El-Rufai’s Kaduna Demolitions: An Illegality Cannot Cure another Illegality -By Victoria Ohaeri

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Victoria Ohaeri

Victoria Ohaeri

 

The main thrust of the arguments advanced in support of the Kaduna demolitions are as follows: (a) to recover school and hospital plots of land that were illegally acquired by some people and (b) not to allow the encroachment on schools and hospitals lands to continue.

To begin with, the above findings are purely unilateral executive pronouncements of guilt aimed at invalidating the landholdings of certain individuals in Kaduna metropolis. As the analysis below will demonstrate, they are very flimsy excuses to justify executive arbitrariness, and to use an illegality to cure another illegality.

To make matters worse, there is no other judicial, quasi-judicial or legislative body in Kaduna State, or elsewhere, that has conducted an independent finding and reached similar conclusions.

I start from the premise that mass forced demolitions and forced evictions constitute violation of fundamental human rights, and Governor Nasir El-Rufai should be held to account.

A combination of national and state legislations lay down procedural standards and guidelines that must be followed before an eviction can be legally carried out. Did Governor El Rufai’s ordered-demolitions in Kaduna adhere to these standards? Let’s find out.

The 1999 Constitution, the Land Use Act, and other applicable state urban planning regimes must be read together in order to understand the full range of statutory observances expected of both the state authorities and landholders.

By virtue of Sections 43 and 44 of the Nigerian 1999 Constitution, the right to property is a constitutionally-protected right. Because of the constitutional flavor that this right enjoys, the courts frown at arbitrary seizure of properties and insist that the additional safeguards of fair hearing and adherence to due process must precede property takings and evictions. Starting with due process, what does this requirement this entail? What are legal components of due process?

The Land Use Act is the national legal framework that regulates land acquisitions and related transactions in Nigeria. Being an expropriatory statute that encroaches on the citizens’ proprietary rights, the Land Use Act is usually construed fortissimo contra preferentes, i.e strictly against the acquiring authority but sympathetically in favor of the individual whose proprietary interests are being deprived. Although it vests all lands in the state on the governor to hold as trustee, the Land Use Act prescribes the methods of revoking titles held by landowners and the consequences that follow. Compliance with the letter and the spirit of the law is a must.

The Kaduna State government alleges that the demolished properties were built illegally on public lands, schools and hospitals. Under Section 43 of the Land Use Act, Governor El-Rufai is empowered to remove any building, wall, fence, obstruction, structure or thing which may have been placed on the land in contravention of the Act. But this power is not absolute. The conditions for revocation of title, and due process guarantees shall guide the government’s corrective actions.  Put differently, if a landholder has acquired title illegally, the state governor is obligated to follow the identical due process requirements laid down in Section 28 and 44  of the Land Use Act in revoking his title, and consequently ordering evictions.

Section 28 relates to the conditions and procedure for revocation of titles on grounds on overriding public interest. Section 44 relates to the procedure for handling contraventions of the Act, the same type alleged by the Kaduna State government. The two provisions are however, similarly-worded. They both insist on the following: a well-authorized revocation order, delivery and service of adequate notices, including substituted service on the premises of offenders, and compensation where applicable.

Should any dispute or question arise concerning or pertaining to title to any land or interest therein, or in respect of any entitlement of either of the parties to the proceedings, Section 39 of the Land Use Act vests the High Court exclusive original jurisdiction to intervene and make judicial determinations one way or the other.

Taken together, sections 28, 43, 44 and 39 of the Land Use Act make clear that the state authority must submit to due process of law before evicting or demolishing any community regardless of whether or not alleged landholders have a certificate of occupancy, customary title, or other form of title. Accordingly, it is improper, illegal and quite inhumane for the governor to bark eviction orders at a town hall meeting, giving occupants only a few days’ notice to vacate their homes.

Similarly, the protections provided by Section 44 of the Constitution are broad, covering all types of property, and extends not only to land, but also to immovable property, such as housing, and moveable property, including household items.  Consequently, forced evictions and demolitions, as seen in Kaduna State prima facie violate the constitutional right to property, regardless of whether the individual whose home is demolished had title to the land, because, at a minimum, they result in the destruction of housing materials and household goods.

