43. (1) Every person has the right— …(b) to accessible and adequate housing, and to reasonable standards of sanitation.
What does the Constitution mean by this? It means a bit less than you might imagine. It does not mean that the state has to provide everyone with housing.
Rights like this are a bit different from the right to life, or freedom of expression or fair trial. The state can’t wriggle out of the duties to ensure you those rights.
But a right like health or housing, water or food, is less within the control of the state, and cannot realistically be achieved quickly.
The Constitution says the State must take steps to achieve the “progressive realisation” of these Article 43 rights.
Those steps do not mean the State builds the housing, necessarily. It can affect housing in all sorts of ways. What it does mean is that the right to housing (and other rights) must be always a factor in making policies, law and decisions.
And that improvement must always be the direction of change. But it also means a bit more than you might imagine, because not just the State but everyone must respect all rights.
Even if the State does not make law, other people involved in housing, or who can affect other people’s housing, must respect rights.
So a landlord who evicts people unfairly, a landowner whose activities result in other people’s houses being flooded, for example, are violating the Constitution. The language of Article 43 is also cautious and important.
“Adequate housing”, especially, indicates what sort of housing we are talking about. Adequate means good enough – not just an unsanitary shack flooded by sewage-contaminated water, but not a mansion.
Article 21 is also useful: “It is a fundamental duty of the State …. to observe, respect, protect, promote and fulfil” all the rights. Observe and respect both mean obey the Constitution: the State must not do anything against the rights (like unfairly evicting people).
“Protecting” the rights involves the State controlling other people: rent regulation, rules about not building on river reserves, and rules about ventilation are all examples. “Promoting” involves the State encouraging respect for rights, by education, tax incentives and other means.
And “fulfilling” suggests that the State may need to do more ⸻ such as actually providing food, houses and water.
All states are likely to have some laws and polies about housing. But our Constitution turns possibilities into responsibilities.
This includes counties, which have the “power” of county planning and development, “including housing”. Clearly their planning must include housing.
It is not clear that this must include counties financing or building themselves. Generally the Constitution does not prescribe just how government must carry out these duties.
You are not alone
These ideas are not explained in the Constitution. Every country faces housing issues, and international law, and law in other countries, try to deal with the problems. Kenyan lawyers and courts have found cases on the South African Constitution very helpful, for example.
The Committee on the International Covenant on Economic Social and Cultural Rights and the Special Rapporteurs on the Right to Housing have examined what the right to adequate housing means. The AAAQ principles should apply.
Housing must be Available (there must be housing). It must be Accessible ⸻ meaning physically and financially, and without discrimination. It must be Acceptable.
And it must be of reasonable Quality. Various bodies have found this statement helpful: "Adequate shelter means ... adequate privacy, adequate space, adequate security, adequate lighting and ventilation, adequate basic infrastructure and adequate location with regard to work and basic facilities ⸻ all at a reasonable cost".
And a Special Rapporteur issued a set of 16 guidelines including: ensure meaningful participation in the design, implementation and monitoring of housing policies and decisions; upgrade informal settlements incorporating a human rights-based approach; ensure the capacity and accountability of local and regional governments for the realisation of the right to adequate housing; ensure the right to housing informs and is responsive to climate change and addresses the effects of the climate crisis on the right to housing; ensure effective monitoring and accountability mechanisms.
The last point means that is not enough to have great sounding policies or laws. Laws must be enforced. Compliance must be monitored. Partly this means having an effective legal system to which people can go to get justice ⸻ accessible financially and in other ways, effective, reasonably speedy ⸻ like civil courts and rent tribunals.
It means creating bodies to monitor – inspectors, the regular police, bodies (in counties, for example) that actually refuse permission for buildings that violate the law – and enforcement as by criminal courts and the National Construction Authority.
And doing away with corruption, which undermines enforcement.
Kenya’s reality
President Uhuru Kenyatta and now President William Ruto have talked a lot about housing. They do not often use the expression “right to housing”.
My suspicion is that they want the housing to look as though it is the gift of a generous president, not something that the people have a right to.
They (not with their own hands, of course) have been building housing. At the same time they have done little to protect people’s right to housing in other ways. Evictions seem to get more frequent and more devastating – sometimes assisted by police.
Government and private developers seem to have a free hand to evict people from the homes they have. And developers get opportunities to build so-called affordable housing.
The chosen method always seems to be financially profitable ⸻ whether as a result of legitimate work or corruption ⸻ for the political and other wealthy sectors.
Allowing people to remain in their homes is not. Government-sponsored building is not the only possibility. And evictions are not the only problem.
Control of land use – so that land is available for housing, allowing building methods that help affordability, perhaps reducing taxes for some types of building material, conducting or encouraging research into appropriate housing, improving access to water and electricity.
Helping people make their own decisions about housing is important for the “acceptable” element in the right. The emphasis now is on building blocks of flats.
President Ruto once commented, “It looks like Europe” when talking about the mushrooming of these blocks. Is this the sort of housing people want? Housing reflects culture. Size of families, monogamy or polygamy, how many generations live together, are all factors that have shaped housing.
So does whether people live near other families, even related to, them.
Has there been public participation about the type of housing? It’s not just housing I used to feel disappointed the Committee of Experts collapsed all these rights into one Article (the Bomas draft had one Article for each of Social Security, Health, Education, Housing, Food, Water, and Sanitation).
On reflection, the current approach has merit. People benefiting from housing projects have sometimes let them to others to give themselves funding for education or health, and returned to live in an informal settlement.
They felt they could cope with the living conditions but education or health expenses must have priority. Article 43 reminds us, including government, that everyone has a right to all these. And all government actions must comply with the whole Constitution.
Housing is not just about Article 43(1)(b). If government provides housing it does not justify humiliating the beneficiaries; the right to human dignity must be respected. So must the rights not to be discriminated against, including based on disability, or marital status.
And rights to freedom from violence, to freedom of association, to culture. The child’s best interests must, where relevant, be paramount (Article 53), and the right of the elderly to involvement in society (Article 57) must be respected.