REFORMING URBAN LAWS IN AFRICA A PRACTICAL GUIDE Authors: Stephen Berrisford and Patrick McAuslan

Published 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 Africa

Cities Alliance, Rue Royale 94, 3rd Floor, 1000 Brussels, Belgium

UN-Habitat, United Nations Avenue, Nairobi, Kenya

Urban LandMark, c/o Council for Scientific and Industrial Research – Built Environment, Meiring Naudé Road, Pretoria, 0001, South Africa

ISBN 978-0-620-74707-3 © Stephen Berrisford 2017

Production, 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 means without prior permission from the publishers. CONTENTS

Foreword and acknowledgements 2

Introduction 3 Purpose of this guide 6 Characteristics of urban Sub-Saharan Africa 8 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

The importance of meaningful stakeholder consultation 22 Key stakeholder groups 23 Considerations when consulting stakeholders 26

Practical preparations for drafting new urban laws 32 Establish the terms of reference 33 Identify the problem 36 Outline three legal options 40 Generate a policy paper 45

Characteristics of effective urban legislation 46

Passing the responsibility on to politicians 50 Key steps in the legislative process 50

Implementing new urban laws 52

Monitoring the effects of the new law and making adjustments 53 Indicators to measure impact 53 Monitoring and evaluation roles 54 Templates for reporting 54

Conclusion 55

Notes and references 56 Foreword and acknowledgements

he idea for this guide emerged at developed, drafted and processed. a workshop held at The Rockefeller The problems facing African cities are Foundation’s Bellagio Center, in enormous, and the need to urgently address Italy, in July 2012. The workshop them is extreme. But without a solid, Twas convened by the African Centre for workable legal framework that is capable of Cities with the goal of establishing a introducing fundamental change to current platform for urban legal reform in Sub- patterns of governance, management Saharan countries. and planning, these problems cannot be addressed. Better urban law is a necessary Discussions at the workshop ranged (but not the only) requirement if African widely. A fundamental concern emerged: cities are to successfully pursue sustainable, even though there is widespread inclusive and fair economic growth. acknowledgement that the urban laws used for governing, planning, managing and Developing this guide has been a financing African cities are deeply flawed, challenge, primarily because of the death, this realisation alone is not enough to in January 2014, of Patrick McAuslan, an help improve the situation. We also need irreplaceable source of insight into African to improve the processes of conceiving, urban legal reform. Fortunately, Patrick was drafting and implementing new legislation. a prolific writer, publishing his views widely in a range of books and articles. Indeed, With more than 40 years of experience in he saw his contribution to this guide as conceiving, drafting and implementing an expression of his belief that those of urban legislation in Africa and elsewhere, us working at the coalface of urban legal the late Professor Patrick McAuslan argued change have a moral obligation to record in Bellagio that there is no benefit to and share our experiences and views. The developing laws that introduce new legal aim of this guide is to allow a wider pool of tools and instruments to address urban people to draw on the ideas of Patrick and challenges if the processes of law-making myself – and to adapt and challenge them are so weak that the new laws stand little, if as needed – rather than feel that they any, chance of being implemented. And so need to start from scratch. Nevertheless, the decision was made to produce a guide it has been hard to co-write without a co- focusing on the processes by which laws are writer, and I have missed his wisdom, his

2 REFORMING URBAN LAWS IN AFRICA Patrick McAuslan and Stephen Berrisford at The Rockefeller Foundation's Bellagio Center in July 2012.

humour and, of course, his vast experience University), Dr Mark Napier (formerly with over the last two years of drafting Urban LandMark, now with the Council this guide. for Scientific and Industrial Research in Pretoria), Professor Peter Ngau (University The Urban Legal Guide for Sub-Saharan of Nairobi) and Professor Vanessa Watson Africa owes its existence to the support (University of Cape Town). Thank you for of many institutions and people. Dr Mark your time and ideas. Napier of Urban LandMark provided the seed funding to kick off the project, thanks As you read this guide, please remember to that organisation’s funding from UKaid. that there is no instant cure for urban legal This was more than matched by Cities problems. Cities and legal systems are too Alliance and UN-Habitat. Of course, The complex for that to be possible. However, Rockefeller Foundation’s support for the this guide can help practitioners both inception workshop in Bellagio was also within and outside governments to design invaluable. and lead urban law-making processes that, at the very least, avoid the mistakes of the The guide has benefited from the wise past, and that, in an ideal situation, set new counsel of a reference group consisting of benchmarks for effective and responsive Julian Baskin (Cities Alliance), Matt Glasser urban laws. (formerly with the World Bank, now with the Centre for Urban Law and Finance Stephen Berrisford, in Africa), Robert Lewis-Lettington (UN- Cape Town Habitat), Professor Ambreena Manji (Cardiff April 2017

FOREWORD AND ACKNOWLEDGEMENTS 3 Introduction

4 REFORMING URBAN LAWS IN AFRICA he extraordinary projected rate current practices, just that they cannot be and scale of urban growth in too high. If standards are set so high that Africa between now and 2030 no one can attain them, then they serve underscores the need to urgently no useful purpose and may even make a Tdevelop urban laws and regulations that situation worse by making criminals will create and shape cities that work more out of otherwise law-abiding citizens efficiently and treat people more fairly. New and companies. urban infrastructure has to be provided, new areas for urban growth developed, ¦ Give effect and strength to the right and new systems of governing and of all citizens to live and work in a managing cities put in place. All this has city. Many colonial and post-colonial to be done in accordance with laws that governments have tried to limit the provide clarity, give everyone a fair hearing, number of people living in cities and the prepare cities for a climate-change-resilient working opportunities available to urban future and create efficient systems of residents. Where these laws are still in decision-making and administration. And it place, they effectively exclude certain has to be done quickly. groups of people – especially the poor – from the benefits of living in a city. The rate at which African cities are growing and the scale of problems in urban ¦ Be responsive and scalable. It is governance and management demand important to provide an implementable immediate action to reverse entrenched, legal framework to manage both the ineffective governance practices. To be growth of cities and the ongoing effective, urban laws need to: planning and management of cities. Urban laws must thus both respond ¦ Be pragmatic. Urban laws need to set to actual needs of each city in a country standards of behaviour that people, while also being easily implemented organisations and governments are across the range of different types of city. realistically able to meet. They also need to be cognisant of the resources available The term “African city” is limited in its to enforce these laws. This does not mean usefulness, as is the term “African country”. that new laws should not set standards Each term describes where a city or country for human behaviour that are higher than may be found – in Africa – but neither does justice to the economic, political, cultural and physical diversity of the continent’s cities and countries. Nevertheless, there are common challenges and conditions that URBAN LAWS NEED pertain to most cities in the region. Most TO BE PRACTICAL, African countries are dominated by one RESPONSIVE AND major city, normally the capital. Getting SCALABLE WHILE these cities to work better, include people PROTECTING THE RIGHT better and generate jobs more efficiently OF ALL CITIZENS TO LIVE is crucial for national economies and the growing urban population. This is also true AND WORK IN A CITY of secondary cities and towns, which are also growing quickly.

INTRODUCTION 5 PURPOSE OF THIS GUIDE

The most effective urban laws are those that are developed where they are to be THIS GUIDE FOCUSES applied, by the people that will abide by ON STRENGTHENING and enforce them. They need to be shaped EFFORTS TO IMPROVE by what is needed and possible there. THE LEGAL FRAMEWORK Difficulties arise when laws are developed – WITHIN WHICH URBAN often by outside advisers – without properly AREAS ARE MANAGED, considering the relevant context. This guide helps urban legal reform initiatives within PLANNED, GOVERNED African countries and enables government AND FINANCED TO officials, local experts and members of civil CREATE CITIES THAT ARE society and the private sector take part in MORE SUSTAINABLE, developing effective urban laws. It is also a INCLUSIVE AND resource to help international advisers think EFFICIENT about different ways of supporting urban legal reform to create cities that include all citizens – established and new – in a more just and more sustainable urban future.

This guide aims to create and strengthen Legal systems differ across the region, law-making processes that build and secure with a particular divide between the the legal rights of all people living in all Anglophone countries’ legal traditions and urban areas to be governed fairly, live safely, those of the Lusophone and Francophone earn a living and participate fully in the countries. This guide is written to support economic and cultural offerings of cities. It urban legal reform in both contexts, while does not aim to address all the problems acknowledging that distinct legal issues will of African cities. Rather, it focuses on inevitably arise in different places. strengthening efforts to improve the legal framework within which urban areas are managed, planned, governed and financed to create cities that are more sustainable, inclusive and efficient.

6 REFORMING URBAN LAWS IN AFRICA INTERNATIONAL AGREEMENTS SUPPORTING URBAN REFORM

2030 Agenda for Sustainable Development In 2015, the United Nations General Assembly adopted the 2030 Agenda for Sustainable Development, which committed all member states to achieving 17 Sustainable Development Goals by 2030. Of these goals, three underpin the need for urban legal reform:

¦ Goal 10 commits the world’s governments to “reduce inequality within and among countries”.

¦ Goal 11 aims to “make cities and human settlements inclusive, safe, resilient and sustainable”. It is reinforced by 10 targets, of which the following two need urban legal The New Urban Agenda reforms of the type considered in The New Urban Agenda, unanimously this guide: agreed to at the Habitat III Conference in Quito in 2016, is unequivocal in its ◗ Ensure access for all to call for urban legal change. In terms adequate, safe and affordable of the New Urban Agenda, all African housing and basic services, and countries have committed to “promote upgrade slums. institutional, legal and financial mechanisms in cities and human ◗ Enhance inclusive, sustainable settlements to broaden inclusive urbanisation and the capacity platforms, in line with national policies for participatory, integrated and that allow meaningful participation in sustainable human-settlement decision-making, planning and follow- planning and management in all up processes for all” (paragraph 41). countries. The countries have also committed to taking measures to “establish legal and ¦ Goal 16 commits countries to policy frameworks, based on principles “promote peaceful and inclusive of equality and non-discrimination, to societies for sustainable development, better enable prevailing governments provide access to justice for all and to effectively implement national build effective, accountable and urban policies as appropriate, and inclusive institutions at all levels”. to empower them as policy and Among other things, Goal 16’s targets decision-makers, ensuring appropriate address participation in decision- fiscal, political and administrative making, access to information and decentralisation based on the principle promotion of the rule of law. of subsidiarity” (paragraph 89).

INTRODUCTION 7 CHARACTERISTICS OF URBAN ¦ They are home to migrant workers who SUB-SAHARAN AFRICA regularly move between urban and rural Despite urbanising later than most other areas to seek economic opportunities in continents, more people live in African cities both places. than in the cities of Europe, Australasia, North America or South America. Only Asia ¦ They are surrounded by an area that has more urban-based people than Africa. is neither urban nor rural where new populations tend to settle.

¦ Large areas of the cities are “illegally” FORTY PERCENT OF occupied by the urban poor, who are AFRICANS ALREADY LIVE under constant threat of being evicted IN URBAN CENTRES, A and having their homes demolished. FIGURE THAT WILL GROW TO 50 PERCENT BY 2030 ¦ Informal systems of economic production and social organisation prevail, resulting in competing systems of power.

¦ Urban areas tend to be segregated along Forty percent of Africans already live in income, and sometimes ethnic, lines. urban centres, a figure that will grow to 50 percent by 2030. Unfortunately, the ¦ Extractive economic and political rapid pace of urban expansion is not being institutions are maintained and matched by economic growth. In most strengthened by local political elites to countries, there is one key city that is up to bolster their economic and political power. four times larger than the second-largest city. This city is politically prominent and ¦ The formal land market and land use often regarded as a political threat to rights are tightly constrained, resulting in national interests. high land prices in well-located enclaves.

Although cities are highly diverse, they tend ¦ They are growing in ways that ignore to share the following characteristics: the objectives set out in official plans and policies.

Case study The colonial influence on building regulations

BUILDING LAWS IN SOME However, instead of drafting in Nairobi continue to ignore former Portuguese colonies new bylaws, he merely copied the construction requirements used to contain stringent the bylaws from his hometown of the urban poor. This is measures to minimise in England, Blackburn, because standards in developing earthquake damage, even swopping any mention of countries tend to “serve though the earthquake risk “Blackburn” with “Nairobi”. more as a means of social in those countries was – and As a result, Nairobi’s building satisfaction than as a means of is – minimal. regulations required roofs reconciling the shelter needs that are able to withstand six of the population with the In a similar vein, a colonial inches of snow. maintenance of a reasonable administrator in the Kenyan level of environmental quality. capital, Nairobi, once decided Although the snow-load They are so unrealistic that they the city needed a set of bylaws requirements were scrapped in are deservedly ignored by the for building regulations. the 1970s, building regulations majority of people”.

8 REFORMING URBAN LAWS IN AFRICA ¦ Local governance is weak. The state is better urban management, few countries unable to deliver basic services or provide have made significant changes to their security for citizens. This, combined with urban governance and land-management the prevalence of poverty and inequality, legislation.1 In some cases, new laws have leads to “slum” conditions for most been written and finalised but not actually citizens, who voice their grievances approved by relevant law-making bodies. through increased urban violence, placing Where new laws have been enacted, only a further burden on the city and country. a few have been fully implemented. This lack of productive change is partly due Many of these characteristics have their roots to the “export of regulatory rules and in the laws of the continent’s colonial past. practices from major powers to weaker In the decades since independence, few states”2 – a practice that is common in African states have been able to develop international economic law but has spilled and implement laws governing urban over into urban law because of urban law’s development to effectively improve these importance in shaping property law. The characteristics of their cities. view is often that if a country is to have an urban development and real-estate sector that mirrors that of more developed countries, it needs to have those countries’ laws, too. AFRICA’S CITIES TEND TO BE SHACKLED New urban laws may draw on international TO INAPPROPRIATE, experience but should not be dominated INEFFECTIVE AND by it. African lawmakers should rather focus REDUNDANT LAWS on the context within which other countries’ AND POLICIES FOR laws have worked: what were the political, MANAGING THEM administrative and legal factors in those countries that led to a particular type of law’s success (or failure)? The answer to this question could reveal what might work in their own context. Lawmakers should also URBAN LAW IN consider the substance and principles of SUB-SAHARAN AFRICA global commitments, and turn them into Africa’s cities tend to be shackled to practical steps for improving urban law. inappropriate, ineffective and redundant laws These commitments – evident in Agenda and policies for managing them. These laws 2030, the New Urban Agenda and the run deeply through each country’s social, Paris Agreement – are important, but can economic and political systems, and are only be effective when translated into legal often based on the assumption that there is provisions that work within a country’s own a strong national government that is able to environment. implement them. For example, many urban land laws assume that the state has the capacity to manage long-term land leases or land transfers through land registration systems. This is often not the case, resulting in legal uncertainty and vulnerability.

