BY JEREMY OPAR
Jubilee manifesto promised to deliver 500, 000 affordable housing by the end of two terms. Was this just a mere a political pledge? And how realistic has it become when it comes to policy and legislative formation. To what extent has the national government consulted with the county governments in terms of setting, planning and executing the housing project? Has the public been involved in a meaningful participation as it’s called for under Article 1 of the Constitution, which declares that all sovereign power belongs to the people?
Article 1 also establishes the principle of devolution by delegating the exercise of such power to the two levels of government. By this provision, the principle of devolution is elevated to the status of one essential organizational features of the governance system.
Does Nairobi housing problem define Kenya’s housing problem? To actualize Jubilee’s housing project, there has to be a National Housing Regulatory Policy that has to go through national assembly to be formulated that shall translate the political promise to policy regulation and legal framework. This will actualize this campaign pledge to deliverable that adheres to the Constitution.
Upon formulation of a National Housing Regulatory Policy based under the Bill of Rights, there is need to formulate legal framework that will give legal meaning to the policy, that must go through the same process from Parliament to county level consultation where demarcation of rights, roles, areas of project sites, strategies and identification mechanism of funding, ranging from private, individual, micro and mega investors has to be stated clearly.
The current national housing project as it is conceptualized is defective. It is a constitutional fraud and its implementation will face multiple challenges. The Constitution Under Article 6 (1), 186 (1) read together with Fourth Schedule states that housing is a devolved function. Therefore the national government should work closely with county governments. Jubilee Government, in order to deliver their political promise, must respect the rule of law.
County governments are the vehicles through which to deliver the national housing project. Holding public participation forums will provide structures and guidance that will assist local and national authorities, through extensive and diverse consultation processes with the public and communities and input processes based on these consultations in creating communities where individual members of the public and their families, friends, neighbours, employees and employers own, promote and protect the project. All stakeholders involved will see the essence of sharing responsibility to work together to contribute their sweat of 1.5% of basic salary as stipulated.
Open and inclusive policy-making increases public participation, enhances transparency and accountability, builds civic capacity and leads to increased buy-in and better decision-making. For the housing project to be implemented without inequality and non-discrimination then, the National Government must bring county governments on board as her first stakeholder, as called for under Article 6 (3). The two levels of government should now be holding public participation to adhere to Sections 106, 108, 112, 113 and 115 of the County Government Act 2012 that provides for integrated national and county planning, county integrated development plan, process of amending county integrated development plans, how to give effect to a county integrated development plan and of importance, how the public should participate in county planning.
The housing project has faced court challenges. Cotu Secretary General Francis Atwoli, for instance, had argued that there was no public participation in the plan. He also termed the 1.5% levy on basic salaries of his members unconstitutional and that it amounted to double taxation. Justice Hellen Wasilwa issued interim orders on December 19 2018 suspending the levy. In March, she extended the orders to give the parties more time to reach an out-of-court settlement, where the matter came for mentioning on April 8th this year.
On April 16, there was a government newspaper advert ordering employers to start submitting the levy latest by 9th of every month towards the project. This came after the government and the Central Organization of Trade Unions (Cotu) agreed on the matter, where the national trade union had petitioned the Employment and Labour Relations Court to suspend implementation of the tax. This means the housing levy joins the list of other statutory levies that include Pay-As-You-Earn (PAYE), National Social Security Fund (NSSF) and the National Hospital Insurance Fund (NHIF).
The last Annual Devolution conference held in March came up with 24 resolutions that failed to address itself to: Restructuring, reordering and realigning national government ministries, departments and agencies (MDAs) to accord with and respect Devolution; incomplete transition; unbundling and costing functions, comprehensive audit of legal and institutional regime that existed before Constitution of Kenya 2010, and Capacity gaps in County Governments.
Majority of the county governments don’t provide information and engage local citizens by publishing citizen-friendly budgets, holding structured planning and budgeting forums, developing feedback mechanisms, and using different avenues to share and receive information. Devolved system of governance in Kenya needs to restructure the state, authority and functions so that there is a system of co-responsibility between spheres of government and between institutions of governance according to the principle of subsidiarity. This increases the overall quality and effectiveness of the system of governance, while increasing the authority and capacities of sub-national levels.
The county is the new engine of participatory democracy, human security and socially inclusive economic development. It is the driver that influences the shape and direction of local economy and human development. This is the only path of not only rapidly growing inclusive national economy but also the means to create a better life for all citizens.
Habitat III, the United Nation’s last Conference on Housing and Sustainable Urban Development concluded in 2016 with a multinational consensus recognizing the importance of cities in meeting the many challenges that will confront 21st century society. The issues highlighted by the UN’s New Urban Agenda, however, are by no means an easy task. Poverty must be grappled with, but it must be done by using sustainable energy, infrastructure must be (re)built, replaced and transformed, but it shouldn’t conflict with the aspirations of urban residents, people have the right to affordable housing and clean water, but it is unclear where the resources for providing these are to come from.Nonetheless, the New Urban Agenda adopted at the Habitat III conference does demonstrate a profound awareness that cities are being transformed in their demographics, economies, politics and institutions. Such radical transformations are inherently uncertain, which presents the opportunity for fundamentally re-imagining what the city is, making both utopian and dystopian outcomes potentially more realizable.
