From illegality to legality: illegal urban development and the transformation of urban property rights in Lesotho.

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ABSTRACT

Most scholars indicate that a majority of urban residents in the cities of the developing countries are excluded from the legal and regular processes of access to urban land and have to "step outside the law in order to gain access to land for housing" (Fernandes and Varley, 1998: 3; also Simon, 1992; Durand-Lasserve, 1996; Fernandes, 1997; McAuslan, 1985; 1998) or to 'invent' their own space and their own place in urban society ..." (Fernandes, 1997: 7). Although their nature varies from place to place, such invented spaces have been given various labels; irregular, illegal, informal, unofficial, customary, and so forth. Implicit in these labels is the notion that 'invented spaces' are, in some way, occurring outside "legal and urban development standards recognised by public authorities" (Durand-Lasserve, 1996:1). However, contrary to this received wisdom, there is compelling evidence that illegal settlements do not function entirely outside the influence of formal state rules, but that extensive borrowing from state law and the image of state agents in reality shape property relations between actors involved in the development of such settlements (Benton, 1994; Razzaz, 1994; 1998; Kombe, 1994; 2000; Kironde, 2000; UCLAS/IRPUD, 2000). Evidence also exists to suggest that illegality is not a sole characteristic of the urban poor and their settlements, nor is legality an intrinsic virtue only of the wealthy and their environments, because illegality is often essential to the survival of different categories of actors - land owners, middlepersons, landlords, politicians and state officials (Fernandes and Varley, 1998; Santos, 1992; Varley, 1998; Bolivar and Perdomo, 1998; Kombe, 1994; van Western, 1990).

Although much is known about the morphology of settlements that occur outside formal state rules and the characteristics of their population, knowledge of how formal rules and state enforcement methods might encourage and enable the development and transformation of property relations in such settlements, especially in Sub-Saharan African cities, is sketchy. Drawing on recent research on the enforcement of the Land Act of 1979 in Lesotho, this paper aims to accomplish two purposes. First, it will show that illegal settlements occur under the shadow of formal state rules, from which social actors borrow selectively and in opportunistic ways to acquire urban property rights, and that this is possible because of inconsistencies and contradictions in state rules and enforcement methods. Secondly, it will show that although formal state rules may appear to exclude ordinary urban residents from access to urban housing land, in reality, the contradictions and the contingency nature of the rules may support access to urban property rights by a majority of urban residents, including the urban poor. Three conclusions are drawn from the paper: first, legality and illegality are intrinsic features of urban settlements, irrespective of the rules that regulate their development. Second, the illegality of illegal settlements is a contingent and transient event. Third, inconsistencies and contradictions in formal state rules provide urban residents with opportunities for exit from and re-entry into the realm of state rules, as and when it is expedient to do so.

The paper is structured around seven sections, including this introduction. Section 2.0 is a brief account of the legislative policy context. In Section 3.0, a brief statement of data collection methods is provided, followed by discussion of the implementation of the Land Act of 1979 (LA 1979) in Section 4.0. Illegal access to housing land through informal rules is the subject of Section 5.0, while in Section 6.0, the transition from illegality to legality is illustrated and discussed in some detail. Section 7.0 summarises and concludes the paper.

ESF/N-AERUS: International workshop - Leuven and Brussels, Belgium, 23-26 May 2001

N-AERUS: Network-Association of European Researchers on Urbanisation in the South
http://www.naerus.net