Over the past two decades especially, African countries have been urged to reform their urban policies, practices and laws in order to turn cities into more effective engines of economic growth and shift from an extractive to a more developmental and inclusive system of urban governance. Despite making global commitments to

INTRODUCTION 9 A new approach to urban legal reform

10 REFORMING URBAN LAWS IN AFRICA Restructuring urban legislation without an overarching set of principles as described in THE FUTURE OF this guide will perpetuate the problems of AFRICAN CITIES MUST ineffective laws or laws that have perverse BE ONE SHAPED BY and unintended consequences. LAWS THAT ADDRESS THE LIVED EXPERIENCE Opinions about how best to develop OF HOUSEHOLDS new urban laws often polarise into two AND FIRMS camps. The one camp argues that African cities need comprehensive, Western- type laws such as those commonly found in developed countries, while the other he future of African cities must be maintains that cities should follow the local, one shaped by laws that address the city-block-level, community-driven, informal lived experience of households and regulations that have evolved outside the firms. These laws must: formal legal system. The first camp’s view T is based on the premise that sophisticated ¦ Offer a reasonable trade-off between the cities need sophisticated laws; the second costs and benefits of compliance. believes the starting point should be what has emerged in practice. ¦ Reflect the current context. Neither one of these approaches addresses ¦ Be the product of consultative, inclusive the problem satisfactorily on its own, processes. although each has its own strengths. Western-style laws are often useful for ¦ Be economically and politically inclusive managing the interface between urban while creating the basic preconditions for development, governance and finance, while economic growth. locally emerging models tend to ensure that community-based and household issues are ¦ Protect the interests of the public (with a addressed. Cities need to find legal solutions focus on the poor) when confronted by to their urban problems that are designed stronger commercial and political interests. to meet the complexities of these problems. This requires taking some Western-style laws ¦ Promote stable and sustainable urban and some locally emerging ones, identifying governance. the aspects of each that are effective, and knitting these together into a model ¦ Build strong social contracts between that works. state and non-state actors. The scale of urban problems is so immense ¦ Be designed in such a way that even a that it is tempting to design ambitious relatively fragile state or city body can regulatory frameworks that pack every effectively implement them. conceivable legal instrument into every urban law. This temptation poses the risk of paralysing the administration and must be resisted. When unachievable laws are put in place, private-sector investors lose CITIES NEED TO FIND confidence, poor households lose various LEGAL SOLUTIONS THAT protections (assuming the law includes pro- TAKE SOME WESTERN- poor elements), and people and businesses STYLE LAWS AND SOME choose to operate outside the formal system. LOCALLY EMERGING In the end, the entire system loses legitimacy ONES AND KNIT and grows weak, with devastating effects TOGETHER THE ASPECTS for economic growth, social inclusion and OF EACH THAT WORK environmental protection.

A NEW APPROACH TO URBAN LEGAL REFORM 11 organisations, then need to be vigilant to WHAT TRIGGERS ensure sustained pressure until the new law is THE REFORM WILL implemented. DETERMINE WHAT RESOURCES WILL BE Pressure from civil society and other AVAILABLE TO SUPPORT organised groups THE PROCESS Civil-society organisations, especially those with a wide base of supporters, can productively lobby for urban law reform. For example, the Uganda Land Alliance – an alliance of 68 non-governmental organisations and individuals formed in TRIGGERS FOR URBAN 1995 – successfully lobbied for new urban LEGAL REFORM legislation that recognises customary Law reform is a difficult, costly process that land tenure, the registration of women’s governments only initiate when there is interests on customary land, and the legal a compelling reason to do so. Triggering recognition of tenants on mailo (communal) events may come from within or beyond a land. At the peak of the campaign, alliance country’s borders. Sometimes both internal members attended parliament each day and and external forces combine to drive the call regularly met with members of parliament for urban legal reform. and officials. When it saw the need to do so, it drafted clauses for contentious issues The type and nature of urban-reform triggers and sought out sympathetic members of present play a part in determining what parliament to convince them to champion resources will be available to support the the clause in parliament. It is easier to get process. A government that determines for legislators to agree to a Bill that comes from itself that urban legal reform is needed will be fellow parliamentarians than from civil society more committed to concluding the process. only.3 Despite these victories, Ugandan However, a government that agrees to change authorities resisted change, which dampened urban law at the suggestion of an international the success of the reform. development partner (or some other external pressure) will often exhibit resistance to seeing the process through, resulting in half-hearted efforts and failed outcomes. THE LAW-MAKING PROCESS NEEDS TO Internal triggers Public outcry BE PROTECTED FROM Authorities often claim that they are bound ABUSE OR EXPLOITATION by inappropriate, ineffective legislation in BY ANY SINGLE GROUP response to public complaints about an aspect of urban management, for example, a building that collapses or a health crisis caused by poor sanitation and drainage. Caution is needed when a single interest Scrapping and rewriting the law is then group champions an urban legal change. The proposed as the solution. law-making process needs to be protected from abuse or exploitation by any single Public pressure alone is seldom a trigger group, which might lead to the interests of for initiating change. At best, it may result other groups being sidelined. in the formal initiation of a process. But there is often then very weak follow-up. That Political motivations said, no legal reform will succeed without The advantage of politically driven urban the public’s support. Public outcry around legal reform is that it is more likely that an issue is often a useful starting point for the process will be completed. The urban legal reform. Bodies that represent the disadvantages of politically driven urban public interest, such as residents or business legal reform are that:

12 REFORMING URBAN LAWS IN AFRICA ¦ The reforms could be supported for For such an initiative to succeed, external purely political purposes. Promoting advisers and consultants need to work decentralisation of power to local closely with their local counterparts, paying governments, for example, could benefit special attention to local practices and the politicians from certain regions while country’s legal and urban context. Tensions disadvantaging those from others. between local and foreign participants As countries urbanise, the political can slow the urban legal reform process, party make-up changes. This, too, can resulting in external advisers, frustrated by influence the reasons behind urban what they regard as uncooperative behaviour legal reform. from their counterparts, sidestepping the project processes and appealing to higher ¦ Political commitment might be vested authorities within the country’s government in a single minister, political party, or the funding agency. This results in an or faction within a party. Then, as the irrevocable breakdown in trust that derails country’s political alignments shift, the the reform process completely. On the other political commitment to reform gets lost. hand, local experts can become exasperated This vulnerability underlines the need to with foreign advisers’ reluctance to engage ensure a wide pool of stakeholders to with local complexities. They, too, sometimes support any new law. A wider pool will resort to appealing to higher authorities to also reduce the likelihood that a single protect against what they see as insensitive interest group captures the reform and and thoughtless interference. prioritises that group’s interest over those of the public in the final law.

Constitutional change Sometimes a constitutional change brings EXTERNAL TRIGGERS about widespread shifts in urban law. This FOR URBAN REFORM is especially true when the powers of local THAT IGNORE PEOPLE'S government change, as in South Africa, NEEDS AND INTERESTS where it took the Constitutional Court CAN LEAD TO UNFAIR resolving a persistent constitutional problem LEGAL OUTCOMES – the determination of what constitutes “municipal planning” – in 20104 to initiate the drafting and enactment of the Spatial Planning and Land Use Management Act (2013), which led to far-reaching changes to External triggers that fail to consider the the country’s urban and regional planning needs of all stakeholders can result in skewed system. Before this decision, national, legislation that is unfairly stacked against one provincial and local governments were party or the other, as the case study “The effectively paralysed when it came to effect of outside influence on mortgages in initiating urban law reforms. Once Tanzania” shows. there was clarity on the roles of each level of government, reform could be tackled in earnest.5

External triggers Donors and international finance organisations often require or encourage legislative reform as a precondition for financial or programmatic support. Generally speaking, this means funding is also available to support the law-reform process, which frequently leads to the project being dominated by external advisers and consultants.

A NEW APPROACH TO URBAN LEGAL REFORM 13 Case study The effect of outside influence on mortgages in Tanzania

WHEN TANZANIA’S LAND urged Tanzania to reform Law Commission Report and Act (1999) came into force the law of mortgages. The a 1994 New Zealand Law in 2001, the country’s Tanzanian government Commission Report. banks took exception to agreed. The attorney-general the section dealing with took the lead (without much The Mortgage Finance mortgage law, claiming that consultation with the ministry (Special Provisions) Act (2008), the law prevented them from responsible for land, which which came four years later, repossessing the land of a fully understood the scope of shifted the balance between defaulting debtor, although the law on mortgages) and, mortgagee (the banks) and this was often not the case. in collaboration with London- mortgagor (the borrowers) in A critical assessment of the based lawyers, produced relation to default heavily in situation indicated that their what eventually became the favour of the banks. complaint was probably more Land Amendment Act (2004). realistically that few borrowers The London firm claimed that A lot of international effort knew their rights under the old their draft modernised the went into creating uneven law, whereas the new law set law of mortgages in Tanzania, playing fields between them out more clearly. when in fact it was grounded mortgagees and mortgagors in the English Law of Property in Tanzania, and there appears The banks made Act of 1925 with additions to have been little effort to representations to the World introduced in 1970 and 1973. protect these gains in the face Bank. In 2002, the president By contrast, the 1999 Act of powerful outside influence. of the World Bank strongly was based on a 1991 English

CONSIDERATIONS WHEN INITIATING REFORMS THE WAYS IN WHICH The following legal considerations set the A COUNTRY’S parameters of what can be achieved by a new law: CONSTITUTION ALLOCATES URBAN ¦ The country’s constitution GOVERNANCE AND MANAGEMENT POWERS ¦ The country’s judicial capacity BETWEEN VARIOUS LEVELS OF GOVERNMENT ¦ The country’s legal traditions (common DOES AFFECT THE law, civil law, customary law and hybrids) COUNTRY’S URBAN LEGAL FRAMEWORKS ¦ Existing legislation and decisions.

The constitution A country’s constitution is the starting point for drafting any new urban law. Often, the ¦ The degree of protection afforded to battle lies in translating broad constitutional private property provisions into detailed common-law legislation. A country’s constitutional ¦ The degree to which socioeconomic framework affects its urban laws by rights are acknowledged. determining: Powers and functions of different ¦ The powers and functions of different levels of government levels of government The ways in which a country’s constitution

14 REFORMING URBAN LAWS IN AFRICA allocates urban governance and political dynamics have to be detected and management powers between various levels understood so that new urban laws can of government can affect the country’s urban address these trends. legal frameworks. Some countries have two levels of government (national and local) While national governments sometimes go to while others have three (national, provincial/ great lengths to subvert the decentralisation regional and local). In all countries, each level of power, in other instances it is the difficulty has its own powers and functions. of implementing administrative reforms or changing entrenched practices that Centralised power is an enduring legacy stalls the process. In Nigeria, for instance, of colonial administration, although the federal Urban and Regional Planning it is certainly not unique to formerly Decree (1992, updated in 1999) introduced colonised countries. Efforts to promote a three-tier system of urban planning, setting decentralisation, often as part of externally out the respective powers and institutional driven structural adjustment programmes, arrangements for federal, state and local have had limited impact. The 1996 government. By 2015, however, only Lagos Habitat Agenda, for example, promoted State had managed to put in place the decentralisation as a requirement for more required institutions to give effect to the effective urban management (a call that provisions of the law.6 In 16 years, only one the New Urban Agenda repeats in 2016). out of 36 states was able to implement the However, many African countries retain new system. power at the centre. Where powers are decentralised, they tend to be subject to In South Africa, the understanding of the such tight restrictions that they are effectively constitutional distribution of planning meaningless. powers between national, provincial and local government has evolved. Initially, Drafters of new urban laws need to proceed provincial governments drafted urban and with caution when caught between a national regional planning laws to regulate municipal government that wants centralised powers land-development decisions. As the courts and local authorities, businesses and citizen increasingly pointed out that decision- groups that want stronger local decision- making powers lay with local government, making powers. The tension between these draft provincial laws became thinner and groups invariably mirrors broader political, cities’ bylaws became much thicker. The economic and sometimes even cultural way the constitution has been interpreted tensions that run through the country. determines the degree of uniformity in urban legal procedures across the country. Instead As countries urbanise and populations shift of one set of procedures for each province, from rural to urban areas, political shifts there is now – at least in theory – a set of emerge. These shifts result in political unique procedures for each municipality.7 decisions to either promote urbanisation (through legislation that facilitates urban development, decentralises decision-making to cities and channels public money into urban infrastructure) or invest in rural areas A COMPLETELY (where political support is seen as more CENTRALISED dependable). For example, when Ethiopia’s OR COMPLETELY political opposition won control of Addis DECENTRALISED SYSTEM Ababa’s city administration in the 2005 IS NEVER GOING TO election, the central government of the day BE OPTIMAL. POWERS effectively dissolved the city government NEED TO BE DIVIDED, and put in place a “caretaker” administration instead. Similarly, in 1983 Kenya’s president, WITH DIFFERENT LEVELS Daniel arap Moi, dissolved the Nairobi city OF GOVERNMENT council because of the political direction CHECKING EACH OTHER chosen by the city’s voters. Each country’s

A NEW APPROACH TO URBAN LEGAL REFORM 15 THERE IS INCREASING RECOGNITION OF A “CONTINUUM” OF LAND RIGHTS FOR DIFFERENT TYPES OF TENURE RANGING FROM FORMAL, A completely centralised or completely WELL-DOCUMENTED decentralised system is never going to be TENURE TO THAT OF optimal. Each country needs to divide powers INFORMAL GROUPS between different levels of government, OR INDIVIDUALS as determined by a range of political, geographical and economic forces. It is rarely helpful to allocate an individual power or function entirely to one level of government. Ideally, the different levels should check landholders able to realise a market-related each other, ensuring accountability in price if they transfer their land or buildings? decision-making. Is the government allowed to establish a financial value for land and buildings to use Property rights as the basis for municipal property tax? If At the heart of most areas of urban law is the government’s actions lead to an increase the question of property rights. To what in the value of a person’s land or buildings, extent does the law acknowledge and is there scope for the authorities to recoup protect private property rights to urban some of that added value? land? To what extent does it enable people or households to acquire the land they are The answers to these questions lie in the currently using or living on? What scope way urban law is designed. The scope does a government authority have to restrict for urban law to achieve policy outcomes the way in which people who hold land depends on the way the constitution rights use and develop that land? Are urban protects property rights.