Who gets to decide which of these outcomes will be realized?
In order to answer this question, the national housing project needs to appreciate, acknowledge and understand how counties are governed. It is only out of this that the project will achieve smooth implementation, monitor and deliver without discrimination, in a way that is balanced in all counties. The national housing project drivers need to learn from a survey of best practices in leading economies of the world. New York and London, where there was clear awareness of contemporary urban governance that points to several insights and conclusions would be best to start from.
Devolving powers and strengthening local governments are regarded as necessary conditions for equipping counties with the capacity to address key problems of social inclusion, but this also raises issues of territorial equity. Counties are utilizing more participatory forms of governance, but increasingly they also have to make strategic decisions and manage issues that are not necessarily amenable to popular input.
Secondly, counties rarely have much political or legal authority to act, due to limitation, duplication and national government retaining a lion’s share of the devolved functions. Challenges countries that are introducing devolved system of government face are their national constitutions that do not recognize counties as entities that are guaranteed autonomy. Counties, instead, have various forms of devolved authority over local decision-making. In national polities that privilege rural power, like India and the United Sates, this can be severe constraint. In polities that have highly centralized governments, like Iran, this can mean that few select cities are privileged sites for state investment. This tension is especially evident today as national governments are increasingly threatened or occupied by politicians representing illiberal, parochial and intolerant policy positions.
Liberal democracy has few contemporary national defenders, but it has countless municipal ones. One of the most obvious ways limited local governance authority manifests itself is in the fiscal arena. Counties in Kenya often have limited authority to raise revenue and rely heavily on fees and property taxes. This can drive property development and gentrification. However, it also means that urban governors must prioritize their relationships with corporate leaders, businesses and philanthropies. Consequently, the roles of public-private partnerships, private financing and financial engineering have all expanded in cities.
What do we mean by affordable housing in this project? Should the housing have to be story units structure base, or can we have simple structure units like South Africa housing projects. In Angola, for instance, China built houses that at the end of the day were never occupied due to over pricing.
Costly infrastructure often becomes a key point of leverage:
Some research has also revealed the extremely complex layers of scalar authority that operate in cities. City county governments usually only have relevant authority over a few policy sectors. Instead, national and super national scales of governance control an array of urban issues and policy arena. Transport, for example, is an arena that frequently involves national scale of governance for everything from planning to maintenance, to capital investment and even labour-management relations. More broadly, (costly) infrastructure often becomes a key point of leverage in inter-scalar conflicts. Recently we saw Cabinet secretary for Transport Mr James Macharia meddling in County of Nairobi transport affairs as opposed to the functions and powers of county government as provided in the constitution.
Nonetheless, given the ambitions of the New Urban Agenda, it is necessary to ask whether counties in Kenya are an appropriate scale of governance for realizing these goals. Based on research, the answer is mostly ‘no’ while counties that have privileged positions in inter-scalar systems of governance and economic geographies often do have the resources to be thought leaders and institutional innovators, expecting counties to deliver such positive innovation is likely to lead to disappointment. Most counties do not have access to the requisite resources for transformative innovation, much less the resources for the sorts of infrastructural and institutional modernization that are necessary to meet the goals of this agenda.
Third, while urban innovation cannot reasonably be expected to provide the basis for realizing the scale of transformation necessary to reach the ambitious goals of the Habitat III conference, county governments in Kenya needs to be creative in figuring out ways to leverage resources to meet governance challenges. In Porto, Algre, Brazil, for example, is home to one of the greatest experiments in citizen involvement in governance of the last 30 years. There, giving citizens authority over a small component of the county budget became a tool for leveraging better governance, innovative solutions and the generation of renewed citizen investment in local government.
Now sanctioned by the World Bank and the United Nations, participatory budgeting is widely understood to be a ‘best practice’. Still, technical innovations are often preferred because they usually do not challenge existing relations of authority even as they transform relations of power.
In conclusion, the tensions between different scales of political authority and human social organization are nothing new. The New Urban Agenda was a definitive attempt to deliver a negotiated and widely accepted set of principles and aspirations. By definition, a universal blueprint for realizing a positive vision of 21st century urbanization – which would certainly be welcome by some decision-makers-would be impossible to achieve, given the underlying complexity and context dependency. Still, the principles are certainly necessary to provide a framework of values for the governance solutions that will be necessary to meet current and future urban challenges. Unfortunately, many of these issues are simply beyond the scope of counties to deal with.
Writer is programs director at International Center for Policy and Conflict