Inadequate notices: A relevant question to ask is: what constitutes adequate notice? Governor El Rufai’s administration is only two months old. That alone is proof that any notice that may have been given is no more than two months old! Assuming the landholders indeed illegally erected structures on public lands, is two months’ notice sufficient time for communities to evacuate, make alternative housing arrangements and relocate elsewhere? Because the state government is demolishing and evicting on a massive scale, it is irrefutable that two months is insufficient timing for affected persons to make alternative dwelling arrangements. Further aggravating the inadequacy of the timing is the fact that such large-scale community displacement naturally involves the disruption of children’s education, livelihoods, familial ties and community support networks on which citizens, especially the poor depend on for their sustenance.  Not only that, two months’ notice cannot even be said to be sufficient for a state authority to verify landholding and titling claims of private citizens, and make accurate determinations of the legality of their titles.

A court order was necessary: It is already glaring that the Kaduna State government relied on grossly-flawed, unilateral and hasty procedures to determine the guilt of offending landholders. One way of ensuring that human rights are respected and due process guarantees followed is to obtain a court order before the mass evictions or demolitions. Contrary to the various provisions of the Land Use Act cited above especially Section 39, no other organ of government was involved in ascertaining these so-called titling irregularities; so it is difficult to independently verify these unilateral official claims.  The courts played no role in the establishment of guilt of the affected landholders. The entire exercise was not only needlessly shrouded in haste; but also reminiscent of the rigidly-followed implementation of the Abuja Master Plan which occasioned large-scale forced evictions and displacement of hundreds of thousands of families, loss of livelihoods, abrupt disruption of children’s education, loss of lives and properties, and gross violations of other interconnected human rights. In addition, young people and women bear a greater share of eviction burdens as they drop out of school and lose their livelihood opportunities often located around the home.

The right to fair hearing was brazenly ignored:  The right to fair hearing is another critical ingredient of the due process safeguards in the Constitution and the Land Use Act. Section 36 (Chapter IV) of the Nigerian Constitution enshrined the right the fair hearing when it stated that:

“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

Whether or not to carry out mass demolitions and evictions constitutes the very type of questions concerning “civil rights and obligations” referenced in Section 36.  In making such determinations, the safeguards of due process and fair hearing are preserved regardless of the ultimate guilt or innocence of the parties involved. In other words, even if the government unilaterally makes a finding that the evicted landowners acquired titles to their properties improperly, that does not extinguish the right to fair hearing and observance of due process in effecting demolitions. In Unibiz Nigeria Limited vs. CBCL Limited [2003] 152 FWLR 71 at 92, the court specified the necessary components of fair hearing at page 92 when it stated:

“There are certain basic criteria and attributes of fair hearing, some of which are relevant in this case.  These include:

(i) that the court shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case.

(ii) that the court or tribunal shall give equal treatment, opportunity and consideration to all concerned.

(iii) that the proceedings shall be held in public and all concerned shall have access to and be informed of such a place of public hearing and

(iv) that having regard to all the circumstances, in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done.

As the above passage compellingly enunciates, the right to a fair hearing is to be preserved irrespective of the blameworthiness of the affected persons and communities. This right is available to everyone potentially affected by a demolition or eviction, regardless of their ultimate title holding to the property in question. This constitutional right would be meaningless if all that landholders are entitled to, is mere two months’ notice. Had Governor El Rufai-led Kaduna State government obtained a court order prior to carrying out mass forced evictions or demolitions, this would have availed affected parties with the opportunity to state their own case.

Considering the haste at which the demolitions were carried out, affected persons and communities have been deprived of the opportunity to tell their own side of the story. It is a shame that El Rufai’s single story narrative of guilt dominates the media landscape. By so doing, Governor El Rufai is, unlawfully and unconstitutionally playing the roles of the prosecutor, the jury, the judge in one fell swoop, brutally silencing those whose hovels have been torn down, and leaving them without a remedy. This conduct is repugnant to natural justice, equity and good conscience.

