducted with the following: KeNHA HQ Team; Lenders representative in Nairobi at the AfDB offices; KeNHA Mombasa Regional Office Staff. A meeting had been proposed with Amnesty International for this phase but it was actually held on 12 January 2016 prior to the field studies for the audit phase.

(b) Site Appreciation Site appreciation was conducted on the 9 December 2015. During the site appreciation, an introductory meeting was held with the committee of community representatives and a faction of the affected persons who were present at the time. A meeting was also held with representatives of the following civil society groups at Bangladesh settlement in Mombasa: Haki Yetu; Mombasa Youth Senate; Rapid Response Team.

(c) Reporting An Inception report was compiled and submitted to the Client on the 11 December 2015. By the time the preliminary consultations had commenced, it was not possible to secure a meeting with Amnesty International as their offices were closed for the Christmas break. However, prior to the field survey in 2016, a meeting was held with representatives from the organisation on 12 January 2016.


The meeting served to inform the study team of the background on their report on the eviction incident, as well as to inform the field survey during the audit phase.

1.8.2 Review of Relevant Documents An in-depth literature review was carried out before embarking on the field work to aid in the understanding of the exercise and in the development of comprehensive data collection tools. Some of the documents that were reviewed included: Aide Memoire from the Joint Lenders’ Monitoring Mission of September 2015; KeNHA Incident Report on the Demolitions of Illegal Structures at Kwa Jomvu Area at Km

10+700 to Km 11+450), October 2015; Driven out for Development: Forced evictions in Mombasa, Kenya, Amnesty International,

October 2015; Community List of Evictees as presented to the Study Team by Haki Yetu; Valuation Report submitted to KeNHA by Paul Wambua Valuers Ltd; Integrated Strategic Urban Development Plans for Cluster 1, Mombasa City, Kenya; Mombasa Port Community Charter. Relevant policies, laws, regulations and guidelines were also reviewed to determine the Policy and Legal Framework relevant to the assignment.

1.8.3 Field Survey The field survey was conducted from 11 to 19 January 2016. The survey was conducted through the following activities: (a) Courtesy Calls and Key Informant Interviews

These stakeholders were consulted through either one-on-one or group interviews. Table 1.1 outlines the list of stakeholders identified and the consultation method used to engage them. Table 1.1: List of Stakeholders Consulted

S/N Name Organization Designation Consultation Method

1 Eng. Charles Obuon

KeNHA General Manager D&C

Meeting

2 Rose Oloo KeNHA Head Social services Meeting 3 Daniel Mbuteti KeNHA Surveyor Meeting 4 Catherine Collin EIB Head of Regional

Representation Eastern and Central Africa

Meeting

5 Dr.Klaus Liebig KfW Director KfW Office Meeting 6 Eng.Zerfu

Tessema AfDB Chief Transport

Engineer AfDB Meeting

7 Elizabeth Ndinya AfDB Senior Environmental Specialist

Via Conference call

8 Eng. Jared Makori KeNHA Coast Regional Manager

Interview

9 Benjamin Njoroge Ministry of Interior Deputy County Commissioner Changamwe

Interview

10 John Paul Obonyo Haki Yetu Programme Officer Meeting


S/N Name Organization Designation Consultation Method

11 Andrew Mativo Rapid Response Team

Convenor Meeting

12 Jared Otieno Mombasa Youth Senate

Member Meeting

13 Eleni Kyrou EIB Senior Social Development Specialist

Conference calls

14 Britta Lammers KfW Environmental and Social Safeguards Specialist

Meeting

15 Justus Nyang'aya Amnesty International Country Director Meeting 16 Nancy Barasa Amnesty International Campaign Organiser Meeting 17 Paul Manyala County Government

of Mombasa City Planner Interview

18 Mariko Kaliamoi National Lands Commission

Chief Valuation Officer

Meeting

1 Fidelis Mburu National Lands Commission

Valuer Meeting

(b) Preparatory Meeting with Committee of Evictee Representatives

The consultant met with the committee of evictees for discussions on the expected work program and activities for the audit survey. The assistance to be provided by the committee during the exercise was discussed and agreed.

(c) Training of Enumerators Nineteen (19 No.) enumerators were recruited from within the larger Kwa Jomvu area and trained prior to pre-testing of the questionnaire. The enumerators were a mix of males and females from the local area.

(d) Community Sensitisation Meeting with Evictees A community sensitisation meeting was held with evictees on 13 January 2016 prior to conducting the eviction audit survey. The primary objectives of the meeting was to provide sufficient notification to the evictees concerning the audit survey that was to be carried out as well as introducing enumerators tasked with administering survey questionnaires. Minutes of meeting are presented in Appendix I of this Report.

(e) Identification and Mapping of Evictees The representative of an affected unit (household or business structure) was informed to stand within the space where their structure was located. A specific number was then issued to the particular structure depending on the order of progression from the left or right hand side of the road. A GPS co-ordinate for the identified space was then taken and linked to the particular number issued to the structure. In some cases, the remnants of the demolished structure were still present but in others, the affected persons were standing on empty spaces or indicating an area where a new structure had been erected in place of the demolished structure. Each representative of the affected residential unit or business premise was then issued with a code developed from the structure identification number as a unique identifier of


the affected unit, but also to differentiate tenants from structure owners claiming losses from the same structure. This code was then issued by the representative during enumeration and taking of photos of the PAPs. A spatial presentation of the demolished structures and corresponding co-ordinates are presented in Appendix II.

(f) Interviews with Evictees Interviews with evictees were conducted on 14 January 2016 from 8:00 am to 5:00pm through administration of a questionnaire. (See Appendix III: Eviction and Corrective Action Plan Questionnaire). The questionnaire was prepared in English, but was administered by a team of enumerators trained to administer it in both English and Swahili as the need may be. Data collected from the interviews included: Determination of the category of the evictee with regard to residential or business

structures and unit entitlements with regard to resident and non-resident structure owners as well as tenants;

Identification of and determination of the number of affected employees with regard to affected business entities;

Identification of and determination of the number of affected household members with regard to affected residential units;

Recreation of the socio-economic status of the evictees before and after evictions;

Documentation of losses and impacts arising from the evictions categorised into: Lost structures, household goods, business stock; and Other non-tangible impacts such as physiological and psychological impacts

as declared by the evictees; Identification of vulnerable groups present during the evictions including children,

persons with disabilities and persons with medical conditions/ chronic illnesses; Documentation of comments from the evictees on plausible corrective actions; Documentation of requests for additional assistance from the evictees. Outcomes of the interviews are presented in Volume II: Database of Evictees, while Volume III presents the raw data from the questionnaires.

(g) Focus Group Discussions Focus Group Discussions (FGDs) were conducted with identified target groups drawn from the affected villages of Jomvu, Narcol, and Ngomani Voi. In this regard, FGDs were held with the following identified groups: Persons with disabilities, Widows and widowers, Business tenants, and Luvoi Youth Group. Notes of FGDs are presented in Appendix I of this Report.

(h) Disclosure Meeting with Evictees A disclosure meeting was held on 18 January 2016. The meeting provided an avenue for disclosure of names of all enumerated persons as well as records of grievances collected during the interviews. Additional grievances arising from the declared names were also documented and are documented in Appendix VI. CAP report proposes grievances resolution mechanism for these cases and much more that will come up during its implementation. Minutes of meeting are presented in Appendix I of this Report.


1.8.4 Data Analysis and Reporting

The analysis of quantitative data collected during the audit survey was done using IBM SPSS Version 22. Data was presented in form of tables and descriptions of the reporting made. Data collected from the household and business survey was triangulated with information from site surveys, observations by the sociologist, focus group discussions and key informant interviews. Telephone interviews were also carried to verify some information that appeared not to make sense from the findings. This helped in updating the findings on objectivity issues which were raised after submission of the draft report.


2 POLICY AND LEGAL FRAMEWORK

2.1 Policy Framework

2.1.1 The National Land Policy

The Sessional Paper No.3 of 2009 on National Land Policy assures security of tenure to land. In particular, the Policy recommends several measures to safeguard the rights of both the informal settlers and the land owners. These include: Taking an inventory of genuine squatters and people who live in informal settlements; Put in place appropriate mechanisms for the removal of squatters from unsuitable land

and their resettlement; Ensure that land subject to informal settlement is developed in an ordered and

sustainable manner; Facilitate the regularization of squatter settlements found on public and community land

for purposes of upgrading or development; Develop, in consultation with affected communities, a slum upgrading and resettlement

programme under specified flexible tenure systems; Put in place measures to prevent further slum development on private land and open

spaces; Regulate sale and/or transfer of land allocated to squatters and informal settlers; and Put in place an appropriate legal framework for eviction based on internationally

acceptable guidelines. Relevance This policy outlines the government’s intentions to providing some level of security of tenure for existing informal settlements in the Country. There is need to provide legal instruments for implementation of the policy objectives.

