“Good” Legislation as a Means of Ensuring Voice, Accountability, and the Delivery of Results in Urban Development

Urban legislation is a pillar of sustainable urban development. It is an important development tool that lays down, in binding rules, acceptable behaviors in society and the rights and obligations of parties and governance frameworks in diff erent areas of life. The global urban population is expected to grow by 3 billion in the next 50 years, with 98 percent of this growth occurring in developing countries.1 Such unprecedented growth could result in anarchy and increased inequalities if not underpinned by strong and coherent policy and legal, institutional, and governance frameworks that ensure a solid context for planning, dialogue among actors, and rightsbased approaches to development.

“Good” Legislation as a Means

of Ensuring Voice, Accountability, and the Delivery of Results

in Urban Development

MARIA MOUSMOUTI AND GIANLUCA CRISPI

Urban legislation is a pillar of sustainable urban development It is an impor-tant development tool that lays down, in binding rules, acceptable behaviors

in society and the rights and obligations of parties and governance frame-works in diff erent areas of life The global urban population is expected to grow by 3 billion in the next 50 years, with 98 percent of this growth occurring

in developing countries.1 Such unprecedented growth could result in anarchy and increased inequalities if not underpinned by strong and coherent pol-icy and legal, institutional, and governance frameworks that ensure a solid context for planning, dialogue among actors, and rights-based approaches to development

Urban areas dominate economies, drive technological development, and provide shelter and livelihoods The quality of human se lements and urban governance aff ects the quality of life for millions of individuals In this con-text, urban legislation defi nes conditions for access to land, infrastructure, housing, and basic services; it lays out rules for planning, decision making, and participation; it guides the improvement of livelihoods and living condi-tions by se ing requirements for urban development initiatives; and it sets the context within which urban authorities, local governments, and communities are expected to fulfi ll their mandates, react to emerging challenges, and be accountable Urban law provides a framework in which to mediate and bal-ance competing public and private interests, especially in relation to land use and development; to create a stable and predictable framework for public and private sector action; to guarantee the inclusion of the interests of vulnerable groups; and to provide a catalyst for local and national discourse.2 In other words, legislation determines the context, conditions, and terms of the social contract for urban development Legislation can set meaningful sustainable frameworks for development, give voice to aff ected people and communi-ties, and set appropriate frameworks for accountability, or it can accentuate inequalities and exclusion

1 U.N Dept Econ & Soc Aff airs, World Urbanization Prospects: 2011 Revision (U.N 2012)

2 UN-Habitat, Global Report on Human Se lements 215 (U.N 2009)

257

The Challenge: The Defi nition of Good Urban Legislation

The mere existence of legislation does not ensure eff ective urban management and development Legislation can generate more problems than it actually solves Unclear or ambiguous provisions that are complex, overlapping, or leave gaps in protection, that are diffi cult to access or understand and poorly enforced and implemented, with high compliance costs and unwanted eff ects, will have a negative impact on competitiveness and economic growth Out-dated, complex, and rigid legislation has hindered development and com-pelled citizens and administrators to seek informal arrangements and corrupt means to access basic services Businesses, citizens, professional groups, con-sumers, and other stakeholders often complain about the negative eff ects of bad or unnecessary legislation If legislation lays down the terms of a social contract and determines the framework for social development, its quality is

of primary importance In other words, what is needed for sustainable

devel-opment is not just legislation but good legislation

Legislation often suff ers from misguided assumptions or overambitious expectations, inadequate appraisal of costs and consequences, unrealistic expectations, and severe gaps between intention and reality, as has been the experience in many African countries.3 Planning laws are often outdated, irrelevant, and inappropriate for the contexts within which they operate Laws that fail to make land available in pace with rapid urbanization result in insuffi cient land supply, increases in land prices, and the formation of slums Laws that are not in line with the needs of the people and local socioeconomic realities such as urban poverty result in noncompliance and a loss of cred-ibility for the planning system, not to mention their selective application in favor of specifi c groups or elites Other common problems include regulatory barriers that limit opportunities in formal land markets, exacerbate inequality, and discourage investments; laws with high compliance costs; and laws that are not enforced or implemented.4 A result of failed planning laws is the pre-dominance of informal structures and the prevalence of the interests of elites over large groups of the population:5 legislation designed to protect the public from the negative aspects of urban land development may be used to enhance the value of land owned by the wealthy

