Policy Studio 2013-Easing Formulation and Management of People Centered Policies
Rapid population growth, bad governance and urbanization among other factors have contributed to the emergence of slums and informal settlements. Characterized by lack of secure tenure, informal infrastructural servicing, poor housing/dilapidated structures, poor environmental and sanitation provision and high population densities, they offer low cost housing to a large urban population. In Nairobi city for example 60% of its 3 million urban populations is housed in about 200 informal settlements and slums. With rapid urbanization and inadequate provision of affordable housing, the proliferation of slums and informal settlements in Kenya is inevitable[i]. To curb this, the ministry of housing seeks to improve access to housing and basic services to urban poor as well as encourage integrated participatory approaches to slum upgrading. The Constitution of Kenya, bill of right article 42 provides for rights to clean and healthy environment and article 43 provides for equal economic and social rights to all citizens –access to adequate housing, clean and adequate water and health services- this provision guides the equitable access of services of all citizens. In response to the requirements of the Constitution, the Ministry of Housing and other related institutions have embarked on a collaborative policy formulation process. Currently the Ministry is in the process of drafting and formulating the National Slum Upgrading and Prevention Policy (NSUPP) and Land Eviction and Resettlement Bill, to aid in prevention of slum reemergence and improve the living conditions of the communities.
The University of Nairobi together with its partners (UC Berkeley, AMT,SDI, MuST, PT, UN HABITAT e.t.c) have over the years engaged in collaborative research and participatory planning which has seen the production of various negotiated community-led informal settlement upgrading plans(Kosovo, Mathare Zonal Plan, Mabatini Settlement Upgrading). Work among the partners is carried out through action research, experimental learning and case study implementation of plans and proposals. Past plans have either focused on village by Village or settlement by settlement initiatives.
The ongoing policy formulation process by the Ministry of Housing provides a chance to this partnership to share lessons learnt over the years to inform the formulation of integrated municipal, county and national-scale slum upgrading policies.
This year’s policy studio seeks to contribute to the ongoing Country’s policy formulation process and especially to the National Slum Upgrading and Prevention Policy (NSUPP) and Land Eviction and Resettlement Bill by drawing from past studios and informal settlement works.
The core aim of the 2013 Collaborative policy studio and seminar is to build on lessons from previous studios and informal settlement upgrading plans and projects (Mathare, Kibera, Mukuru, etc.), to inform the Country’s ongoing policy formulation process especially in regards to Slum Upgrading and Land rights.
The Specific Objectives of the studio are:
- To ensure that the needs and knowledge of slum dwellers, civil society organizations and other stakeholders are reflected in new national, county and municipal policies by providing a stakeholder dialogue/forum/seminar to share ideas and lessons with relevant government and slum policy formulation agencies.
- To provide support and feedback to the formulation and implementation of the ongoing National Slum Upgrading and Prevention Policy (NSUPP) and Land Eviction and Resettlement Bill.
The studio team (from UC Berkeley and University of Nairobi) together with partners held a series of stakeholder meetings in January to help define specific areas of involvement and contribution. The policy studio will run from January to May 2013 and based on the January stakeholder agreement may culminate in: a jointly issued memo or policy analysis with recommendations to relevant ministries, a social media campaign to raise awareness of the importance of the policy process, pilot implementation plans for specific informal settlements, municipalities or counties, and/or a curriculum to train professional planners in the implementation of the new policies.
Both the country of Kenya and the city of Nairobi are currently undergoing significant governance reform. In 2009 the Nairobi Metropolitan Bill was passed, creating a Nairobi Metropolitan Region (NMR) that unites fifteen local authorities in four different administrative provinces. In 2010 Kenya adopted a new Constitution requiring an overhaul of key legislation at both national and local levels, including the subdivision of Kenya’s eight provinces into 70 counties.
These ongoing institutional changes present a moment in time where people can participate in improving the planning and governance process for the Nairobi Metropolitan Region – increasing the chance that Vision 2030’s world class metropolis will come to life.
Land and Housing Policy Gains
Prof. Peter Ngau, an Associate Professor of Urban and Regional Planning at the University of Nairobi, Department of Urban and Regional Planning said that, “the collaboration with NGOs represents new avenues for imagining new roles for planners beyond government and private sector work. The two institutions of higher learning begun working from the grassroots to understand why this trend in urbanization occurs. Collaboration with UC Berkeley to bring in international perspective, skill building. Studio objective always to share derived learning etc. with the government and development agencies.”
In her Contribution to the Policy Studio, Jane Weru, who is the Executive Director of Akiba Mashinani Trust, a grass root organization working with poor communities emphasized that, “One of the important changes in constitution has been to address historical injustices against ethnic groups and communities in informal settlements.”
