REFORMING URBAN LAWS IN AFRICA - UN-Habitat
REFORMINGURBANLAWS INAFRICAA PRACTICAL GUIDE
Authors: Stephen Berrisford and Patrick McAuslanPublished by the African Centre for Cities (ACC), Cities Alliance, United Nations Human Settlements Programme(UN-Habitat) and Urban LandMark.African Centre for Cities, University of Cape Town, Environmental & Geographical Science Building,Upper Campus, Rondebosch, 7701, South AfricaCities Alliance, Rue Royale 94, 3rd Floor, 1000 Brussels, BelgiumUN-Habitat, United Nations Avenue, Nairobi, KenyaUrban LandMark, c/o Council for Scientific and Industrial Research – Built Environment,Meiring Naudé Road, Pretoria, 0001, South AfricaISBN 978-0-620-74707-3 Stephen Berrisford 2017Production, including editing, design and layout by Clarity Editorial cc.All rights reserved. No part of this publication may be reproduced or transmItted, in any form or by any meanswithout prior permission from the publishers.
CONTENTSForeword and acknowledgements 2Introduction 3Purpose of this guide 6Characteristics of urban Sub-Saharan Africa8Urban law in Sub-Saharan Africa9A new approach to urban legal reform10Triggers for urban legal reform 11Considerations when initiating reforms 14The importance of meaningful stakeholder consultation22Key stakeholder groups 23Considerations when consulting stakeholders26Practical preparations for drafting new urban laws32Establish the terms of reference 33Identify the problem 36Outline three legal options 40Generate a policy paper 45Characteristics of effective urban legislation46Passing the responsibility on to politiciansKey steps in the legislative process5050Implementing new urban laws 52Monitoring the effects of the new law and making adjustments53Indicators to measure impact 53Monitoring and evaluation roles 54Templates for reporting 54Conclusion 55Notes and references 56
Foreword andacknowledgementsThe idea for this guide emerged ata workshop held at The RockefellerFoundation’s Bellagio Center, inItaly, in July 2012. The workshopwas convened by the African Centre forCities with the goal of establishing aplatform for urban legal reform in SubSaharan countries.Discussions at the workshop rangedwidely. A fundamental concern emerged:even though there is widespreadacknowledgement that the urban laws usedfor governing, planning, managing andfinancing African cities are deeply flawed,this realisation alone is not enough tohelp improve the situation. We also needto improve the processes of conceiving,drafting and implementing new legislation.With more than 40 years of experience inconceiving, drafting and implementingurban legislation in Africa and elsewhere,the late Professor Patrick McAuslan arguedin Bellagio that there is no benefit todeveloping laws that introduce new legaltools and instruments to address urbanchallenges if the processes of law-makingare so weak that the new laws stand little, ifany, chance of being implemented. And sothe decision was made to produce a guidefocusing on the processes by which laws are2 R E F O R M I N G U R B A N L AW S I N A F R I CAdeveloped, drafted and processed.The problems facing African cities areenormous, and the need to urgently addressthem is extreme. But without a solid,workable legal framework that is capable ofintroducing fundamental change to currentpatterns of governance, managementand planning, these problems cannot beaddressed. Better urban law is a necessary(but not the only) requirement if Africancities are to successfully pursue sustainable,inclusive and fair economic growth.Developing this guide has been achallenge, primarily because of the death,in January 2014, of Patrick McAuslan, anirreplaceable source of insight into Africanurban legal reform. Fortunately, Patrick wasa prolific writer, publishing his views widelyin a range of books and articles. Indeed,he saw his contribution to this guide asan expression of his belief that those ofus working at the coalface of urban legalchange have a moral obligation to recordand share our experiences and views. Theaim of this guide is to allow a wider pool ofpeople to draw on the ideas of Patrick andmyself – and to adapt and challenge themas needed – rather than feel that theyneed to start from scratch. Nevertheless,it has been hard to co-write without a cowriter, and I have missed his wisdom, his
