Innovating Tenure Rights for Communities in Informal Settlements: Lessons from Mukuru Prof. Patricia K. Mbote & Dr. Collins Odote Presentation to World.

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Presentation transcript:

Innovating Tenure Rights for Communities in Informal Settlements: Lessons from Mukuru Prof. Patricia K. Mbote & Dr. Collins Odote Presentation to World Bank Land and Poverty Conference March 2015 University of Nairobi ISO 9001: Certified

Map of Mukuru Informal Settlement

∗ The Mukuru informal settlement is situated in the Eastern part of Nairobi City County. ∗ One of the largest slums in Kenya ∗ Has a population of over 690,000 people. ∗ It is sub divided into two broad settlements Mukuru Kwa Njenga and Mukuru Kwa Reuben both cover about 450 acres of prime land ∗ They are further divided into 21 zones or villages in the middle of the city’s main industrial area. ∗ Physically, Mukuru has several gigantic holes which are relics of quarrying activities. ∗ Some of these holes have been turned into man-made dams and dumping sites by the residents, surrounding factories and neighbouring settlements and also act as breeding ground for mosquitoes during rainy seasons posing health hazards Facts About Mukuru University of Nairobi ISO 9001: Certified

Constitutional Context University of Nairobi ISO 9001: Certified

∗ Land as a vital resource for urban livelihoods & national economies in Africa ∗ Approximately 60% of population derive livelihoods from land-based activities ∗ Establishing and clarifying land rights key issue in development policies ∗ Promote productive uses of land ∗ Ensure access to land based services ∗ Crux of HRBA – livelihoods & interconnectedness of socio- economic rights ∗ Centrality of land ∗ Politically – sovereignty; identity of communities & individuals ∗ Social & economic well-being ∗ More than an economic resource Introduction University of Nairobi ISO 9001: Certified

∗ Rules of Land tenure critical in clarifying ownership and use of land ∗ In informal settlements, tenure informality prevalent ∗ Tenure informality impacts negatively on security to land rights and use of land for socio-economic development and other uses ∗ Land in Mukuru initially set aside for light industries, allocated to individuals/corporations ∗ Encroachment dues to non-use by owners Land Tenure in Informal Settlements University of Nairobi ISO 9001: Certified

∗ Contestation & uncertainty of land ownership/service delivery ∗ Legality versus legitimacy ∗ De jure owners, de facto occupants ∗ Preponderance of illegality and informality ∗ Informal mechanisms ∗ Undermine state legitimacy ∗ Reproduce violence & exclusion ∗ Create insecurity- gangs/militia above law Implications of Informality University of Nairobi ISO 9001: Certified

∗ Illegality ∗ Water and power connections ∗ Non-owner slumlords ∗ Evictions and displacement Implications -2 University of Nairobi ISO 9001: Certified

∗ Preventing Evictions ∗ Promote right to housing ∗ Illegality of private title deeds ∗ Slum upgrading and provision of basic services ∗ These efforts problematic ∗ Can occupation and possession be basis for claiming legal title…. Developments in Adverse Possession ∗ Can legitimacy override legality? ∗ Recognition of community rights? ∗ Need for innovation in protecting those in informal settlements, based on New Constitution Past Efforts At Addressing Informality University of Nairobi ISO 9001: Certified

∗ Land as basis for livelihood ∗ Kenya, increasingly urbanising ∗ In 1962, 1 out of every 10 Kenyan lived in urban areas ∗ 1999, I out every 3 Kenyan lived in urban areas ∗ 44.5% in 2015 in Urban areas ∗ By % estimated to live in urban areas ∗ Urban areas account for Approximately 70% of GDP ∗ Kenya’s policy documents, Vision 2030 underscores importance of urban development for larger Country's development ∗ Informal settlements a key feature of urban developments due to lack of planning, poverty and scarcity of land Rationale for Intervention University of Nairobi ISO 9001: Certified

∗ Insecure land rights compromises many issues ∗ Poor provision of basic amenities ∗ High cost of basic social services when provided ∗ Insecurity ∗ Lack of and resort to alternative governance ∗ High crime and mortality rates ∗ Results in undermining of state legitimacy ∗ Emergence of cartels Rationale for Intervention- 2 University of Nairobi ISO 9001: Certified

∗ A Constitutional Framework that underscores social justice ∗ Recognition of multiple tenure arrangements ∗ Public, Private and Community tenure- and equality of tenure ∗ New laws on land & Proposed Community Land Bill ∗ Devolved Governance Governance structures ∗ Reformed judiciary with focus on protecting rights ∗ Increased focus on slums--- including as a vote bank and need to improve rights of those in slums ∗ Provisions on Rights to housing and constitutional position on irregular and illegally acquired lands Opportunities For Intervention University of Nairobi ISO 9001: Certified