Whereas cities can be drivers of economic growth, dysfunctional cities cannot harness the economies derived from the agglomeration of population, common infrastructures, and the availability and diversity of labor and mar-ket size Instead, they generate congestion and high costs for infrastructure and services and cannot support the creation of suffi cient jobs and quality

of life for their residents, with broad-ranging consequences, including social unrest and insecurity If legislation is a prerequisite for urban governance,

3 Stephen Berrisford, How to Make Planning Law Work for Africa 3–4 (Africa Res Inst 2013).

4 Id., at 2.

5 Id

good urban legislation is a precondition for sustainable urban development But what is a good law?

Although everyone may agree on the need for “good laws,” the features

of a good law are not obvious When it comes to legislation, quality is a broad and vague term, perceptions of which diff er depending on the viewpoints of diff erent actors, legal traditions, and social and political contexts Even when

it comes to specifi c areas such as urban legislation, diff erent professions have diff erent opinions: planners, lawyers, and developers do not share the same language, views, or ideas or necessarily see eye to eye.6

Although there is no single understanding of quality in legislation, com-mon values characterize good legislation: effi cacy, eff ectiveness, effi ciency, and simplicity.7 Views diff er on the values that should prevail: whereas law-yers tend to stress principles like legal certainty, economists tend to favor

effi ciency and political scientists tend to emphasize effi cacy One aspect of good legislation on which everyone agrees is the need for laws to be eff ec-tive.8 Eff ective legislation sets rules that address existing problems, takes into account the voice of aff ected people and communities, ensures accountability, and can deliver the results it promises What makes a law eff ective?

The eff ectiveness of legislation is largely determined by its purpose, sub-stantive content, legislative expression, overarching structure, and results.9

Eff ective legislation needs to have a clear purpose; introduce consistent and well-thought-out rules and enforcement mechanisms that realistically address the targeted problems; introduce clear, precise, and unambiguous rules and obligations; and allow for systematic monitoring and evaluation of the results

of legislation in real life.10 If these elements are in place, the basic conditions for eff ective legislation are fulfi lled In the opposite situation, if legislation is unclear, poorly articulated, or suff ers from internal tensions or imbalances, it has few chances to succeed

Ineff ective urban and planning laws refl ect diff erent pathologies of ineff ec-tive legislation: blurred or inconsistent choices, unclear or ambitious objec-tives, rules whose impact has not been considered, lack of consideration of en-forcement and implementation issues, inconsistent or contradictory drafting choices, and limited, fragmented, or nonexistent information on the application

6 Patrick McAuslan, Land, Law, and Planning 12–30 (Weidenfeld & Nicolson 1975).

7 Helen Xanthaki, On the Transferability of Legislative Solutions: The Functionality Test, in Drafting Legislation: A Modern Approach 1–18 (Constantin Stefanou & Helen Xanthaki eds., Ashgate

2008).

8 Helen Xanthaki, Quality of Legislation: An Achievable Universal Concept or An Utopia Pursuit?,

in Quality of Legislation: Principles and Instruments 75–85 (Luzius Mader & Mart Tavres de

Almeida eds., Nomos 2011).

9 Maria Mousmouti, Eff ectiveness as an Aid to Legislative Drafting, 2 Loophole 15–25 (2014),

h p://www.opc.gov.au/CALC/docs/Loophole/Loophole_May14.pdf.