Land redistribution: a minimum and maximum land ceiling included in new constitution. The Devolution of power earlier concentrated at the in presidency has now shifted. Provision of the formation of the National Land Commission, should come into effect in March which will require parliament to pass National Land Acts which include: Land Act, Land Registration Act and Community Land Act.
Over the years the civil society has been lobbying for a bill to stop evictions. However the Govt. was not keen for a long time to pass a bill like this, until last year. After a public outcry against evictions, a task force was constituted to make a bill to this effect and responsible to make a bill for enactment within 5 months.
Currently there are two committees (Task force) mandated to develop policies with regards to; housing policy and slum upgrade policy.
- National Land Commission Act, 2012: The purpose of the National Land Commission Act of 2012 is meant to provide management and administration of land in accordance with the principles of land policy set out in article 60 of the Constitution and the national land policy.
- The Land Act 2012: The Land Act of 2012 gives effect to Article 68 of the Constitution to revise, consolidate and rationalize land laws; to provide for the sustainable administration and management of land and land based resources and for related purposes.
- The Land Registration Act 2012: The Land Registration Act of 2012 allows Parliament to revise, consolidate and rationalize the registration of titles to land, to give effect to the principals and objects of devolved government in land registration, and for other related purposes.
- Land Consolidation Regulation, 1989: The Land Consolidation Regulation of 1989 specifies the fee schedule that is payable prior to registration of any dealing affecting a land holding, to be paid to the Chief Land Registrar.
- Building Code, 1968: The Building code of 1968 is the primary statute governing buildings standards, design and material use in Kenya. It consists of consisting of Local Government (Adoptive By-Laws) (Building) Order, 1968, and Local Government (Adoptive By-Laws) and governs the construction process from inception until maintenance.
· The Housing Bill, 2009: The Housing Bill of 2009 provides for the effective coordination, facilitation, capacity building and monitoring of the housing and human settlements sector. It establishes the Kenya Housing Authority and the National Social Housing and Infrastructure Fund for the provision of housing and other related purposes.
Flagship Areas for policy Formulation
Key documented areas by the Kenyan Government are most intertwined on key development areas that include; urbanization, Land and housing sectors. The flagship projects will include:
- Preparation of a national land-use plan in order to facilitate better urban planning;
- Installation of physical and social infrastructure in slums in 20 urban areas to make them formal settlements, permit construction of permanent houses and attract private investment;
- Produce 200,000 housing units annually by 2012 under PPP and other initiatives
- Establishing housing technology centres in each constituency to increase access to decent housing by promoting location-specific building materials and low-cost housing;
- Establishing a secondary mortgage finance corporation to increase access to housing finance;
- Enacting the Housing Bill, 2006 to legislate for a one-stop housing development approvals mechanism to fast-track approval of housing plans and reduce the time cost of construction.
Other Key Programmes likely to inform the ongoing policy formulation initiatives are;
- Population; Undertake the 2009 Population and Housing Census and Socio-demographic Surveys to inform Policy and Programmes; Undertake Advocacy and Public Education and Communications on the effects of population change on development; and Establish and strengthen partnerships and coalitions to mobilise support for policy and programmes.
- Urbanisation; Preparing Physical Development Plans for three Resort Cities (Isiolo and two others at the Coast; Establishing waste management systems in selected Local Authorities; and Preparation of integrated physical infrastructure investment plans.
Policy, Legal and Institutional Reforms
- Review of the current population policy;
- Review and harmonisation the existing legal and institutional framework governing urbanisation;
- Enactment of the Housing Bill 2006, to legislate for a one-stop housing development approvals mechanism to fast-track approval of housing plans and reduce the time cost of construction
- Enactment of the Landlord and Tenant Bill
- Formulation and implementation of Urban Development Policy and the National Land Policy; and
- Preparation of a markets development policy.
Recent Policy Developments
One of the main challenges facing housing sector in Kenya is insufficient serviced land for housing development. The demand for land with necessary infrastructure (Access roads, water, sewerage and electricity) by far exceeds supply. The demand for serviced land and housing infrastructure services has increased and options for the private – private or public- private partnerships is likely to be pursued.
Sessional Paper No.3 of 2004 on National Housing Policy for Kenya, under article 42 states that “ the opening of new land for housing development or the upgrading of existing informal settlements require installation and maintenance of infrastructure such as water, sewerage, roads, electricity, social services and security. Infrastructural services and facilities therefore form a major and vital component of shelter provision facilitation. It is further envisaged that, accessibility to adequate urban basic services will greatly improve people’s economic capacities, health and quality of life in general.
The housing component of Slum Upgrading Programme involves facilitating the slum dwellers to access decent shelter. To this end, Langata decanting site was developed to allow for relocation of residents in slums to pave way for redevelopment.