16 REFORMING URBAN LAWS IN AFRICA As policy-makers grapple with the complexity of land and property rights in and around cities, there is increasing DRAFTERS ARE OFTEN recognition of a “continuum” of land EXPECTED TO GIVE rights. This continuum marks a shift from PRACTICAL EXPRESSION the assumption that the ownership of TO SOCIOECONOMIC land or land rights is a straightforward, RIGHTS IN COUNTRIES unambiguous relationship. Rather, the WITH HIGH LEVELS continuum incorporates “tenure rights that OF INEQUALITY AND are documented as well as undocumented, LOW IMPLEMENTATION formal as well as informal, for individuals as CAPACITY. IN SUCH well as groups, including pastoralists and CASES, IMPROVEMENTS residents of slums and other settlements, 8 MAY HAVE TO BE which may be legal or not legal”. PROGRESSIVELY The concept of a continuum of land REALISED rights has not yet filtered into national constitutions, although international pressure to accommodate it in urban (and other) laws is growing. This is often specific legislation. This trend continued hampered by existing legislation governing in the constitutions of other countries, for land administration. For example, in example, the 2010 Constitution of Kenya Nigeria the Land Use Decree (1978) and the 2011 Transitional Constitution of allocates the control of urban land to state the Republic of South Sudan. governments and of rural land to local governments. This makes it difficult to The introduction of socioeconomic rights recognise a continuum, especially in areas adds a new dimension to urban law. In of rapid urban expansion, where rural land the past, drafters of urban legislation had is becoming urban land and each level of to ensure that new laws did not infringe government is jealously guarding its area of on or detract from people’s rights.9 responsibility in an attempt to squeeze the Now, in countries where the constitution most financial benefit out of the resulting guarantees these rights, laws must give increase in land prices. positive expression to them. Substantial, specific obligations are placed on organs Where new land laws are introduced to of the state to actively promote them. This encourage the development of functioning creates a challenge for drafters, who must urban land markets, it is often assumed that give practical expression to socioeconomic the new law must provide for individual land rights in countries with high levels of titles that can be freely bought and sold inequality and low implementation on an open market. When land is held in capacity, two factors that undermine different ways along the continuum, a legal the likelihood of a law delivering on intervention like this causes more problems socioeconomic rights. than it solves. New urban land laws have to examine the different ways land is held and Defining and protecting socioeconomic develop approaches for each one, based rights through new urban legislation is on the circumstances in each country or city a long-term process that can only be and reflecting overall policy objectives. “progressively realised”, to borrow a phrase from the South African Constitution. Socioeconomic rights South Africa pioneered the practice of incorporating socioeconomic rights with an urban dimension into legislation. The rights to housing, work and a safe environment, among others, were included in its 1996 constitution and given expression in

A NEW APPROACH TO URBAN LEGAL REFORM 17 How constitutions promote women’s rights in Case study three countries

THE CONSTITUTIONS OF Rwanda’s constitution is more treatment with men and Tanzania, Rwanda and explicit: Article 9 commits the that right shall include equal Uganda differ vastly in their state to ensuring that “women opportunities in political, approach to women’s rights. are granted at least 30 per economic and social activities” This different treatment of cent of posts in decision but goes on to entrench the gender discrimination creates making organs”. Article 11 right to affirmative action for different opportunities for says that discrimination based the purpose of redressing the specific urban laws to promote on “sex … or any other form imbalances created by history, women’s rights. of discrimination is prohibited tradition or custom. It ends with and punishable by law”, a prohibition on all laws and Tanzania’s constitution is while Article 29 provides that customs which are against the ambiguous. Section 12 states “every person has a right to welfare or interests of women. that “all human beings are … private property”. Article 185 all equal”. Section 13 states establishes an office whose From a practical point of that all people are entitled, functions include “monitoring view, drafting laws on land without discrimination, to compliance with gender tenure with specific reference protection and equality indicators of the programme to women’s rights would be before the law. However, for ensuring gender equality”. more difficult in Tanzania than the definition of Uganda, which moves beyond discrimination makes Uganda’s constitution goes outlawing gender-based no specific mention of a step further. Section 33 not discrimination to empower the discrimination based only provides that women state to take affirmative action on gender. “shall have the right to equal based on gender.

18 REFORMING URBAN LAWS IN AFRICA Judicial capacity and independence Judicial officers tend to be drawn from The principle of the separation of powers the privileged socioeconomic class. They between executive, legislative and judicial invariably have professional training arms (where the legislative arm makes and good incomes. When adjudicating laws, the executive implements them urban legal problems such as evictions or and the judicial arm ensures that the landlord-tenant disputes, the lens through implementation is carried out fairly and which they view the issue may not always per the law) is often absent in African be dispassionate. Where an urban law is countries. It is more common to find a designed to effect substantial change in judiciary that is heavily influenced – and the way a city’s urban land market works, even intimidated – by the executive than judges may – consciously or unconsciously one that is independent and able to assert – consider their personal interest in that its interpretation of the law. There are market before making a decision. To restrict examples of judges who fearlessly carry out such opportunities, the law must be explicit their work in the face of intimidation and about its intentions. threats, but they are the exception. Common law, civil law, customary law and hybrids Some countries fall under the common-law AVOID PLACING JUDGES tradition while others fall under the civil- law tradition, and there are many variations IN A POSITION WHERE within that divide. In many countries, the THEY CAN EXERCISE distinction between civil and common law is UNLIMITED DISCRETION, breaking down, with shared characteristics WHICH PRESENTS AN often overshadowing differences.10 OPPORTUNITY FOR OUTSIDE INFLUENCE

URBAN LEGAL DRAFTERS NEED TO FIND WAYS This has important implications for TO INTEGRATE how one drafts urban laws. Wherever FORMAL LAWS possible, care needs to be taken to WITH TRADITIONAL, avoid placing judges (or magistrates or INDIGENOUS LAWS AND customary courts) in a position where WITH CONTEMPORARY they can exercise unlimited discretion, “UNDERGROUND” LAWS which presents an opportunity for outside influence. For example, open-ended phrases such as “unless the context determines otherwise” should be avoided; the drafters of the law should rather Regardless of a country’s underlying legal consider the context when designing that tradition, the difficult question increasingly set of rules and instruments. Obviously, confronting urban legal drafters is the no one wants an inflexible and unwieldy coexistence of formal laws with customary, urban legal system. The adjudicating indigenous laws that are generally authority needs to be able to exercise administered by traditional leaders, some level of discretion. The aim is sometimes through traditional or customary to find a middle path that allows for courts. Many cities are expanding into areas some discretion but excludes phrasing in which customary law governs land tenure that makes judicial officers responsible and use. Customary law also regulates for making technical decisions, which aspects of family law – especially gender exposes them to the risk of undue external relations and inheritance – that directly affect influences and even bribery. urban land and property.

A NEW APPROACH TO URBAN LEGAL REFORM 19 The interface between formal and customary The way a country’s constitution law is most obvious in peri-urban areas, but accommodates the powers of traditional also arises in informal settlements, where, leaders and the status of customary law in the absence of applicable legislation, affects urban law, especially in peri-urban inhabitants have adapted elements of areas, where expanding cities encroach on customary law to form contemporary areas that have historically been under the “underground” laws. These laws develop custodianship of traditional leaders. As a city “from a variety of compromises that work in grows outwards, so too does the footprint practice. There are different legal solutions of statutory law. This often results in clashes that are all outside or in competition with the between local authorities and traditional state order, which in most cases must abdicate leadership. This conflict reflects a wider set in favour of those alternative systems”.11 of tensions within the country and should be treated with care. As urban legal reformers, we cannot simply design a new legislative provision that fits As with all types of law, customary law evolves. within the framework of existing legislation. In peri-urban or newly urbanising areas, Nor can we draw lines that distinguish hybridised forms of local regulation, which between the application of “underground” or draw on both customary and statutory law, are customary law on one side and statutory law emerging. This serves as a positive example to on the other. We need to find legal solutions follow when revising urban legislation. that work in all parts of our cities. Salvatore Mancuso, a law professor at the University of Existing legislation and decisions Cape Town in South Africa, asks whether “the New urban law must be consistent with problem of the effectiveness of law in Africa existing legislation (in the case of civil-law and the issue of the gap between formal and countries) and both existing legislation and informal law can be solved through written the decisions of apex courts (in the case of law or if it is time to find solutions that take common-law countries). account of the fact that the African experience is unique and quite different from the Ensuring consistency with existing law is an experience in other parts of the world”.12 This immense challenge. Records of laws currently is a hypothetical question because “written” in force are not always available, and when law is the medium governments will always they can be traced they don’t always reflect use. Nevertheless, it is a reminder that any law amendments. Although countries are moving that fails to consider “underground” law will towards greater online access to legislation, not achieve satisfactory urban legal outcomes. such access to legislation remains unusual.

Case study Customary laws dictating urban occupation in Luanda

IN LUANDA, ANGOLA’S is set to become one of the developed and the number capital, 86 percent of urban largest cities on the continent, of households affected by residents occupy land through with a projected population uncertainty continues to grow. unofficial property documents. of more than 10 million Less than 10 percent of people by 2030. While the Luanda provides a clear households have official relatively recent Land Act example of the importance of documentation to prove (2004) envisages integrating designing and implementing land ownership. customary rules for land legal frameworks that bring tenure into the formal system, together customary and more Luanda – currently home to the regulations to implement formal aspects of the law in more than 7 million people – this have not yet been workable new arrangements.

20 REFORMING URBAN LAWS IN AFRICA Where it exists, it is often outdated. One development projects had benefited from the example of a country that has developed legal uncertainty that this sort of “override its own online resources is Uganda, where provision” created. the Uganda Legal Information Institute’s website – www.ulii.org – is useful. An added Engaging stakeholders may help pinpoint difficulty in common-law countries is that you areas where legislation could impinge on the have to establish the courts’ interpretative area that is to be regulated. Beyond that, the approach to the existing legislation. Access only workable solution is to assess the range to court judgements – “law reports” – is also of possible intersections with other laws and difficult. Then, because so many laws are see whether the proposed new law broadly under review, you can never be sure that the fits in with existing legal frameworks. version of another law that is being revised is the same version that will be in place when This calls for a common-sense evaluation of: “your” law comes into operation. ¦ The implications of a possible It is important to be pragmatic when faced inconsistency with an existing law. with such obstacles. Keeping the law you are working on in limbo while you seek clarity on ¦ Whether such an inconsistency would the status of other legislation is not an option. make implementation impossible. Neither is inserting a provision at the end of your law stating that it will prevail over any law ¦ Whether it would be possible to adopt a that is inconsistent with it. Such an approach construction of the provision that allows for will antagonise officials in other departments a consistent reading of the two (or more) or ministries, adding to the challenge of inter- provisions. departmental and inter-sectoral cooperation within government, and could result in Any new urban law needs to work in harmony unintended perverse outcomes. It also creates with other laws while giving effect to new widespread legal uncertainty, which is precisely policy proposals. Certain aspects of a new what you are trying to resolve. law will need to be more carefully checked than others in terms of applicability and South Africa’s Development Facilitation Act potential conflict with existing laws. Any (1995) is a good example of this. To speed up areas of substantive conflict will have to development approvals, a planning tribunal be identified and clearly communicated to could simply ignore other laws, including relevant political leaders. The aim is to ensure environmental management regulations. general compliance with current law. That Developers fully exploited this, resulting in said, ensuring that every provision aligns with numerous inappropriate applications being existing law is too difficult to achieve in most approved. The Constitutional Court eventually African countries, at least for the foreseeable repealed the law in 2010 on the grounds that future, simply because it is impossible to it was unconstitutional, but only after many ascertain what the existing law says.

Resource The Southern African Legal Information Institute

THE SOUTHERN AFRICAN LEGAL from 16 African countries Uganda, Zambia and Information Institute (SAFLII) (Angola, Botswana, Kenya, Zimbabwe). The database is publishes an online, searchable Lesotho, Madagascar, Malawi, still growing, but already it database at www.saflii.org that Mauritius, Mozambique, provides a valuable resource includes case law, some law Namibia, Seychelles, South for legal drafters in southern journals and some legislation Africa, Swaziland, Tanzania, and eastern African countries.

A NEW APPROACH TO URBAN LEGAL REFORM 21 The importance of meaningful stakeholder consultation

22 REFORMING URBAN LAWS IN AFRICA The key to effective stakeholder consultation URBAN LEGAL is clear, consistent communication. While the INTERVENTIONS responsibility for such communication lies OFTEN FAIL BECAUSE with the authorities responsible for reforming OF INADEQUATE the law, the task can be made easier by DISCUSSION WITH BOTH regular, informed media coverage. THE PARTIES THAT WILL BE AFFECTED BY A NEW Stakeholders can only argue for their LAW AND THE OFFICIALS interests if they are kept informed about the AND POLITICIANS drafting process. This is best done by: WHO WILL HAVE TO ¦ Issuing regular information updates across IMPLEMENT IT a variety of communication platforms, using plain language that stakeholders can understand.

¦ Ensuring that there are regular meetings t is a mistake to assume that urban legal at which stakeholders can engage with the interventions are of such a technical drafting team. nature that they are best designed by technical legal experts working in ¦ Having informed officials available to Iisolation. Nothing could be further from answer questions and provide documents the truth. Urban legal interventions often when needed. fail because of inadequate discussion with both the parties that will be affected by ¦ Keeping a record of the concerns that a new law (households, businesses and stakeholders raise and how the drafting the organisations representing them) and team is dealing with them. the officials and politicians who will be responsible for implementing it. KEY STAKEHOLDER GROUPS Consultation is the only way a drafting team Stakeholders who will be affected can ascertain the context within which a There will always be a wide range of proposed law will operate. Consultation stakeholders in urban law. There will be provides clarity on: groups who will directly or indirectly benefit from a new law, and those who will directly ¦ The social, economic and environmental or indirectly bear a cost – whether financial or pressures that the law will operate within political – because of it. There will be law- and shape. abiding groups and groups that currently

¦ The relative interests of different people and institutions that will be affected by the new law. TO MAKE SURE THAT ALL ¦ The availability of information on which POSSIBLE STAKEHOLDERS drafters can base recommendations. ARE CONSULTED IN DRAFTING A NEW URBAN LAW, DRAW UP A LIST WITH ALL THE DIFFERENT STAKEHOLDERS CAN POSSIBLE INTERESTED ONLY ARGUE FOR THEIR PARTIES AND OUTLINE INTERESTS IF THEY ARE A COMMUNICATIONS KEPT INFORMED ABOUT APPROACH FOR EACH THE DRAFTING PROCESS GROUP

THE IMPORTANCE OF MEANINGFUL STAKEHOLDER CONSULTATION 23 operate outside the law. To make sure that all disrupt the law-making process. Similarly, possible stakeholders are consulted in drafting commercial land developers may wait a new urban law, draw up a list with all the for an actual threat to their interests to different possible interested parties and outline manifest before engaging in obstructive a communications approach for each group. tactics. For instance, they may wait to see how infrastructure for new developments is Ideally, all interest groups should have allowed to be financed before using their their own legal advisers. This is more likely political influence to protect their interests. with developers and landowners than with community-based or non-governmental Where a different approach to drafting can organisations. It is essential that officials accommodate an opponent’s concerns are willing (and able) to provide additional without fundamentally shifting the purpose support to groups that are disadvantaged, and effect of the law, this should be done, even granting extra time for comments openly and transparently. Where this is not if needed, while valuing and respecting possible, a strategic response backed by the contributions of those groups with defensible technical arguments is the best more resources. approach. Here the practice of identifying and evaluating different legislative options There will always be stakeholders who (see “Outline three legal options”, p40) will want to block a new urban law for bears fruit as it provides the basis for arguing a range of different reasons. Not all of for (or against) the different ways in which these stakeholders, or their reasons, will a new law can tackle an issue. Drawing on immediately be apparent. Sometimes a set of known options obliges opponents they will choose to keep quiet about their to be rigorous in their arguments rather opposition, knowing that they can exert than relying on rhetoric or political muscle. political or financial pressure later to achieve However, there will be times when technical their objectives. It is important to consider arguments are inadequate – perhaps the range of possible sources of opposition because the opponents are exceptionally at the outset of the drafting process, and well connected in government or business – to develop strategies to manage them. and the fight has to be taken to the political This may involve eliciting support from arena. In this case, it is prudent for the legal politicians and other stakeholders, or it may drafting team to step back and let politicians involve compromising on certain aspects of resolve the conflict, having been briefed as the proposed law. Hoping that the law will fully as possible beforehand by the team. eventually – through clever drafting perhaps – overcome obstruction from influential camps is futile, especially when these camps are politically or financially powerful. The structures responsible for implementing a new law are generally too vulnerable to resist IT IS IMPORTANT TO pressure from powerful interests. It is more FIND WAYS TO SPEAK TO productive to design an urban law in such a IMPLEMENTERS WITHOUT way that its implementation is assured, even THEIR MANAGERS, if its goals are less ambitious. BECAUSE THE TWO GROUPS CAN EXPRESS Sometimes groups that were silent start objecting to a new urban law only once its VERY DIFFERENT VIEWS provisions firm up. For example, traditional OF WHAT IS (AND IS leaders may not view an urban planning law NOT) POSSIBLE, AND OF as relevant to their interests until they see WHAT THE LAW SHOULD that the law aims to regulate land use in TACKLE OR AVOID peri-urban areas that they regard as being under their jurisdiction. At that point they will make their presence felt, fully exploiting their political influence in ways that fundamentally