10 Id., at 23

and the results of legislation If good urban legislation is what is needed, then

it is necessary to address these pathologies

Improving the Quality of Urban Legislation

Improving the quality of legislation is not an easy or straightforward ma er However, it is indispensable for ensuring delivery in a development context

Eff orts have led to the development of strategies and tool kits to improve regu-latory governance, support decision making, improve legislative drafting, and rationalize lawmaking These eff orts have focused on improving the content

of legislation and its responsiveness to local realities, taking into account the voices of aff ected groups and communities, making legislation simple, clear, and accessible, and ensuring that it can deliver results This section examines alternative ways to improve the quality of legislation

Address the Incongruity between the Law and Urban Realities

Urban laws often fail because their content is detached from local realities Laws are often overambitious, set unrealistic objectives, and are irrelevant to local needs and conditions In other words, laws fail because they do not set a realis-tic and feasible context for development For example, in the Nigerian state of Kogi, regulation on the size of plots determines an acceptable size that ranges from 900 to 1,350 square meters These requirements are in discordance with the needs of dense urban centers, smaller cities, and urban areas in the country, and place plots out of reach of the majority of the low-income population.11

Building standards are often regulated without taking into account local

incomes, climates, traditional building techniques, and locally available mate-rials, resulting in urban dwellers who cannot aff ord to build in compliance with existing regulations The building codes in Mozambique (derived from the Portuguese building codes) are an example of rules that fail to refl ect the socioeconomic situation of the country, building materials, and construction capacities In the aftermath of a fatal earthquake in 1755, Portugal adopted a building code with very restrictive rules for construction that was extended

to the country’s colonies in Africa Today, more than 250 years later, Mozam-bique, with li le history of tremors, retains one of the more stringent building codes in Africa; it requires brick or cement block walls and reinforced concrete beams, and in this way excludes all but the wealthiest households.12

Laws that are not harmonized with the reality they aim to regulate and are incongruent with existing socioeconomic conditions cannot be success-ful in se ing out the terms of social contracts, and therefore they have li le chance to deliver targeted or appropriate results This fault can be addressed

by strengthening the basis of evidence on which legislation is premised, taking into account the views of aff ected groups, and making it easy to comply with

11 UN-Habitat, Legal Assessment (U.N 2014)

12 Id

Use Evidence-Based Lawmaking to Link Legislation with Reality

Evidence-based lawmaking is a way to make legislation responsive to specifi c social problems The use of evidence in lawmaking strives to set out realistic terms for development, give aff ected people and communities a voice, allow for participation, and assess the delivery of results Assessing the impact of legislation through an analysis of the problem to be addressed, the examina-tion of available policy or legislative opexamina-tions, and the appraisal of their positive and negative impact can make institutions more accountable and legislative interventions more responsive, eff ective, effi cient, coherent, and transparent.13 When legislation is not built on a solid basis of evidence, or when impact assessments are used in a formalistic rather than a substantive way, legislation tends to demonstrate gaps with reality that severely aff ect not only its func-tion but also its capacity to deliver results

In Mozambique, land belongs to the state, and citizens can acquire only the

“right of use and enjoyment” ( direito de uso e aproveitamento dos terras; DUAT)

Although a DUAT does not confer full ownership, it is a secure, renewable, and long-term user right comparable to a lease According to the Urban Land Regulations,14 DUATs in urban areas cannot be issued before the land is pro-vided with urban basic services, and DUATs issued when an urban plan is not in place are invalid Similarly, rights based on good-faith occupation can

be recognized only if they do not confl ict with an existing urban develop-ment plan Given that such plans are generally absent or outdated, this provi-sion condemns large numbers of low-income households to living in informal arrangements A careful consideration of the impact of such provisions might signifi cantly improve both their functionality and their eff ectiveness

Evidence-based lawmaking can make legislation more focused and reduce overambitious aspirations that introduce radical changes to the exist-ing system but fail to have real impact It also facilitates the consideration of all possible alternatives to achieve a policy goal Alternatives to regulation, such as performance-based and incentive approaches, co-regulation and self-regulation schemes, information and education, might be less costly, more

eff ective, more fl exible, and adaptable to situation and sector specifi cities.15

Give Affected People a Voice

Cities are entities where businesses and large groups of people live and work Listening to the these people, taking into account their needs and their opin-ions with regard to the functionality of diff erent proposals and solutopin-ions, is

13 Organisation for Economic Co-operation and Development (OECD), Building an Institutional Framework for Regulatory Impact Analysis (RIA): Guidance for Policy Makers 24–25 (OECD 2008)

14 Government of Mozambique (GOM) Urban Land Regulations 2006, Decree No 60/2006 (Dec

26, 2006).

