Evictions and the Law

4 takes on the connection between law and eviction . . .
From people deeply involved in supporting national people's housing movements

The last brainstorming session about the new Eviction Task Force was held at IIED's office in London last October 2002, and brought together a room-full of committed, experienced senior community leaders, housing rights activists, NGOs, professionals, government officials and representatives from donor agencies and international organizations.  The following comments were drawn from transcripts of the fascinating discussions on eviction which took place at that meeting, of which the role of laws and the courts in stopping eviction was central.  

1.  Jane Weru, from the NGO Pamoja Trust in Nairobi, Kenya

I'm a lawyer and I know that the written law is an end product of a political and social negotiation.  If a law is not negotiated in that country and is written as a resource for a negotiation between the competing parties in that country, that law is worth nothing.  It's not about writing beautiful laws on paper, it's about power.  And that power can only come if the poor are organized.  If you go to a court of law and you're not organized, you do not get anything.  And I've gone to court 24 times in eviction cases and I've never won a single case!  But in all those 24 lost court cases, we never lost a single piece of ground.  Nobody was evicted, because we said to hell with those written laws, we do not accept a law that is not just, and we shall turn this land into our home.  We refused to move, and we changed the power politics that way.  And in time, the practice that we developed of refusing to move eventually changed the political power game within the city. 

When you develop a practice that is so broadly accepted in a society, it becomes a custom that is a way of life.  And it is that custom which is eventually legislated and turned into written law.  For a law to be internalized and to be really effective, it must go through that progression.  I would like to ask that we look at law that way, as the development of practices that can be turned into customs, that can be turned into ways of life that are so broadly accepted and so internalized that for each one of our cities, it says that forced eviction is a no-no, because it is a custom that has been accepted by that city.  We have a formal, written policy of non-eviction in Nairobi, but there are clearly evictions going on - very big ones.  So the work of preventing eviction and creating secure housing for people in our cities is not about written law, it's constantly about changing the power politics.  And that comes from the practices and the customs in development on the ground.  And the rules that we ourselves make.

2.  Somsook Boonyabancha, from ACHR  

In many of our cities, eviction problems come from problems of power - from the huge differences in power between the state and the people on the ground.  When we emphasize laws in solving these problems, we are emphasizing the same group of people who hold power.  The power of the poor as scattered families or scattered communities is very weak.  But the power of broadly linked community groups is strong enough that they have a stronger position in the negotiation - as a group.  When people link together this way - and especially when they link through concrete development activities - it is a way of adjusting that power.  And this is what makes change.

3.  Joel Bolnick, from the NGO Urban Resousre Centre in South Africa

I think those customs and practices which lead to alternatives to eviction change only when the power relationships in cities change.  As long as those power relationships are unequal, those customs and practices will not change.   Legal and institutional arrangements are important, but it's also important to find ways to support and promote the building of networks of community organizations who play a role around proactive strategies to avoid evictions, and by creating a much stronger constituency of people's organizations at the global level, who are able to articulate their own strategies for dealing with forced evictions.  And to create opportunities for these groups to share their knowledge and experiences together.

4.  Sheela Patel, from the Mumbai-based NGO SPARC in India

The legal process can be very powerful at the intellectual and conceptual level, but a lot of us who are working on the ground have realized that ultimately it does very little for the lives of the people that we are all having this discussion for.  At the end of the day, those poor people's houses are still being demolished, their belongings still being confiscated, their jobs still being lost and their lives are still being turned upside down. 

Yes, it is important to catch the government and market institutions on the havoc they're causing in people's lives, because that gives you a moral or a constitutional or a legal framework within which you can say to the state that they are doing something that is morally or legally wrong.  The things that organizations like SPARC are doing to create some commitment at the international level about evictions are important, but as far as the poor are concerned, those things don't bring them any relief. 

The real crisis in this situation is that even if all this hot air leads to some policy or other, it never gets enacted.  I think that where we have failed in the last 25 years - those of us who are involved in all this - is that there isn't a strong, parallel, grassroots ground-swell, which is being empowered to challenge this process and say, "The city belongs to us as much as it belongs to you!"

 

A bit more on ....

EVICTION
and
LAW

EVICTION AND LAW :
Why aren't the poor getting more excited about this critical aspect of eviction?

Many reason that the poor get evicted in a city because the laws there aren't pro-poor, and if they were, things would be better.  In many countries, the laws regarding eviction are truly rotten, but in others, the laws are much more pro-poor.  But even the best laws are only as good as the power structures which implement - or don't implement - them.  All laws can be manipulated to work against the poor when they are controlled by governments whose interests may not line up with the poor's. 

Some housing activists make it their work to fight against bad laws, promote better laws and monitor compliance with laws that do exist in order to protect people's right to housing.  In this line of advocacy, laws, regulations, legal precedents and covenants can be extremely important tools for preventing forced eviction and helping people secure decent housing.  