24 REFORMING URBAN LAWS IN AFRICA Stakeholders who will implement different legislative options with them to new legislation find out which ones they are most likely to Implementers are the people who work in embrace. This will help them feel invested government departments, at the interface in the outcome of the process. They need between members of the public and to believe that their daily experience will politicians. They often work under pressure in improve because of the new law. understaffed offices. Even so, they are often Implementers hold the information needed very committed to their work and value the to design a system that works. For example, opportunity to express their views. they know how long it takes an official to process a procedure, which allows drafters Implementers can tell you how the current to project how many officials would be system works in practice. It is important to needed to process a similar procedure. This find ways to speak to implementers without can help determine whether the civil system their managers, because the two groups can has the capacity to effectively implement a express very different views of what is (and system introduced through new legislation. is not) possible, and of what the law should Remember that within any one agency, tackle or avoid. different groups will have quite different agendas. For example, administrators may It is crucial to build a good relationship want to portray a particular process as being based on trust with implementers. Give them very time-consuming, while their managers, ample opportunity to express their views within the same agency, might have an and share their experiences of working with interest in depicting it as very speedy. This is current legislation. Explain to them what the why it is important to engage with different urban law reform process aims to achieve groups within a government agency or within and the issues at stake. Work through a municipal administration.

THE IMPORTANCE OF MEANINGFUL STAKEHOLDER CONSULTATION 25 Many locally determined, informal legal technical and political considerations are arrangements are carried out by people constructively resolved. who are not state officials. These might be arrangements to manage refuse removal in When discussing urban legal reforms an informal settlement or to regulate property with politicians, effort should be made to transactions in peri-urban areas. Sometimes ensure that: they operate with official sanction, sometimes not. Sometimes they are effective, sometimes ¦ The reform process is transparent and not. In cases where state capacity is weak, a robust enough for conflicts to be openly new law could seek out opportunities for this discussed. sort of non-state actor to implement legislation. In granting such powers, however, the law ¦ The discussion is based on actual should also seek to impose performance available information. standards and ensure that poor performance or the abuse of power is punished. This is not ¦ Political decision-makers are made aware an approach that fits neatly with the traditional of technical issues before they make their concept of legislative implementation, but is decision. one we should embrace in the way we shape urban laws. ¦ The outcome of the reform process is administratively fair and practically Politicians implementable. In many countries, there is no sharp division between politicians and administrative Ensuring that these objectives are realised workers. Civil servants can be taken from their will demand clear and open communication offices and made ministers; ministers can between the drafters of the law and relevant be redeployed to head up “non-political” politicians. This requires commitment from agencies. In a country where bureaucratic each party to listen to the other, respect the and political interests are fused, political other’s views and share, rather than withhold, considerations will directly affect senior opinions and ideas. officials working on drafting a new urban law. In a country with a more independent bureaucracy, technical considerations can CONSIDERATIONS WHEN receive more thorough consideration before CONSULTING STAKEHOLDERS they are absorbed into the political sphere. The accepted approach to consulting stakeholders involves drafting a proposed Tensions between politicians and technocrats law, circulating the draft to stakeholders for involved in the law-making process also consultation, hosting workshops or meetings need to be managed. Politicians may view a at which the proposed law is verbally technical expert’s proposal as too politically presented, and then taking written comments. risky, not pro-poor enough or ideologically unacceptable. At the same time, technical This approach sounds rational and experts may regard what politicians want as manageable, but it is rarely how events unworkable in practical terms, too expensive unfold. During the consultation process or too protective of party political and elite for the Zambian Urban and Regional interests. Ultimately, any law must have Planning Bill, for example, only two written political backing. Political considerations can submissions were received on the draft Bill therefore not be rejected out of hand. over a two-year period in which numerous workshops were held across the country. Acknowledging and addressing these And of those two submissions, one of them tensions head-on are crucial for producing was from the ministry that commissioned the workable laws. All parties should be given team that drafted the Bill, so it should not opportunities to argue their positions. They have counted as an external stakeholder’s should be prepared to provide evidence comment at all.13 As a result, the drafting for their proposals. This is the only way team felt that “at the end of a thorough, to ensure that the tensions between comprehensive process … the difficult

26 REFORMING URBAN LAWS IN AFRICA People currently living or operating outside IF TRICKY AND the law require special effort to consult. In CONTENTIOUS most cities, these people constitute the ISSUES ARE NOT majority of the urban population, so it is not DISCUSSED DURING useful to think of consultation with them as THE CONSULTATION an exception; it is the norm. If it is assumed PHASE, THERE IS LITTLE that everyone who has to be consulted CHANCE THAT THEY in a public consultation process lives in a formally developed area – with an address, WILL BE SUCCESSFULLY for example – and is thus embedded in the ADDRESSED IN THE LAW formal systems of governing and managing the city, then this process will inevitably miss the majority of urban residents, who live outside these systems. substantive issues that we had identified at the outset were still unresolved”.14

If tricky and contentious issues are not discussed during the consultation phase, there is little chance that they will be successfully PEOPLE CURRENTLY addressed in the law. The law will then not LIVING OR OPERATING have the desired outcome, as the law-making OUTSIDE THE LAW process did not grapple with the difficult OFTEN MAKE UP THE problems. The fewer the problems that arise MAJORITY OF THE in the law-making process, the easier it is to URBAN POPULATION agree on the contents of a new law. This gives AND REQUIRE SPECIAL a false sense of accomplishment. Weakness in EFFORT TO CONSULT the consultative process paves the way for a law that is too vague and weak to achieve its desired effects. A proposed law needs to bring as many of The reliability of sources these people within the ambit of the law The consultative process aims to gather as it can. In doing so, it needs to consider evidence on which the drafting team can factors that would determine whether or not base its final recommendations. It is not these people would choose to participate enough to simply issue a call for comments. in the new legal framework. Such factors To minimise the team’s reliance on include their financial position and property anecdotes or the views of a small selection of rights. These are sensitive factors for any stakeholders, the drafting team needs to: person anywhere in the world, but especially for people living in socially vulnerable and ¦ Actively seek out a wide range of people financially desperate circumstances. The real who are likely to have views on legislative test for any urban law consultation process is options in order to limit the chances of a whether people in this position feel reassured dominant set of interests overshadowing that participating in the consultation will not the interests of less vocal groups. expose them to further risk and, importantly, that the proposed innovations will strengthen ¦ Engage in diverse and innovative their financial positions, property rights and communication techniques to increase status in the community. people’s familiarity with the issues so that they may truly take part in the process. When starting to engage with stakeholders at the outset of the drafting process, it is ¦ Use local languages as necessary. important to check up on – and sometimes double-check – various assertions. ¦ Engage actively with interested parties, Different people and groups have different either individually or in groups.15 reasons for wanting some parts of an

THE IMPORTANCE OF MEANINGFUL STAKEHOLDER CONSULTATION 27 often keep working drafts out of the public WHEN STARTING eye. Sometimes the teams feel the issues are too technical for people outside the process TO ENGAGE WITH to grasp. Sometimes they are worried that STAKEHOLDERS AT they missed an important issue. Perhaps THE OUTSET OF THE they know the provisions will be unpopular DRAFTING PROCESS, and hope to postpone the backlash that will IT IS IMPORTANT TO probably follow the draft’s release. CHECK UP ON – AND SOMETIMES DOUBLE- CHECK – VARIOUS ASSERTIONS THE DECISION OF WHEN TO RELEASE A DRAFT LAW FOR COMMENT ALWAYS INVOLVES SOME existing law to change and for keeping LEVEL OF RISK other parts in place. Be alert to the risk of misrepresentation and never be afraid to ask (and re-ask) difficult questions, regardless of how powerful the voice is or The decision of when to release a draft how confidently the opinion is expressed. law for comment always involves some Sometimes it is the loudest, boldest views level of risk. For example, if the new draft that most need careful scrutiny. law suggests that a certain type of land tenure arrangement will become stronger, One possible area of misrepresentation it may raise expectations among people involves assessments of capacity to currently enjoying that type of tenure that implement proposed laws. Both when their position will improve. This may lead officials tell you there is adequate capacity them to recklessly incur debt that they and when you are told that capacity is would otherwise not have. Others may be too weak, there is often another agenda motivated to speculatively acquire land in at play. Some people may want to use the hope of making a windfall profit once the law-reform process to motivate for the law comes into effect. These outcomes the allocation of more human or financial all undermine the longer-term law-reform resources to their unit. Others may want process and underline the importance of to create the impression that their unit thinking through the possible effects of new is functioning optimally because they do or proposed provisions so that unwanted not want to draw attention to their work, outcomes are not triggered before or after which might reveal that they are exploiting the law comes into effect. the current system for corrupt purposes. In each case, it is important to track down On the other hand, keeping new draft departmental budgets, organisational laws secret will breed suspicion and feed structures and annual reports to cross- conspiracy theories. For example, municipal check assertions. Sometimes all it takes councillors who suspect that a new urban law is common sense to verify a stakeholder’s will reduce their powers may put pressure claims. Regardless, it is always advisable on the drafting team to access the draft law to obtain official documents to support prematurely or find ways to influence or end arguments in favour of, or against, a the drafting process. Regardless of what the proposed way forward. law finally says, hostility towards it will endure and undermine implementation efforts. When to release a draft law It is always tempting to restrict stakeholder The detailed provisions of a new law input in the hope that this will keep the indicate how the law will operate in practice. drafting team focused. Identifying and Stakeholders are usually eager to obtain resolving internal tensions is often enough drafts whenever possible, yet drafting teams of a challenge, and it may seem wise to keep

28 REFORMING URBAN LAWS IN AFRICA debates internal. This is not a productive in a country. In some cases, there will be a approach. The more inward-focused a handful of very powerful developers and a team is, the more likely it is that details meeting with each of those will suffice. In will be missed and the less likely it is that cases where there is a range of smaller-scale stakeholders will recognise the resulting law developers, it could be useful to group firms as legitimate. that do not work in the same city or same part of a city in a meeting to promote a freer Methods of communication exchange of views. Meetings The most traditional forms of communication are often the most effective. Meetings and workshops at which the ideas underpinning ONE-ON-ONE MEETINGS a new urban law are presented clearly, to WITH KEY INDIVIDUALS – facilitate thorough discussion and open USUALLY EXPERTS FROM analysis of what the practical implications of the new law might be, will always be at the RELEVANT PROFESSIONS heart of a communication strategy. OR ACADEMIA – ARE IMPORTANT These meetings need to be carefully planned. It does not help to host massive public meetings where anyone can attend. If the meeting is too big, it becomes One-on-one meetings with key individuals – impossible to properly discuss any of the usually experts from relevant professions or detailed, complex issues underpinning new academia – are also important. When given urban legal arrangements. Meetings should the chance to speak freely and off the record, rather be scheduled with particular interest these people often provide perspectives groups, with agendas tailored to meet that that would not be available from any other group’s interests and capacity. source. Retired experts or officials can provide historical insight into why a law is Local government is an important causing problems, or why a particular type stakeholder category for meetings. Within of legal intervention did – or did not – work that category, though, there will be various in the past. Informal networks of local different interests. For example, the interests members of the drafting team are valuable in of the local administration governing a large identifying these people and setting up these – and sometimes very large – city will differ meetings. This sort of one-on-one meeting from those governing smaller, secondary is difficult to set up when the drafting team cities. Coastal cities will also have different is mainly made up of foreign experts without concerns to inland cities, and fast-growing local networks. economic regions will differ from those in depressed regions. Sometimes even Newspapers and other print media different cultural or religious identities affect Newspapers that are read by the educated stakeholder concerns. elite may well not be read by most urban citizens. Draft laws, notices of meetings and Property developers are a similarly diverse related documents need to be published category of stakeholders. It is important to where the people who will be affected by consult this group through meetings rather them are likely to find them. In countries than written correspondence, but getting all that still have low levels of internet access, developers into one room for a discussion the popular daily newspapers are important is seldom fruitful. They have little interest in tools for communicating news and ideas to sharing their insights with competitors, so a the people. general meeting is not likely to yield useful findings or perspectives. The approach with When publishing draft laws or regulations in developers needs to be more selective. print media, it is advisable to include a clear, The approach used will depend on how the concise explanation. This could be the same real-estate development industry operates memorandum that was prepared for the

THE IMPORTANCE OF MEANINGFUL STAKEHOLDER CONSULTATION 29 legislature or it can be a shorter description The internet and social media of what the law seeks to achieve, presented Publishing draft Bills in government gazettes in a straightforward way that is accessible to or similar publications will always be people without a formal education in urban necessary, but it will never be enough for the legal issues. purposes of engaging stakeholders. Despite low levels of internet access in many African countries, the internet is an invaluable and fast-growing communications tool for:

MANY JOURNALISTS ¦ Disseminating new drafts and policy WOULD BE WILLING TO papers for comment COVER THE TOPIC BUT LACK THE CONFIDENCE ¦ Providing the public with background OR ABILITY TO WRITE information and documents ABOUT A TECHNICAL ISSUE SUCH AS URBAN ¦ Issuing notices of public meetings LEGAL REFORM ¦ Providing contact details should people want to make a submission.

Combining a website with the regular use of Publishing in the print media is often a social media platform that is popular with prescribed by law or through a country’s stakeholders is a cheap, effective method parliamentary practices. This sort of for increasing stakeholder awareness of the publication is important for transparency drafting process. purposes, but it is not very effective in getting ordinary people, the private sector or civil society to engage with a process.

Achieving this requires short, concise articles. Many journalists would be willing to cover the topic but lack the confidence or ability to write about a technical issue such as urban legal reform. In such instances, journalists are often relieved to receive material that they can develop, adapt and edit for publication.