15 David Driesen, Alternatives to Regulation? Market Mechanisms and the Environment, in Oxford

Handbook of Regulation 206ff (Robert Baldwin, Martin Cave, & Martin Lodge eds., Oxford

University Press 2010).

a valuable investment: not only does it generate more targeted legislative solutions, but it improves compliance with existing rules In Colombia, for example, neighborhood plans can be approved without the collaboration and agreement of landowners, whose consent is usually sought only when a law

is implemented This process leads to various failures or extreme delays in the implementation of the plans Due to the lack of consultation with and par-ticipation of stakeholders, by 2011, only 44 percent of plans approved in the previous 10 years had been implemented.16

Laws aff ect people directly and indirectly Talking to stakeholders and

inter-ested or aff ected parties and groups before decisions on legislation are made is

not only an element of good governance but a practice that enables sociopoliti-cal interaction, encourages partnerships and joint solutions to problems, and increases the effi ciency and legitimacy of decisions.17 Consultation is a “two-way relationship in which citizens provide feedback to [the] government,”18 which enhances the legitimacy of legislation, allows groups and communities

to be heard, and improves both the content of legislation (as a binding expres-sion of social contracts) and its potential to deliver results Consultation pro-vides fi rsthand data and information on the situation on the ground and thus can link legislative initiatives with reality Consultation can also prove useful for identifying the specifi cities and needs of local communities and population groups Building consultation and participation procedures into the process of designing and implementing urban legislation can have a positive impact on the legislation’s quality and its capacity to deliver results

Make Legislation Simple and Easy to Comply With

Because legislation is a binding expression of existing social contracts and sets out the rights and obligations of all social actors, it should be simple, under-standable, and easy to comply with Complexity increases costs for citizens and public administration, hinders compliance, and ultimately undermines the social contract and the fair distribution of burdens and benefi ts of urban development Institutions with unclear mandates and complex and overlap-ping frameworks and procedures for decision making leave high margins for discretion, limit accountability, and favor informality and corruption How-ever, complexity is a common problem with technical legislation Standards are often diffi cult to understand, and procedures and requirements for com-pliance may be burdensome, time-consuming, and costly Planning regula-tions in developing and transition are often too detailed, rigid, and infl exible, making compliance diffi cult and inevitably motivating people to bypass them

16 Departamento Nacional de Planeación, Partial Plans Database compiled using data from

municipal planning offi ces, Colombia (2011).

17 Daniela Obradovic & Jose Alonso Vizcaino, Good Governance Requirements Concerning the Par-ticipation of Interest Groups in EU Consultations’ 43 Common Market L Rev 1050 (2006)

18 OECD, Citizens as Partner: Information, Consultation, and Public Participation in Policy-Making

22 (OECD 2001).

An example of complexity is the procedure to register the DUATs in Mozambique: it is lengthy and complicated, and involves an overlapping double registration with the national-level Deeds Registry (Registro Predial, under the jurisdiction of the Ministry of Justice) and the Cadastral Services (with offi ces at the provincial and national levels and under the jurisdiction of the Ministry of Agriculture and Rural Development)

Because the procedure is so cumbersome and bureaucratic, most transac-tions take place informally, making identifi cation of the ownership status of a property diffi cult Simplifying the registration process and promoting greater transparency would not only reduce the discretionary and nontransparent application of legal provisions but also eliminate factors that result in the exis-tence of a parallel extralegal land market.19

