History
A Nubian name, Kibera[1], is the official name that
was assigned to the parcel of land. It means jungle or forest. Presently it is the largest urban slum in
Kenya and Africa. It is occupied by tens of thousands of Nubians[2]. They are predominantly
Muslim in a Christian Country. It is believed that they descended from the Nuba
Mountains. They were forcibly conscripted into the British Colonial Army which
was known as the Kings African Rifles by Captain Fredrick Lugard in 1891[3].
It is worthy to remember that the
Crown lands ordinance of 1902 specified that all public land belonged to the
Crown.
The colonial authorities did
not grant them citizenship. Hence, they remained as British subjects and were
considered British Protected Persons. The British Colonial Authority has
promised the Nubians Kibera and in 1904 the British Colonial Authority assigned
Kibera to Nubians to serve as their home. Titles of land were not conferred
instead permits to reside were issued to the Nubians as individuals. As per
1917 the size of the land was 4197 acres[4]
In 1933 there was a report made
by the Kenya Land Commission, it was also known as the ‘Carter Commission’. The
findings of the report were that while it was necessary to move unauthorized
persons out of Kibera this did not apply to the Nubians. They had served the
government and the Commission was of the view that it would be advantageous to
let them stay.
The Commission further stated
that the legal position of Kibera appears to be that they are tenants at the
will of the Crown and the tenancy is liable to termination by the Commissioner
of lands but on the other hand they could not deny that the Nubians had rights
to the land under equity. The government had a clear duty to either repatriate
them or provide accommodation. They ought not to be moved without receiving
suitable land elsewhere and adequate compensation for disturbance. The Carter
Commission recommended that Kibera be preserved for the Nubians. At
independence, the citizenship status of Nubians was never directly addressed
and as such they were treated like aliens.
The Government Lands Act[5] which replaced the Crown
Lands Ordinance, under Article 43(1) states that the area of government land
situated in Nairobi Area and described in the 4th schedule shall be
known as the Kibera Settlement Area,
the minister may make rules as to its management and control[6]. This clearly stipulates
that Kibera is a settlement area and not private land. The Government Lands Act
under 4th schedule describes Nairobi’s boundaries in sufficient
bearing.
The 1963 Constitution of Kenya
under Article 205 stated that all land that was vested in the governor general
or in her majesty now vests in the government of Kenya. This shows that post-
independence, the fate of the Nubians was lay the on the new government.
The Interpretation and General
Provisions Act[7]
states that the meaning of the term government
land is to be found in the Government Lands Act[8] which further states that
government land means for the time being land vested in the Government by
virtue of sections 204 and 205 of the Constitution (as contained in Schedule 2
to the Kenya Independence Order in Council, 1963), and sections 21, 22, 25 and 26
of the Constitution of Kenya (Amendment) Act, 1964.
Articles 204 and 205 of the
1963 Constitution as read with sections 21, 22, 25 and 26 of the Constitution
of Kenya (Amendment Act) 1964 hold that all interests, estates and rights over
land in Kenya and Nairobi Area that was vested in the governor general on
behalf of her majesty immediately before 12th December 1963 are now
vested in the government of the republic of Kenya and this includes lands that
were registered under ‘special areas’. This has the underpinning effect to show
that even land that had been used for special purposes such as settlement was
now also property of the Republic of Kenya.
There has been public
recognition of the Nubians as the original inhabitants of Kibera. In 2007 there
was a public meeting between the Nubian council of elders and the president of
Kenya. The President promised them a collective title deed for 780 acres and
that the title would be issued in three days. This never came to pass.
When the new constitution was promulgated
it opened a new avenue of Kenyan land law and particularly it brought about
crucial principles that govern land policy. The principles that are under
Article 60 of the Constitution of Kenya 2010 are;
(1) Land in Kenya shall be
held, used and managed in a manner that is equitable, efficient, productive and
sustainable, and in accordance with the following principles—
(a) Equitable access to
land;
(b) Security of land
rights;
(c) Sustainable and
productive management of land resources
(d) Transparent and cost
effective administration of land
(e) Sound conservation
and protection of ecologically sensitive areas
(f) Elimination of
gender discrimination in law, customs and practices related to land and
property in land; and
(g) Encouragement of
communities to settle land disputes through recognized local community
initiatives consistent with this Constitution.
It further states that
community land consists of land that is ancestral lands and lands
traditionally occupied by hunter-gatherer communities[9] and that any unregistered
community land shall be held in trust by the county government on behalf of the
community.
Issues
1.
Whether the Nubians are a Marginalized Community/group
under Kenyan Law?