Patrick McAuslan and Stephen Berrisford atThe Rockefeller Foundation's Bellagio Center in July 2012.humour and, of course, his vast experienceover the last two years of draftingthis guide.The Urban Legal Guide for Sub-SaharanAfrica owes its existence to the supportof many institutions and people. Dr MarkNapier of Urban LandMark provided theseed funding to kick off the project, thanksto that organisation’s funding from UKaid.This was more than matched by CitiesAlliance and UN-Habitat. Of course, TheRockefeller Foundation’s support for theinception workshop in Bellagio was alsoinvaluable.The guide has benefited from the wisecounsel of a reference group consisting ofJulian Baskin (Cities Alliance), Matt Glasser(formerly with the World Bank, now withthe Centre for Urban Law and Financein Africa), Robert Lewis-Lettington (UNHabitat), Professor Ambreena Manji (CardiffUniversity), Dr Mark Napier (formerly withUrban LandMark, now with the Councilfor Scientific and Industrial Research inPretoria), Professor Peter Ngau (Universityof Nairobi) and Professor Vanessa Watson(University of Cape Town). Thank you foryour time and ideas.As you read this guide, please rememberthat there is no instant cure for urban legalproblems. Cities and legal systems are toocomplex for that to be possible. However,this guide can help practitioners bothwithin and outside governments to designand lead urban law-making processes that,at the very least, avoid the mistakes of thepast, and that, in an ideal situation, set newbenchmarks for effective and responsiveurban laws.Stephen Berrisford,Cape TownApril 2017F O R E WO R D A N D AC K N OW L E D G E M E N TS3
Introduction4 R E F O R M I N G U R B A N L AW S I N A F R I CA
The extraordinary projected rateand scale of urban growth inAfrica between now and 2030underscores the need to urgentlydevelop urban laws and regulations thatwill create and shape cities that work moreefficiently and treat people more fairly. Newurban infrastructure has to be provided, newareas for urban growth developed,and new systems of governing andmanaging cities put in place. All this hasto be done in accordance with laws thatprovide clarity, give everyone a fair hearing,prepare cities for a climate-change-resilientfuture and create efficient systems ofdecision-making and administration. And ithas to be done quickly.The rate at which African cities are growingand the scale of problems in urbangovernance and management demandimmediate action to reverse entrenched,ineffective governance practices. To beeffective, urban laws need to: Be pragmatic. Urban laws need to setstandards of behaviour that people,organisations and governments arerealistically able to meet. They also needto be cognisant of the resources availableto enforce these laws. This does not meanthat new laws should not set standardsfor human behaviour that are higher thanURBAN LAWS NEEDTO BE PRACTICAL,RESPONSIVE ANDSCALABLE WHILEPROTECTING THE RIGHTOF ALL CITIZENS TO LIVEAND WORK IN A CITYcurrent practices, just that they cannot betoo high. If standards are set so high thatno one can attain them, then they serveno useful purpose and may even make asituation worse by making criminalsout of otherwise law-abiding citizensand companies. Give effect and strength to the rightof all citizens to live and work in acity. Many colonial and post-colonialgovernments have tried to limit thenumber of people living in cities and theworking opportunities available to urbanresidents. Where these laws are still inplace, they effectively exclude certaingroups of people – especially the poor –from the benefits of living in a city. Be responsive and scalable. It isimportant to provide an implementablelegal framework to manage both thegrowth of cities and the ongoingplanning and management of cities.Urban laws must thus both respondto actual needs of each city in a countrywhile also being easily implementedacross the range of different types of city.The term “African city” is limited in itsusefulness, as is the term “African country”.Each term describes where a city or countrymay be found – in Africa – but neither doesjustice to the economic, political, culturaland physical diversity of the continent’scities and countries. Nevertheless, thereare common challenges and conditions thatpertain to most cities in the region. MostAfrican countries are dominated by onemajor city, normally the capital. Gettingthese cities to work better, include peoplebetter and generate jobs more efficientlyis crucial for national economies and thegrowing urban population. This is also trueof secondary cities and towns, which arealso growing quickly.I N T R O D U CT I O N5