2.1.2 Mombasa Port Community Charter The Mombasa Port Community Charter recognises roads as the main mode of transport for cargo inland from the Port, accounting for up to 96% of all transfers. It further states that congestion within the Mombasa County road system creates a great challenge to efficient evacuation of cargo. As such, the parent ministry for KeNHA had identified key interventions to be put in place to address the immediate challenges which were categorized into short and long term measures. One of the short term measures as outlined in Section 5.1.4 Item (a) states that by December 31 2014, KeNHA shall “Undertake clearance of temporary structures and permanent encroachments on key roads, and reclamation of all land belonging to road corridors”. Relevance The charter required KeNHA to clear the reserves of the roads in Mombasa County that are under their jurisdiction.

2.1.3 Eviction and Resettlement Guidelines, 2009 These Guidelines have been formulated to promote fair and justifiable management of evictions and resettlement procedure in Kenya. Under Section 1.3, Paragraph 8 states that “Evictions should only be carried out when appropriate procedural protections are in place”. These protections are identified by the UN Committee on Economic, Social and Cultural Rights, in paragraph 15 of General Comment No.7.


Section 4.9 of the guidelines provides modalities for eviction under exceptional circumstances. In such a case, the guidelines recommend the following: Consideration of Alternatives to Eviction The Government shall fully explore all possible alternatives to eviction. In this regard, all affected persons, including women, children, people with disability, people living with HIV and AIDS the elderly, and illiterate persons shall have the right to all relevant information and the right to full participation and consultation throughout the entire process and to propose any alternatives. Reference to Mediation Prior to Eviction The Government shall ensure that, in the event that an agreement cannot be reached on the proposed alternative by the affected persons, groups and communities and the entity proposing the forced eviction in question, the dispute shall, in the first instance, be referred to Mediation Committee consisting of representatives from the affected group, officials from the Ministry of Lands, representatives from the party intending to carry the eviction and a representative from the Kenya National Commission on Human Rights. The Eviction Process The Government shall ensure that appropriate procedural protection and due process is followed during all evictions. These include: Presence of Local government officials or their representatives during eviction or

demolitions; Proper identification of those taking part in the eviction or demolition; Presentation of formal authorization for the action; Transparency, openness and compliance with international Human Rights Principles; Eviction must not take place in bad weather, at night, during festivals or religious

holidays, prior to election, during or just prior to school examinations; Eviction should be carried out in a manner that respects the dignity, right to life and

security of those affected; Special measures must be taken to ensure that women are not subject to gender- based

violence, any other forms of discrimination in the course of evictions, and that the human rights of children are fully protected;

Special measures must be taken to ensure no arbitrary deprivation of property or possessions take place as a result of eviction. Property and possession left behind involuntarily should be protected against destruction, arbitrary, and illegal appropriation, occupation or use;

Legal use of force must respect the principles of necessity and proportionality, and any national or local code of conduct consistent with international law enforcement and Human Rights Standards;

The affected persons shall be given the first priority to demolish and salvage their property. Where they fail to comply, demolition will take place taking due consideration to people with disabilities, elderly, women and children and the sick

Provision of legal remedies; and Provision, where possible, of legal aid to persons who are in need of it to seek redress

from the courts Compensation after Eviction The Government shall ensure that all persons subjected to any eviction not in full accordance with the present Guidelines, should have a right to compensation for any losses of land, personal, real or other property or goods, including rights or interests in property not recognized in national legislation, incurred in connection with a forced eviction. Compensation should include land and access to common property resources and should not be restricted to cash payments.


Relevance The guidelines provide procedures for evictions in the event that no other option is available in line with the requirements of the UN Guidelines on eviction. However, there is need to provide a legal instrument that would provide for the implementation of these guidelines, especially with regard to: Protection of human rights during eviction where no other option is available; Planning for resettlement and livelihood restoration in a participatory manner for targeted

evictees; Enforcement of provision for legal aid and mediation processes for evictees, and

especially for the vulnerable who may not have the finances and resources to access the courts;

Facilitation of all government agencies to have tools and resources to comply with the UN guidelines whenever they are required to free government land from encroachment.

2.2 Legal Framework

2.2.1 The Constitution 2010

The Constitution of Kenya 2010 has a comprehensive chapter on the Bill of Rights that has significant implications for the right to adequate housing and other economic, social and cultural rights. In particular, the following articles are key to the legislative, policy and programmatic reforms on evictions. Chapter 4 of the Constitution; Bill of Rights, highlight fundamental rights and freedoms to every Kenyan citizen. Article 2 on the Supremacy of the Constitution, among others provides that any treaty or convention ratified by Kenya is considered as part of the Constitution. Relevant treaties and conventions that have been ratified are as presented below: (a) International Covenant on Economic, Social and Cultural Rights

According to UNHRC, Kenya ratified the International Covenant on Economic, Social and Cultural Rights (The Covenant) in 1976. Article 11 of the Covenant requires that States Parties “recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.”

(b) Convention of the Rights of the Child The convention defines a child as every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier. Kenya ratified the Convention on the Rights of the Child on 30 July 1990. According to Article 27 States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development. It outlines that the parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child's development. However, sub-section (3) of the Convention states that States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist


parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.

(c) Convention of the Rights of Persons with Disability Kenya ratified the Convention on the Rights of Persons with Disability in 2008. Article 28 outlines that States Parties recognize the right of persons with disabilities to: An adequate standard of living for themselves and their families, including

adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability;

Ensure access by persons with disabilities, in particular women and girls with disabilities and older persons with disabilities, to social protection programmes and poverty reduction programmes;

Ensure access by persons with disabilities and their families living in situations of poverty to assistance from the State with disability related expenses, including adequate training, counselling, financial assistance and respite care.

Relevance There is a need to integrate these rights into operational actions for implementation by Government Agencies within the legal instruments allowing for eviction under exceptional circumstances.

2.2.2 The Land Act 2012 This is an Act of Parliament intended to give effect to Article 68 of the Constitution, to revise, consolidate and rationalize land laws; to provide for the sustainable administration and management of land and land based resources, and for connected purposes.

(a) Principles and Values to Guide Land Management and Administration

Parts 1 and 2 of section 4 of the Act outline the main guiding principles in land management and administration, binding to all land actors including state officers. These principles are to be applied when enacting, applying or interpreting any provisions of this Act; and when making or implementing public policy decisions. In discharging their functions and exercising of their powers under this Act, the Commission and any State officer or Public officer shall be guided by the following values and principles: Equitable access to land; Security of land rights; Sustainable and productive management of land resources; Transparent and cost effective administration of land; Conservation and protection of ecologically sensitive areas; Elimination of gender discrimination in law, customs and practices related to land

and property in land; Encouragement of communities to settle land disputes through recognized local

community initiatives; Participation, accountability and democratic decision making within communities,

the public and the Government; Technical and financial sustainability; Affording equal opportunities to members of all ethnic groups; Non-discrimination and protection of the marginalized; Democracy, inclusiveness and participation of the people and Alternative dispute resolution mechanisms in land dispute handling and

management.


(b) Establishment of Settlement Scheme

Section 134 (1) to (3) of the Lands Act states that the commission shall, on behalf of the national and county governments, implement settlement programmes to provide access to land for shelter and livelihood. The settlement programmes shall include but not limited to provision of access to land to squatters, persons displaced by natural causes, development projects, conservation, internal conflicts or other such causes that may lead to movement and displacement. The Act further states that the commission shall assist the national and county governments in the administration of settlement programmes.

Relevance The Lands Act provides authority to the commission in implementing suitable settlement programmes for squatters, and persons displaced by development projects. The affected persons are squatters who have been displaced by a development project.

2.2.3 The National Land Commission Act 2012

This is an Act of Parliament to make further provision as to the functions and powers of the National Land Commission, qualifications, and procedures for appointments to the commission; to give effect to the objects and principles of devolved government in land management and administration, and for connected purposes. The mandate of the Commission, as provided for in the Act, Pursuant to Article 67(2) of the Constitution, shall be:

To manage public land on behalf of the national and county governments; To initiate investigations, on its own initiative or on a complaint, into present or historical

land injustices, and recommend appropriate redress; To encourage the application of traditional dispute resolution mechanisms in land

conflicts; To ensure that public land and land under the management of designated state agencies

are sustainably managed for their intended purpose and for future generations; Develop and maintain an effective land information management system at national and

county levels; Develop and encourage alternative dispute resolution mechanisms in land dispute

handling and management. Relevance The National Land Commission Act will guide the process in formulation of appropriate grievance solving mechanism to address any emergent grievances. It will also help to initiate investigations, on its own initiative or on a complaint that may arise from the audit study or during implementation of the Corrective Action Plan.

2.2.4 The Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act, 2012 The Act defines Internally Displaced Person as, “any person or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, large scale development projects, situations of generalized violence, violations of human rights or natural or human made disasters, and who have not crossed an internationally recognized State border.” In this regard, the Act stipulates the responsibility of the Government and any other organization in observing IDP rights and freedoms as set out in the Bill of Rights of the Constitution; when responding to a situation of internal displacement.