COMBINING A WEBSITE WITH THE REGULAR USE OF A SOCIAL MEDIA PLATFORM THAT IS POPULAR WITH STAKEHOLDERS IS A CHEAP, EFFECTIVE METHOD FOR INCREASING STAKEHOLDER AWARENESS

30 REFORMING URBAN LAWS IN AFRICA HOW TO ENSURE EFFECTIVE MEDIA COVERAGE

URBAN LEGAL REFORM IS NOT, IN ITSELF, support urban legal reform depends newsworthy. However, proposals to change on the public mood. It is imperative laws that will affect urban legal problems – to ensure that there are always such as the demolition of illegal buildings, knowledgeable people available to floods resulting from illegal development respond to media questions. of low-lying areas, the corrupt approval of inappropriate land-development projects ¦ Respond to media coverage of and traffic congestion – are. urban legal issues. Media coverage that distorts the public view of either A deliberate plan for managing the media a current urban legal problem or the is a useful tool for ensuring that there is proposed intervention needs to be widespread interest in, and engagement corrected. Where there is sensationalism with, a new law both during the drafting there has to be a measured response. process and once the law has been passed. This can be delivered in several This should include strategies to: ways. If the issue is high profile or controversial, the relevant minister may ¦ Develop newsworthy material. Drafting need to intervene. In other situations, teams need to know how to generate directly communicating with journalists material that examines newsworthy will suffice. Where the distortion is issues as they relate to a proposed or substantial but does not warrant high- recently passed law. Different types of level intervention, a letter to the editor material are needed for different types (in the case of a newspaper) will be of media. effective. In countries where social media is widely used, an intervention ¦ Disseminate it to the media. Drafting on the most popular social media teams need to be media-savvy. They platforms can be an easy way to clarify need to know how to engage with misrepresentation or error. the media in such a way that the issue is reported accurately and without ¦ Monitor the media’s coverage of sensationalism. This might involve, for urban legal issues over time. As example, inviting members of the media cities grow and news issues relating to occasions such as the first hearing to urban development become more of a newly established decision-making prominent, the appetite of reporters to body, ensuring that you brief journalists monitor the implementation of urban properly beforehand and provide laws will increase. Making provision for necessary supporting documents so mandatory monitoring and reporting that their coverage of the event can be will make it easier for the media and civil reasonably accurate. society to alert the authorities and the public to looming crises, increasing the ¦ Remain open and accessible to chance that these crises will be averted members of the media. Encouraging or addressed. positive media coverage is a specialist activity that is foreign to most people Few journalists specialise in urban legal – working in urban legal reform. In or even urban – issues. It is important for the absence of specialists, much can people working on urban legal reforms to be done by simply being open and develop strong relationships with reporters accessible to reporters. Often the and take the time to help them expand commitment of political leaders to their knowledge in the field.

THE IMPORTANCE OF MEANINGFUL STAKEHOLDER CONSULTATION 31 Practical preparations for drafting new urban laws

32 REFORMING URBAN LAWS IN AFRICA ESTABLISH THE TERMS spatial legacy of urban apartheid led to the 1|OF REFERENCE Spatial Planning and Land Use Management Clarifying the terms of reference is the first Act (2013), which is so broad and all- step in the urban legal reform process. encompassing that it is unable to effect Despite the costs involved in developing new change in urban land use and development laws, the terms of reference given to drafters patterns on its own. Conversely, a brief that are often shallow, consisting of little more than is too tightly framed, limited to one or two a list of problems to be addressed. A vague priority issues, runs the risk of achieving only and confusing brief creates expectations that partial reform. cannot be met and, more seriously, can send the drafting team in pursuit of issues that Expected output are not relevant. Once clarity is reached, it The terms of reference need to specify must be confirmed in writing to set realistic whether the outcome of the project should expectations and avoid ambiguity. be an overarching, all-encompassing law that tackles multiple urban challenges, or a series of separate, more focused laws that incrementally contribute to a body of legislation that will eventually cover the whole THE TERMS OF field to be regulated. REFERENCE SHOULD IDEALLY BE DRAFTED This decision is never easy to make. There BY URBAN LEGAL are advantages and disadvantages to each EXPERTS WHO ENGAGE approach, and each creates its own risk WITH STAKEHOLDERS, of surprising, unexpected outcomes. It ANALYSE THE PROBLEM is important to consider the political and AND SET OUT A WORK technical appetite for reform. Is there the PLAN FOR THE PROCESS stamina required to see through an all-at- once approach, or would it be easier to focus on one or two dimensions at first? The latter approach presents the risk that the one prioritised dimension does not work Ideally, the terms of reference should be properly in isolation. In Tanzania, for example, drafted by urban legal experts – possibly the government developed legislation external consultants, if the government does to implement a new method of property not have internal capacity – who engage with valuation without considering the need to stakeholders, analyse the problem and set also address the legal and practical sides of out a work plan for the process. The terms actually collecting the new revenue, effectively of reference need to include the scope, the undermining the benefit of improving the outcome of the process, and the various roles valuation system.16 of the teams and team members working on the process. Although contracting professional On the other hand, new legislation that tries help in drafting the terms of reference to cover every aspect of a field may be too presents an added short-term cost, it is an overwhelming to engage with, resulting in a investment that results in a more efficient draft law that does not benefit from effective and cost-effective legal reform process in the stakeholder critique. Zambia’s Urban and longer term. Regional Planning Bill, for example, tried to overhaul the entire planning system as well Scope as the regulatory framework for low-income A brief for sprawling legislation to correct housing, resulting in a law – the Urban and multiple urban problems creates an Regional Planning Act (2015) – that is long on impossible task for drafters and will probably detail and difficult to implement.17 result in none of the issues being effectively tackled. The South African government’s Roles and lines of accountability approach to reforming urban planning law is Drafting a new law is a complex, time- an example of this. The need to address the consuming and stressful process for all

PRACTICAL PREPARATIONS FOR DRAFTING NEW URBAN LAWS 33 CLEARLY SPECIFIED TERMS OF REFERENCE FOR EACH PARTY AND EACH TEAM/ COMMITTEE MEMBER ARE ESSENTIAL BUILDING BLOCKS be the point of contact for political leaders. IN AN URBAN LEGAL Acknowledging and managing these different DRAFTING PROCESS agendas is a prerequisite for a successful urban legal reform process. It is important to understand when and how political considerations are likely to emerge and who will be responsible for addressing them. involved. To avoid conflict, clarify who will be responsible for different aspects of the Lines of accountability need to be specified: work. In most cases, a team of experts will be responsible for generating documentation ¦ Between the drafting team and the under the guidance of a wider committee of drafting team leader government officials. The members of each group need to know what is expected of ¦ Between the government steering them, and what they can expect from others. committee and the committee leader Clearly specified terms of reference for each party and each team/committee member are ¦ Between the drafting team leader and the essential building blocks in an urban legal committee leader drafting process. Making decisions regarding people’s roles and responsibilities on an ad ¦ Between the committee and team leaders hoc basis slows down the reform process and and the politicians responsible for the creates opportunities for certain parties to project. inappropriately influence the process. In most cases, the government steering Drafting an urban law inevitably raises issues committee will report to the relevant of power and prestige. Members of the politicians. In some cases, politicians prefer drafting team and various stakeholders all to deal directly with the drafting team. want to protect their own interests and status There are good arguments in favour of both by influencing the new law. Drafters may approaches. Whichever is adopted, the issue have personal ambitions to be regarded as should be clearly set out and understood by the principal author of the new law, or to all parties.

34 REFORMING URBAN LAWS IN AFRICA WHO SHOULD BE ON THE DRAFTING TEAM?

URBAN-REFORM LAWS ARE USUALLY familiar with the country’s drafting styles and drafted by a team of experts. However, it is rules. As her drafts developed, so did her not unknown for the task to be handed to understanding of urban development issues. a single legal expert, or even a non-legal Afterwards, because of her experience in the expert with practical experience of legal drafting process, the University of Zambia issues. It is incredibly difficult for one person asked her to teach a course on planning law. to think through all the possible impacts This demonstrates how using a local drafter a legal formulation could have, or to think not only ensured that the draft legislation through all the possible ways of addressing was written in a way that fitted with the a specific legal problem. In these cases, the Zambian context, but also contributed to the lone drafter needs to rely on a small network development of new skills, knowledge and of people who can help him or her, either experience across generations. formally or informally, to develop and test ideas. This is both to ensure a better draft Diverse disciplines law, but also to protect the drafter from A drafting team that includes a wide range being accused of failing to draw on available of experience in the technical, legal and expertise. practical dimensions of urban planning is more likely to produce a law capable of Where a team has been commissioned mitigating the risk of perverse consequences to draft a new urban law, the make-up and achieving its goals once implemented. of the team can significantly influence In addition to lawyers, there may be urban the draft law’s acceptance and successful planners, economists, environmentalists, implementation. Ideally, such a team should building experts, transportation engineers, include local drafters, experts from a wide land surveyors, political scientists and range of disciplines, and representatives social development experts on the drafting from various levels of government. team. Each discipline brings a different understanding of what legal reform can Local drafters achieve. It is the role of the team leader to All countries have their own legal traditions. maximise these strengths. Drafting teams need to include local drafters to ensure that local legal practices are It is useful to have people with experience reflected in the new law and that the new law in rolling out urban law on both the drafting will fit into the country’s existing legislative team and the steering committee. This helps framework. This will also help develop the produce practical, implementable laws. country’s ability to undertake its own drafting Developers are especially useful to have on projects in the future. This local drafter the drafting team as their activities directly should ideally be the principal draftsperson, affect urban development and will need to supported by other team members if be regulated by the new law. necessary. Government representatives In the drafting of the Zambian Urban The drafting team should include people and Regional Planning Act (2015), the who work within the government system, international drafting team chose a Zambian ideally in the ministry responsible for lawyer to be the principal author of the implementing the new legislation. Including first draft of the legislation. Although her a municipal government representative background was in gender and social will also allow the team to draw on the development law and she had had little, if experience of officials working to implement any, exposure to urban planning law, she was urban legislation.

PRACTICAL PREPARATIONS FOR DRAFTING NEW URBAN LAWS 35 IDENTIFY 2|THE PROBLEM THE CHALLENGE IS Urban law reform often gives priority to an TO FIND INNOVATIVE initial contextual study that only examines the WAYS TO GAUGE THE problems to be addressed. However, context SCALE OF THE PROBLEM is seldom static. Between identifying the need TO BE CORRECTED for new urban law and approval of that law, THROUGH NEW URBAN the context in which the new law will operate LEGISLATION may shift. The law-making process needs to consider these shifts in context and how they might affect the proposed law.

Analysing the context within which a new law It is difficult to assess context in the absence will operate has two main benefits: of reliable data. Drafters need data to test the outcome of a provision, but that data is ¦ It gives drafters a better often not available. When this happens, the understanding of the problem. challenge is to find innovative ways to gauge Examining the context can help drafters the scale of the problem to help design an determine whether they have identified intervention. It is rarely easy to establish, for the problem itself, or if they are only example, how many applications have been looking at symptoms arising from the received for a type of land use, or how many problem. A team may be asked to draft buildings there are in a city. Data relating new building regulations to address to the availability of infrastructure and tax the problem of unsafe informal houses. collection is equally difficult to obtain. However, it is possible that the real reason people build unsafe houses is because they do not have disposable income to spend on construction. It is equally possible that they are wary of NO NEW LAW investing too much in homes built on CAN OPERATE land where they have insecure tenure INDEPENDENTLY rights. If either of these alternative OF OTHER LAWS, explanations is correct, the effort put ESPECIALLY IN AN URBAN into updating building regulations will LEGAL CONTEXT be wasted.

¦ It creates an opportunity for officials working in the system to see how parts of the system work together, increasing Legal context the likelihood that they will implement the Legal context refers to the way in which the urban legal reforms.18 legal system operates at a given point in time. It includes the laws that are in force as well as New urban laws can have far-reaching the ways in which a country respects or follows consequences. Any intervention in urban the rule of law. No new law can operate land supply or management, for example, independently of other laws, especially will affect the urban land market and thus the in an urban legal context, where different land values of households and businesses. authorities use different laws to achieve Different governance models, on the other different policy objectives in one place hand, will affect the ways political parties – the city. are represented on the municipal council, meaning that some will benefit and others Key elements relating to the legal context that will lose out as a result of the new system. need to be considered are: These are two examples of issues that drive parties to take extreme steps to maximise ¦ The legal and administrative system’s their own benefits. capacity to implement new legal

36 REFORMING URBAN LAWS IN AFRICA processes. Will the current system be demands careful attention where drafters able to cope with an increased load if come from a country with a different legal your new law introduces new categories tradition to the country for which the new of administrative process? Where law is intended. urban decision-making affects people’s rights and interests, is there currently ¦ Competing informal governance a mechanism for people to appeal a structures. Urban legislation in Africa decision? If there is, does the appeal go is often not implemented because through the legal or the administrative it competes with existing informal system? Is the current system able to governance arrangements. Proposed deliver timely decisions of reasonably urban laws often need to work in a context good quality? Will your new law add to where operating outside the law is more the number of appeals, or detract from it? common than operating within it. Most new urban legal interventions will try, ¦ The way courts are likely to interpret in one way or another, to bring more new legislation. Different countries have activities under the formal legislative different legal traditions with different umbrella, yet perfect compliance is an principles of statutory interpretation that unrealistic expectation. However, shifting need to be reflected in the way a new law the overall balance of informal to formal is is written. Countries that use civil law, for a commendable goal, the achievement of example, have a more prominent role for which depends on a sound understanding statutory interpretation and less regard for of the way the informal and formal earlier court decisions. The way drafters sectors operate, both independently and approach statutory interpretation will in relation to each other. Drafts of new have implications for the language and urban legislation should be shared with terminology used in drafting a law, and individuals in the informal sector and with how stakeholders are engaged. This issue organisations that represent their interests.

The unintended outcomes of Zanzibar’s land Case study reform programme

ZANZIBAR’S EXPERIENCE OF a local land registry at In effect, the law undermined the Mkurabita programme neighbourhood level, where rather than strengthened illustrates the problems that administrative capacity was the land rights of ordinary arise when new laws do not fit the weakest. people, with wealthy with existing legislation. outsiders able to secure the The new law, grounded in most valuable properties. An In 2008, the Tanzanian the principle of individual initiative ostensibly aimed at government initiated the property rights, was thus empowering the urban poor Mkurabita programme superimposed over an thus ended up weakening to formalise property. existing system dominated their property rights because The programme ignored by socialist values, with attention was not paid to legislation already in force no effective mechanism to pre-existing land laws. in Zanzibar and imposed resolve property conflicts.

PRACTICAL PREPARATIONS FOR DRAFTING NEW URBAN LAWS 37 Economic context combination of the two? Are the buildings The successful implementation of a proposed primarily made of brick and cement, or law relies on a clear understanding of the temporary materials? All these lines of inquiry economic system in which it will operate. will help identify strengths on which to build, What sort of economic activity sustains as well as problems and their underlying people? What is the volume of economic causes. transactions? Are most transactions carried out within a formal or informal framework? Political context Is economic activity characterised by small- This relates to how cities are governed. scale traders or large-scale manufacturing To what extent are they governed by local enterprises? Are many people involved in municipal administrations as opposed to economic production, or a few? To what national or regional government? What extent are local and other authorities able are relations like between local levels to raise tax revenue either from businesses of government and central government or land values, taking into account both authorities? These are crucial questions to the authorities’ willingness to collect and answer when undertaking urban legal reform taxpayers’ willingness to pay? because they will determine which aspects of a new law can be effectively implemented.