PURPOSE OF THIS GUIDETHIS GUIDE FOCUSESON STRENGTHENINGEFFORTS TO IMPROVETHE LEGAL FRAMEWORKWITHIN WHICH URBANAREAS ARE MANAGED,PLANNED, GOVERNEDAND FINANCED TOCREATE CITIES THAT AREMORE SUSTAINABLE,INCLUSIVE ANDEFFICIENTThis guide aims to create and strengthenlaw-making processes that build and securethe legal rights of all people living in allurban areas to be governed fairly, live safely,earn a living and participate fully in theeconomic and cultural offerings of cities. Itdoes not aim to address all the problemsof African cities. Rather, it focuses onstrengthening efforts to improve the legalframework within which urban areas aremanaged, planned, governed and financedto create cities that are more sustainable,inclusive and efficient.6 R E F O R M I N G U R B A N L AW S I N A F R I CAThe most effective urban laws are thosethat are developed where they are to beapplied, by the people that will abide byand enforce them. They need to be shapedby what is needed and possible there.Difficulties arise when laws are developed –often by outside advisers – without properlyconsidering the relevant context. This guidehelps urban legal reform initiatives withinAfrican countries and enables governmentofficials, local experts and members of civilsociety and the private sector take part indeveloping effective urban laws. It is also aresource to help international advisers thinkabout different ways of supporting urbanlegal reform to create cities that include allcitizens – established and new – in a morejust and more sustainable urban future.Legal systems differ across the region,with a particular divide between theAnglophone countries’ legal traditions andthose of the Lusophone and Francophonecountries. This guide is written to supporturban legal reform in both contexts, whileacknowledging that distinct legal issues willinevitably arise in different places.
INTERNATIONAL AGREEMENTSSUPPORTING URBAN REFORM2030 Agenda for SustainableDevelopmentIn 2015, the United Nations GeneralAssembly adopted the 2030 Agendafor Sustainable Development, whichcommitted all member states toachieving 17 Sustainable DevelopmentGoals by 2030. Of these goals, threeunderpin the need for urban legalreform: Goal 10 commits the world’sgovernments to “reduce inequalitywithin and among countries”. Goal 11 aims to “make cities andhuman settlements inclusive, safe,resilient and sustainable”. It isreinforced by 10 targets, of whichthe following two need urban legalreforms of the type considered inthis guide: Ensure access for all toadequate, safe and affordablehousing and basic services, andupgrade slums. Enhance inclusive, sustainableurbanisation and the capacityfor participatory, integrated andsustainable human-settlementplanning and management in allcountries. Goal 16 commits countries to“promote peaceful and inclusivesocieties for sustainable development,provide access to justice for all andbuild effective, accountable andinclusive institutions at all levels”.Among other things, Goal 16’s targetsaddress participation in decisionmaking, access to information andpromotion of the rule of law.The New Urban AgendaThe New Urban Agenda, unanimouslyagreed to at the Habitat III Conferencein Quito in 2016, is unequivocal in itscall for urban legal change. In termsof the New Urban Agenda, all Africancountries have committed to “promoteinstitutional, legal and financialmechanisms in cities and humansettlements to broaden inclusiveplatforms, in line with national policiesthat allow meaningful participation indecision-making, planning and followup processes for all” (paragraph 41).The countries have also committed totaking measures to “establish legal andpolicy frameworks, based on principlesof equality and non-discrimination, tobetter enable prevailing governmentsto effectively implement nationalurban policies as appropriate, andto empower them as policy anddecision-makers, ensuring appropriatefiscal, political and administrativedecentralisation based on the principleof subsidiarity” (paragraph 89).I N T R O D U CT I O N7