Section 6(3) of the Act state that, “Displacement and relocation due to development projects shall only be lawful if justified by compelling and overriding public interests.” Section 11 (1) to (5) of the Act further confers administrative responsibility of implementation to the national Governments in liaison with relevant County governments. In particular, the Act details the following primary duty and responsibility of the national Government; Preventing and protecting from internal displacement, preparing for it and mitigating its

consequences. Protecting and assisting internally displaced persons throughout the Republic. Creating conditions conducive to and providing durable and sustainable solutions for

internally displaced persons. Designate, where necessary, official areas for the settlement of internally displaced

persons in the Republic. Facilitate the administration of settlement areas for internally displaced persons. Ensure adequate provisions of basic social and health services in areas inhabited by

internally displaced persons. Ensure where necessary, the maintenance of public order, security and health in areas

inhabited by internally displaced persons. Safeguard and maintain the civilian and humanitarian character of settlements. Ensure adequate provision of social economic rights specified in Article 43 of the

Constitution.

Section 21 (1) to (2) of the Act provides for exceptional circumstances under which displacement and relocation may occur due to development based projects. These include; When it is authorized and carried out in accordance with the applicable law. Justified by compelling and overriding public interests in the particular case. Conducted when no feasible alternatives exist. In situations whereby displacement and relocation arising from development projects cannot be avoided, the Act stipulates that the Government has an obligation to minimize it, mitigate its consequences, provide assistance and protection to affected persons. Relevance The Act provides a guide on the administrative duties of both the national and county Governments in relation to the assistance to be accorded to persons displaced as a result of development based projects.

2.2.5 The Kenya Roads Act 2007

KeNHA having been established under Part II (A) of Kenya Roads Act, 2007; its mandate includes management, development, rehabilitation and maintenance of national roads. As part of her functions, the Authority designs new and existing roads as well as protection of her road reserves as a major role of the Road Asset Protection Unit. The Kenya Roads Act of 2007 Section 49(1) stipulates that “except as provided in sub section (2), no person or body may do any of the following things without the responsible Authority’s written permission or contrary to such permission : Erect, construct or lay, or establish any structures or other thing, on or over or below the

surface of a road reserve or land in a building restricted area; Make any structural alteration or addition to a structure or that other thing situated on or

over, or below the surface of a road or road reserve or land in a building restriction area; or ;

Give permission for erecting, constructing, laying or establishing, any structure or that other thing on or over, or below the surface of, a road or road reserve or land in building restriction area, or for any structural alteration or addition to any structure or other thing


so situated. Where a person, without the permission required by subsection (1) above or contrary to any permission given there under, erects, constructs, lays or established a structure or other thing, or makes a structural alteration or addition to a structure or other thing, an Authority may by notice in writing direct that person to remove the unauthorised structure, other things, alteration or addition within a reasonable period which shall be stated in the notice but which may not be shorter that thirty days calculated from the date of the notice”. If the person to whom a notice has been issued in terms of subsection (4) fails to remove the structure, other thing, alteration or addition mentioned in the notice, within the period stated therein, such item may be removed by the Authority itself which may recover the cost of the removal from that person. Relevance The Act authorizes KeNHA to protect road reserves and provides the instruments to clear encroachment from the same. There is need to provide procedures or regulations that would guide the authority on the actions to take to protect human rights as enshrined in the Constitution even as they undertake their mandate.

2.2.6 Traffic Act Cap 403 Traffic Act Cap 403 Part X Section 91 on encroachment on and damage to roads also indicates that (1)“Every person who, without the written permission of the highway Authority Encroaches on a road or on any land reserved therefore at the side or side thereof by

making or erecting any building, fence, ditch, advertisement sign or other obstacle, or by digging thereon or by planting or sowing any tree, shrub or seeds thereon; or

Deposits or causes to be deposited in any manner whatever on a road any material or matter, other than road-making materials deposited for the purpose of making up or repairing the road; or

Digs up, removes or alters in any way the soil or surface of a road , or of any land reserved therefore at the side or sides thereof, or if done for the purpose of moving a vehicle without immediately thereafter making good the damage; or

Wilfully fills up, alters or obstructs any ditch or drain, whether on a road or contiguous thereto, made by under the control of the highway authority, to carry water off the road or to keep it from flowing on to the road; or

Allows any sludge or any filthy or noisome matter to flow from any building or land in his occupation onto a road or into any ditch or drain made by the highway authority; or

Causes or allows any timber, sledge, plough or other heavy material, vehicle or implement not wholly raised above the ground on wheels to be dragged on a road; or

Pitches any tent, booth or stall on a road; or Makes any fire on any road, shall be guilty of an offence.

Section 94 of the Act states that “Any person who contravenes or fails to comply with any of the provisions of this Part shall be guilty of an offence and liable to a fine not exceeding five thousand shillings”. Relevance It shall be lawful for the highway authority in this case KeNHA to remove anything whatsoever which has been placed or erected on a road or land reserved therefore in contravention of this section.


There is need to provide procedures or regulations that would guide the authority on the actions to take to protect human rights as enshrined in the Constitution even as they undertake their mandate.

2.3 EIB and AfDB Policies

2.3.1 EIB Environmental and Social Standards

The overall objective of this Standards are to outline the promoter’s responsibilities in the process of assessing, managing and monitoring environmental and social impacts and risks associated with the operations. Item 6 on Involuntary Resettlement objective I and II state that objectives of the Standard are to: Avoid or, at least minimize, project-induced resettlement whenever feasible by exploring

alternative project designs; Avoid and/or prevent forced evictions and provide effective remedy to minimize their

negative impacts should prevention fail. Under the same item, section 54 on Forced Evictions require that any forced evictions shall be undertaken in full respect for human rights. In rare cases where the promoter is compelled to proceed with compulsory possession, the rationale justifying this action needs to be provided to the EIB in advance, in order to avoid breaching human rights, and in line with the UN Basic Principles for Development-based Evictions and Displacement and other relevant standards. As such, EIB requires that any such evictions: Are authorized by law; Are carried out in accordance with international human rights standards, including with

the procedural protections against forced evictions outlined in General Comment 7 of the UN Committee on Economic, Social and Cultural Rights;

Are undertaken solely for the purpose of promoting the general welfare; Are reasonable and proportionate with regard to promoting the general welfare; and, Ensure full, fair and timely compensation, rehabilitation and non-regression of rights

including the right to an adequate standard of living.” Relevance Evictions are recognised but only under exceptional circumstances and in a manner provided by the standard.

2.3.2 AfDB Integrated Safeguard System The environmental and social safeguards of the African Development Bank are a cornerstone of the Bank’s support for inclusive economic growth and environmental sustainability in Africa. To better articulate its safeguard policies while improving their clarity, coherence and consistency, the Bank has developed an Integrated Safeguards System (ISS). The ISS builds on the two previous safeguard policies: Involuntary Resettlement (2003) and Environment (2004) and on three cross-cutting policies and strategies: Gender (2001), the Climate Risk Management and Adaptation Strategy (2009) and the Civil Society Engagement Framework (2012). It also builds on the Bank’s sector policies: Health (1996), Integrated Water Resources Management (2000), Agriculture and Rural Development (2000, 2010), and Poverty Reduction (2004). It brings these policies and strategies into a consolidated framework that is intended to enhance the effectiveness and relevance of the Bank’s work.


The ISS is designed to promote the sustainability of project outcomes by protecting the environment and people from the potentially adverse impacts of projects. The ISS consists of four interrelated components. One of the components is Operational Safeguards (OSs). Operational Safeguard 2 on Involuntary Resettlement: Land Acquisition, Population Displacement and Compensation, clearly states that “It seeks to ensure that when people must be displaced they are treated fairly, equitably, and in a socially and culturally sensitive manner; that they receive compensation and resettlement assistance so that their standards of living, income-earning capacity, production levels and overall means of livelihood are improved, and that they share in the benefits of the project that involves their resettlement.” Article 71 states that “This OS(OS 2) should also be taken into account when a project requires the temporary relocation of people. In that case, the resettlement activities should be subject to consideration and criteria that are consistent with this OS, while taking into account the temporary nature of the displacement. The objectives would be to minimize disruption to the people affected, avoid irreversible negative impacts, provide satisfactory temporary services and where appropriate compensate for transitional hardships. Article 78 states that open, inclusive and effective consultation with local communities shall be guided by and include the following elements which stem out of United Nations Basic Principles on Development-Based Evictions and Displacement (2007): Appropriate notice to all potentially affected persons that eviction is being considered and

that there will be public hearings on the proposed plans and alternatives; Effective dissemination by the authorities of relevant information in advance, including

lands records and proposed comprehensive resettlement plans specifically addressing efforts to protect vulnerable groups;

A reasonable time period for public review of, comments on, and/or objection to any options of the proposed plan;

Opportunities and efforts to facilitate the provision of legal, technical and other advice to affected persons about their rights and options; and,

Holding of public hearings that provide affected persons and/or their legally designated representatives with the opportunities to challenge the eviction design and process, and/or to present and discuss alternative proposals and articulate their demands and development priorities.’