The programme had relocated about 1800 households from the Kibera Soweto to Langata Decanting site to pave way for redevelopment. The redevelopment works comprising construction of blocks of flats, 5-storeys high comprising 1,500 No. one, two and three -roomed self- contained housing units and associated physical and social infrastructure was officially launched on 6th March 2012 by the President of Kenya. The works are expected to be completed by August 2014.
The Ministry of housing in partnership with the Ministry of Corporative and local authorities have succeeded in formation of 20 housing cooperative societies. The societies are formed in the projected areas. It is expected that through the societies the slum residents would mobilize funds to improve their housing situations.
The Kenya Informal Settlement Improvement Programme (KISIP) is at its implementation stage having been launched in June 2011. The programme undertakes tenure regularization and installation of social and physical infrastructure in informal settlements in the following towns; Nairobi, Mombasa, Kisumu, Nakuru, Eldoret, Malindi, Naivasha, Kitui, Machakos, Thika, Nyeri, Garissa, Kericho, Kakamega, Embu. A number of consultants have been engaged to undertake preparatory activities before actual implementation starts.
The Kenya Slum Upgrading Programme (KENSUP) is core poverty Programme aimed at addressing the challenge of housing problems affecting the majority of the urban population who live in slums and informal settlements. The Programme aims at improving the lives of people living and working in the slums and informal settlements in all urban areas of Kenya and to contribute to poverty reduction and fulfillment of the Millennium Development Goals, specifically Goal No 7 target 11- of improving the lives of 100 million slum dwellers by the year 2020. The Programme generally entails participatory planning and implementation of the following strategic components;
- Community mobilization, organisation and participation
- Preparation of City/Town development strategic and land use master plans
- Shelter improvement
- Provision of Physical and social infrastructure/amenities
- Environment and Solid waste management
- Employment / income generating activities
- Liaison with micro financing and credit systems
- HIV/AIDS concerns
- Conflict prevention and management
- Support to vulnerable and disadvantaged groups
The Programme is currently in the implementation phase covering selected slums in Nairobi, Mombasa, Kisumu, and Mavoko.
National Land Policy
It has long been recognized that Kenya needs a National Land Policy to rationalize and guide the implementation of the many laws governing land and land-based natural resources. The aim of the National Land Policy is to promote efficiency, sustainability and equity in the use of land to achieve prosperity while ensuring that it is protected for the benefit t of future generations. The Policy introduces positive reforms in the land sector that will establish accountable and transparent institutions for land administration and management.
The reforms proposed by the National Land Policy can only be secured and sustained if they are anchored in the Constitution. Many aspects of the land question in Kenya can be blamed on the existing constitutional framework and its approach to the protection of property rights in land. The Constitution does not recognize the uniqueness of land and treats it like other forms of property, with emphasis on individual rights at the expense of community rights and the public interest. As a result, the Constitution has been used to protect land rights even where they have been acquired illegally. Moreover the Constitution has centralized authority and power of land on state organs which function without any citizen oversight.
The Constitution should establish the National Land Commission (NLC) as the supreme organ for the administration and management of land and lay down principles that will ensure that:
• Legitimate land rights are secured, and there is equitable access to land to promote social justice;
• Genuine claims of communities who were unjustly dispossessed of their land in both the colonial and post-colonial era are settled;
• Use of private land is regulated by the state to secure the public interest;
• Women, minorities, children and persons with disabilities are protected against laws, customs and practices that prevent them from enjoying their land rights;
• Rules are made for taxation of idle land to discourage holding of land for speculative purposes and promote efficient use and distribution of land rights
Land tenure refers to the terms and conditions under which individuals, communities and other groups obtain rights and interest in land, and how they retain or transfer those interests and rights during their lifetime or as an inheritance when they die.
Currently, the categories of land tenure in Kenya are government land, trust land, and private land. The National Land Policy categorizes all land in Kenya as Public land, Community land and Private land, and 3 commits the government to enact a new law to govern all the categories of land.
PUBLIC LAND Public land shall be all land that is not private or community land and any land declared by law to be public land. At the moment, there is no system established by law for registering land used by public institutions such as government departments, schools, prisons, etc. The practice of registering the land in the name of the Permanent Secretary in the Ministry of Finance is a temporary solution to safeguard such land.
COMMUNITY LAND Community land is land that a specific community holds, manages and uses but the ownership of which is placed in the community, while individuals have rights of use. Community land is governed by customs and traditions of different communities, which have been undermined over the years by the process of individualization of land tenure. The National Land Policy recognizes community land rights and commits the government to secure them. This shall be done through the following policy actions: (a) documenting and mapping existing forms of communal tenure in consultation with the affected groups and establishing broad principles for systematic development of community land law; (b) repealing the Trust Land Act; (c) defi ning the term “community” in the proposed new land law that will also place community land in the community as defined; (d) setting out in a new land law the procedures for: (1) managing community land taking into account multiple interests of land users including women. 15 (2) restitution of illegally acquired parts of trust land to the affected communities; (3) returning former government land along the Coastal region to communities subject to making provision of land for public use; (4) establishing a framework for administration of community land that is accountable and allows for public participation; (5) using customary systems to manage land disputes.
