Why government cannot just evict railway dwellers

Former Prime Minister Raila Odinga (left) and Transport Cabinet Secretary Engineer Michael Kamau (center) after the launch of the Makadara Railway Station on December 9, 2013. In October, after a train rammed a minibus belonging to the Umoinner Sacco in Mutindwa killing 12 people, Mr Kamau said structures built within 30 metres of the track would be demolished. PHOTO | FILE 

In Summary

• Indeed, there were some demolitions in Mutindwa and Pipeline in November. But the Kibera accident, in which six people were injured, once again directs the spotlight to the issue
• However, Sunday Nation has established that the government’s intention to evict those living or trading next to the railway line, especially in Kibera and Mukuru slums, has been blocked by a court injunction and a 2005 agreement with the World Bank
• Even though the law protects government land against adverse possession, the High Court in 2005 ruled in favour of the slum dwellers on the basis that eviction would be a violation of their human rights and it would create a social crisis
• At least 11,000 families identified as “project-affected persons” will move to the new houses that are already being constructed. The houses will also include shops so the families don’t lose their livelihoods
• But Parliament, through its Transport, Public Works and Housing Committee, has opposed the government move, describing it as awarding people who have encroached on public land

By Vincent Achuka
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When a cargo train loaded with wheat heading to Uganda derailed and crashed into shanties in Nairobi’s sprawling Kibera slums on December 22, attention immediately shifted to Transport Secretary Michael Kamau following his earlier order to evict all encroachers on Kenya Railways land.

In October, after a train rammed a minibus belonging to the Umoinner Sacco in Mutindwa killing 12 people, Mr Kamau said structures built within 30 metres of the track would be demolished.

“Have you been to Mukuru? People sell their wares on the railway line only moving when they hear a train approaching. This is madness,” he said, pointing out that the death toll would have been higher had the train derailed and smashed into the structures put up by Mutindwa traders.

Indeed, there were some demolitions in Mutindwa and Pipeline in November. But the Kibera accident, in which six people were injured, once again directs the spotlight to the issue.

Speaking at the scene, Mr Kamau, flanked by Kibra MP Kenneth Okoth and Nairobi Senator Mike Sonko, once again threatened evictions.

In the Soweto area of Kibera where the train derailed, businesses and shacks are located dangerously close to the railway line.

The tracks themselves have been turned into a market, and hawkers display their wares right in the middle of the railway line.

Trains crawl through the slum, hooting constantly to warn people. Most of the time, they pass just inches away from those standing.

Rift Valley Railways (RVR) corporate communications director Cosma Gatere says they are forced to use two locomotives to push trains in the area because they can move only at low speeds which affects their power.

“We cannot have a fully functioning railway system when we have all sorts of people carrying out their businesses and living close to the railway line,” Mr Kamau said, echoing earlier warnings.

EVICTION HALTED

However, Sunday Nation has established that the government’s intention to evict those living or trading next to the railway line, especially in Kibera and Mukuru slums, has been blocked by a court injunction and a 2005 agreement with the World Bank.

The Relocation Action Plan signed between the World Bank and the Transport ministry is linked to a deal that authorised RVR to take over railway operations in Kenya and Uganda in 2006.

Under the agreement, RVR is to rehabilitate, operate and maintain the rail networks. To pave way for the concession, Kenya Railways attempted to evict encroachers to provide a clear operating corridor.

A number of cases were lodged in court by interested parties who were against the evictions, but the most notable was by the Railway Dwellers Federation of Kenya (RDFK), which was formed by affected encroachers with the help of some NGOs.

One of their arguments was based on Section 7 of the Limitation of Actions Act, which allows squatters who have occupied private land for more than 12 consecutive years to assume ownership through adverse possession.

Even though the law protects government land against adverse possession, the High Court in 2005 ruled in favour of the slum dwellers on the basis that eviction would be a violation of their human rights and it would create a social crisis.

The court further directed Kenya Railways to provide alternative settlement to the squatters before evictions and advised the two parties to settle out of court.

ATHI RIVER LAND REJECTED

RDFK Chairman Peter Bondi argues that they rejected an offer of alternative land in Athi River the same year through Pamoja Trust who were acting as the corporation’s advisers on the matter.

“We refused because most of the people living close to the railway line in Kibera are casual labourers who walk to town or Industrial Area, and if you move them 50 km away you will be taking their livelihood away from them,” he said.

As the debate over evictions continued, RVR was having a hard time turning around the railway transport sector.

“For example, we stopped transporting some products like liquefied petroleum gas (LPG) through the Kibera line because we can’t do it when people are cooking or smoking just next to the railway line,” Mr Gatere said.

“And remember this is the only line we have between Nairobi and Western Kenya to Kampala so you can imagine how much losses we are making.”

GIBB Africa Ltd, a firm contracted by RVR to do an environmental analysis in 2010 as part of the requirements of obtaining a Sh3.6 billion loan from the African Development Bank for rehabilitation of the rail network, noted massive encroachment on the railway reserves in Kibera and Mukuru.

The report said these “pose serious consequences, among them risk to human safety due to proximity to active railway traffic, risk to property in the event of accidents or derailments, dumping of waste onto the railway track which impedes track drainage and compromise to track stability.”

STATE FAULTED

The consortium behind RVR got the loan, but Mr Gatere has faulted the government for not being serious about making the railway industry economically viable.

“The conditions that we are operating in are far from ideal, and they are curtailing the operations of the consortium,” he said.

“Right now the government is busy constructing a new railway line to improve operation speeds, but it seems to forget that that railway line will pass through Kibera under the same conditions.”

Meanwhile, RDFK had approached the World Bank, citing the involuntary settlement policy which states that alternative means must be provided to the affected persons when acquisition or modification of property leads to “loss of income, residence, or access to resources, whether permanent or temporary”.

The World Bank, which for a long time had been providing funding to Kenya Railways, insisted that if there were to be any evictions, they had to be carried out according to its policies.

After negotiations, the World Bank and the Ministry of Transport came up with a document titled The Relocation Action Plan for Improving Safety along Kenya Railway Line.

HOUSING UNITS

This provided for the construction of 9,000 housing units in the two areas identified as “hot spots” to relocate people who live or carry out business along the railway in Mukuru kwa Rueben and Kibera.

Since the government admitted it had no money for such relocations, the World Bank agreed to provide Sh3.9 billion for the construction of the houses in six sections along the 7.4km stretch of the railway in the two slums.

The houses would be in high-rise flats on both sides of the line along a 12.3 km wall that will create a buffer.

The new human settlements would be connected to each other by overhead foot bridges.

At least 11,000 families identified as “project-affected persons” will move to the new houses that are already being constructed. The houses will also include shops so the families don’t lose their livelihoods.

“It will be on a one-family-one-house basis. Even if you are a landlord with 50 houses, you will only get one house. Absentee landlords will not be considered,” Mr Bondi said.

Kenya Railways says those affected will be moved in batches until the railway is secured; the rest will be evicted.

“Those who had been identified when we did a mapping will not be evicted, but everyone else will be evicted,” KR corporate affairs manager Margaret Kawira said.

But Parliament, through its Transport, Public Works and Housing Committee, has opposed the government move, describing it as awarding people who have encroached on public land.

On a tour of the railway upgrading projects in the city, committee chairman Maina Kamanda said: “The move by the government will encourage people to encroach on railway reserves since they will be compensated.”

But after the Kibera accident, the area MP and the senator insisted that the encroachers must be compensated before they are evicted.