1. INTRODUCTION

1.1: INTRODUCTION TO THE STUDY

Land tenure issues are becoming increasingly important worldwide. Problems such as high

population pressure, increases in resource degradation, food shortages, transformations of

political systems and regional and supra-regional resource conflicts have brought the land issue

to the public's attention. Land tenure and land tenure systems are of fundamental importance for

efficient agricultural production, stemming poverty and conflicts and attaining social equity.

Thus, they are essential for securing enduring, self-supporting and sustainable development

(GTZ, DOWNLOADED ON 5/8/2012).

Africa is currently undergoing an urban population explosion. Despite slow economic progress

since the 1970s, African cities have experienced the fastest population growth rates in world

history. As a result, African urban economies have been unable to meet local employment needs,

while central governments and city councils have failed to provide adequate basic amenities like

affordable housing, water, and sewage disposal. Consequently, a rapidly increasing majority of

residents in Africa’s large cities now live below the poverty line in overcrowded slums and

shantytowns where health conditions and livelihood opportunities are poor (APRHC,2002).

The Kenya informal settlement improvement programme (KISIP) has the ultimate objective to

improve living conditions in informal settlements in selected Kenyan municipalities. Among its

priority interventions include improving the security of land tenure in the informal settlements

(GOK, 2011). This makes understanding of the existing land tenure systems in the informal

settlements a key input for the successful upgrading of these settlements in Kenya.

The primary constraint to the improvement of the living conditions of informal settlements in

Nairobi is, and remains, insecure land tenure (Rasna Warah, 2004).

This study intends to look generally at the systems of land tenure in the slum settlement of

Nairobi together with structures and processes that enable access to land by slum dwellers. The

research will lay emphasis on informal land tenure systems which are operated outside the

known formal legal frameworks. This aspects it is expected will give us an overall understanding

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of the systems of land tenure and administration in the informal settlements of Nairobi. It is

expected that the findings from the study will help us understand the nature of informal land

tenure systems in the informal settlements of Nairobi together with the unique methods used to

maintain the security of tenure.

Illegal processes of accessing land and guaranteeing rights to occupation have been known to

perpetuate development of slums in Nairobi. However, very little is known about these systems

of land administration that exist in most of our slum settlements. The present study therefore

attempts to outline some of the main processes and structures through which the poor access land

in urban areas and the means they use to define and secure their rights over the land they occupy.

1.2: BACKGROUND TO THE STUDY

In Africa 15% of the population lived in towns in 1950, this figure rose to 28% in 1980 and 34%

in 1990. The figure is expected to hit 50% by 2020 and 60% by 2030 (chabalala, 2010).

UNEP has observed that urbanization in Kenya at 7.05% is one of the highest in the world.

However, this rapid urbanization is not accompanied by expansion in socio-economic and

infrastructural facilities leading to development of slums and other informal activities that are

detrimental to health of the urban population.

The decline in the performance of rural economies has led to urbanization of poverty hence

increasing the number of vulnerable population in urban areas and increased intensity of slum

settlements. The increase in the population density of the slum settlements is actually worsening

the health situation in these settlements.

About 71% of urban residents in Kenya live in slums (Kyobutungi et.al2008) while more than

60% of Nairobians live in slums which occupy a mere 5% of the city (UNHABITAT, 2003)

There are 140 slum settlements with varying characteristics and land tenures in Nairobi (Pamoja

Trust/ Cities Alliance, 2010). The study targets the main slum settlements of Nairobi including

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kibera, korogocho, viwandani, mukuru Kwa njenga, Mathare, pumwani, kangemi and

kawangware.

1.2.1: informal settlements

Jankowska (2010) in her study of slums in Accra Ghana observes that: From a global

perspective, slums are characterized by overcrowding, marginalization, harmful environmental

exposure, poverty, insecurity, and lack of access to amenities – all features that lead to decreased

sustainability, and increased vulnerability. UNHABITAT (2003) defines a slum as a contiguous

settlement where the inhabitants are characterized as having inadequate housing and basic

services. It should be noted that slums are not similar and the levels of inadequacy in provisions

differ (Pamoja Trust, 2011). Slums are extremely varied places that defy anyone tight definition

(UNHABITAT, 2003).

Slums are a manifestation of the two main challenges facing human settlements development at

the beginning of the new millennium: rapid urbanization and the urbanization of poverty. Slums

areas have the highest concentrations of poor people and the worst shelter and physical

environmental conditions (UNHABITAT, 2003).

Today a third of the world urban population of 3.3 billion lives in slum settlements

(UNHABITAT, 2003; WILLAMSON, 2010). Many of them occupy land with insecure land

tenure systems prone to eviction and other disasters.