Article 83 states that “ Broad Community Support” (BCS) is considered by the Bank as a key principle and an achievement which should demonstrate that borrowers and clients have been able to achieve openness, transparency, and inclusiveness in decision making about the project, and that genuine efforts to maximize benefits to communities and reduce any harmful impacts have been made. The Bank therefore requires that borrowers and clients fulfil the following: Ensure that BCS is obtained for projects that may significantly adversely impact local

communities by accurately identifying and characterizing risks; Appropriately inform local communities that a BCS requirement is embedded in the

Bank’s policy and procedures and ensure that they can access any guidance available on how BCS should be implemented; and,

Provide and insert into the project appraisal document an explicitly written statement embodying the agreements reached from the negotiations with affected people as a guarantee that consultations were conducted in a meaningful way.’

Relevance The above articles provide guidance on procedures for development based evictions and displacement.


2.4 UN Basic Principles and Guidelines on Development Based Evictions and

Displacement

The United Nations Basic Principles and Guidelines on Development-Based Evictions and Displacement (hereafter UN Guidelines), details pertinent provisions that aims to protect human rights in the event of evictions. In particular; paragraphs 52-58; of the UN Guidelines outlines the following conditions after eviction for governments and any other authorities responsible: Immediately provide just compensation and sufficient alternative accommodation or

restitution; Immediately provide to all evicted persons or groups; essential food, portable water and

sanitation; basic shelter and housing; appropriate clothing; essential medical services; livelihood sources; fodder for livestock and access to common property resources; and education for children and childcare facilities;

Ensure equal participation of women in all planning processes and in the distribution of basic services and supplies;

Provide immediate medical care and psychological assistance to all evicted persons and pay special attention to the needs of women and children;

Ensure that the human rights of women, children, indigenous people and other vulnerable groups are equally protected, including their right to property ownership and access to resources;

Guarantee the right of all affected persons to full and prior informed consent regarding relocation;

Provide sufficient information to all affected persons relating to the concerned resettlement. Particular attention must be paid to ensuring that indigenous peoples, minorities, the landless, women and children are represented and included in this process

Ensure that resettlement is carried out with the full participation of affected persons, groups and communities. States should in particular take into account all alternative plans proposed by the affected persons, groups and communities;

Ensure that those affected by an eviction do not suffer detriment to their human rights. The UN Guidelines; paragraphs 59-68; equally provide provisions on possible remedial measures following an eviction process. These provisions are presented below. (a) Compensation

The state or any other authorities responsible are to provide or ensure fair and just compensation for any losses of personal, real or other property or goods, including rights or interests in property. Compensation should be provided for any economically assessable damage as appropriate and proportional to the gravity of the violation and the circumstances of each case, such as: Loss of life or limb; Physical or mental harm; Lost opportunities, including employment, education and social benefits; Material damages and loss of earning, including loss of earning potential; Moral damage; Costs required for legal or expert assistance, medicine and medical services, and

psychological and social services. All those evicted, irrespective of whether they hold title to their property, are entitled to compensation for the loss, salvage and transport of their properties affected, including the original dwelling and land lost or damaged in the process.


It also requires that women and men must be co-beneficiaries of all compensation packages, while single women and widows should be entitled to their own compensation.

(b) Restitution and Return The guidelines require that competent authorities establish conditions and provide the means, including financial, for voluntary return in safety and security, and with dignity, to homes or places of habitual residence. Competent authorities have the duty and responsibility to assist returning persons, groups or communities to recover, to the maximum extent possible, the property and possessions that they left behind or were dispossessed of upon their eviction. When return to one’s place of residence and recovery of property and possessions is not possible, competent authorities must provide victims of forced evictions, or assist them in obtaining, appropriate compensation or other forms of just reparation.

(c) Resettlement and rehabilitation Resettlement and rehabilitation of evictees may be necessitated by certain special circumstances such as promotion of general welfare, health and safety. In this regard, such resettlement must occur in a just and equitable manner.

Relevance These guidelines are incorporated into the EIB and AfDB safeguards and will therefore provided direction for proposals under the Corrective Action Plan to be prepared under this assignment.


2.5 Gap Analysis of Kenyan Legislation to AfDB and EIB Policies

Category of PAPs/ Type of Lost Assets

Kenyan Law EIB Standard 6 on IR AfDB Policy Guidelines Existing Gaps and/or Recommendation

Land Owners (loss of land)

The Land Act 2012 provides that people eligible for compensation are those holding land tenure rights

Fair and just compensation which could be in form of cash compensation or Land for Land

Where land has been taken, affected persons should be compensated with land of commensurate quality, size and value, or better.

The policy recommends payment for compensation be land-for-land or at replacement cost

Land in question belongs to KeNHA, therefore none of the evictees one will be compensated for land.

Land Squatters (i.e. those who have no recognizable legal right or claim to the land that they are occupying)

The constitution recognizes occupants of land even if they do not have titles’ and payment made in good faith to those occupants of land.

However, this does not include those who illegally acquired land

People who occupy land but have no formal or informal claim to it, such as squatters, shall be provided resettlement assistance in lieu of compensation for the land they occupy, and other assistance, as necessary, to achieve the objectives of the resettlement standards.

Entitled to resettlement assistance in lieu of compensation for land to improve their former living standards (compensation for loss of livelihood activities, common property resources, structures and crops, etc.)

National law does not recognize compensation entitlements for squatters. However, both lenders policies recognize that evictees qualify for assistance in lieu of compensation. Recommendation is for lenders policies to set a precedent.

Tenants and informal settlers

Loss of earnings/profit is considered based on availability of evidence.

Tenants are eligible for compensation and resettlement assistance.

Provides for compensation and assistance

Kenyan Law requires that evidence to be produced prior to compensation. However EIB and AfDB recommend that they are compensated for relocation assistance. Recommendation is for Kenyan law to set precedent.




Structure owners (permanent and temporary structures)

The constitution of Kenyan respects the right to private property and in case of compulsory acquisition; ‘just compensation’ must be granted to the owner for the loss of buildings.

Compensation should be provided for any loss of personal, real or other property, goods or assets, including rights or interests in property, for instance, house structures, contents, infrastructure, mortgage or other debt penalties. For movable structures, such as kiosks or stalls, comparable replacement sites should be offered as well as calculating replacement cost for such structures

Provides for compensation and assistance regarding loss of assets (including loss of structures and assets of cultural, spiritual, and other social importance)

Kenyan Law only provides for compensation for building while lenders policies are inclusive of ‘loose’ assets Kenyan law to take precedence on compensation for loss of structures. However on the inclusion for compensation of loose assets, negotiations between KeNHA and other stakeholders is necessary.

Livelihood restoration and development assistance

Not specific on livelihood. The constitution says some pay maybe made ‘in good faith’

Any person negatively affected by the project is eligible for compensation, livelihood restoration and/or other resettlement assistance

Ensures that overall means of livelihood is restored or improved beyond pre-project levels

Kenyan law alludes towards to some recognition of payment made ‘good faith’ in regards to livelihood restoration. Both lenders policies stipulate provision for livelihood restoration. Recommendation is for Livelihood restoration measures to be considered as pertinent to the evictees.

Relocation and compensation procedures after evictions

“The Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act, 2012,” provides duties and

Section 54 on Forced Evictions requires persons affected by evictions to receive full, fair and timely compensation, rehabilitation

Compensation and resettlement assistance that ensures improvement in standards of living, income earning capacity,

Kenyan law currently has no legal legislation in relation to compensation and relocation procedures specifically with regard to




responsibilities of the National Government in assisting IDP’s arising from development based projects.

and non-regression of rights including the right to an adequate standard of living.”

and overall means of livelihood.

Forced evictions. Recommendation is for lenders policies regarding evictions to set precedent based on consultation with KeNHA.

Timing of compensation payments

The Land Act provides for prompt, just compensation before the acquisition of land

To enable affected persons to make productive use of cash compensation; it should be paid in its entirety and in a timely manner.

Any payments due provided to the affected population are promptly rendered in line with agreements reached with the host communities

No evident gap between Kenyan law and lenders policies.

Recommendation entails timely payment of compensation to evictees without delays.

Consultation and disclosure

The Constitution is particular on consultation and disclosure on projects The Land Act outlines procedures for consultation with affected population by the NLC and grievance management procedures

Project affected persons and communities are identified and consulted in resettlement decisions while paying particular attention to the full participation in the consultation process of women, vulnerable and marginalized groups.

