Report launch: Study on improving access to justice and basic services in the Informal Settlements of Nairobi. The Boma hotel, 5th February 2014.

1. Legal TeamLegal Team
Key Findings and RecommendationsKey Findings and Recommendations
5 February 20155 February 2015
Boma HotelBoma Hotel
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2. ∗Introduction
∗Opportunities
∗Threats
∗Formalizing the Informal
∗Key Conclusions
OutlineOutline
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3. ∗ Land as a vital resource for urban
livelihoods and national economies
∗ Establishing and clarifying land rights is a
key issue in development policies
∗ Promote productive uses of land
∗ Ensure access to land-based services
∗ Crux of Human Rights-Based Approach (HRBA) -
livelihoods & interconnectedness of socio-economic rights
∗ Centrality of land
∗ Politically – sovereignty
∗ Identity of communities & individuals
∗ Social & economic well-being
IntroductionIntroduction
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4. ∗ Mukuru is a large settlement on prime
land hosting a diverse population
∗ Large labour and vote bank
∗ People from different ethnic & cultural backgrounds
∗ Constitution of Kenya 2010 (CoK)
∗ Socio-economic rights
∗ Allows for challenge of titles on the basis of
irregularity and illegality
∗ Recognition of community rights
OpportunitiesOpportunities
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5. ∗ New land laws and proposed Community
Land Bill
∗ New devolved governance structures
∗ Reformed judiciary is seizing the opportunity
to develop robust jurisprudence on CoK
∗ Existence of working informal systems in
land rights and service delivery
Opportunities -2Opportunities -2
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6. ∗ Contestation & uncertainty of land ownership/
service delivery in informal settlements
∗ Legality versus legitimacy
∗ De jure owners, de facto occupants
∗ Preponderance of illegality & informality
∗ Informal mechanisms
∗ Undermine state legitimacy
∗ Reproduce violence & exclusion
∗ Create insecurity- gangs/militia above law
ThreatsThreats
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7. ∗ Illegality in Services & Land Ownership
∗ Water and power connections
∗ Non-owner slumlords
∗Risk of Evictions and Displacement
Threats -2Threats -2
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8. ∗ Informal land tenure is synonymous with
actual occupation and use of land, but is
lacking in legal basis
∗ Not private, public or community
∗ Overlaid on one of other categories
∗ Tenure security for informal settlers is
predicated on confronting the illegality
∗ Through operation of law – adverse possession
∗ Through challenges in court – a title at a time
Formalizing the InformalFormalizing the Informal
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9. ∗ Policy direction
∗ Regularization of existing squatter settlements
∗ Establish a legal framework & procedures for transferring
unutilized lands and lands belonging to absentee land-
owners to the residents of informal settlements
∗ Whatever direction is taken, decision-makers
must consider the following key questions:
∗ What land – space? Demarcation?
∗ How much time on land – What interest?
∗ Who holds – People?
∗ Decongesting – planning; carrying capacity
Formalizing the Informal - 2Formalizing the Informal - 2
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10. ∗ Land in Mukuru is mainly owned by
individuals who do not currently occupy it
∗ Need to deal with this through
∗ Legal challenge of titles;
∗ Claim of adverse possession -occupation 'not by
force, nor stealth, nor licence’ - without force,
without secrecy, and without permission for a period
of time, usually 20 years; or
∗ Policy
Formalizing the Informal -Formalizing the Informal -
MukuruMukuru
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11. ∗ Secure tenure to the land as community land can
also facilitate individuals’ enjoyment of their rights
∗ By contrast, issuing individual title deeds may result in
wanton alienation of land
∗ CoK provides a window of opportunity
∗ Community land rights are predicated on the community of
interest
∗ A functional community of interest has already
arisen, as Mukuru residents have established
systems to meet their needs
Formalizing the Informal –Formalizing the Informal –
Mukuru - 2Mukuru - 2
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12. ∗ Given preponderance of illegality in
Mukuru, investment in institutions to
build community will be critical
∗ Other issues that need to be clarified
are
∗Loci of holding the allodium;
∗Governance;
∗Viable size of community; and
∗Dealing with excess members
Formalizing the Informal –Formalizing the Informal –
Mukuru - 3Mukuru - 3
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13. ∗ Security of tenure can support HRBA to
development
∗ It is at the core of human rights, dignity and decent livelihoods
∗ Security of tenure critical for the enjoyment of rights to water;
sanitation; food and housing
∗ Community rights based on ‘community of interest’
offer an innovative pathway towards tenure security
in Mukuru
∗ However, this should not fetter individual dealings with their entitlements
to land, as long as these do not interfere with the overall community title
Key ConclusionsConclusions
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14. ∗ Protecting community rights to secure
tenure in Mukuru will also pave the way
for expanding the scope of community
rights in other densely- populated
urban areas
Key Conclusions - 2Key Conclusions - 2
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15. ∗ Flexible approaches to improving
security of tenure in Mukuru are
needed to accommodate the unique
features in the settlement
∗ Community rights are dynamic
∗ Community members should be availed
opportunities to participate in decision-
making processes involving land rights
Key Conclusions - 3Key Conclusions - 3
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16. ∗ Government (national and county) support is
essential if security of tenure is to be attained
and guaranteed for Mukuru residents
∗ This support is needed irrespective of the approach
taken to secure the space & rights and to determine the
holders of rights
∗ Constitution, new land laws, and devolution
laws provide vital opportunities to anchor the
quest for tenure security in Mukuru
Key Conclusions - 4Key Conclusions - 4
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