Without land, there can be no housing. And without looking at the issue of land, there can be no

meaningful discussion about how to solve the problems of housing for the poor in our cities. The

inaccessibility of decent, secure, affordable land is the major reason why there are so many

informal settlements in African cities and is a contributing factor to urban poverty

(UNHABITAT, 2011).

One of the weakest links of government housing policies for the urban poor is the policy (or the

lack of it) for urban land management. Due to rapid urbanization, the urban poor are forced to

find their shelter in illegal settlements located in a variety of lands: customary land, government

land reserves, marginal land or in illegal subdivisions (UNHABITAT, 2002). The government

has very little interest in how the poor access the land on which they build slums and how they

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transact on that land and sustain the security of tenure. This study therefore sets up to gather

some information on these aspects.

1.2.2: Land tenure systems

Land is central to urban development: “Secure land and property rights for all are essential to

reducing poverty, because they underpin economic development and social inclusion (Tibaijuka,

2011)”.

Land tenure systems are defined as structures and processes of delivering access and rights in

land (Williamson et.al, 2010). land tenure systems in a given jurisdiction comprises the set of

possible bases for land allocation, security of tenure, transactions of property and land, land use,

the management and adjudication of disputes regarding rights and property boundaries

(UNHABITAT, 2011). The security of land tenure enjoyed by a given slum settlement therefore

depends on how far these systems are entrenched in the legal provision and how much they

recognised and accepted by the authorities.

A land tenure system can be formal or informal. It is vital to note that there is a difference

between formality of a tenure system and security of tenure. The former refers to formal

ownership as defined by law, while the latter may also encompass informal relationships among

people defining their affiliation to the land. Security comes from the fact that the rights in

question are underwritten by a known, and generally accepted, set of rules (Laksa and el-

mikawy, 2009).

The land which the slum settlements occupy may fall in any of the following categories:

1. Land that was invaded against the owner’s permission;

2. Land sold by the landowner/developer with defective title/deed (Payne:1997:31);

3. Public utility land sold to unsuspecting individuals by government officials.

4. Illegal subdivision of ancestral land on the city peri-urban zones.

5. un-alienated government land sold by government officials and slum landlords

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Access to secure land and shelter is widely accepted to be a precondition for securing basic

living conditions, livelihood opportunities and a necessary means to reduce poverty (Laksa and

el-mikawy, 2009).

Tenure doesn't necessarily mean ownership, or even collective, community ownership.

Sometimes it could be as simple as a promise that the people will not be moved (Tibaijuka,

2004). The UNHABITAT (2003) has concluded that security of tenure through assurance of

uninterrupted stay is better than the previous paradigm of home ownership. They conclude that:

Improving security of tenure and the property rights for millions of the urban poor is a

massive challenge. Tenure issues are extremely complex. No single tenure option can solve

all these problems. Policy on land tenure and property rights can best reconcile social and

economic needs by encouraging a diverse range of options rather than putting emphasis on

one option, such as titling. This will involve adapting and expanding existing tenure and

rights systems where possible and introducing new ones selectively.

A UNHABITAT Expert Group Meeting on Urban Indicators in 2002, defined security of tenure

as the right of all individuals and groups to effective protection by the state against forced

evictions.” Under international law, ‘forced eviction’ is defined as “the permanent or temporary

removal against their will of individuals, families and/or communities from the homes and /or

land which they occupy, Without the provision of, and access to, appropriate forms of legal or

other protection.”

Under international human rights law, secure tenure is one of the seven components of the right

to adequate housing, which again is linked to the right to land. The other six components are: (1)

availability of services, materials, facilities and infrastructure, (2) affordability; (3) habitability;

(4) accessibility; (5) location; and (6) cultural adequacy. All human rights apply equally to

women and men, and women’s equal right to adequate housing, land and property is firmly

entrenched in international law (UNHABITAT, 2003).

“Security is partly a matter of perception. Formal titles are not the only means of making people

feel secure enough to invest in their homes and neighbourhoods (The people of Samambaia,

Brasili, quoted by UNHABITAT, 2003).”

A number of cases demonstrate that land issues are very crucial in the attempts of governments

to deal effectively with the problems of slum and squatter settlements and to embark on

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comprehensive programmes of upgrading and rehabilitation (UNCHS, UNHABITAT, 2004).

Factors that construct land tenure include land documents, land ownership, land use reservations,

administrative tools like taxation bills, temporary occupation licenses (Mahadevia, 2009)

Mahadevia and Pooja (2009) recognise land tenure security as essential for poverty reduction in

the slum settlements as other services like sanitation, clean water supply , electricity and other

basic services are linked to secure land tenure. They recognise two main categories of land

ownership as dejure and defacto ownerships. The former involves ownership that is entranced in

the legal frameworks of a country and is recognised by the law, while the former is an accepted

form of ownership by the community and other factors of ownership but not legally documented.

other forms of land tenure recognized by the authors include private tenure where the land is

owned by individuals in either leasehold or freehold format; public tenure where the land is held

by the state, local authority or any other public body; group tenure where land is held jointly by

the community or a group of people; and informal tenure categories.