A study of the ways urban land-development regulations were applied in Kampala, UNDERSTANDING THESE Uganda, and Kigali, Rwanda, over the same DIMENSIONS OF THE period demonstrates the role of political context when contemplating new urban laws. ECONOMIC CONTEXT Despite having similar institutional, legal and ALLOWS THE DRAFTING economic features, land-use regulations and TEAM TO DETERMINE building codes were generally applied in THE SORT OF LEGAL Kigali, but not in Kampala. The study ascribed INSTRUMENTS AND this difference to the way political resources PROCEDURES THAT WILL and incentives were arranged in the two WORK IN THAT CONTEXT cities (and countries): in Rwanda, officials were compelled to implement plans and regulations, and they did so, while in Uganda the economic and political gains to be had by ignoring or overriding the regulatory Understanding these dimensions of the framework dominated, which resulted in many economic context allows the drafting team to developments being approved in places that determine the sort of legal instruments and were unsuitable. Achieving desired legal procedures that will work in that context. It outcomes requires a more nuanced approach provides a set of data, no matter how thin, than elegant legal drafting and ensuring that on which they can start to build an argument there are enough officials to implement the for tackling urban legal problems in particular law. It needs to rest on a realistic analysis of ways. Without this understanding, they run what does and does not work in the country’s the risk of proposing solutions that cannot political system.19 work, even with the most skilful drafting and most enthusiastic government support. Social context The way society is structured in a country has Geographic and demographic a big impact on how effective different urban context legal interventions will be. The drafting team Physical context has a bearing on the needs to consider gender issues, ethnic and effectiveness of proposed laws. Is a city cultural differences and social inequality at all growing quickly, or is the population stable times during the drafting process. or declining? What sorts of land holdings underpin the city? Are they primarily formal, Gender customary or – as is most often the case – a To what extent are women able to participate

38 REFORMING URBAN LAWS IN AFRICA Inequality THE DRAFTING TEAM The question of inequality is central to NEEDS TO CONSIDER understanding social context. In his 1894 GENDER ISSUES, book, The Red Lily, French writer Anatole ETHNIC AND CULTURAL France writes that “in its majestic equality, the law forbids rich and poor alike to sleep DIFFERENCES AND under bridges, beg in the streets and steal SOCIAL INEQUALITY AT loaves of bread”. This highlights the need to ALL TIMES DURING THE understand how urban laws differently affect DRAFTING PROCESS the rich and the poor. Where the majority of citizens are poor, it is especially important to appreciate how a proposed legal intervention will work in terms of people’s ability to afford in civic affairs and property ownership? If both the costs of compliance and of asserting women’s participation is weak, is there a their rights when challenged by more commitment on the part of the government powerful parties. to strengthen it? Will the law need to make special provisions to protect the interests of women in the governance and management of cities? A NEW LAW WILL FAIL IF ITS DRAFTERS DO Most countries exhibit significant gender NOT UNDERSTAND WHY inequality. New urban laws need to tackle that, but the techniques and strategies for EARLIER INTERVENTIONS doing so will depend on the willingness of FAILED the state to engage on the matter. Where an urban law takes an entirely gender-neutral approach, it runs the risk of perpetuating or worsening existing gender inequality, Historical context especially when property rights are affected. There is a tendency for history to repeat This can pose a real challenge for the drafting itself, for laws to be drafted in the hope team (which itself is generally made up of that the same objective that was pursued in men) in countries where gender inequality is earlier years will be achieved by reworking persistent and the government officials and or strengthening the text of a new statute. politicians running the urban legal reform Certainly, countries change over time. But process are mainly men. it is equally certain that a new law will fail if its drafters do not understand why earlier Ethnic and cultural groupings interventions failed. Does one ethnic or cultural group dominate politics, the urban economy or land It is important to look back more than a few ownership? Is there a willingness on the years. Sometimes the drafting team will need to part of the state to change this pattern of look at the experiences of post-independence domination? Ethnic or cultural domination governments in power more than 50 years ago is a complex issue to address, especially to see what worked and what did not work where this domination is reflected in the then. Consulting historical records, which can government officials working with the drafting require some difficult archival research, is thus team. But, like gender inequality, it is one of an important part of understanding the historical the benchmarks that will determine whether context. In countries where archival records are or not an urban legal reform is successful thin and there are few libraries, these records in practical terms. Addressing all forms of may ironically be more easily accessed from urban social exclusion is a central part of other countries, particularly in academic writing. each country’s international obligations. It is Tracking down the historical context provides useful for the drafting team to be familiar with invaluable benefit to the urban legal reform the relevant provisions of applicable United process and boosts the probability of the law Nations agreements and conventions. being effective.

PRACTICAL PREPARATIONS FOR DRAFTING NEW URBAN LAWS 39 for example, regulation (encouraging self- IDENTIFYING OPTIONS regulation within a particular sector versus FOR TACKLING THE comprehensive regulation of a wide range PROBLEM IS USEFUL FOR of activities versus regulation focused on GIVING DRAFTERS A one or two types of activities or transactions) SENSE OF THE RANGE OF or legislation (national legislation versus POSSIBLE APPROACHES municipal regulation versus a combination AND FOR SHOWING of the two). STAKEHOLDERS HOW A NEW LAW MIGHT The options identified need to be viable. For example, the principle of subsidiarity – AFFECT THEM that a problem should be addressed at the level that is closest to the citizens involved and to the problem itself – appeals to many urban legal drafting experts. However, it OUTLINE THREE LEGAL might not be a viable option in certain legal 3|OPTIONS and constitutional contexts, such as where Once the problem has been identified, it decision-making powers are concentrated may seem that there is no practical way to in central government. tackle it – or that there are so many ways that it is difficult to decide where to start. Once you have described three options and Identifying options for tackling the problem obtained support for them from political is useful for giving drafters a sense of the stakeholders, you have a basis from which to range of possible approaches and for compare their various financial, economic, showing stakeholders how a new law might social or environmental consequences. Based affect them. on this analysis, you may decide not to choose any one of these options, but rather to take Options should be identified based on the a hybrid approach. drafting team’s understanding of the current context in the country, complemented by other Identifying various options for new urban countries’ approaches to similar concerns. It is legal frameworks gives drafters insight into best to outline no more than three options. One what might work and what will probably of them can be the “do nothing” option, which not. It also allows them to present various explores the effect of not introducing new options to the public, the private sector and legislation but rather strengthening existing non-governmental organisations during the legislation, either by better communicating its consultation process, allowing these groups to requirements or by strengthening the capacity see how an idea might unfold in practice. This to implement it. In most cases, the do-nothing empowers them to contribute meaningfully option is not one to seriously consider, as the to the development of the legislation by decision to proceed with new legislation is bringing new perspectives, and maybe even often difficult to reverse. However, it does serve new information that will shift the direction as a reality check and forms a useful benchmark of drafting, to the process. for comparison with other scenarios. It enables the drafters to evaluate whether the proposed In fleshing out the three options, draft way forward will actually achieve positive legislation should clarify relevant concepts change. If a proposal is only likely to work if and set realistic expectations in terms of it is accompanied by significant increases in compliance. This enables people engaging financial and human capacity, then the with the options to assess them in a useful question must always be: would that increase way. It is pointless describing a set of detailed in capacity make the current system work options in such technical language that only well enough to make it unnecessary to highly skilled professionals can understand the develop a new law at all? implications of the different approaches. Workable options are a requirement for The three legal options can reflect different implementing regulatory impact assessment approaches to various aspects of law-making, techniques (discussed on p43).

40 REFORMING URBAN LAWS IN AFRICA Clarify concepts often inevitable, especially when the target Cities are complex and dynamic. Different of law-making is something as complicated aspects of the city mean different things as a city. But it is also a high-risk strategy, to different people and institutions, especially where capacity to exercise especially when viewed through a legal discretion wisely and carefully is limited, lens. Yet the law aims to provide certainty both in the administration of the urban legal and predictability, a yardstick by which to system and in the judiciary. ensure minimum standards of acceptable behaviour. Such certainty is not possible Many current urban laws in Sub-Saharan without first clearly defining concepts to Africa are old and use archaic legal language ensure shared meanings for as many terms with assumed meanings that can be difficult as possible and prevent future conflict to resolve. One of the aims of the urban arising from terminological confusion. law reform process is to identify, define and Ambiguity is the enemy of good law. modernise these terms and phrases. (There will, however, be some instances where a Sometimes, drafters may choose to retain a term is widely understood and devising a degree of ambiguity to allow for a different new word might make people more, not less, interpretation of the law in future. This is confused. In this case, it is pragmatic to keep the old wording.)

ONE OF THE AIMS OF URBAN LAW REFORM IS TO IDENTIFY, DEFINE AND MODERNISE ARCHAIC LEGAL TERMS AND PHRASES

PRACTICAL PREPARATIONS FOR DRAFTING NEW URBAN LAWS 41 LAWS FROM OTHER COUNTRIES: TO HEED OR NOT TO HEED?

COUNTRIES IN SUB-SAHARAN AFRICA requirements. Or perhaps the country has have a history of uncritically adopting urban different rules for public participation in the legislation from other places. (Under colonial law-making process. As a starting point, the rule, legislation was uncritically imposed.) following factors need to be considered: This is one of the main reasons current legislation is ineffective and inappropriate. ¦ Institutional capacity. What were the institutional requirements for making New legislation needs to be effective in the the intervention work? Did its success given country’s context. This does not mean depend on allocating decision-making drafters should ignore the lessons learnt in powers between different levels of other countries; almost all laws borrow from government? Did it require a set of skills other places. The trick is to cautiously adapt to implement? Did it require special legislation, especially where laws are being institutions to be set up? imported from more developed contexts to less developed ones, or where there are ¦ The burden placed on the population. different underlying legal cultures. What did the law demand from the people affected by its decisions? Did When borrowing from international urban those hoping to improve their situation law, drafters should look to countries with or air their interests in the decision- similar contexts, such as those in Latin making process need to pay professional America and other parts of Africa. But they service providers? should do so critically. A legal instrument that works well in another context may ¦ The country’s legal traditions. Is the have certain preconditions for successful borrowed urban legal idea consistent implementation. If similar preconditions with the overall legal culture of the do not exist in the country drafting new target country? Does it rely on the same legislation, look for a different legal principles of rationality, the same burden instrument. To pursue that instrument simply of proof and the same legal terminology because it worked elsewhere would be that the country’s legal system uses? irresponsible. If there are inconsistencies, can these be remedied by carefully wording the The official version of how well a law works is new law, or do they reflect a deeper also often different from the reality. Double- inconsistency that no amount of clever check any law recommended by official drafting can remedy? sources as being suitable for your context against academic writing. Consult the private The UrbanLex urban law database (http:// sector and local urban development non- urbanlex.unhabitat.org) is a useful online tool governmental organisations. This will help from the United Nations Human Settlements improve understanding of how the legal Programme, UN-Habitat. UrbanLex contains instrument or provision actually works. urban legal materials from more than 190 countries. This is a good place to look for Where an urban legal intervention has examples of urban legislation from other worked in another country and that country parts of the world. has similar contextual factors, it is important to adapt the intervention to suit local conditions. Perhaps the legal provisions need to refer to different institutional

42 REFORMING URBAN LAWS IN AFRICA government formalities, while still achieving EVERY DRAFT URBAN a desirable benefit in the public interest. LAW SHOULD AIM TO IDENTIFY AND Regulatory impact assessment techniques UNDERSTAND THE for Africa RANGE OF POSSIBLE In developed countries, regulatory impact IMPACTS. WHO WILL assessments use calculations that are based BENEFIT, AND WHO on quantitative data that is relevant, reliable WILL PAY? and readily available. African countries have real difficulty accessing the sorts of reliable data used elsewhere to evaluate the costs and benefits of particular regulatory options. Here, regulatory impact assessments can Assess the consequences benefit from novel approaches to gathering of each option data. For example, satellite images of towns Every provision of every new legislation will and cities can be used to determine land affect someone, somewhere. It is impossible use and the extent to which urban areas to predict all the possible outcomes, consist of certain types of development. especially in an environment as dynamic This information can be used to extrapolate as urban Africa. The absence of reliable population figures, income bands, quantitative data makes such predictions infrastructure availability and environmental problematic. However, every draft urban law conditions. These factors are indicative of should aim to identify and understand the households’ ability to comply with various range of possible impacts. Who will benefit, legislative requirements and can, combined and who will pay? Whose land rights will with an analysis of available government strengthen, and whose will weaken? Which implementation capacity, be used to set officials will lose decision-making powers, regulatory standards for different areas. and which will get new ones?

Formally, the process of finding the answers to these and other questions is known as regulatory impact assessment. RELIABLE INFORMATION Many countries, especially more developed CAN PREVENT ones, require a regulatory impact assessment GOVERNMENT OFFICIALS to be done as a stand-alone exercise towards AND ELITE GROUPS FROM the end of the drafting process. This is not MANIPULATING DATA TO always helpful. In the diverse African SERVE THEIR INTERESTS context, it makes more sense to integrate regulatory impact assessment principles into the drafting process. Drafting teams should be encouraged to think through the range of possible impacts of different Satellite images of cities, including historical regulatory options. records of how the cities have changed over time, are increasingly available for free or at Regulatory impact assessments should low cost from international agencies such also be done on existing legislation. The as the World Bank and the Lincoln Institute legal context within which new laws will for Land Policy. The Lincoln Institute’s Atlas work needs to be free of inconsistency and of Urban Expansion is an invaluable online fragmentation. Countries should apply resource, providing data on historical trends regulatory impact assessment methods to and the current extent of urban expansion existing regulations, in line with a common – information that is often difficult to find in format for regulatory impact assessment, to a country or a city itself.20 The atlas covers inform whether or not, or to what extent, a growing number of African cities, some of laws needs to change. The overall thrust it providing a historical timeline back to the of this should be reducing red tape and nineteenth century. While not 100 percent

PRACTICAL PREPARATIONS FOR DRAFTING NEW URBAN LAWS 43 accurate, information obtained in this way ¦ Adopting “a regulatory reform policy at is likely to be more accurate than interviews the highest political levels”. overlaid with unreliable census information. Reliable information can prevent ¦ Establishing “explicit standards for government officials and elite groups from regulatory quality and principles of manipulating data to serve their interests regulatory decision-making”. during the law-drafting process. ¦ Introducing “effective training schemes in Another way to improve the quality and regulatory theory and practice”. quantity of data on urban Africa – and therefore the ability to do regulatory impact ¦ Introducing effective data-collection assessments – is to draft new urban laws processes and systems to monitor in ways that lend themselves to efficient regulatory implementation. monitoring. This requires that the laws are not overly complex, that their objectives are ¦ Clarifying the role of regulatory impact clearly stated, and that the decision-making assessment in achieving sustainability systems they create are straightforward and and poverty reduction.21 easy to monitor. Set realistic targets for compliance Building an effective regulatory A helpful benchmark when designing urban management system legislation is to only include regulatory Any individual legal reform is unlikely to be standards that 80 percent of a typical effective if there is not also a supportive neighbourhood can realistically meet.22 system for regulatory governance. If a standard of behaviour is beyond the Building this system depends on: capacity of most households to meet,

TOWARDS MORE ROBUST REGULATORY IMPACT ASSESSMENT

BECAUSE OF THE CONTESTED NATURE ¦ Accountability. Regulators should be of urban development and the severe able to justify decisions and be subject consequences when new legislation leads to to public scrutiny. perverse outcomes, African countries should work to establish and strengthen their ability ¦ Consistency. Government rules and to apply regulatory impact assessment standards must align with each other principles to proposed urban legal and be fairly implemented. interventions. The United Kingdom codified a set of principles that can be applied in the ¦ Transparency. Regulators should be context of a developing country. These are: open and keep regulations simple and user-friendly. ¦ Proportionality. Regulators should only intervene when necessary. Remedies ¦ Targeting. Regulations should be should be appropriate to the risk focused on the problem and minimise posed, and their costs identified and side effects. minimised.

