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REFORMING URBAN LAWS in AFRICA a PRACTICAL GUIDE Authors: Stephen Berrisford and Patrick Mcauslan

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REFORMING URBAN LAWS in AFRICA a PRACTICAL GUIDE Authors: Stephen Berrisford and Patrick Mcauslan 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.
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