1.2.3: Slum upgrading

Slum upgrading is a process through which informal areas are gradually improved, formalised and

incorporated into the city itself, through extending land, services and citizenship to slum dwellers. It

involves providing slum dwellers with the economic, social, institutional and community services

available to other citizens. These services include legal (land tenure), physical (infrastructure), social

(such as crime or education) or economic. Another key element is legalising or regularising properties

and providing secure land tenure to residents. People who are safe from eviction with a sense of long-

term stability—whether they own the land or not—are much more likely to invest in their housing or

community. Over time, these incremental improvements by residents can upgrade the entire community

(CITIES ALLIANCE, 2006)

The primary challenges in slum upgrading are achieving some kind of coherence in the community and

finding solutions to a wide range of needs. Slums are not homogeneous, and there are many diverse

vested interests that exist in slums—the poor looking for a place to live, criminal elements, or landlords

who rent out shacks. All of these interests must be properly understood and brought into the planning

process. The best way to do this is through negotiated development, in which people participate in

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negotiating their rights and understand that all the different interests will need to be addressed (CITIES

ALLIANCE, 2006).

1.3: STATEMENT OF PROBLEM

Efforts to improve lives of slum dwellers have taken centre stage in the operations of most

Governments in Africa. More than often, these efforts have been hampered by the existing land

ownership relationship in the slum settlements. While the efforts target the residents in these

slum settlements as beneficiaries, complications in settling the security of tenure for the residents

are brought up by the structure owners and other interested groups. In many cases where the

structure owners have been considered as beneficiaries ‘economic eviction’ of the residents of

the slum settlements has occurred leading to formation of more slums. To avoid this scenario, it

is important to understand the existing tenure relationships in slum settlements and develop

policies and strategies to guide future slum upgrading efforts in Africa. This study therefore sets

to assess the state of land tenure security in the slum settlements of Nairobi. The main argument

for the study is that the state of land tenure security in most slum settlements in Nairobi is not

conducive for insitu slum upgrading. The main purpose of the study is therefore to establish

generally the state of land tenure security in the slum settlements of Nairobi and its implications

for slum upgrading efforts. In-situ slum upgrading is one of the most viable, affordable ways to

provide housing to the urban poor and can be implemented incrementally (CITIES ALLIANCE,

2008)

In its new land policy the government of Kenya defined slums as those informal settlements

which lack security of tenure and planning. In order to deal with the challenges presented by

slum settlements, the government promised to undertake development of a slum upgrading and

resettlement programme under secure system of tenure for existing slum. To do this the

government was to establish the suitability of the suitability of the land occupied by slum

settlements in terms of tenure and usage. This study therefore intends to establish the status of

land tenure security for slum settlements of Nairobi together with the systems that sustain them.

It is expected that the results of the study will assist the government in determining the suitability

of land tenure to aid slum upgrading programmes.

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1.4: OBJECTIVES OF THE STUDYThe main purpose of this study is to understand the systems of land tenure security prevalent in

the slum settlements of Nairobi for the purpose of informing future slum upgrading strategies

and policies.

The objectives of the study are:

1. To undertake an inventory of land tenure types in the informal settlements of Nairobi.

2. To identify and compare the land tenure systems in the informal settlements of Nairobi.

3. To evaluate the implication of the land tenure security status for informal settlement

upgrading efforts and eviction threats.

4. To make recommendations for policy and further studies.

The main hypothesis of the study is that: most slum settlements in Nairobi have a land tenure

security that makes them vulnerable to eviction and that the state of land tenure relationship is

not appropriate for insitu slum upgrading.

1.5: RESEARCH QUESTIONS

The main research questions are:

1. What is the most prevalent land tenure type in the informal settlements in Nairobi?

2. What are the most prevalent land tenure systems in the informal settlements of Nairobi?

3. Does the state of land tenure security and systems in the informal settlements of Nairobi

differ from those of Nairobi city?

4. What are the main obstacles hindering insitu slum upgrading efforts in the informal

settlements with insecure land security tenure?

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1.6: RESEARCH DESIGN AND METHODOLOGY

The design of this study reflects on two aspects including the comparative and evaluative perspectives. The comparative aspect of the design will enable us to compare land tenure security systems in the different slum settlements of Nairobi based on both the dejure and defacto scales. The evaluative aspect of the study will enable us to make judgment on whether a given slum tenure system lends itself to insitu slum upgrading or relocation and resettlement on negotiated settlement.

