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Why Nairobi’s Regularization Of Developments Bill 2015 Needs To Be Amended

The following article written by Dr. Diana Lee-Smith The author lives and works in Nairobi, Kenya and is one of the founders of Mazingira Institute, an independent research and development NGO. She also holds a PhD in Architecture and Development studies.

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Nairobi City County is currently reviewing a piece of legislation that responds to the spate of collapsing buildings and unauthorized construction in the city. Bringing these dangerous and unauthorized buildings under control is a worthy aim for the city government, but unfortunately the Regularization of the Development Bill as drafted, while laudable in all its aims, is actually unworkable in practice as it stands. 

Remember that over half the population of Nairobi lives in unauthorized informal settlements. Correcting this is not a task for a mere committee, which is what the Bill wants to establish as the mechanism for authorizing development.

Nairobi has a history of 40-50 years of explosive unplanned development with an annual housing demand that has never been met and is unlikely to be met in the near future, especially the demand for affordable serviced housing for people on very low incomes. This has created extensive informal settlements in the county and the problem will not be addressed by this Bill, but only by a large program of affordable serviced housing development. The aim of the Bill hints at slum upgrading, which is in fact in progress by other arms of the government – notably the Kenya Informal Settlements Improvement Programme (KISIP) – but slum improvement is not specially mentioned in the Bill, although its objective is stated as “to bring unauthorized developments under the umbrella of {a} planning framework and provide basic facilities and infrastructure services to residents of the concerned areas in the county” (Clause 3a).

The Bill ought to concentrate on regularizing physical planning violations and not also take on the regularization of tenure and slum improvement. These ought to be excluded from its purposes.The institutional mechanism to be established by the Bill, a Regularization Advisory Committee, cannot achieve the objective as stated because it is too broad. The process set up according to the Bill is that “owners”, defined by the bill as those with a proprietary interest, apply for regularization of unauthorized developments within a specific time period. Upon failing to comply with requirements specified by the Committee, those developments are subject to demolition.

The time frame is unrealistic, even with extensions, but more importantly, the Bill as it stands is likely to create fear and chaos in the city. People will struggle to comply and the numbers will be unmanageable, while questions about ownership, procedures and other matters will create problems for the committee. It will, therefore, become subject to confusion, kickbacks and other forms of corruption and political pressure, apart from being unable to execute such a complex task. What is needed to address the problem of housing shortfall and proliferation of unauthorized housing in the city as a large organization, not a committee.

In fact, Nairobi City Council set up such an organization some decades back, the Housing Development Department, which handled the construction of thousands of affordable serviced housing plots in Dandora and Kayole in the 1970’s and 80s .What happened? First, many (but not all) the plots were grabbed, second, Nairobi elites saw the opportunity for making money from unserviced housing (the returns are higher) and grabbed other public land to build slums for rent, and third, the World Bank pulled out of the funding urban projects in Kenya and Nairobi as a result – and stayed out from February 1983 until well into the 21st century. Many of the unauthorized multi-storey developments are in fact located in the site and service project areas of 1980’s especially Kayole.

The current Nairobi City County government needs to disentangle the problem of slum proliferation from that of collapsing multi-storey building and buildings located on road reserves and other public rights of way. It should have a step-by-step approach.

The County Government, like all the other arms of the government, must abide by the Constitution, which includes the Right to Housing. The Bill as it stands is likely to bring the county in danger of violating that right. In particular, the procedures for eviction of any residents from informal settlements have to follow established guidelines which are accepted internationally and are likewise established in Kenya’s jurisprudence.

Some radical surgery is needed to make the Bill workable.It should include a definition of “informal settlements”, which mostly contain single storey structures of non-permanent materials(these are where a majority of Nairobi residents live). These settlements or structures should especially be excluded from most of the provisions of the Bill. They MUST be distinguished in the Bill from the unauthorized multi-storey developments illegally developed. A number of the provisions of Section 7 should apply to both informal settlements and unauthorized multi-storey developments, but most should apply to the latter.

To become workable the Bill should, in Part 1 (Preliminaries) define “informal settlements” and distinguish these informal settlements from unauthorized multi-storey developments built of permanent materials. In this part 1 it should also change the objectives and purposes of the Bill to regularization of physical planning violations and particularly the regularization of unauthorized multi-storey developments.

In Part 2 (the Regularization Process) clauses 4, 5 and 6 and likewise clauses 8 through 14, should be edited so that they specifically refer to “unauthorized multi-storey developments.” Clause 7 should be edited so that only items a, b and h apply to both informal settlements and unauthorized multi-storey developments, while all other items in this clause apply only to the latter.

In Part 3 (Regularization Advisory Committee), Clause 15 (2) should be amended to include a human rights specialist in the Committee along with the other professionals. 

Independently of the Bill or in a separate statement of the Executive, the County government should state its intention to oversee the development of an affordable housing program as well as to coordinate with existing and future slum upgrading programs. This would require the establishment of a department or agency, as well as funding, adequate to the scale of the task.

WRITTEN BY
Nathan Jeffery
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