Furthermore, procedures can be costly, which makes compliance diffi -cult Data from many developing countries show that procedures required to obtain construction and occupancy permits are complicated, not understood

by laypeople, time-consuming, and costly, resulting in increased informality and lack of compliance For example, the cost to build a warehouse, obtain necessary licenses and permits, complete notifi cations, conduct inspections, and obtain utility connections amount to 104 percent of income per capita in Asia and the Pacifi c, 327 percent in Europe and Central Asia, and 850 percent

in South Asia.20 Delays caused by complex and costly procedures are not only

an obstacle for growth, entrepreneurship, investment, and economic devel-opment but also a discouragement for citizens and authorities to apply and respect the law

Government organizations can reduce the complexity of legislation by reviewing it, reducing procedural steps and paperwork, and making it less burdensome One-stop shops; unifi ed or simplifi ed permit and license pro-cedures; time limits for decision making; assistance with compliance, organi-zational, and structural measures; and the use of IT contribute to this goal of simplifi cation.21 The 2014 World Bank Doing Business report notes that Rwanda

improved its ranking by 118 positions in the overall index (from 150th in 2008

to 32nd in 2014) by reducing unnecessary regulations and establishing a busi-ness-friendly legal framework Key reforms involved cu ing costs and time required for obtaining construction permits and for registering property One-stop centers brought all licensing offi ces and applications under one roof, thus reducing waiting time and administrative hassle for entrepreneurs.22

19 Rogier J E van den Brink, Land Reform in Mozambique (Agric & Rural Dev Notes No 43,

World Bank Dec 2008)

20 World Bank, Doing Business, h p://www.doingbusiness.org/data/exploretopics/dealing-with

-construction-permits.

21 OECD, From Red Tape to Smart Tape—Synthesis Report: Administrative Simplifi cation in OECD Countries 17 (OECD 2003).

22 World Bank, supra note 20.

Administrative burdens refer to costs incurred by enterprises, the

vol-untary sector, public authorities, and citizens in meeting legal obligations to provide information on their action or production, either to public authorities

or to private parties If administrative burdens are too high, compliance with legislation becomes unduly costly and resource consuming, economic activity

is hampered, and administration is an irritant to business activity The reduc-tion of administrative burdens aims to reduce bureaucracy-related costs in the form of permits, forms, and reporting and notifi cation requirements, and

to improve the cost-effi ciency of regulations.23 When unnecessary burdens are reduced, employees can spend more time on core business activities rather than on paperwork Programs to reduce administrative burdens can have impressive results: in 2004, the Dutch Bureau for Economic Policy Analysis estimated that reducing the administrative costs by 25 percent would eventu-ally lead to an increase in EU GDP of 1.6 percent.24 Measurements of admin-istrative burdens, using diff erent methodologies, can quantify compliance costs; highlight repeated obligations, “congestion” points, and “irritating” procedures; and showcase ways to cut unnecessary costs Benefi ts from bur-dens reduction can be impressive, especially in systems with a lot of regula-tions However, experience shows that administrative cost reductions need to

go hand in hand with broader simplifi cation programs

Reducing costs and enhancing the ease of compliance, as well as enhanc-ing the transparency of implementation and the enforcement of urban legisla-tion, enables urban legislation to be a more meaningful expression of social contracts, not only in se ing out the rights and obligations of all social actors, but also in allowing these rights and obligations to be enforced and honored

Improve the Clarity and Accessibility of the Law

As a binding expression of the rights and obligations of all social actors, leg-islation should be clear, accessible, and understandable to all Legleg-islation that

is incomprehensible, fragmented, and dispersed is inaccessible to laypersons and even to trained jurists Understanding what the law prescribes is a fun-damental premise of the rule of law; the opposite of this leads to confusion, informality, and lack of accountability However, the constant introduction

of new legislation makes eff orts at ensuring the clarity and accessibility of the law a major challenge For example, Nairobi City county’s bylaws have been amended repeatedly since the city was established 80 years ago The most recent overhaul of bylaws was not explicit, and even city offi cials are not aware of all bylaws in force In addition, the current structure has resulted in the adoption of new legislation ostensibly repealing bylaws but creating great