Greater public consultation and participation by communities and local stakeholders is necessary for any project

No evident gap between Kenyan law and lenders policies. Recommendation is for adequate consultations including information disclosure is necessary for success of this process

Grievance Redress Mechanism

Land Act 2012 clearly outlines the steps and process for grievance redress that includes alternative dispute resolution, re-negotiation with NLC and is backed by the judicial system through the Environmental and Land Court

Setting up and maintenance of a grievance mechanism that is independent, and that will allow prompt addressing of specific concerns about compensation and relocation from the affected people and host communities and other directly involved entities.

The Bank ensures that clients establish credible and independent local grievance and redress mechanisms to help resolve affected people’s grievances and concerns regarding the environmental and social impacts of the project

No evident gap between Kenyan law and lenders policies. Recommendation entails the formation of an appropriate grievance redress mechanism is required


3 PROFILE OF AFFECTED PERSONS

3.1 Demolished Structures

This audit exercise identified a total of 117 structures that were demolished on the night of 17 May 2015, together with structures demolished by owners after fears that the demolitions would continue on the following day. Out of the 117 structures, (88 No) structures were claimed to have been demolished by third party, while the rest (29 No) were self demolished. The distribution is presented in Table 3.1 below. The GPS co-ordinates showing the location of these structures is presented in Appendix II of this report. Table 3.1: Distribution of Demolished Structures5

Village Demolished by third party

Self demolished Total

Kwa Jomvu Madafuni 68 0 68Narcol 17 1 18Ngamani Voi 3 28 31Total 88 29 117

The structures were categorized by ownership types. These categories are classified as follows: Structure Owners 1. Non-resident structure owners with:

a. Residential tenants; b. Business tenants;

2. Owner-occupied structures: a. With tenants-business and residential; b. Without tenants; c. Composed of groups operating under one structure i.e. 13 Miraa (Khat) Sellers6.

Table 3.2 overleaf shows that non-resident structure owners own a total of 37 structures. One of the structures belongs to Luvoi Youth Group that had rented it out as a source of income for the group. Analysis of Table 3.2 also shows that there are: One hundred and three (103 No.) structures for business purposes; Eight (8 No.) structures purely for residential purposes; Five (5 No.) structures for both business and residential purposes; and One (1 No.) social amenity i.e. a community church Tenants Tenants represented by these structures can be classified as follows: 1. Business Tenants (87 No); 2. Residential Tenants (16 No); 3. Mixed business and residential tenants (1 No). As outlined earlier in the background of the affected area and the legal section of this report, the affected persons had no security of tenure on the road reserve as they are considered as encroachers on the road reserve.

5 Information provided by chairman, Committee of Evictees and corroborated by phone calls made to the Ngamani voi leaders. Confirmation via PAPs themselves proved inappropriate as most indicated that their structures were demolished by third party. 6 Analysis of the data also shows that there are 13 businesses run by Miraa (Khat) sellers who co-own one structure. As such this has been counted as one structure corresponding to 13 evictees.


Table 3.1: Categorization and Distribution of Evictees

Specific Category

General Categories of PAPs

Ownership Type Totalownership type

Structure Owners

Household Tenant

Business Tenant

HH/Business Tenant

Co-owners

Non-Resident Landlord

Business Landlord 32 0 0 0 0 32Household Landlord 4 0 0 0 0 4Household and Business Landlord 1 0 0 0 0 1Sub Total 37 0 0 0 0 37

Owner -Occupied

Business Owner Occupied 687 0 0 0 12 80Household Owner Occupied 4 0 0 0 0 4Business Owner Occupied/Business Landlord 3 0 0 0 0 3Business Owner Occupied/Household Landlord 3 0 0 0 0 3HH Owner Occupied/Business Owner Occupied 1 0 0 0 0 1Church 1 0 0 0 0 1Sub Total 80 0 0 0 12 92

Tenants

Household Tenant 0 16 0 0 0 16Business Tenant 0 0 87 0 0 87Household and Business Tenant 0 0 0 1 0 1Sub Total 0 16 87 1 0 104

Total ownership type 117 16 87 1 12 233

**HH (Household)

7 One structure was mapped but the owner was not identified as it emerged that the tenant was the one who had been claiming ownership. This has been recognized as a grievance for further investigation.


3.2 Evictees in the Housing Category

3.2.1 Affected Population under the Housing Evictees Category

As mentioned earlier, eight (8 no) of the demolished structures were used as housing while five (5 No) had mixed uses which also included residential uses. The actual number of households / residential units accommodated in the structures adds up to 25 housing units. The total number of persons enumerated to have been residing in these units at the time of evictions was Sixty Nine (69 No). On further inquiry, the following key items emerged: One of the tenant businesses used a room to house her employees overnight; Some of the structure owners had residential quarters in the form of bedrooms within a

structure they had rented out to business tenants. This section provides an overview of evictees’ characteristic during evictions.

3.2.2 Household Evictees Characteristics (a) Age Distribution of the Evictees

From the housing units, a total of 69 household members were identified to have been staying in the project footprint at the time of evictions. Table 3.3 presents the distribution of affected persons by age: Table 3.3: Household Characteristics

Categories Number Percent Cumulative % Age Group 0-10 years 8 11.6% 11.6%10-19 years 11 15.9% 27.5%20-29 years 18 26.1% 53.6%30-39 years 15 21.7% 75.4%30-49 years 5 7.2% 82.6%50-59 years 3 4.3% 87.0%60 - 69 years 0 0.0% 87.0%70+ years 1 1.4% 88.4%Not Stated 8 11.6% 100.0%Total 69 100.0% From the data, the following key items arise: Sixteen (16 No) of the evicted persons were children below the age of eighteen

years; Most (47.8%) of those living in the area are between the ages of 20-39 years; Over half (53.6%) of evictees are below 30 years of age; Only One (1 No.) evictee can be considered as elderly.

(b) Sex of the Evictees The data shows that majority of the evictees living within the project footprint were males (45 No). Only 24 No females were found to have been living on the demolished section of the road reserve at the night of eviction.


(c) Marital Status and Relationship to the Household Head Table 3.4 below shows that 54% (37 No) were found to be married. There were three (3 No) cases of single parent families consisting of divorcees and widowed persons. There were 11 male headed households and three (3 No) female headed households. It was also established that about 80 per cent of the dependants rely on the head of house for their daily means of support. There was no household that was headed by a child. Table 3.4: Marital Status and Relationship to the Household Head

Categories Number PercentMarital Status

Single 29 42.0%Married 37 53.6%Divorced 2 2.9%Widowed 1 1.5%Total 69 100.0%

Relationships to HeadMale Female Total Percent

Head 11 3 14 20.3%Spouse 1 7 8 11.6%Children 16 0 16 23.2%Relatives 0 6 6 8.7%Others 5 3 8 11.6%Not stated 12 5 17 24.6%Total 69 100.0%

(d) Family Size

Family size within the project footprint varies from a minimum of 1 to a maximum of 9 members per household. Mean household size stands at 2.7 with a mode of 1. This means that the families were generally smaller compared to most family sizes in the region. This can be explained by the type of housing these families were residing in.

3.3 Evictees in the Business Category

3.3.1 Affected Population under the Business Evictees Category

This audit was able to record a total of four hundred and seven (407 No) persons who include business operators, and their employees who were affected directly through the evictions. Majority 62.9% of these persons were males as presented in Figure 3.1 below.

Kwa Jomvu Eviction Audit Report 3 5 Issue 1/March 2016

Figure 3.1: Distribution by Sex for the Business Enterprises

3.3.2 Rent Payable Prior to Evictions The lowest figure for business rent was Kshs 800 with a maximum of Kshs. 5,000. The average rent was Kshs 2,800 with a mode of Kshs. 2,500. The study team had difficulty in verification of amount payable as rents, as tenants provided figures that were not reliable. We therefore propose discussing with KeNHA and NLC on this matter with a view of coming up with viable considerations for compensation.

3.4 Incomes and Expenses Prior to Eviction

3.4.1 Income Sources

Evictees were involved in different types of business in the project foot print prior to their eviction. These businesses included; motor vehicle spare part shops (for both second hand and new), Kiosk, Bars and restaurants, garage, open air shades selling coconuts and seedling, khat (miraa), Mpesa shops etc. Respondents were interviewed on their sources of income prior to evictions. The income sources were categorised as on-site and off-site to determine the actual impact on incomes as a direct result of the demolitions. From the analysis of the data, majority (91%) of the evictees relied on on-site income. However on calculating the income amounts as documented by the evictees, we noted that there were discrepancies in the reported income which suggest that the figures obtained were not reliable in estimating their monthly incomes.

256

145

60

50

100

150

200

250

300

Male Female Not Stated

Distribution by Sex


3.5 Persons with Disability

The study was also able to also identify the following four (4 No.) persons living with disabilities: Photos of these persons can be found in Appendix VII: Photolog

Name Gender Category Nature of Disability Thomas Nyairo Male Structure

ownerUses a crutch as a mobility aid due to leg injury.

