|Habitat Debate - Vol. 5 - No. 3 - 1999 - Security of Tenure (HABITAT, 1999, 63 p.)|
by Edesio Fernandes
Illegality in urban areas usually takes many distinct forms, ranging from a vast informal economy and innovative survival strategies to the increasingly - sophisticated mechanisms of popular justice which have been identified in many cities. Of particular importance is the growing practice of illegal access to urban land and housing. Indeed, if both the conditions of access to land and construction patterns are taken into account, between 40 to 70 per cent of the population in cities in developing countries are in one way or another disobeying the law. The combination of lack of an efficient official housing policy in most countries and the impact of largely uncontrolled market forces does not provide adequate housing solutions for the vast majority of urban populations.
It should be stressed that urban illegality is not restricted to the urban poor; on the contrary, illegal practices involving land use are increasingly taking place among the more privileged social groups. However, given its grave consequences, illegality among the urban poor needs to be urgently addressed - and confronted - especially regarding the central issue of security of land tenure.
Invasions, irregular land subdivisions and all other forms of precarious occupation, as well as the widespread practice of illegal construction, are a reflection of the powerful impact of land markets and political systems. But they are also the result of the nature of the legal system in most developing countries, which is often elitist and exclusionary. Laws which do not reflect the existing social reality and lack of proper regulation have aggravated, if not determined, the process of socio-spatial segregation.
The central issue to be addressed is that of property rights, specifically concerning urban real estate. The traditional approach to property rights prevailing in many developing countries, is that of classical liberalism which views property purely in monetary terms and does not consider its social function. It also fails to consider traditional customary values which place more emphasis on communal property rights rather than on individual property rights.
It should be stressed that security of tenure can be achieved through several means, and not only, or necessarily, through the recognition of individual property rights. There is a wide range of legal-political options to be considered, from the transfer of individual ownership to some forms of leasehold and/rent control to more innovative forms of collective ownership or occupation. Whatever the solution adopted, it will only work properly if it is the result of a democratic and transparent decision-making process which effectively incorporates the affected populations.
Moreover, the recognition of security of tenure needs to be promoted within a broader context in which urban reform and law reform are reconciled. Law reform is a function of urban governance: it requires new strategies of urban management, based upon new relations between the State (especially at the local level) and society, renewed intergovernmental relations, and the adoption of new forms of partnerships between the public and the private sectors within a clearly defined framework. Law reform also requires the renovation of the overall political decision-making process, so that traditional mechanisms of representative democracy and new forms of direct participation are combined. Finally, the need to promote a comprehensive legal reform and judicial review can no longer be ignored, especially in order to broaden collective access to courts to guarantee law enforcement.
In other words, urban reform and the recognition of security of tenure are not to be attained through law, but through a political process which supports the recognition of the long claimed right to the city not only as a political notion, but as a legal one too. There is, of course, a fundamental role to be played in this process by lawyers, judges, and public prosecutors. However, the collective action of NGOs, social movements and individuals, within and without the State apparatus, is of utmost importance to guarantee both the enactment of socially-oriented laws and, most significantly, their enforcement. If these are truly democratic times, the age of rights has to be also the age of the enforcement of rights. It is only through a participatory process that law can become an important political arena to promote spatial integration, social justice and sustainable development.
Edesio Fernandes is a Research Fellow at the Institute of Commonwealth Studies, University of London, U.K. He is also Co-ordinator of IRGLUS (International Research Group on Law and Urban Space) and co-editor (with Ann Varley) of the book Illegal Cities: Law and Urban Change in Developing Countries (Zed Books, 1998).