Kaduna demolitions and evictions constitute an impermissible use of self-help:  The Kaduna State’s government’s motive to recover inappropriately coveted public land may be laudable, but the methods it employed to effect the forced evictions and demolitions violate the Nigerian Constitution, the Land Use Act and amount to an impermissble resort to self-help. As the name denotes, self-help is illegal and only realized when people, institutions, or government bodies take the law into their own hands. As has been documented elsewhere, self-help leads to the systematic breakdown of law and order, rule of law, and due process, and therefore, incompatible with the principles of democratic governance. Condemning self-help in very strong terms, the Supreme Court held in per Akpata JSC held in Agbai v Okogbue that:

It is the function of the courts in any orderly society, or any society claiming to be orderly, to settle dispute between persons, between government or authority and any person in that society. This law is being accorded general acceptance, in varying degrees, in most countries of the world. For anyone to resort to self-help, that is, taking the law into his hands, in a situation such as in this case, is the very antithesis of orderliness. It is a retrogressive step which, if encouraged, will lead to chaos, anarchy and the law of the fittest.”  

From the above passage, the prohibition against self-help subsists even when state authorities may have a rightful claim against erring citizen(s). Therefore, whether or not landholders in Kaduna acquired the land illegally, obtained their land titles through questionable means, erected structures on public land, contravened building codes and what have you, the government of Kaduna State still lacks this power to evict them illegally. Doing so amounts to using an illegality to cure an illegality. It is awful enough when citizens disobey the law. But when a state organ does same, the name of such official misconduct is called IMPUNITY.

Tenants’ rights are implicated: Demolishing the homes of landowners who allegedly acquired lands illegally without paying attention to the rights of tenants on those premises is an act of profound cruelty. Under the tenancy regimes in Nigeria, yearly tenants are entitled to six months’ quit notice. The Land Use Act recognizes these secondary interests by requiring notices to be served on owner or occupier of the premises.  Governor El Rufai totally ignored these regimes and the varying rights and interests implicated. As adumbrated earlier, sorting out these bifurcated interests and resolving the intricate underlying issues cannot be resolved in two months. No evidence exists to show that tenancy contracts were considered nor were steps taken to establish any other support mechanisms for tenants who are rendered homeless.

Clear violations of the right to adequate housing:  By article 11 (1) of the ICESCR, 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.” In no less equal measure, the African Commission on Human and Peoples’ Rights has recognized that Articles 14, 16 and 18(1) of the African Charter guarantee a right to housing or shelter.  This right, “[a]t avery minimum, . . . obliges the Kaduna State government not to destroy the housing of its citizens.”  The right to adequate housing “also encompasses the right to protection against forced evictions.”

The character of the demolitions sheds light on the extent to which the Kaduna State government is meeting its human rights obligations espoused in wide-ranging national, regional and international human rights instruments.  Just as the forced evictions and demolitions have deepened angst, poverty and inequality, so also have the extensive violations of human rights frustrated important gains in the realization of human rights, especially economic and social rights.

Zero Accountability of State Officials: Government agencies play a critical part in the business of illegal acquisition of property. Erring landholders act in connivance with officials to transfer public lands to private individuals. When these things happen, restructuring the system to minimize this sort of systemic failing is needed. A credible investigation needs to be conducted to identify the perpetrators, the roles they played and have them brought to justice. Mass demolition of properties is not, and can never be the first response to such anomalies. Without holding state officials accountable for improper land sales and transfers, the systemic rot and pervasive culture that allows corruption to thrive is left unaddressed. Governor El Rufai failed or refused to take this path, but instead, transferred his anger to citizens and possibly innocent purchasers of land for value through arbitrary demolitions and land seizures.

For obvious reasons, arbitrary demolitions and forced evictions come to mind whenever Mallam El-Rufai’s name is mentioned. As with the forced evictions and demolitions he spearheaded as minister of the Federal Capital Territory between 2003 and 2007, the current demolitions in Kaduna are bereft of elementary considerations of humanity.

What is more: Governor El-Rufai’s complainant-prosecutor-judge all in one method of determining guilt is also unknown to Nigeria law and practice, and negates the revered principles of nemo judex in causa sua. For the above reasons, Governor El Rufai ought to declare a moratorium on forcedevictions in Kaduna State. What he needs to do urgently is to establish a participatory mechanism of engagement to enable all stakeholders to get involved in the process of designing and implementing the city’s development strategy, including the upgrading and rehabilitation of the informal settlements in Kaduna metropolis.

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Victoria Ohaeri is the executive director of Spaces for Change (www.spacesforchange.org), a youth-development and policy advocacy organization based in Lagos, Nigeria. She can be reached on[email protected]

 

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