Wanzui Nguvu Wanzui Female Tenant Deaf Muchedzua Dena Mukala Female Tenant Partially blind in one eye Isaac Masunda Male Tenant Crippled

Section 8 (1) of ‘The Prevention and Assistance to Internally Displaced Persons and Affected Communities Act, 2012’, stipulates the responsibility of the government to put into place measures for assistance and protection needs of internally displaced persons with particular regard to displaced communities with a special dependency on and attachment to their lands and the protection needs of women, children, persons with disabilities, the elderly and other persons with special needs. In this regard, KeNHA is expected to provide assistance to this category of PAPs.


4 THE EVICTION PROCESS AND ITS IMPACTS

4.1 Responses from the Survey on the Eviction Process

4.1.1 Eviction Notice

Evictees were asked whether they received an eviction notice by Government Agencies before eviction took place. Ninety six (96 No.) owner occupied and tenants as well as 20 structure owners confirmed receiving eviction notice. This shows that they indeed received eviction notice in time. Table 4.1 Number of Evictees Receiving Eviction Notices

Given Eviction Notice Ownership Type

Total Structure Owner

Household Tenant

Business Tenant

HH/Business Tenant

Owner occupied and TenantsYes 42 7 47 0 96 No 47 9 40 1 97 Not stated 2 0 0 0 2 Total 91 16 87 1 195 Non-Resident Structure Owners Yes 20 No 17 Total 37

This notice was delivered either verbally or in writing as shown in Table 4.2 below. Table 4.2: Format of Notice

Format of Notice

Ownership Type

Total Structure Owner

Household

Tenant Business

Tenant HH/Busines

s Tenant Owner occupied and Tenants Oral 16 2 6 0 24 Written and Hand delivered 27 5 42 0 74 Not stated 48 9 39 1 97 Total 91 16 87 1 195 Non-Resident Structure Owners Oral 5 Written and Hand delivered 15 Not stated 17 Total 37

On follow-up consultations with KeNHA, the Authority issued notices more than once to the affected persons at Kwa Jomvu. It is expected that copies of these notices will be availed prior to the conclusion of this assignment.

4.1.2 Assistance received after Evictions None of the respondents reported receiving any form of assistance from KeNHA. However, 3 No structure owners and 3 No tenants pointed that they received some form of assistance from Haki Yetu and Amnesty International. Major kind of assistance received from these organizations was mainly on their human rights issues and the need to compensation for their demolished structures and loss of business.


4.2 Impacts on Housing and Related Services

4.2.1 General Impacts

Some of the houses were partially demolished and some of the evictees claimed that they were still living in those structures. There were therefore claims of exposure to harsh weather where some claimed that they were rained on and only moved after that. Others reported that they moved to other areas to find rental housing. Scrap metals, wood and nails from the demolitions within the area have turned out to be health hazards to the community due to risk of injury. Most of the abandoned demolished structures have been turned to toilets by the surrounding community thus degrading the sanitation standards and hence putting their health status at risk.

4.2.2 Implications of Reduced Incomes on Housing A number of structure owners reported difficulties in getting money from their housing unit. Others were not getting enough income to support their livelihoods.

4.2.3 Reported Cases of Homelessness as a result of the Eviction Another faction of the evictees claimed that they were homeless for two nights until their neighbours took them in. However by the time of the audit survey, none of the evictees reported being homeless.


4.3 Impacts on Occupations and Incomes

Table 4.3 below shows the changes that took place in terms of occupation, before and after evictions. Table 4.3: Occupation Before and After Evictions

Structure TypeOverall Structure

Owner Household Tenant

Business Tenant

HH/Business Tenant

Pre Eviction Occupation Businessman/woman 85 5 87 1 172 Employee 2 8 0 0 15 Unemployed 1 2 0 0 4 Casual Labourer 1 1 0 0 3 Not stated 2 0 0 0 3Total 91 16 87 1 195Percentages Businessman/woman 93.4% 31.3% 100.0% 100.0% 87.3% Employee 2.2% 50.0% 0.0% 0.0% 7.6% Unemployed 1.1% 12.5% 0.0% 0.0% 2.0% Casual Labourer 1.1% 6.3% 0.0% 0.0% 1.5% Not stated 2.2% 0.0% 0.0% 0.0% 1.5% Total 100.0% 100.0% 100.0% 100.0% 100.0%

Post Eviction Occupation Businessman/woman 63 3 51 1 118Employee 1 7 0 0 10Unemployed 17 3 29 0 47Casual Labourer 8 0 5 0 13Other 0 0 1 0 1Not Stated 2 3 1 8Total 91 16 87 1 195Percentages Unemployed 69.2% 18.8% 57.3% 100.0% 59.9%Employee 1.1% 43.8% 0.0% 0.0% 5.1%Businessman/woman 18.7% 18.8% 32.6% 0.0% 23.9%Casual Labourer 8.8% 0.0% 5.6% 0.0% 6.6%Other 0.0% 0.0% 1.1% 0.0% 0.5%Not Stated 2.2% 18.8% 3.4% 0.0% 4.1%Total 100.0% 100.0% 100.0% 100.0% 100.0%

Discussions from the FGDs show that some of the evictees were the main customers for some of the businesses in the area. As such, this customer base has reduced since some of the evictees are yet to return to the area. The consulted evictees claimed that this has resulted in a loss of about 95% of their customers. This has resulted in reduced incomes for the businesses in the area. A trickle effect of the reduction in income is that some businesses were forced to close down after the eviction due to reduced incomes. This implies that due to the loss of customers the businesses were no longer turning profits. Other businesses have been forced to scale down. For example, businesses with five employees have now scaled down to two employees. This implies that some people were laid off as a result of the demolitions. For the businesses that were not re-established, the remaining customer base has moved to areas where demolitions have not been done. The example given was that MPESA customers have now moved to Mariakani.


For rental structures that were not re-established, the structure owners no longer have that income stream. After demolitions there are reports of looting that resulted in loss of stock that was stored in the structures. This has a direct impact on income from the sale of the stock as well as additional capital costs to buy new stock which would ideally have been funded from proceeds from the sale of lost stock. It is evident therefore, that there are cases that have lost their revenue stream and are yet to re-establish it. As outlined earlier in the report on the veracity of data provided on incomes and losses, this report highlights more on the qualitative aspects of the impact on income due to lack of verifiable records on incomes prior to and after eviction. Considering the informal nature of the businesses on the road reserve and the nature of evidence provided by the evictees to the audit study team, there was no evidence provided in the form of income receipts, tax return records and other such records that could be used in verification of declared incomes and losses.

4.4 Status of Re-establishment of Structures

The status of re-establishment of structures for residents and non resident in the eviction area is as presented in Table 4.4. Table 4.4: Status of Re-Establishment of Structures

Action Taken following Eviction Ownership Type

OverallStructure Owner

Household Tenant

Business Tenant

HH/Business Tenant

Owner occupied and Tenants Relocated to another site 13 13 45 0 71 Still living in the same structure in its current state

31 3 20 1 55

Reconstructed my structure 38 0 12 0 50 Not stated 9 0 10 0 20 Total 91 16 87 1 195 Non-Resident Structure Owners Relocated and Reconstructed new structure

3

Relocated and yet to construct new structures

6

Still operating in the evicted area 12 Not relocated and have no place for operation

15

Not stated 1 Total 37

From the analysis, the following are the key findings: Thirty eight (38 No) of the resident structure owners have reconstructed their structures

either on the same site or on another site. However, Thirty one (31 No) reported that they are living in the structure in its current state. Twelve (12 No) business tenants have constructed new structures and are now considered as structure owners;

12 No of the non-resident structure owners are still operating in the project area, 3 No relocated and reconstructed their structures following evictions, while 15 have not relocated and have no place to operate from;

Half (45 No) of the business tenants have relocated to another area. This corroborates the high number of non-resident structure owners who are yet to re-establish the structures. It therefore suggests that the main impact on income losses among the


business structures is loss of rental income for the structure owners as opposed to loss of business income for the business operators;

It is therefore clear that for some of the affected persons, the losses on income (rental and from business operations) are not for the entire duration of time between the evictions to-date, but rather for the interim period it took them to re-establish the business.

4.5 Impacts on Supplementary Financial Resources

4.5.1 Impact on Savings and Existing Capital

There were complaints that after demolitions the evictees used their savings to adapt from the economic impacts of eviction. As such, some claimed to have used up all their savings thus implying that they no longer have a cushion in case of any other emergencies.

4.5.2 Impact on Credit Facilities Some of the evictees claimed that they had loans that they were servicing using income from the demolished businesses. The reduced income has resulted in a reduction in their ability to service these loans.