Under Kenyan law, specifically
the Constitution in Article 260 avers that a marginalized community is one
which by virtue of its relatively small number or of any other reason has been
unable to fully participate in the integrated social and economic life of Kenya.
A marginalized group on the
other hand means a group of people who because of laws or practices before, on
or after the effective date were disadvantaged by discrimination based on any
one of the following grounds: race, sex, marital status, health status, ethnic
origin, colour, disability and religion etc.
The Nubian came from the Nuba
Mountains which are in Sudan. They were used by the British in the British
Colonial Army for military expeditions. This made the local community breed contempt
for the Nubians who at times suppressed the local communities in Punitive
expeditions.
As a reward or sympathetic
compensation for their service the Nubians were settled in Kibera by the
British and promised that it will be their home. They were never granted
British citizenship thus remained British subjects. This had the status of a Protected
British Person. During and after independence their citizenship dilemma was not
addressed and this has disadvantaged them in numerous ways. They have been
denied the right to nationality, property, health services etc.
The Nubians have a relatively
low number as compared to other tries in Kenya, they have no other home in Kenya,
they speak a different language, have a different religion and culture. The area
in which they live in has poor infrastructure in terms of housing, education
and health services.
It is submitted that the fact
that the Nubians do not have a homeland in Kenya, have a relatively low number,
lack enough political representation, stripped of government facilities and now
face a violation of their right to nationality and property.
It should be noted that the right
to nationality is somewhat like a spring upon which many other rights flow
from, for example in the decision of the African Committee of Experts on Rights
and Welfare of the child in Nubian Minors
v Kenya[10],
it was held that the fact the government of Kenya had many discriminatory
procedures in obtaining birth certificates for Nubian children, it was held
that this had consequential violations of the right to education as registering
for key examinations requires such documentation as birth certificates
2.
Whether Kibera Constitutes Ancestral Lands?
According to Article 63(1) a community
land, consists of land that is ancestral land. 63(3) further asserts that any
unregistered community land shall be held in trust for the community by the
county government land.
The Nubians have lived in
Kibera for over a hundred years, in fact the name Kibera is Nubian that means
forest or jungle. They were settled there by the colonial authority that this
would be their land.
The Nubians have no other home
land in Kenya, they opted to be repatriated in the 90’s but the colonial
government refused. They have historically established possession as the
original inhabitants of the land. Further they have inextricable ties to the
land because this is where they have buried their dead. Lastly they speak their
own language and practice Islam as a religion.
It is therefore submitted that
Kibera is an ancestral land to the Nubians.
3.
Whether the Nubians have an equitable title to
the land?
The Colonial Authority settled
the Nubians on the Kibera land and promised them that this will be their home. The
Carter Commission in 1993 recommended that it would be advantageous if the
Nubians are given the land to stay and acknowledged that they had rights in
equity. The Nubians have stayed on the land until to date. Further in 2007
there was a public meeting between the then President Kibaki and the Nubian
council of Elders. It was agreed that a collective title deed of 708 acres
would be issued in 3 days. This never happened.
The Nubians have constructed
houses and schools on the land. They also trade on the land.
It is submitted that the fact
that Kibera is ancestral land, the Nubians need not have legal title to
establish proprietal interest in the land. International jurisprudence posits
that mere possession of ancestral land should suffice as to recognition of a
proprietary interest[11]. It is submitted further
that the Nubian have lived on this land for more than 100 years.
Furthermore the Constitution of
Kenya of Kenya under 63(3) states that any unregistered community land is to be
held in trust for the community by the county government. It is therefore
submitted that the Nubians need not be indigenous in order for them to obtain a
collective title[12]
[2] T.Parsons,
Kibra Is Our Blood": The Sudanese Military Legacy in Nairobi's Kibera
Location, 1902-1968
[3] Pg
3 Ibid
[4] Communication
317/06: Nubian Community in Kenya (Nubian Adults) v Kenya, Para 8
[5]
Cap 280
[6]
Section 43(2) Government Lands Act
[7] Chapter
2
[8] Ibid
9 (n 5)
[9]
Article 63(2)(d)(ii) Constitution of Kenya 2010
[10] Communication:
No. Com/002/2009, 22/3/2011
[11] The Mayagna (Sumo) Awas Tingni Community v.
Nicaragua, Judgment of August 31, 2001, InterAm. Ct. H.R., (Ser. C) No. 79
(2001).
[12] Moiwana v the State of Suriname InterAm. Ct. H.R Judgment of June 15, 2005
No comments:
Post a Comment