CHARACTERISTICS OF URBANSUB-SAHARAN AFRICADespite urbanising later than most othercontinents, more people live in African citiesthan in the cities of Europe, Australasia,North America or South America. Only Asiahas more urban-based people than Africa. They are home to migrant workers whoregularly move between urban and ruralareas to seek economic opportunities inboth places. They are surrounded by an area thatis neither urban nor rural where newpopulations tend to settle. Large areas of the cities are “illegally”FORTY PERCENT OFAFRICANS ALREADY LIVEIN URBAN CENTRES, AFIGURE THAT WILL GROWTO 50 PERCENT BY 2030occupied by the urban poor, who areunder constant threat of being evictedand having their homes demolished. Informal systems of economic productionand social organisation prevail, resulting incompeting systems of power. Urban areas tend to be segregated alongForty percent of Africans already live inurban centres, a figure that will grow to50 percent by 2030. Unfortunately, therapid pace of urban expansion is not beingmatched by economic growth. In mostcountries, there is one key city that is up tofour times larger than the second-largestcity. This city is politically prominent andoften regarded as a political threat tonational interests.Although cities are highly diverse, they tendto share the following characteristics:Case studyBUILDING LAWS IN SOMEformer Portuguese coloniesused to contain stringentmeasures to minimiseearthquake damage, eventhough the earthquake riskin those countries was – andis – minimal.income, and sometimes ethnic, lines. Extractive economic and politicalinstitutions are maintained andstrengthened by local political elites tobolster their economic and political power. The formal land market and land userights are tightly constrained, resulting inhigh land prices in well-located enclaves. They are growing in ways that ignorethe objectives set out in official plansand policies.The colonial influence on building regulationsHowever, instead of draftingnew bylaws, he merely copiedthe bylaws from his hometownin England, Blackburn,swopping any mention of“Blackburn” with “Nairobi”.As a result, Nairobi’s buildingregulations required roofsthat are able to withstand sixinches of snow.In a similar vein, a colonialadministrator in the Kenyancapital, Nairobi, once decided Although the snow-loadthe city needed a set of bylaws requirements were scrapped inthe 1970s, building regulationsfor building regulations.8 R E F O R M I N G U R B A N L AW S I N A F R I CAin Nairobi continue to ignorethe construction requirementsof the urban poor. This isbecause standards in developingcountries tend to “servemore as a means of socialsatisfaction than as a means ofreconciling the shelter needsof the population with themaintenance of a reasonablelevel of environmental quality.They are so unrealistic that theyare deservedly ignored by themajority of people”.
Local governance is weak. The state isunable to deliver basic services or providesecurity for citizens. This, combined withthe prevalence of poverty and inequality,leads to “slum” conditions for mostcitizens, who voice their grievancesthrough increased urban violence, placinga further burden on the city and country.Many of these characteristics have their rootsin the laws of the continent’s colonial past.In the decades since independence, fewAfrican states have been able to developand implement laws governing urbandevelopment to effectively improve thesecharacteristics of their cities.AFRICA’S CITIES TENDTO BE SHACKLEDTO INAPPROPRIATE,INEFFECTIVE ANDREDUNDANT LAWSAND POLICIES FORMANAGING THEMURBAN LAW INSUB-SAHARAN AFRICAAfrica’s cities tend to be shackled toinappropriate, ineffective and redundant lawsand policies for managing them. These lawsrun deeply through each country’s social,economic and political systems, and areoften based on the assumption that there isa strong national government that is able toimplement them. For example, many urbanland laws assume that the state has thecapacity to manage long-term land leasesor land transfers through land registrationsystems. This is often not the case, resultingin legal uncertainty and vulnerability.better urban management, few countrieshave made significant changes to theirurban governance and land-managementlegislation.1 In some cases, new laws havebeen written and finalised but not actuallyapproved by relevant law-making bodies.Where new laws have been enacted, onlya few have been fully implemented. Thislack of productive change is partly dueto the “export of regulatory rules andpractices from major powers to weakerstates”2 – a practice that is common ininternational economic