PRIVATE LAND This is land owned and used by an individual or other legal body such as a company. The National Land Policy shall:
• Consolidate all the laws governing private land into the proposed Land Act.
• Ensure that private land rights are subject to the powers of compulsory acquisition and development control.
• The government shall establish tax measures to encourage productive use of land and discourage the holding of land for speculative purposes. Where the owner of any private land dies leaving no heirs, the land shall revert to the State to be managed by the NLC for the benefit of the people of Kenya.
To curb the menace of forced evictions in Kenyan slum settlements the civil society through Hakii Jamii drives the objectives of the passing and legislation of the Evictions and Resettlement bill as an avenue to demonstrate innovative advocacy and lobbying approaches that promote the right to adequate housing and access to basic services for the urban poor through constructive dialogue and adoption of pro-poor eviction guidelines and slum upgrading policy. To achieve this, the following is envisaged;
- A viable community and civil society network to influence the Government to adopt and implement eviction guidelines and slum upgrading policy and other urban basic services.
- Expanded and consolidated linkage between the rights holders (civil society and grass root organizations) and the duty bearer (government agencies) in the adoption and implementation of eviction and slum upgrading laws and policies. 3.An improved institutional capacity of Hakijamii to advocate for the adoption and implementation of national evictions and slum upgrading policies and laws.
Constructive advocacy approaches where Haki Jamii has served as bridge between the ‘duty bearer’ and ‘rights holder’ to sustain a balance between the legitimate demands of the poor communities and the obligations of the government more especially as relates to establishment of formal guidelines that are aimed at securing the interest of the poor masses (e.g national eviction guidelines, human rights policy) have yielded significant gains in recent times.
Accelerated gains can be achieved through a consolidation of networking and knowledge sharing approaches among and within the coalition of grassroots movements of non state actors working in urban informal settlements while at the same time expanding the existing linkage and engagement with the Government agencies in ensuring effective implementation of urban policies and/or laws especially on evictions and other basic services.
These initiatives are in close collaboration with the Nairobi People’s Settlement Network, Muungano wa Wanavijiji, Kisumu Social Rights Association, Kasarani Youth Congress and the Ministry of Lands (Land Reform Transformation Unit), coordinated efforts will be directed towards promoting the implementation of eviction guidelines and slum upgrading practices that are grounded on international human rights standards. Priority action areas as Petitioned by Civil Society
• Adoption and integration of policies on Population, Housing, and Urban Development in the National Development Agenda over the years is an indication of Government recognition of such policies as crucial in the realization and delivery of fundamental needs of a growing population and also to address challenges faced in the social, economic and political spheres. • Enhance Partnerships and coalitions for advocacy and resource mobilization for population programs • Parliament discusses and approves The National Evictions and Resettlement Guidelines. • Regulate the tenure in informal settlements that are located on publicly-owned land, and get ready for its implementation with great involvement of the Ministry of Lands in development of the envisaged approach to tenure regularization. • Two of the national programs—the Kenya National Slum Upgrading Program (KENSUP) and Kenya Informal Settlements Improvement Programme (KISIP)—supported by development partners: Rolling out implementation of KENSUP, and finalization of processes for KISIP implementation. These programs will serve as an important step for moving from piecemeal reforms and small-scale pilot projects, towards integrated/holistic strategies for transformation in the urban and local government and housing sectors • Gender mainstreaming and women empowerment should be integrated in all programs as crosscutting issue through needs assessment, training and capacity building. • Completion of works towards realization of a National Urban Development Policy, National Land Policy and National Slum Upgrading and Prevention Policy.
Politics and its influence on Slums
Election year but slums are not an election issue. Issues are ethnicity, economy (control of resources). Unusual election issue is gender. Environment, gay rights, energy are not issues. Policy needs to be made on these issues that are not hot issues. While civil society recognizes slums are an issue and so does individual departments, but not at the national level. While gender is seen nationally as an issue that needs affirmative action, there is no such recognition for informal settlements. Perhaps, the issue is that this nature of urbanization is not recognized/noticed as a problem yet
Across the global south, same issue: urbanization with manifestation in urban poverty happens first and a few years later the issue is recognized and dealt with by governments.
Expectation: not only policy, but monitoring policy development stage by stage i.e. set up milestones for policy development and a framework that can be modified across different countries.
While civil society has been organizing Mathare, there is no support from policy for any endeavors. Important to have policy that can address evictions, upgrading, community land ownership.