44 REFORMING URBAN LAWS IN AFRICA then the new law will fail to achieve the GENERATE A POLICY PAPER desired outcomes. Following the “80 4|A policy paper is used to initiate percent rule” will help countries develop debate before the legislation is drafted. The trust in urban law; without it, drafters risk document should always be written clearly perpetuating the mistake of creating laws and simply, without relying too much on legal that cannot be implemented. This does not jargon or a complicated writing style. Ideally, a benefit anyone. policy paper should:

At the same time, laws exist to raise the ¦ Identify the problems to be addressed standards of human behaviour and attain better outcomes than can be achieved by ¦ Set out options for addressing those a free-for-all competition between different problems actors in the city. Some situations require a higher standard than what 80 percent of ¦ Outline the implications of each option the population can attain. For example, for the economy, the environment, land-use regulations should ensure that households and implementation storm-water drainage is always provided agencies. when land is developed to prevent ongoing floods. Property tax regulations should A policy paper provides a benchmark also be designed to ensure that property against which the draft law can be tested. tax is affordable to all, even households Does the proposed law reflect the priorities that typically have not paid them in set out in the policy paper? To what extent the past. In these cases, the benefits of does the draft law deviate from the policy compliance need to outweigh the costs paper, and is that deviation significant? of compliance. This trade-off needs to be Ideally, the team drafting the policy should clearly communicated to stakeholders as be different to the team that will draft the the benefits may not be felt in the short legislation. In practice, the same people often term, which is when most costs arise. Where produce both documents. The benefit of this nearly everyone lives hand-to-mouth, the is that the legal drafting team has a clear idea argument that an immediate cost will be about what the policy aims to achieve. The offset by a medium- or long-term benefit is downside is that it is easy for the legal drafters not likely to persuade many people. to make changes to the policy framework, either because crafting a workable legal text A study on the extent of compliance with to achieve the desired policy outcome is land-use regulations in Nigeria found that, more difficult than anticipated, or because the when it came to maximum plot-coverage policy objective is not actually desirable. This rules, the level of compliance in high- practice should be avoided. income neighbourhoods was 15 percent, in middle-income neighbourhoods it In some countries, producing a policy paper was 20 percent, but in low-income areas (known as a White Paper in the British legal there was no compliance at all. This is an tradition) is an optional exercise. In others, inversion of the 80 percent rule. As the it is mandatory. Regardless of whether it is a study’s authors point out, “none of the requirement or not, it is always advisable to developers could afford to leave 50 percent develop a document – even if only an informal of the plot undeveloped simply to comply one to be used by the drafting team – that sets with development regulations. Apart from out policy direction. In some cases, a three- the need to provide accommodation for page memo will be enough. In most cases, a large households averaging about 10 to 12 more comprehensive document (or series of persons, a sizeable proportion of residents shorter policy documents) is needed. Shorter can only afford to buy one half or less of a documents may be customised to address standard plot of land”.23 different stakeholder groups, provided the information they contain is consistent and there is a process in place to integrate feedback on the different documents into one coherent policy proposal.

PRACTICAL PREPARATIONS FOR DRAFTING NEW URBAN LAWS 45 Characteristics of effective urban legislation

fter collating stakeholders’ The plan should also match the type of urban submissions on the various legal reform. A major overhaul of a country’s proposed legal scenarios, the urban property taxation system, for example, drafting team is ready to select demands a different implementation plan Athe most viable, pragmatic option as the to a relatively modest revision of land-use basis for the proposed legislation. Effective approval procedures. urban legislation should be implementable; administratively open, fair and impartial; clear; An implementation plan should include coherent; comprehensive; and certain. strategies to:

Implementability ¦ Inform all stakeholders about the law First and foremost, a new law must be and the date on which it comes into effect. implementable. There is no point in drafting a law that addresses a wide range ¦ Prepare all the materials needed to of concerns on paper but cannot be operationalise the new law, including implemented because capacity is limited, regulations, proclamations, forms and flow there is no political will or it simply fails charts. to address why people – whether they be politicians, officials, planners or ¦ Deepen understanding of the new law individual households or firms – behave by, for example, writing opinion pieces in particular ways. for newspapers, initiating discussion on broadcast media (television, radio and, An implementation plan needs to be in place where applicable, social media), and before the draft law enters the parliamentary producing posters or flyers for areas where process. This plan should consider the many access to formal media is limited. actions needed to implement a new law and be pragmatic about the people and ¦ Train and prepare officials, lawyers, institutions available to do so. planners, engineers, architects, local

46 REFORMING URBAN LAWS IN AFRICA politicians and community-based consequences, especially if this involves organisations for the implementation of people losing land or being forced to the law. relocate, or significant changes to how neighbourhoods are governed. ¦ Deploy additional resources to areas where implementation difficulties are ¦ Hearings are conducted in accordance anticipated. with recognised principles of administrative justice (where relevant). ¦ Develop and disseminate materials (practical manuals and guides) to support ¦ Decisions are based on clearly specified officials and users of the new law as criteria so that those seeking benefit from they get used to new procedures and the administration know the case they instruments. need to make.

¦ Support local government in assimilating ¦ Reasons for decisions are given the new legal context into service delivery, promptly if requested. infrastructure investment, property-based taxes and community development. ¦ Compensation is paid on time and in full (where relevant). In most countries, written materials – especially those intended for popular ¦ Proper internal checks are in place consumption – will need to be produced in to ensure that town planners and an international language and the main local administrators properly carry out their languages. duties.

¦ Allegations of misconduct on behalf of officials is independently and thoroughly investigated. AN ADMINISTRATIVE SYSTEM THAT IGNORES Clarity THE PRINCIPLES OF As far as possible, the language used ADMINISTRATIVE JUSTICE should be simple enough for laypeople to IS MORE LIKELY TO understand. Where technical legal terms and NEGATIVELY AFFECT phrases are used, these should be clearly THE POOR THAN THE defined in the text. WEALTHY OR POLITICALLY CONNECTED Clarity also refers to the structure of the law. An urban planning law that has been amended multiple times to accommodate laws on other topics becomes impossible for the public to follow. In England, for instance, Administrative openness, fairness there are more than 17 000 pages of law and impartiality dealing with town and country planning, An administrative system that ignores the scattered over about 45 Acts and thousands principles of administrative justice is more of pages of regulations. Only professionals likely to negatively affect the poor than the specialising in that aspect of the law can find wealthy or politically connected because the their way about.24 This is neither efficient former group is less able to assert its rights nor just, and is an example of international through courts and other formal processes. practice that Africa should not follow. To ensure administrative openness, fairness and impartiality in the way a proposed law is Coherence applied, it should ensure that: A draft law should have a logical structure. For instance, in a law on urban planning, it ¦ Due consideration is given before a makes sense to first outline what may be decision is made that could have adverse planned before describing how to carry

CHARACTERISTICS OF EFFECTIVE URBAN LEGISLATION 47 out planning. Similarly, in a law regulating detailed that more than one law is needed. In the sale of city-owned land, the rules such cases, the separate laws should still work determining the circumstances under which it together as a coherent whole. is possible to sell the land, and the principles that apply in making the decision, should Ensuring comprehensiveness in an urban be outlined before detailing the procedural law is not always straightforward. Trying to steps to be followed. be thorough can lead to a law that is too ambitious and tries to regulate more issues than there is capacity for. This has been one of the most common weaknesses of earlier urban laws. When developing new A DRAFT LAW SHOULD laws, the goal of comprehensiveness needs HAVE A LOGICAL to be interpreted differently. It is not about STRUCTURE AND ensuring that the law addresses every single PROVIDE PRINCIPLES TO possible set of circumstances, but rather GUIDE DECISION-MAKERS that it joins up the different parts of the law IN RESOLVING TENSIONS in ways that make sense to the users and WITH CUSTOMARY LAWS implementers. When the law leaves a gap without guidance as to how to get around it, this encourages non-compliance just as much as trying to over-regulate.

Urban laws should also consider customary laws, both traditional and urban, ensuring that new laws respect and dovetail into them. This is easier said than done. In many LAWS SHOULD BE CLEAR peri-urban areas, there is fierce conflict ABOUT WHO IS BEING between the legal powers awarded to the ADDRESSED; WHAT A city government by legislation and those PARTY MAY (OR MAY of the traditional leaders, who hold their NOT) DO; HOW THEY powers through customary law. There are SHOULD DO IT; AND no quick legal solutions to this deep-seated WHAT HAPPENS IF THEY tension. However, a law that ignores this DON’T (OR DO) DO IT tension and simply assumes that the new law will absorb the customary law will create great legal uncertainty, fuelling tensions that already exist rather than creating order and predictability. Certainty Laws should be clear about who is being Even though it is a challenge for drafters, addressed; what a party may (or may not) do; new laws need to provide specific points how they should do it; and what happens if of intersection between urban law and they don’t (or do) do it. This clarity gives both customary law that at least provide principles officials and the public certainty as to what is to guide decision-makers in resolving this permitted and what is prohibited, leaving little tension. There is a lot of scope to innovate room for dispute. and test new ideas for managing this enduring characteristic of many cities, especially those Certainty also refers to the need to limit the expanding rapidly into rural areas. discretionary powers of public authorities and officials to remove the possibility of Comprehensiveness abuse. However, certainty should not be As far as possible, matters on a topic should allowed to become rigidity; some flexibility be dealt with in the same law. This means must be retained. The key is to ensure that that some laws might be quite lengthy. adjustments can only be made within carefully Legal issues relating to urban development regulated parameters. and governance are often so complex and

48 REFORMING URBAN LAWS IN AFRICA THE ROLE OF REGULATIONS

MOST NEW URBAN LAWS USE REGULATIONS and where it is unavoidable, it is important to set out the procedures to make the law that drafters incorporate principles to work in practice. Regulations, in this context, guide the making of the regulations when are “secondary laws” that are set out from they are eventually tackled by the relevant time to time by a designated person, often regulatory authority. a minister or mayor. They generally address the detailed aspects of implementation; Conditions in towns and cities can vary how the general framework set out in the tremendously, even within the same country. law approved by parliament will actually Regulations allow for rules to be adapted to work in practice. suit different sets of local conditions. When a draft law introduces an issue that needs to It is difficult to assess the likely effects of be managed at the local level, it is generally a proposed law if its regulations have not better to leave the drafting of regulations yet been set out. In countries where trust to an executive officer of the national in the government is low, stakeholders are government, like a minister or a local council. likely to reject any new urban law that only Towns and cities are places of rapid change. covers overarching principles without also The legal framework governing urban areas specifying the accompanying regulations, should be flexible enough to accommodate because it is impossible to determine how such change. Updating a regulation that has the law might affect them in practical ways. been issued by a minister or a local authority (Conversely, they may fail to engage in the is much easier than changing a law that must law-making process because they do not be approved at the highest legislative level. think that the law will affect them in practice.) In South Africa, for example, the Spatial Lack of clarity at the regulation level is also Planning and Land Use Management Act a problem for officials who need to (2013) empowers the national minister to determine which resources they will need implement a wide range of regulations to implement the law and how it will affect concerning the way local councils manage institutional arrangements. land-use applications (although the fact that the minister issued the regulations before For these reasons, regulations should ideally the main Act came into operation casts be developed in tandem with the main doubt on the legality of the regulations). In legislation and published at the same time. If Zambia, the Urban and Regional Planning this is not possible, it is still useful to publish Act (2015) gives the national minister an outline of the set of regulations that will extensive authority to make regulations be needed to give effect to draft legislation. to operationalise the Act. In this case, the These regulations can then be developed as scope of the regulations is so broad that the the legislation becomes more fixed. Act itself cannot come into operation until When faced with issues that are too they are finalised. Unfortunately, this means complicated to resolve during the law- a long-awaited urban legal reform remains making process – for instance, when funding dormant. from an international donor places a limit on experts’ time – drafters may choose Where regulations have been left to a not to deal with them in the law that they minister or local council to draft, it is are drafting, but to leave them to be advisable to ensure that these regulations addressed in regulations. However, there is are updated regularly and made available no guarantee that the issues will be resolved either at government offices or on more satisfactorily in that way. In such cases, government websites.

CHARACTERISTICS OF EFFECTIVE URBAN LEGISLATION 49 Passing the responsibility on to politicians

roducing a polished and coherent passed into the parliamentary sphere is draft law is, in many ways, the easy also an important factor. It is useful to keep part. Getting the draft law through the the full drafting team on hand during the subsequent political process and then parliamentary process to: Pgearing up the affected institutions to initiate the implementation are the real challenges. ¦ Help brief the minister or head of Here, the original drafters take a back seat, if department they are involved in the process at all. ¦ Help officials and politicians handle One risk at this point is that parliamentarians difficult questions will amend the draft law in ways that disrupt its careful legal logic, or that the draft law ¦ Support the drafting of amendments that will drop off the parliamentary agenda might arise in parliament. altogether. These risks are less likely if political stakeholders gave input on a policy paper The aim is to taper off the experts’ and if the drafting team included political participation while building up the ability of representatives in their deliberations, giving relevant officials and politicians to defend and them regular updates on progress and issues. promote the new law. The determining factor now is whether the draft’s champions – the government officials who have been managing the drafting KEY STEPS IN THE process – can effectively support their political LEGISLATIVE PROCESS bosses in robust parliamentary and public Each country has its own procedure for debate. This largely depends on the extent moving a proposed law through the to which the drafting team worked inclusively legislature. Usually, this includes: with government officials and politicians, both to draw on their inputs and help develop their ¦ Tabling the Bill understanding of the draft legislation. ¦ Publishing the Bill for comment The availability of international experts to support local officials after the draft has ¦ Committee processes

¦ Finalisation and adoption.

IT IS USEFUL TO KEEP 1. Tabling the Bill THE FULL DRAFTING Until the draft law (Bill) is formally tabled in the legislature, it does not normally enjoy any TEAM ON HAND DURING formal status. Up to this point it is merely an THE PARLIAMENTARY indication of how officials plan to translate PROCESS their mandates into legislation. In most countries, a draft law can only be tabled in the

50 REFORMING URBAN LAWS IN AFRICA legislature once either the president or the for officials and advisers, and it is a time cabinet has signed off on it. when it is especially important to manage communications and media relations.