law but has spilledover into urban law because of urban law’simportance in shaping property law. Theview is often that if a country is to havean urban development and real-estatesector that mirrors that of more developedcountries, it needs to have those countries’laws, too.New urban laws may draw on internationalexperience but should not be dominatedby it. African lawmakers should rather focuson the context within which other countries’laws have worked: what were the political,administrative and legal factors in thosecountries that led to a particular type oflaw’s success (or failure)? The answer to thisquestion could reveal what might work intheir own context. Lawmakers should alsoconsider the substance and principles ofglobal commitments, and turn them intopractical steps for improving urban law.These commitments – evident in Agenda2030, the New Urban Agenda and theParis Agreement – are important, but canonly be effective when translated into legalprovisions that work within a country’s ownenvironment.Over the past two decades especially,African countries have been urged to reformtheir urban policies, practices and lawsin order to turn cities into more effectiveengines of economic growth and shift froman extractive to a more developmentaland inclusive system of urban governance.Despite making global commitments toI N T R O D U CT I O N9
A new approach tourban legal reform10 R E F O R M I N G U R B A N L AW S I N A F R I CA
THE FUTURE OFAFRICAN CITIES MUSTBE ONE SHAPED BYLAWS THAT ADDRESSTHE LIVED EXPERIENCEOF HOUSEHOLDSAND FIRMSThe future of African cities must beone shaped by laws that address thelived experience of households andfirms. These laws must: Offer a reasonable trade-off between thecosts and benefits of compliance.Restructuring urban legislation without anoverarching set of principles as described inthis guide will perpetuate the problems ofineffective laws or laws that have perverseand unintended consequences.Opinions about how best to developnew urban laws often polarise into twocamps. The one camp argues that Africancities need comprehensive, Westerntype laws such as those commonly foundin developed countries, while the othermaintains tha
Urban law in Sub-Saharan Africa 9 A new approach to urban legal reform 10 Triggers for urban legal reform 11 Considerations when initiating reforms 14 . urban infrastructure has to be provided, new areas for urban growth developed,
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replacement while the plant is kept in operation is fairly simple. Reforming The most critical and cost intensive part of the synthesis gas generation is the reforming section. The following three process alternatives have been selected for this comparison: Concept 1: Enlargement of existing primary / secondary reforming section
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laws, foreign investment is governed by laws of general application (e.g., company laws, contract laws, environmental protection laws, land-use laws, laws guaranteeing compensation for expropriation of property, etc.), along with sector-specific laws, which govern the admission of new investment in sectors
management in Africa 3. Community involvement in natural resources management in Africa – regional overviews 3.1 Introduction: Different understandings of, and approaches to, CBNRM in different regions 3.2 Central Africa 3.3 East Africa 3.4 Southern Africa 3.5 West Africa 3.6 Summary 4. What has CBNRM achieved in Africa? The ‘3Es .
Source: United Nations World Urbanization Prospects, IFs version 7.22. figure 2: Africa’s expected levels of urbanisation 2016–2050, by region 100 90 80 70 60 50 40 30 20 45 44 55 28 2020 49 eastern Africa/the Horn southern Africa central Africa North Africa west Africa African average 49
21 Irrefutable Laws of Leadership . About the Laws The laws can be learned The laws can stand alone The laws carry some consequences The laws are the foundation of leadership . 21 Irrefutable Laws of Leadership . The Law of
mastery of it : writing . In a recent survey, academic staff at the University identified the interrelated skills of essay-writing and reasoning as the two most important skills for success in higher education; when asked which skills students most often lacked, essay-writing was again at the top of their list. Needless to say, writing ability is also highly prized by employers. The purpose of .
