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Download the draft background paper (available in English and French):
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Taken from the Draft Background Paper of 24/11/00
Coping With Informality And Illegality In Human Settlements In Developing Cities
- Renewal of ways of thinking and treating illegality of human settlements
On what assumptions are founded the different ways of thinking
about and treating illegality in human settlements? On which technical, political and ideological premises are they based? When a settlement is designated as illegal or informal, this exempts and excuses public authorities and experts not to try to understand how and why this settlement was formed and to raise the question of its legitimacy.
Reference to legality and norms tends to conceal the main issue, which is that of legitimacy.
- Does the notion of illegality of human settlements refer to the law or to regulations?
When we examine the criteria of illegality, we notice
that, except for the occupation or 'theft' of land owned by people having bought in good faith the property rights in question, the legality invoked is not that of the state of law. It rather refers to modest rules and regulations decreed by government administrations in order to consolidate their own power. It is therefore more appropriate to talk about non-conformity to regulations than of illegality. It is not the law which
is set at naught, but rather bureaucratic norms and regulations. Then, the question must be reversed: it is these norms and regulations that need to be adapted to population practices.
- Legality and legitimacy in respect of the plurality of the law system
In some cultural contexts, the notion of legality does not form part of a coherent discourse, the legitimacy of which is obvious, largely accepted, and enforced by universally recognised institutions. The notion of legality may have several (sometimes contradictory or overlapping) references e.g. a set of cultural traditions, inherited colonial rules, and a new legal system of international law-making. Furthermore, it has to deal with the existence of partial judicial practises, which are fragmented but still referred to by the great majority of ordinary people.
This is well known in Sub-Saharan Africa in urban planning and land
matters.
- A bundle of norms applicable to each urban dimension
Instead of a supreme and unique or simple judicial norm, the objective would be to define a number of particular norms applicable to each urban dimension. Each norm would express: (i) a minimum under which there is an unacceptable tenure insecurity, a threat to social order, an insufficient services, or a hazardous habitat, and (ii) an objective to be reached, taking into account both the revenue of concerned households and public subsidies available
- Urban forms and uses as expression of diversity.
Various forms and uses of urban areas may not correspond to present (or accepted by a conventional groups in society) notions of "good" or "adequate standard" settlements, as they emerge from historical heritage or cultural practices of the past, or of minority groups or simply of alternative modes of living. This however does not constitute a sufficient basis to disqualify these areas as "unplanned", "informal", let alone "illegal".
- Understanding the situation of illegal housing in its dynamics
It is essential to understand the situation of low income housing
qualified as informal or illegal in its dynamics, to locate/position it in an improving or, on the contrary, a worsening trajectory. If we are in a phase of improvement-appreciation-valorisation (this is what happens in the process of tenure regularisation-legalisation of the settlement), we can accept those housing conditions at the settlement level as being mediocre and the provision of services and infrastructure temporarily insufficient.
- The offer and the demand of legality: cultural and economic dimensions
We can conclude that access to legality is a cultural and an economic question. It is only possible when an offer of legality accessible to all income groups responds to a demand for legality. If the social offer of legality is not sufficient as to quantity and to quality, we cannot expect anything from ordinary citizens.
- A legality shaped for the poorest?
The project by some authorities to create a 'second legality', a second model shaped for the poor, appears to us to be based on false and potentially dangerous premises. It should be discussed.
- Has the legalisation-regularisation of illegal settlements a perverse effect? What and how?
The simple legalisation-regularisation of a housing unit results in a rise of its market value. It is nevertheless not certain that this improvement, combined with its new negotiability, can lead its
resident-owner to upgrade the dwelling, or contribute to the improvement of the neighbourhood environment, as suggested by many partisans of massive regularisation operations. The inhabitant involved does not always desire to do so, or does not necessarily have the required means.
Sometimes, he/she will prefer to sell and go to live elsewhere. Thus, it will be the new buyers - of a higher income group - who will undertake the improvements.
- Does the legalisation/regularisation of the illegal settlements constitute an effective means of fighting poverty?
Administrative authorities very often sustain the argument according to which the legalisation of a settlement favours land speculation by the urban poor. It deserves further attention. Legalisation-regularisation measures generate indeed incremental value that benefits the resident-owners. Thus, if we really seek to improve the economic situation of the low-income urban populations, as declared by the responsible authorities of the poverty alleviation programmes, we must recognise that to induce the poor to be able to capture - for once - this incremental value can be considered as a poverty alleviation method. It can be thus
more effective than many other expensive integrated programmes that
require complex organisation such as professional capacity building, support for employment, community participation and micro-credit. This is rarely accepted by ruling classes, and with them, a part of the international experts. The inhabitants of low-income settlements are denied the right to capture incremental values generated by the regularisation of their settlement.
- Illegality, legalisation and rental housing
Housing produced informally or illegally is often used for rental. The non-respect of standards associated with the precariousness of the settlements allows for the production of low-cost dwellings with a rent accessible to low-income households. The legalisation of these settlements may result in drastic social change in their social composition: a rise in land and housing prices, and consequently also in the rent, the lowest-income households will tend to leave the neighbourhood, handing over the space to a better-off part of the population.
- Land and housing development, and illegality
A striking phenomenon in southern cities is the development of a formal land and housing development sector operating at the limits of legality.
The land and housing developer will operate either within a legal
framework or an illegal one (unauthorised land subdivision, illegal land sale procedures, etc). The same developer will often play on the two registers. Part of the operation will be legal (the land sale, for example), the other will not be legal (non-conformity to the planning documents or to the norms regarding services and construction). The developer will shift from one frame to the other according to circumstances and the risks of repression. Who bear the costs of these practices? Who benefits from them?
- Illegality of human settlements and environmental protection
The environmental issue (or the legislation related to the protection of environment) is more and more often used by the most affluent segment of the urban population to call attention of the officials at city level to low-income illegal settlements and to demand their removal or eradication.
The environmental argument is thus raised to legitimise the old but
undeniably segregationist claim of the middle and upper urban social classes. What is the impact of such claims and statements regarding the legalisation of the illegal settlements?
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