The targeted population in this research includes the slum developers and slum land lords. Other key informants will include community leaders and land dealers.

The type of information/data together with the sources and tools of data collection are directly linked to the objectives of the study. The scale of measurement to be used will be nominal involving placing each observation in one predetermined category or the other. Ordinal scale may be used to rank those settlements whose security of tenure lends itself to easier insitu upgrading.

Objective number one above requires that undertake an inventory of the informal settlements of Nairobi. This will involve identifying and listing the main informal settlements of Nairobi together with their characteristics. Information for this process will be obtained from secondary literature, ministry of land and the city council of Nairobi. Some of the information to be obtained will include location, demographics and origin of the settlement.

Objective number two require that identify and compare the land tenure status and systems in the

slum settlements of Nairobi. Information on land tenure security system shall be collected from

the ministry of land and settlements and from key informants in selected slum settlements.

Objectives three and four shall be based on the interpretation of results obtained from objective

one and two.

The variables involved in this study include land tenure systems which includes aspects of land tenure security and land tenure. The other variables include slum settlements and slum upgrading. to gain information on the type of security of tenure and how the slum developers gain access to land in the selected slum settlements we will interview local leaders and structure owners in each slum. Information on the type of tenure prevailing in the slums will be obtained from the ministry of lands.

1.7: JUSTIFICATION AND SIGNIFICANCE OF THE STUDY

1.7.1: Justification of the study

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Why are we interested in studying the systems of land tenure in the informal settlements of Nairobi? This study is justified on account that:

understanding the systems of land tenure is a vital prerequisite for guiding any slum upgrading process

• More than 60% of Nairobians live in more than 140 slums or slum like settlements (CITIES ALLIANCE, 2010). This is a big portion of the city population and ignoring their plight may lead to a worse social crisis.

• Worldwide, according to UNHABITAT one third of the 3 billion urban dwellers live in slums (UNHABITAT, 2003b).

• The APHRC report of 2002 actually indicates that the slums of Nairobi experience some of the highest health risks in Kenya. The health status is worse than that of any rural area or any other slum in Kenya. Slum settlements of Nairobi are therefore health risk hotspots that deserve urgent attention in terms of research and slum upgrading intervention measures in order to avoid future epidemics.

• Measures to address informal settlements in the new land policy require that the existing tenure status of the land occupied by these settlements be known to facilitate choice of appropriate strategy for solution including negotiation, planning, regularization or resettlement.

1.7.2: significance of the study

What will be the value of the results of the study to the society? Identifying the land security systems in the slum settlements of Nairobi is vital in assisting the development of appropriate intervention strategies for slum upgrading in Nairobi County. From the results it will be possible to know which slum settlements require insitu upgrading, which ones need negotiated settlement with land owners, which ones require community land trust interventions and which ones require relocation to new sites. The findings may also help the government understand ways of relaxing the processes employed in ensuring security of tenure for the poor in urban areas.

1.8: SCOPE OF THE STUDY

this study will be limited to investigating the various processes used by slum developers to gain access to land, the prevailing tenure security in the selected slums and the methods used in the slums to safeguard the security of tenure including protests, court orders, negotiations, appeal to authority for allocation etc. in other words, the study will be confined to outlining a set of possible bases for land allocation, security of tenure, transactions of property and land, land use, the management and adjudication of disputes regarding rights and property boundaries in the slum settlements of Nairobi. All these will be done in the context of slum upgrading efforts and

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strategies which include ratification of allocation, infrastructure provision, housing finance and provision of housing.

Geographically the study will be confined to the major slums of Nairobi including kibera, korogocho, viwandani, mukuru Kwa njenga, Mathare, pumwani, kangemi and kawangware.

1.9: LIMITATIONS OF THE STUDY

The study is faced with some limitations that may actually affect the expected findings. This includes:

1. Many of the illegal settlers do not easily disclose information on land tenure systems for fear of self incrimination or incrimination of those government officials who helped them acquire the plot.

2. Land being a sensitive issue, it is difficult to obtain land records from the ministry of land and settlement and the city council of Nairobi.

1.10: LITERATURE REVIEW AND CONCEPTUAL FRAMEWORK

Literature review will be done to on all those works that have been done on:

1. The relationship between slum settlements and land tenure security systems. we will identify familiar persistent land tenure systems associated with slum settlements all over the world

2. Secondly we will review literature on the impacts of existing land tenure systems in slum settlements on slum upgrading programmes.

3. Thirdly we will look at literature on how other characteristics of a slum settlement affect the slum upgrading exercise. This will include aspects like overcrowding, social capital and cohesion, vested interests etc.

The conceptual framework of the study presupposes that existing land tenure systems determines the strategies adopted in upgrading a given slum settlement.