3. Committee processes A DRAFT LAW IS USUALLY After the deadline for public comment, the ACCOMPANIED BY draft law is revised to incorporate relevant AN EXPLANATORY inputs before the minister responsible for the Bill submits it to the relevant committee MEMORANDUM of the legislature for a penultimate round THAT EXPLAINS of discussion. This is often a time of intense THE LAW IN CLEAR, engagement with ministers and their political STRAIGHTFORWARD advisers as they try to iron out potential LANGUAGE flashpoints before submitting the Bill. The risk here is that important elements of the draft law get lost as the minister seeks political compromise. A draft law is usually accompanied by an explanatory memorandum. There is often a standard template for structuring this document, which should explain: IT IS USEFUL TO PREPARE ¦ The purpose of the law THE MINISTER TO FIELD QUESTIONS DURING THE ¦ The problem it wants to address FINAL DEBATE IN THE MAIN LEGISLATURE ¦ The proposed solution

¦ Reasons for the solution Once the committee process is concluded, ¦ The method used for selecting there is one final chance to redraft the this solution law before it goes to the main legislature. Powerful stakeholders often try to use this ¦ Steps taken to engage with stakeholders. time to lobby for change behind the scenes. The drafting team can come under heavy Clear, straightforward language is important pressure at this stage. here because not all members of the legislature will review the draft legislation in detail. 4. Finalisation and adoption The final debate happens in the main 2. Publishing the Bill for comment legislature. It is useful to prepare the Once the draft law has been tabled, it is minister for fielding questions at this stage, usually published in official government underscoring the importance of sustaining a papers for public comment. Stakeholders strong relationship with political leadership. who have commented on earlier drafts of the Depending on how the draft law was law will check to see whether their concerns received at the committee stage and the have been addressed, and those that did not changes implemented by the minister, these engage with the drafting process earlier will debates should be predictable. Once the realise that this is their last opportunity to legislature adopts the final version of the protect their interests or assert their powers. draft law, usually after a vote, a date will be This is a time of heightened debate and set for the law to come into effect. This is an interaction. Interested groups will lobby important time within which to make final hard to get their views reflected, sometimes preparations for implementation, and to approaching politicians directly. They might check that the necessary support has been use the press or social media to elevate put in place for the implementers. their points of view. It is a time of hard work

PASSING THE RESPONSIBILITY ON TO POLITICIANS 51 Implementing new urban laws

he government officials that worked on disputes over the interpretation of the drafting a law are not always the same law. Civil-society bodies that work with or people that will implement it. The early represent poor or marginalised communities stages of implementation can be a and legal professionals that work in urban Ttime of uncertainty for the drafting team, which law will also need to attend short courses on may worry that the law’s new custodians will the new law. While the legal professionals will not embrace its values or apply themselves to probably self-fund such training, civil-society rolling it out. This is one reason why consulting bodies will need direct or indirect funding the implementers early on and ensuring from the state or donors. positive media coverage are so important. If the press has covered the new law’s purpose and Capacity-building involves providing practical intended impact, there is a greater chance that it support to state implementers by, for will be taken up by the new custodians with the example: appropriate level of care. ¦ Developing information booklets and training materials on the new law, which can be tailored to address different parts of the law or the country. THE EARLY STAGES OF IMPLEMENTATION CAN BE ¦ Establishing help desks and online help A TIME OF UNCERTAINTY facilities. FOR THE DRAFTING TEAM, WHICH MAY WORRY ¦ Ensuring that the right forms are THAT THE LAW’S NEW available in the right places and in the CUSTODIANS WILL NOT correct languages. EMBRACE ITS VALUES OR APPLY THEMSELVES TO ¦ Ensuring that staff are on hand to help ROLLING IT OUT people fill out these forms.

¦ Ensuring that poor and marginalised communities receive the same level of administration as those who are better off. The first step towards ensuring successful implementation is designing a legal Some aspects of the law will probably be framework that considers the current context implemented by non-state actors, for example, of capacity and resources. The second step when community-based structures are enlisted is building capacity within the urban legal to regulate land transactions or land use. It is system. This involves providing structured, important to ensure proper support for this sustained training to the state officials who category of implementers, whose concerns and will implement the law and the judicial conditions are different to those of government officers who will be called on to resolve officials and inspectors.

52 REFORMING URBAN LAWS IN AFRICA Monitoring the effects of the new law and making adjustments

any of the urban legal problems in Africa today are caused by THE DRAFTING TEAM inappropriate legislation. For SHOULD CONSIDER decades, African countries have IMPOSING A MANDATORY Mused laws that were inappropriate to their contexts, their development pressures, their REVIEW REQUIREMENT implementation capacity and their political UNDER WHICH A environments. As a result, citizens and officials MINISTER WOULD BE became adept at sidestepping the law and OBLIGED TO REVIEW THE introducing their own approaches, which IMPACT OF A LAW EVERY were innovative and practical but often also FIVE OR 10 YEARS unlawful.

No law is perfect. All countries need to fine-tune, amend or even scrap urban legal interventions from time to time. This has not happened in most African countries, which is INDICATORS TO MEASURE IMPACT one reason current urban legal frameworks A legal monitoring system should specify are outdated and inappropriate. To prevent indicators for measuring the performance this from happening in future, it is necessary of a new law and acceptable parameters for to establish a system to track whether a new performance on those indicators. legislation is achieving its intended outcomes. This system must: The indicators will be determined by the nature of the law and the urban situation ¦ Identify indicators to measure the impact it covers. These indicators need to be of the new law. carefully chosen. Some indicators may seem suitable in the abstract but end up distorting ¦ Clarify who is responsible for monitoring performance assessments because people and evaluating the outcomes of the law. modify their behaviour to score well in terms of indicators without bringing about the ¦ Include efficient, workable templates for desired change. For example, measuring reporting, especially by local government. the speed at which officials process permit applications submitted to them can lead The drafting team should consider imposing to the officials cutting corners to meet the a mandatory review requirement under which prescribed timeframes while ignoring the a minister would be obliged to review the quality of the final decision, subverting the impact of a law every five or 10 years. aims of the legislation.

MONITORING THE EFFECTS OF THE NEW LAW AND MAKING ADJUSTMENTS 53 law and governance for anyone outside the system to understand. Drafters of urban WITHOUT GOOD law can help by ensuring that the policy MONITORING AND documents and explanatory memorandum REPORTING, IT WILL are clear, concise and readily available to BE DIFFICULT TO the media. This makes it easier for observers MOTIVATE FOR FUTURE to track the extent to which the new law is IMPROVEMENTS TO AN realising the policy’s objectives. URBAN LAW

In countries with low administrative and STRAIGHTFORWARD professional capacity, resources should TEMPLATES FOR not be diverted from implementation REPORTING SHOULD to monitoring. However, without good BE INTRODUCED monitoring and reporting, it will be difficult to motivate for future improvements to an urban law. Careful thought should be given to the selection of indicators to ensure that the law’s objectives are balanced with the TEMPLATES FOR REPORTING practical realities of public administration. It usually falls to the implementers of the Indicators that can only be measured by, for new law – mostly local government bodies example, conducting six-monthly household – to collect indicator data and report surveys will be less likely to be implemented on whether a new urban law is working than those that require an evaluation of the effectively or not. To facilitate reporting municipality’s capital budget and the extent and support overwhelmed officials, to which revenue and expenditure changed straightforward templates for reporting after implementing a new law. should be introduced. Support and capacity- building programmes will also help ensure that local government officials can fulfil their MONITORING AND reporting mandates without compromising EVALUATION ROLES their overall responsibility to implement the The party responsible for monitoring the new law. effects of a new law should be agreed to, in writing, early on in the implementation process. The common assumption that the legislature – parliament – will fulfil this role is often incorrect, so it is important to pin down the particular ministry or level of government that must do this wherever possible.

The media, which in most countries is independent of the state system, can play a role in informally monitoring the outcomes of a law. Press reports highlighting how a particular urban legal reform has failed to deliver the envisaged outcomes or triggered entirely different, negative outcomes are effective in getting government authorities to refocus their implementation efforts. For this to happen, the media needs guidance. Urban law is a notoriously difficult area of

54 REFORMING URBAN LAWS IN AFRICA Conclusion

here is no blueprint for urban legal These opportunities differ from time to time reform in Sub-Saharan Africa. The and country to country. We cannot predict countries’ law-making systems are when they will arise. In some countries, too different, their urban challenges at some times, there may not be strong Tunique and their political contexts too varied opportunities at all. Armed with an approach to allow for a strictly procedural manual. that is grounded in what is actually happening Nevertheless, this guide provides a direction and possible in context will allow legal for people working at the frontier of urban drafters and champions of urban legal reform legal change. to identify and enact the changes that are needed. Without these changes, our cities will continue failing to live up to their potential.

The 2030 Agenda for Sustainable SUCCESS IS MORE Development sets ambitious targets for LIKELY WHEN ALL THE improving city planning and management if its Sustainable Development Goals are to be ACTORS APPRECIATE reached, especially in African countries. The THE COMPLEXITY AND rapid growth of our cities, coupled with the LIMITATIONS OF THE additional burden of mitigating and adapting PROCESS BUT CAN STILL to climate change, demands that we sharpen IDENTIFY AND SEIZE all the tools at our disposal if we are to meet OPPORTUNITIES TO our international obligations. Improving BRING ABOUT CHANGE legislation will not, on its own, address any urban problem. But if we start to make laws that work in practical terms, actually changing the ways that cities are growing and developing, then we stand a chance of rising Urban legal change is a slow, complicated to the challenges. process. African cities do not have time on their side. The current paths of urban Of the various tools used to shape and expansion and governance are cementing govern cities, laws are the most difficult to patterns that will endure for decades. Success change once they are in place. The costs of is more likely when all the actors appreciate getting them wrong are high and changing the complexity and limitations of the process them can take decades. This is why we must but can still identify and seize opportunities to pay such careful attention to how we make bring about change. new urban laws.

CONCLUSION 55 Notes and references

1 The best example of this is the Habitat Number 1. p10. Agenda and the Global Plan of Action, 12 Ibid. p21. outcomes of the Istanbul United Nations City 13 Summit of 1996. Berrisford, S. (2010). “Revising Spatial Planning Legislation in Zambia: A Case Study”. 2 Tan, C. (2013). “Navigating New Landscapes: Urban Forum. Volume 17, Number 4. Socio-legal mapping of plurality and power in 14 international economic law”. In Perry-Kessaris, Ibid. A. (2012). Socio-legal Mapping of Plurality and 15 Ghai, Y. P. (2004). “The Constitution Reform Power in International Economic Law: Text, Process: Comparative Perspectives”. A paper Context, Subtext. London: Routledge. presented at the “Toward Inclusive and 3 Okech, O. and Busingye, H. (2006). “Getting Participatory Constitution Making” conference the Process Right: The Experience of the in Kathmandu: Nepal. These ideas are further Uganda Land Alliance in Uganda in Capri”. elaborated in Brandt, M., Cottrell, J., Ghai, Y. Land Rights for African Development P. and Regan, A. (2011). Constitution-making From Knowledge to Action. Washington, and Reform: Options for the Process. Geneva: DC: Consultative Group on International Interpeace. Agricultural Research. 16 Kelly, R. and Musunu, Z. (2000). 4 In the case of City of Johannesburg “Implementing Property Tax Reform in Metropolitan Municipality v Gauteng Tanzania”. Working Paper for the Lincoln Development Tribunal and Others CCT 89/09 Institute. Available at: www.lincolninst.edu. [2010] ZACC 11. Accessed: 31 October 2016. 17 5 Berrisford, S. (2011). “Unraveling Apartheid See Berrisford, S. (2010). “Revising Spatial Spatial Planning Legislation in South Africa: A Planning Legislation in Zambia: A Case Study”. Case Study”. Urban Forum. Volume 22, Issue 3. Urban Forum. Volume 17, Number 4. pp247–263. 18 See McAuslan, P. (2003). Bringing the Law 6 Urbanisation Research Nigeria (2015). “Urban Back In: Essays in Land, Law and Development. Land, Planning and Governance Systems in Aldershot: Ashgate Publishing. p174. Nigeria”. UKaid/ICFI. Report available at: urn. 19 Goodfellow, T. (2013). “Planning and icfwebservices.com. Accessed: 31 October 2016. Development Regulations Amid Rapid Urban 7 De Visser, J. (2015). “Local Law-making in Growth: Explaining Divergent Trajectories in Cape Town: A Case Study of the Municipal Africa”. Geoforum. Volume 48. pp83–93. Planning By-law Process.” UN-Habitat Urban 20 The Atlas of Urban Expansion can be Legal Case Studies. Volume 4. Available at: accessed at http://atlasofurbanexpansion.org. http://unhabitat.org/books/local-law-making- 21 Kirkpatrick, C. and Parker, D. (2004). in-cape-town-a-case-study-of-the-municipal- ”Regulatory Impact Assessment and planning-by-law-process-urban-legal-case- Regulatory Governance in Developing studies-volume-4/ Countries”. In Public Administration and 8 Global Land Tools Network (2015). “The Development. Volume 24. pp333–344 Continuum of Land Rights”. Brief published 22 Glasser, M. and Berrisford, S. (2015). “Urban in March 2015. Available at: www.gltn.net. Law: A Key to Accountable Urban Government Accessed: 31 October 2016. and Effective Urban Service Delivery”. The 9 In many countries there was, and is, no World Bank Legal Review. Volume 6. protection of even the most basic “traditional” 23 Arimah, B. C. and Adeagbo, D. (2000). human rights. “Compliance With Urban Development and 10 Mancuso, S. (2008). “The New African Law: Planning Regulations in Ibadan, Nigeria”. Beyond the Difference Between Common Law Habitat International. Volume 24. pp279–294. and Civil Law”. Annual Survey of International 24 McAuslan, P. (2013). “Towards a Just Planning and Comparative Law. Volume 14, Issue 1. System: The Contribution of Law”. Journal of 11 Mancuso, S. (2014). “African Law in Planning and Environmental Law. Action”. Journal of African Law. Volume 58,

56 REFORMING URBAN LAWS IN AFRICA

The extraordinary projected rate and scale of urban growth in Africa between now and 2030 underscores the need to urgently develop urban laws and regulations that will shape cities that work more efficiently, treat people more fairly and are sustainable.

This guide aims to strengthen the process by which the laws and regulations that govern urban areas are drafted. It looks at the characteristics of urban legislation in Sub-Saharan Africa and the challenges faced in changing these laws to propose a practical, real-world approach to drafting urban legislation.

Patrick McAuslan worked as a land and urban planning law reform adviser in over 35 countries, mainly in Africa, for more than 40 years. He held academic positions in the United Kingdom at the University of Warwick, University College London, the London School of Economics and Birkbeck College. Patrick passed away during the production of this guide.

Stephen Berrisford played a central role in implementing post-apartheid South Africa’s first urban planning law while working at the Department of Land Affairs in the 1990s. Since then, he has worked as a consultant on urban law reform in six African countries. He is an honorary adjunct professor at the African Centre for Cities at the University of Cape Town. BACK COVER PHOTOS COURTESY DORETTE MCAUSLAN (PATRICK MCAUSLAN) AND TIM HONEY (STEPHEN BERRISFORD) BACK COVER PHOTOS COURTESY DORETTE MCAUSLAN (PATRICK