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Regulatory reform:  A cautionary tale

April 22, 2017

So we are in a period right now in which regulation—you know government oversight of key things like markets, environmental waste streams, and development activity—is getting a really bad rap.  Before you start rejoicing about getting government off your back, I’d like to point out just how important government is and how it does make our lives safer and better. Hate that zoning regulation—well it might not allow you to build something hideous, but it also stops your neighbor from doing the same.  Hate that speed limit?  Well there’s a 24% difference in fatalities between a crash on a 55 MPH limit road and one that has the limit at 65 MPH.  (See:  Friedman, L.S., Hedeker, D. and Richter, E.D., 2009. Long-term effects of repealing the national maximum speed limit in the United States. American Journal of Public Health, 99(9), pp.1626-1631)

 

So now that I’ve outed myself as a lover of the public sector, let’s continue.  What might it be like if the regulatory state retreats (or alternatively the regulatory state is inept)?  

 

Let’s look at Nairobi. 

 

 

There’s been a series of building collapses in the city over the last several years.  The cause:  shoddy construction by contractors, ineffective regulation by local government and blatant interference by politicians (on the side of the developers.)  People have died.  Africa may be the last frontier for cement, but the cement is diluted.  

 

You might think that addressing shoddy construction would be pretty easy:  pass some laws and enforce them.

 

But people aren’t dying in these collapses because there is a lack of law.  The legal framework is there but it is pretty byzantine—complicated, unclear, and open to manipulation.

 

Together with a colleague at the World Bank in Nairobi, Sheila Kamunyori, I wrote an OpEd for the Business Daily in which we discussed this problem and offered a couple of solutions—including not relying on the state. 

 

I append it below, but the link is here:  http://www.businessdailyafrica.com/analysis/How-Kenya-can-stop-mounting-building-catastrophes/539548-3412992-rk596uz/index.html 

 

On August 2, 2016, a six-storey residential building collapsed in Kariobangi South, a neighborhood which provides housing to lower-income residents of Nairobi.

 

This incident followed a trend of collapsing multistoried residential buildings in Nairobi over the past two years that are mainly due to non-adherence to building standards during construction. 

 

Yet this particular collapse in Kariobangi is different. Unlike previous building collapses, the most recent in Huruma on April 29, 2016 which killed 51 people, there were no deaths or casualties in this instance. 

 

Anecdotal evidence suggests that the quick thinking of new occupants and neighbours who noticed growing cracks on the walls and reported the incident to the authorities led to the immediate evacuation and isolation of the building only hours before it collapsed.

 

To meet the acute gap between the demand and supply of housing for lower-income populations, multi-storey, tenement-style structures have become a growing feature of the cityscape in parts of Nairobi — for example in Huruma and Kariobangi. 

 

In the haste to make the quick buck, building standards are set aside as structures are rapidly constructed to meet demand. 

 

Shoddy and substandard buildings provide the affordable roof over the heads of many Nairobians but have led to the tragic loss of life and property.

 

Poor development control has been one of the planning system’s central weaknesses where much development proceeds without oversight and in contravention of prepared physical plans.

 

Requirements to adhere to permitting processes and ensure change of user and land subdivision proposals follow approved plans are often ignored with unapproved buildings erected haphazardly at high densities in locations with limited public access and services. 

Building codes are evaded and residential structures collapse and kill residents.

 

Further, planning has failed to use land to meet important social needs like road reserves, public parks, and schools. This failure exacerbates social inequality, reduces the availability of affordable housing and is perhaps most manifest in the continuous growth of slum housing developments on public and private land in major cities.

 

How can the recognised need for effective development control be addressed?  Nairobi County attempts to enforce development control primarily through one mechanism only — legal coercion and forcing owners to comply — with little success.

 

The reasons for the failure are many and include corruption within the bureaucracy. 

 

Another reason is lack of capacity, particularly of trained technical personnel at local authority level who are needed to implement plans and scrutinize development proposals. Compliance is therefore minimal as the risk of being penalized is very low. 

 

The county cannot afford to do development control based on sticks alone.  It needs to complement the sticks with alternative approaches. First, introduce carrots.  The use of incentives or market-based tools to influence land use outcomes has been under-explored.

 

The potential of tools such as preferential taxation, infrastructure investment, co-investment through public–private partnerships, and transfer of development rights, to name a few, have not been sufficiently explored.

 

Second, activate community as agents for development control. As the Kariobangi incident showed, the residents in the building and in the neighbourhood played a very effective role in alerting the authorities when they noticed cracks forming on the walls.

 

Can this same citizen awareness work further upstream in the building process — during construction for example?

 

This informal surveillance is similar to the nyumba kumi initiative in Kenya, which has had its successes, and can be applied here to ensure that the communities play a role in controlling development and increasing the safety of the buildings in which they live.

 

A complicating factor is societal attitudes. There is widespread acceptance of informal and illegal development throughout the country. Citizens still lack an understanding of planning, and county and national governments’ role in private land use.

 

The economic significance of land and the politicisation of land access create further problems for county enforcement of development regulations.

 

Nairobi County, for instance, reported that when its development control officers attempted to enforce the law relative to road and riparian reserves, they faced intimidation and violence by well-armed land grabbers.

 

Motivating citizens to play a role in controlling development would require a number of steps such as creating community understanding about the shared advantages and benefits of urban planning, and development control. 

 

Creating public awareness about the acceptable building standards; making the permitting process transparent; fostering a bureaucracy willing to respond to inquiries from the community, and engaging both traditional and social media are all important actions to take to strengthen citizen engagement.

 

Kenya could investigate and test the adoption of a widespread approach to depoliticising project approvals, namely citizen planning commissions.

 

These citizen-led commissions are charged with conducting development review in conjunction with professional planning staff and making recommendations to elected officials on land use actions.

 

Their deliberations are open to the public through meetings with televised coverage. Final approval of projects by elected officials is also done in the open.

 

The devolution framework is also an enabling tool. It mandates public participation in devolved governance and requires county authorities to design and promote civic education. Counties are required to provide clear information on planning matters under consideration.

 

If taken seriously, this mandate could eliminate past weaknesses in planning relating to stakeholder involvement, and broader community understanding of objectives, methods, and legality of planning and development control. 

 

Community members are the best watchdogs of what is happening in their neighbourhood.  Jane Jacobs, renowned urban theorist, made a case for the value of “eyes on the street” as a means to keep urban spaces safe. 

 

Her argument was that the presence of many people in public spaces leads to one feeling safe and secure, despite being among complete strangers, due to a sense of collective watchfulness.

 

As seen in Kariobangi South, the collective watchfulness of many eyes on the street can make residential buildings safer, saving many lives.

 

Bassett is an associate professor in Urban and Environmental Planning at the University of Virginia, Kamunyori is an urban specialist at the World Bank, Nairobi.

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