Innovating Tenure Rights for Communities in Informal Settlements: Lessons from Mukuru Prof. Patricia...

Innovating Tenure Rights for Communities in

Informal Settlements: Lessons from MukuruProf. Patricia K. Mbote & Dr. Collins

OdotePresentation to World Bank Land

and Poverty ConferenceMarch 2015

University of Nairobi ISO 9001:2008 1 Certified http://www.uonbi.ac.ke

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


Constitutional Context


∗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


∗ 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


∗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


∗Illegality

∗Water and power connections∗ Non-owner slumlords

∗Evictions and displacement

Implications -2


∗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


∗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 2030 54% 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


∗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


∗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


∗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


∗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


∗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


∗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


∗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


∗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)


∗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


∗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


∗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)


∗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)


∗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


∗ 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


∗ 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


Innovating Tenure Rights for Communities in Informal Settlements: Lessons from Mukuru Prof. Patricia...

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