∗ Informal land tenure synonymous with actual occupation and use of land without much legal basis ∗ Not private, public or community ∗ Overlaid on one of categories ∗ In Mukuru, informal settlements on people’s private land, thus frequent eviction threats and conflicts ∗ Securing tenure for informal settlers predicated on confronting the illegality Formalizing the Informal University of Nairobi ISO 9001: Certified

∗ Land in Mukuru originally Government land ∗ Allocated to individuals under the Government Lands Act ∗ Key land options ∗ Land allocated to individuals as first grants for the development of light industries which is undeveloped and unalienated; ∗ Land originally granted for the development of light industries which has been sold off to third parties in an open market; ∗ Land originally granted for the development of light industries which has been charged to banks; and ∗ Land that is unallocated but encroached upon Formalizing the Informal-2 University of Nairobi ISO 9001: Certified

∗ Land in Mukuru mainly owned by individuals who are not in occupation of the land ∗ Challenge to these owners can be done through ∗ Legal challenge of titles; ∗ Claim of adverse possession; or ∗ Policy Formalizing the Informal - 3 University of Nairobi ISO 9001: Certified

∗ Policy direction ∗ Regularization of existing squatter settlements ∗ Establishment of a legal framework & procedures for transferring unutilized land and land belonging to absentee land owners to people living in informal settlements ∗ Whatever direction is taken, consideration of tripartite question ∗ What land – space? Demarcation ∗ How much time on land – what interest? ∗ Who holds - People ∗ Decongesting – planning; carrying capacity Formalizing the Informal - 4 University of Nairobi ISO 9001: Certified

∗ While slum upgrading and recent efforts to provide electricity useful, do not address tenure rights ∗ Use existing Constitution, National Land Commission and ongoing reforms to secure land right ∗ Secure tenure to land as community land and facilitate individuals’ enjoyment of their rights ∗ Discussions about issuance of Title in slums areas to be avoided ∗ - Hernando De soto Versus Okoth Ogendo formalising the informal Innovating Tenure Rights University of Nairobi ISO 9001: Certified

∗ Article 63 of COK ∗ Community land shall vest in and be held by communities identified on the basis of ethnicity, culture or similar community of interest ∗ Provides a window of opportunity for securing land in informal settlements ∗ Create community land rights predicated on the community of interest ∗ A functional community of interest has arisen as residents have established systems to meet their needs Innovating Tenure Rights(2) University of Nairobi ISO 9001: Certified

∗ Given preponderance of illegality, investment in institutional supply to build community in Mukuru critical ∗ Other issues that need to be clarified are ∗ Loci of holding the allodium; ∗ Governance; ∗ Viable size of community; and ∗ Dealing with excess members Innovating Tenure Rights- 3 University of Nairobi ISO 9001: Certified

∗ Need to convert the land currently held as private tenure to community land ∗ Enactment of Community land law to provide for conversion process from private to community land ∗ At the interim, National Land Commission can acquire the land compulsorily for purpose of establishing settlement scheme ∗ Need for financial support as part of compensation process under Article 40 of CoK Procedural Issues University of Nairobi ISO 9001: Certified

∗ Create Freehold interest from Community land and vest in Mukuru Community ∗ Vest control of the Freehold interest in County Governments ∗ Create leasehold interest and allocate these to individuals living in Mukuru ∗ Leasehold interest to be restricted to rights to houses and not land ∗ Process of unbundling of rights ∗ Allow leasehold rights to be traded ∗ Create a register of rights Conclusions(1) University of Nairobi ISO 9001: Certified

∗ Security of tenure can lead to HRBA to development ∗ It is at the core of human rights, dignity and decent livelihoods ∗ Security of tenure critical for the enjoyment of rights to water; sanitation; food and housing ∗ Community rights on the basis of ‘community of interest’ provide an alley through which security of tenure can be secured for Mukuru residents Conclusions(2) University of Nairobi ISO 9001: Certified

∗ This should however not fetter individual dealings with their entitlements to the land as long as these do not interfere with the overall community title ∗ Community rights' protection to secure tenure for Mukuru residents will pave the way for expanding the scope of community rights to urban densely populated spaces Conclusions - 3 University of Nairobi ISO 9001: Certified

∗ The approach to improving security of tenure in Mukuru needs to be flexible so as to accommodate some of the unique features in the settlement ∗ Community rights are dynamic ∗ Community members should be availed opportunities to participate in decision making processes involving land rights Conclusions - 4 University of Nairobi ISO 9001: Certified

∗ Government (national and county) support is quintessential if security of tenure is to be attained and guaranteed for Mukuru residents ∗ Irrespective of approach taken to secure the space, rights and determine the holders of rights ∗ The Constitution, new land laws and devolution laws provide opportunities for anchorage of the quest to secure tenure for Mukuru residents Conclusions -5 University of Nairobi ISO 9001: Certified