Other activists who give short shrift to laws argue that the right to live, to work, to survive and to pursue your life is something that no government has the right to bestow or withhold.  To them, pushing for laws which determine where and how the poor can live and work - no matter how enlightened - is like voluntarily handing over control of your life and your needs to the government, whose job is then to guarantee those needs are satisfied.  For many of the poor, on the other hand, just about everything in their lives is outside the formal system - their jobs, their houses, their water, their electricity, their sources of credit.  For them, being outside the formal system and therefore illegal  has its hazards, of course, but also provides the freedom from external control which is an important precondition for their ability to survive. 

Jockin Arputham, National Slum Dwellers Federation

In India, where the courts play a big role in the urban development game, Jockin has seen a well-meaning public litigation backfire on Bombay's pavement dwellers and watched decisions about the lives of the poor in cities all over the country being handed over to the courts and then bringing more harm than good.  Through this experience, the women living on those footpaths in Byculla found out that good intentions can be just as complicated as bad ones, and just as hard to deal with.

The courts :  Fair weather friend to Asia's poor . . .

But how far do these laws and litigations affect the poor when they're actually being evicted?  That's the big question. Jockin Arputham, the president of India's National Slum Dwellers Federation, is a veteran of evictions, demolitions and court cases too numerous to count and no great believer in legalistic solutions to eviction.  Here are a few of his comments on the subject of the courts : 

Before the 1970s, the courts used to protect the poor - not just in India but in many other Asian countries.  It used to be that if we had an eviction crisis and had to rush to the court, at least we could buy time.  Then, by the time your court hearing comes up - ten or twenty years later - you're already an old man, you're dying, so who is going to file a case against you?  Some cases from 1994 are still there in the high court!  So looking at the court and taking shelter under the law - it used to be something we did just to buy some time in order to organize ourselves.

But these days, politicians are more and more using the courts to play their power politics, and day by day the courts are turning against the poor.  Most of the evictions happening in India today are coming out of judgments made by the supreme court or the high court or the lower courts.  In Bombay, 35,000 families were evicted in just two months after the high court gave a judgment allowing that to happen. 

Sometimes the courts try to be very progressive.  For example all the judges want a good environment, so under the name of cleaning up the environment, the poor are being thrown out!  They have a project to clean up the banks of the Jumuna River in Delhi, for example, and the courts gave the green light to relocate 100,000 poor families.  That means they are creating a whole city of evictees, without any understanding of why they are doing this, where these people will go, what kind of infrastructure they need, what will happen to their lives - no consideration at all. 

Then you have cases where there are court decisions which say no evictions should happen, and in spite of these decisions, evictions are being carried out.  This is happening in Jakarta, where the local government is evicting thousands, and never mind what the court says.  The people there are trying to negotiate, but in the process of organizing themselves, they have become vulnerable to attacks by hired gangs and private militias.  And in Manila, the people along the Pasig River were given the land they occupy by a presidential proclamation, but the next week, the military was evicting them!  It's nothing to do with justice or laws or doing what's right. 

A legal lesson, courtesy of the British Empire . . .

Laws have been used to fleece the poor for centuries - especially laws about land.  The British, for example, who made lawfulness the hallmark of their empire-building in the 18th and 19th centuries, set up legal systems and passed laws which made perfectly legal their project of appropriating half the globe. 

Essential to their building of a global market whose wealth was funneled into England was a system for controlling land ownership and land use by legal and economic means.  And so one of the first things they'd do was to pass laws to appropriate land under indigenous tenure systems, a system that was essential to the cash-based market colonies they set up, and laws that made land not a common resource you use or occupy, but a commodity you buy and sell, like tea or umbrellas.  It was all very civilized, mind you:  the judges wore wigs, the lawyers wore cravats and everyone spoke in ringing English, but it was a kind of robbery all the same. 

More recently, the march of global capitalism has pushed energetically to make individual land title the primary form of land ownership and to enshrine the rights of private property ownership above any housing or land rights.  Messy and ambiguous land tenure systems such as user rights or communal ownership have proven to be obstacles to speculation and the making of profit.  So these are being systematically chucked out around the world, along with the people whose shelter and livelihood and survival they protected.

 

Stealing the common from the goose . . .

They hang the man and flog the woman
That steal the goose from off the common.
But they let the greater villain loose
That steals the common from the goose.

Our closing thought on eviction and the law comes in the form of a children's rhyme from 18th century England.  It refers to the "Enclosure Movement", a centuries-long program of land reform by which commonly-owned village land across the country was consolidated and turned over to wealthier people.  The movement was facilitated by hundreds of individual acts of parliament, then largely controlled by the land-owning gentry.  As a result, poor and landless people were forced off the land they had lived on and farmed for generations, and driven into the cities, where they slaved in the new factories and lived in squalor and miserable poverty in the kind of slums Dickens wrote about in such novels as Oliver Twist. 

Some historians see the enclosure movement as having successfully paved the way for England's industrial revolution.  Others see it as a means of using law and intimidation and violence to rob the poor of their share in the common, tearing down the houses which, by the hitherto unbreakable force of custom, the poor had regarded as their own.  The enclosure movement took for granted the essence of purely economic progress, which is to achieve improvement and growth, even if at the price of enormous social dislocation and human suffering.  Sound familiar?

There is a need to revise the concept that LAND has social value and not purley economic value.