4.6 Other Losses

Evictees recorded the following losses: Destruction of stock, business and household furniture during eviction and / or from

looting; Costs incurred in transportation of household members, assets, household furniture,

business furniture and stock; Loss of tools used for their operations; A group of cart transporters also claimed that they had left their stock on the road reserve

as usual but found it stolen after the evictions. They however had no structure to store their stock prior to the eviction. This group was not included since they did not own a structure.

4.7 Impacts on Children

The two main reported impacts on children were: Psychological torture for those who were present during the demolitions. A total of sixteen

(16 No) children (aged below 18 years) were enumerated as being present during the night of demolition. Fifteen (15 No) of the children were enumerated as attending school during the night of demolition

Cumulative impact on education was as a result of reduced income in both the affected households and businesses.

As a result of reduced incomes among the evictees, the following happened: Children were forced to miss schools due to lack of school fees. It was noted that May is

the beginning of the second term in the Kenyan school calendar year and parents had to


pay school fees for their children to continue accessing education. The Kenya school year has three terms;

Some parents claimed that they were not able to continue paying schools in private schools and had to move their children from private schools to the more affordable public schools. The perception is that there is lower quality education in public schools, that is why even the lower income households struggle to take their children to private schools;

It was also claimed that performance of children in school has dropped as a result of the evictions.

Upon verification, it was concluded that evictees had alternative sources of income and that they did not solely depend on the said businesses as their main source of income. For the children who claimed that they were unable to attend school, we established that there were other reasons not associated with the evictions. There is also need to consider provision of psychosocial support to children whose performance has been affected by the evictions. An appropriate partner would be the Gender and Social Services provided by the National Government at sub-county level.

4.8 Impacts on Health

4.8.1 Injuries and Sickness during Evictions

During the audit survey it was reported that eight (8 No) persons were injured during the evictions. However, upon further verification and validation, the valid cases of injured persons were established to be four (4 No.). These persons were either present in the structures when the demolitions took place or as a result of injuries from the debris left over after demolition. A descriptive summary of the established valid cases of persons with injuries are provided in Table 4-8 below. Table 4.8: Persons with valid claims on injuries

Name of Affected Person

Name of Household Head

Evictee Serial No.

Nature of Injury

Total Cost incurred in treatment (KES)

Availability of receipts/Status

Zainab Juma Said Juma

R97 Leg injury KES7,600 Yes ( see appendix VIII)

Margaret Wairimu

Paul Maina L16

Panic Attack

Will confirm upon provision of receipts

Confirmed availability but yet to submit

Felistus S. Kivuva

Felistus S. Kivuva

R68/T1 Knee injury

KES3,700 Not available

Joseph Muthine Joseph Muthine

R68 Leg injury KES1,250 Not available

Fourteen (14 No.) respondents reported that they had sick persons in the houses during evictions. The nature of illnesses included: Diabetes; High Blood Pressure; Persons Living with HIV/AIDS.

4.8.2 Impacts on Nutrition Due to reduced incomes there were reports of inability to afford three meals in a day. This was especially noted in the FGDs for widows and persons with disability; to the point that the widows were considering assistance from children’s homes until the situation is abated.


It is therefore clear that interventions toward food support should be considered as immediate assistance to the two groups. A respondent who claimed to have high blood pressure stated that the evictions aggravated the situation due to constant stress after loss of income. For such cases, there is need to consider psycho-social support to the evictees. Possible partners for this include: Gender and Social Services provided by the national government at sub-county level; NGOs in the general project area dealing with vulnerable groups especially vulnerable

children. In the short-term considerations should be made for sensitisation of evictees on available low cost health services in collaboration with the Ministry of Health Services within the project area.

4.8.3 Trauma and Uncertainty

One (1 No) respondent reported that they experienced trauma during the eviction. From discussions in the initial meeting at Inception phase, there were also reports of fear and uncertainty.

4.9 Looting Incidences

According to the respondents, the evictions resulted in increased incidences of looting that occurred immediately after the evictions.

4.10 Specific Challenges Faced by Widows

From the consultations, some cultural perceptions toward widows appear to aggravate the situation. This was especially evident in consultation with widows. Some of the key issues identified during the audit are as follows: The widows felt that a man would not take in (marry) a woman who already has children.

This implies that the widows consider having a husband to provide some form of financial security that would have cushioned them after the eviction. However, since they are widows with children, this option is not open to them;

It was felt that society did not trust that widows had access to money to pay rent. As such, they were finding it difficult to get housing after their houses were demolished as landlords felt that they would not afford to pay rent. The widows felt that there was need for society to be sensitised to avoid discrimination against widows;

From consultations with the widows, they have a challenge purchasing school uniform and buying food for the children. As single parents it is expected that they are the sole bread winner in the family. Whereas, it is possible for households with spouses to get additional income from the spouse if they were also not evicted from the site;

Women also felt that they could not access credit facilities for fear of them not being able to pay back. The perception from the widows is that the officers focus more on married women who are considered more creditworthy.

However, on a follow-up consultation (through telephone) with representatives from Equity Bank and Kenya Women Finance Trust, the representatives consulted stated that they do not discriminate when issuing loans. They clarified that as long as one meets the minimum standards to qualify for a loan, he or she will be issued with the loan. In this case they all proposed that the widows could form a group and


request for the loan as a group. The loan that would be granted will depend on their qualification with the minimum requirements including their registration with Social Services Department. The key entry point for intervention for consideration would therefore be on empowering the widows and any other vulnerable women and persons to mobilise themselves into groups that are recognised by law, so as to enable them access pro-poor / low cost credit facilities.

4.11 Impacts on Social Structure

The evictees felt that as a result of the evictions and some of the evictees moving away, there has been a reduction in social cohesion in form of the support they used to offer each other. However, this study recognises that the community was later mobilised by KeNHA to form a committee of community representatives from each village. The study also recognises that there has been interest in the welfare of the community by the CBOs on the ground especially Haki Yetu. The latter was also recognised during the FGDS with specific groups as an organization that has been assisting in grievance resolution among the evictees. Further support to the existing mobilised community representatives and improvements where necessary, is expected to further empower this community to adjust to the changes arising from the eviction and any support offered and / or adjustments required under the CAP.

4.12 Comparison of Valuation Report and the Audit Survey

The audit identified a total of 117 structures but the existing valuation report submitted to KeNHA only covers 94 structures. Analysis of the two databases also shows that 83 structure owners were consistent in terms of status and presence on site. A detailed presentation of each of these entries is outlined in Appendix V of this report.


5 PUBLIC CONSULTATIONS AND PROJECT DISCLOSURE

5.1 Background

Consultation and participation is a process through which stakeholders influence and share control over development initiatives, and the decisions and resources that affect them. It is a two way process where the executing agencies, policy makers, beneficiaries and affected persons discuss and share their concerns in a project process. The international co-financiers’ safeguard policies give high priority on public consultation and participation to enhance the community voice and assure incorporation of community’s views in design and implementation of a socially and environmentally compliant project. Standard 10 of the EIB Environmental and Social Standards on stakeholder engagement outlines the following objectives: Establish and maintain a constructive dialogue between the promoter, the affected

communities and other interested parties throughout the project life cycle; Ensure that all stakeholders are properly identified and engaged; Engage stakeholders in the disclosure process, engagement and consultations in an

appropriate and effective manner throughout the project lifecycle, in line with the principles of public participation, non-discrimination and transparency;

Ensure that the relevant stakeholders, including commonly marginalised groups on account of gender, poverty, educational profile and other elements of social vulnerability, are given equal opportunity and possibility to voice their opinions and concerns, and that these are accounted for in the project decision-making; and,

In line with the above objectives, it was therefore necessary to engage the evictees prior to carrying out the evictions Audit and the development of a Corrective Action Plan. The objectives of the consultations during this exercise were therefore to: Sensitisation of Evictees to ensure they understand the objectives of the audit process

and are able to participate fully and meaningfully; Allow for in-depth discussions to collect additional qualitative information on the impacts

of the eviction process; Allow for discussion around plausible corrective actions that can be integrated into the

CAP; Identify where possible, partners for implementation of the CAP; Promote transparency during the study so as to minimise grievances and conflicts during

future stages; Provide a platform to hold additional discussions with vulnerable groups identified during

the survey and further inform the study on details of outstanding urgent cases; Hold discussions around practical alternative income restoration arrangements in line with

EIB and AfDB principles and standards; Minimise the risk of poor co-ordination during the audit, through establishment of

communication channels and redress mechanisms; Facilitate participation to increase public confidence in the audit exercise.


5.2 Analysis of objectives from the stakeholder participation process

The objectives of the consultations were achieved as follows:

5.2.1 To determine the impacts that emanated from the evictions Discussions were held around the impacts of evictions as felt by the evictees. This information informed the audit findings as presented in this report.

5.2.2 To obtain possible corrective action that can be integrated in the CAP Discussions were held with stakeholders including the evictees to identify possibilities for compensation and additional assistance to be assessed during the preparation of the CAP. The emerging possibilities have been presented in the CAP report.

