157. According to the Cater [sic!] Carter Land Commission Report:
The legal position of the occupants of Kibera appears to be that they are tenants at will of the Crown and
the tenancy is liable to termination by the Commissioner of Lands. On the other hand we cannot agree that
they have no rights in equity. We consider that Government had a clear duty to these ex-askaris either to
repatriate them or to find accommodation for them... In our judgment they ought not to be moved without
receiving suitable land elsewhere and compensation for disturbance, and we consider that a similar
obligation exists in respect of their widows, sons who are already householders at Kibera59
158. The Commission also recalls from the evidence that the option to repatriate the Nubians was
abandoned by the colonial administration and they have since remained in Kibera for over a century as the
undisputed inhabitants of the settlement.60 Over this period of time, they have formed inextricable links to
the land which according to them constitutes the only homeland they have ever known and where they bury
their dead. The dynamics in the settlement have over the years become more complex with the influx of
other communities into the settlement and the systematic hiving off of the land by the State for development
purposes. The Nubians have however remained the dominant community in Kibera, albeit with no land
rights - a situation which is purportedly linked to the non-recognition of their Kenyan citizenship.
159. While the colonial authorities and the Kenyan Government have recognised a clear moral obligation to
resettle the Nubians, the Kenyan Government has over the years maintained that Kibera is State land and
that Nubians cannot therefore lay claim to the area as their homeland. Nubians and other occupants of
kibera are therefore regarded as squatters on government land although they have been in occupation of
the land for over a century.
160. The Commission observes that it cannot merely be said that the Nubians' possession of the land in
Kibera was/is at the mercy of the Respondent State since the state itself clearly recognises a moral
obligation to provide settlement for the Nubians. The Commission considers that the access/occupation
and use rights granted by the Respondent State to the Nubians over kibera for over a century, is enough
for them to request and obtain official recognition and registration of at least some of the land as their
communal property. This imposes an obligation on the Kenyan Government to take all reasonable
measures to provide security of tenure over lands which the Nubians occupy in Kibera. That the land
question in Kenya in general and Kibera in particular is complex cannot be used as an excuse by the
Respondent State to leave the Nubians of Kibera in such a precarious situation of insecurity and
uncertainty, which encourages infringement on the rights of the community by the government and
individuals.
161. The Complainants have also submitted that the lack of security of tenure over the land which the
Nubians occupy, has given rise to their routine forced eviction from the Kibera settlement. According to
them, these evictions have been carried out without adequate notice and no alternative land or
compensation was offered to the Nubians. Apart from a blanket denial of the allegations, the Respondent
State has not made any specific observations regarding this issue.
162. The Commission observes that forced evictions often lead to personal and collective trauma, resulting
in the loss of livelihoods, the destruction of social networks and other devastating effects. Forced evictions
dismantle what individuals and communities have built, sometimes over a long period of time, plunging
families and communities into misery.61
163. To be constantly faced with the prospects of forced evictions, as is the case with the Nubians of
Kibera, is one of the worst forms of injustices that individuals, families and communities can be exposed to.
164. While the Commission observes that Governments might under certain circumstances legitimately
forcibly move people from their land or houses for a variety of reasons, it considers that any such measures
must strictly adhere to international human rights standards in order to prevent unnecessary hardship and
suffering. Some of these standards have been succinctly outlined in General Comment No 7 of the
Committee on Economic Social and Cultural Rights which provides as follow:62
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