5.2.3 Promote transparency to minimise grievances The following activities were conducted during the exercise to ensure transparency of the process: Enumerators were chosen from the community with the help of the local chief and the

committee elders; The enumerators were interviewed in the presence of the committee members and an

officer from Haki Yetu; A community sensitisation meeting was held to inform the evictees of the date, time and

the procedure of the enumeration exercise; During the enumeration exercise, the enumerators were accompanied by the committee

members, village elders and the Haki Yetu Officer. At the end of the exercise, follow up calls were made to the evictees in cases where information collected needed clarification. This was done in the presence of the committee members, village elders and the Haki Yetu officer;

A disclosure meeting was held with the community to allow the evictees to: Confirm the details as given to the enumerators during the survey; Anyone with a query or dispute was given a chance to raise it for discussion and

updating of records as applicable; Persons who were not present during the field survey were also allowed to

present their grievances via email to the study team. Records of these grievances are presented in Appendix VI of this Report;

Focus Group Discussions were held with the identified vulnerable groups and the participants were chosen openly and willingly during the disclosure meeting;

During the enumerator training, community sensitisation meeting, disclosure meeting and Focus Group Discussions, minutes were recorded and shared with the committee via email as a record of discussions;

Follow up calls are still being made to the evictees to ensure that the information collected was correct.

5.2.4 Minimise risk of poor coordination through establishment of communication channels and

redress mechanisms In order to meet the above objective, GIBB implemented the following strategies during the exercise: Contacted the local security organ namely the Ministry of Interior under the Office of the

Deputy County Commissioner, Chanhamwe; Prior to any meetings notices were sent to the community representatives as agreed

during the Inception Phase of the assignment;


Community members were given the chance to publicly identify witnesses and representatives to accompany the study team during the exercise. The community selected the committee of representatives and Haki Yetu representatives as an independent observer;

Prior to field activities, the study team communicated with the KeNHA headquarters team as well as conducting courtesy calls with the Regional Office at Mombasa.

5.3 Summary of Consultation Outcomes

5.3.1 Discussion on loss of Business Stock

Some of the evictees claimed very high losses in terms of lost stock. Some even presented list of stock that was lost during the eviction exercise. Loss of stock ranged from a minimum of Kshs.20, 000.00 to a maximum of Kshs 3,674,000.00 from specific individuals.

5.3.2 Discussion on Loss of ‘Loose’ Assets A total of 25 housing units were established during the Audit survey. Evictees mentioned that they lost household assets through looting during eviction. Some of the items mentioned included, television sets, sofa sets, utensils among other loose items

5.3.3 Discussion on Possible Income Restoration options with the evictees The possible income restoration options as presented by the evictees were as follows: Compensation of losses as soon as possible for them to be able to re-establish their lives; To be assigned an alternative site with security of tenure/no chances of future evictions,

for them to re-establish their businesses; Apart from being assigned an alternative site, to be given capital to restock/replace lost

goods; Where possible they would wish their structures to be reconstructed; To be given first priority when it comes to employment opportunities during the road

construction phase.

5.3.4 Discussion on Availability of Resettlement Sites The need for a site free from future eviction came out during consultations. Considering that the evictees were on land reserve, one of the considerations by the evictees was that the government identifies an alternative area, even if it was on tenancy status, where they would have some form of security of tenure. The respondents’ proposal was that the resettlement sites should not be far from the current project area. Meeting with the Mombasa County planner, indicated that there are plans to erect markets around Kwa Jomvu area. There are also two other existing markets within the vicinity of Kwa Jomvu area.

5.3.5 Discussion on Employment Opportunities The evictees requested that the locals be given first priority when it came to employment opportunities especially during the roads construction phase.


6 CONCLUSIONS AND RECOMMENDATIONS

6.1 Audit Findings

6.1.1 Loss of Structures

The audit identified a total of 117 structures, that were either demolished either by third party or self demolished. However, existing valuation report submitted to KeNHA only covers 94 structures. Upon comparison, out of these 94 structures, 6 structure owners were not found, while another 5 cases were established as grievance. This implies that only 83 structures were consistent on both databases. Out of these 83 structures, another one structure was registered as a grievance. This analysis is presented in Appendix V-A of this report. Appendix V-B further outlines 33 structures that were demolished but not included in the KeNHA’s Valuation report. We recommend verification and valuation of the pending 33 structures to be undertaken by a certified land and asset valuer on behalf of NLC.

6.1.2 Impacts on Loss of Income The following impacts emanated from the eviction exercise: Income levels have declined as reflected in qualitative data collected during the audit.

However, an analysis of incomes and expenditures as declared during the interview shows discrepancies between the two figures and therefore was not included as a definitive factor in the development of recommendations for the proposed CAP;

The evictees in the category of business tenants reported periods where they had no income sources ranging from 2 days to 2 weeks where they were looking for alternative areas to re-establish their businesses;

For some of the affected persons, the losses on income (rental and from business operations) are not for the entire duration of time between the evictions to-date, but rather for the interim period it took them to re-establish the business;

Some non-resident landlords reported that they have been experiencing economic difficulty as they are yet to re-establish their rental income due to inability to re-establish the structures either on-site or in another area;

Some parents reported that have not been able to take their children to school due to lack of school fees as a result of loss of income stream. However, an in-depth analysis of how the income streams from the demolished structures contributed to payment of the school fees shows that: The parents were not wholly dependant on the income from the affected area to pay

school fees as the fees amount was considerably higher than the reported incomes from the affected structure;

The parents were already using other income streams to pay the school fees for their children;

Some employees of business operators lost employment as: The business structures were never re-established; or For business structures that were re-established, the reduction in business volumes

resulted in down-sizing of staff. As outlined earlier in the report on the veracity of data provided on incomes and losses, this report highlights more on the qualitative aspects of the impact on income due to lack of verifiable records on incomes prior to and after eviction. Considering the informal nature of the businesses on the road reserve and the nature of evidence provided by the evictees to the audit study team, there was no evidence provided in the form of income receipts, tax return records and other such records that could be used in verification of declared incomes and losses. There is need to develop alternative modalities for development of compensation or additional assistance for all categories of evictees in line with the requirements of the Kenyan Eviction


Guidelines and in consultation with the National Land Commission (NLC) and the Banks’ requirements. The recommendations will take into account the principles of fairness to both the evictees and the state and as such are likely to require a negotiated agreement with the affected persons. Additional assistance can also be provided in the form of food assistance and a disturbance allowance for those who had rental properties. The evictees also requested that the locals be given first priority when it came to employment opportunities especially during the roads construction phase. This can also be considered as additional support to the evictees if priority for employment opportunities is offered to the evictees.

6.1.3 Impacts on Health This Audit exercise establishes that 4 people reported that members of their households and business suffered personal injuries during evictions. The cases ranged from simple cuts treated with a band-aid to outpatient treatment at a health centre. No major cases requiring hospitalisation were reported. There were also Four (4 No.) persons living with disabilities present on-site during the eviction. Fourteen (14 No.) respondents reported that they had sick persons in the houses during evictions. There were claims of lack of money to access formal healthcare and as such a number of evictees were not able to access healthcare after the demolitions. One of the evictees claimed to have been using herbal medicine before the eviction to treat a long term injury. However, after the evictions he was unable to meet the cost of treatment to date. On further prodding this claim could not be verified as there were no evident medical receipts.

6.1.4 Homelessness as a result of the Evictions Some evictees claimed that they were homeless for two nights until their neighbours took them in. However by the time of the audit survey, none of the evictees reported being homeless.

6.1.5 Immediate Availability of Alternative Land for Resettlement During the audit, the following possible sites were presented to the audit team: Future market spaces in the general Kwa Jomvu area as planned by the Mombasa City

County under the County’s ISUDP; A planned Lorry Park in Miritini Area along the proposed road corridor. From our engagement with stakeholders however, it is apparent that there is no immediate alternative land for resettlement that could be confirmed as free from the threat of future eviction. There is need for further assessments on alternative assistance to the evictees to enable them look for alternative sites or alternative sources of income

6.2 Evictees Expectations

The evictees are very keen to receive cash compensation for damages experienced during the demolitions. From analysis of the feed-back, this compensation is expected to encompass the following: Compensation for demolished structures to enable them re-establish their structures; Compensation for tenants on loss of rental income from the affected structure; Compensation for ‘loose’ assets, including furniture, electronics and other household

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Compensation for costs incurred during relocation after the eviction. This was reportedly incurred through hire of vehicles to transport stock and furniture to the relocation area;

Compensation for loss of business stock due to looting as a direct result of the evictions. The type and value of stock varied depending on the type of business affected.

Other requests presented were as follows: To be compensated as soon as possible, to allow them to be able to meet their basic

needs which they are currently struggling to meet; To be provided with capital to restock/replace lost goods; Where possible, they would wish their structures to be reconstructed. The evictees are concerned and they need clear information on payment dates so as to relieve them of the uncertainty they are currently facing.

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