23 OECD, Cu ing Red Tape: National Strategies for Administrative Simplifi cation 9 (OECD 2006); OECD, Cu ing Red Tape: Comparing Administrative Burdens across Countries 15 (OECD 2007)

24 European Commn., Measuring Administrative Costs and Reducing Administrative Burdens in the EU (MEMO/06/425, Nov 14, 2006), h p://europa.eu/rapid/press-release_MEMO-06-425

_en.htm?locale=en.

uncertainty about the hierarchy of laws governing the city.25 The clarity and accessibility of legislation can be improved by making legislation easily acces-sible and improving its coherence and consistency

Make Legislation Easily Accessible

Urban legislation concerns statutes dealing with ma ers as distinct as plan-ning legislation, building standards, and management and governance issues Adding to the volume and the complexity of this diverse subject ma er are seemingly inherent fragmentation and dispersion Legislative material is found in diff erent statutes amended over and over again, leading to a cha-otic result, not to mention regulations, circulars, and issuances of guidance that make the picture even more complex In Kenya, diff erent planning pro-visions coexist without a clear connection between them: the Physical Plan-ning Act 1996 authorizes the director for physical planPlan-ning to develop local physical development plans The Constitution of Kenya 2010 gives the func-tion of land planning to the nafunc-tional government and the coordinafunc-tion of planning to counties The Urban Areas and Cities Act of 2011 provides that every municipality must have an integrated development plan, prepared by the municipal board and approved by the county assembly These provisions introduce parallel procedures: the relationship or connection between local physical development plans and integrated development plans is not clear, coordination mechanisms for diff erent levels of planning do not exist, consti-tutionally allocated roles are not adequately refl ected in statutory provisions, and regulatory fragmentation is inevitably extended to planning institutions where two distinct ministries coexist with overlapping functions This grim reality points to the diffi culty involved in knowing with reasonable certainty which provisions apply, where to fi nd them, and what they mean The lack of legislative transparency and clarity not only makes implementation diffi cult;

it makes accountability measures diffi cult to establish

The accessibility of legislation, especially in broad and complex areas

of law, can be improved through codifi cation Codifi cation brings together

all relevant rules on a subject into a single text with legally binding force This solution is a drastic way to rationalize legislation, remove contradictions and inconsistencies, and make legislation accessible to all parties However,

it has benefi cial eff ects on the clarity, accessibility, coherence, foreseeability, and volume of legislation, including legal certainty.26 Codifi ed legislation lays down the rules of the social contract in a systematic way, providing easy access to them It also provides an improved framework for holding institu-tions accountable, reinforces rule of law, and facilitates access to justice Urban codes, bringing together all laws, regulations, and decisions dealing with the urban environment in a structured and organized way, would make these rules clearer, more accessible, and more easily implementable

25 UN-Habitat, Kenya Legal Assessment (U.N 2014).

26 Eva Steiner, Codifi cation in England: The Need to Move from an Ideological to a Functional Approach

—A Bridge Too Far?, 25 Stat L Rev 209 (2004).

Improve Coherence and Consistency of Legislation

Although codifi cation can make legislation more easily accessible, the lack of clarity in legislation is a systemic problem that codifi cation alone may not be able to solve There are numerous examples of inconsistencies between laws, confl icting defi nitions, defi nitions used in diff erent ways or not at all that make understanding and interpretation complicated

Drafting guidelines can help standardize, simplify, and clarify the lan-guage of the texts, facilitating their understanding and application Especially

in areas like urban legislation, where many active actors and stakeholders have a technical and nonlegal background, yet they assume an active role in legislating or se ing standards, guidelines, manuals, and checklists can sup-port actors and stakeholders’ eff orts by concretizing rules and instructions on techniques and procedures for lawmaking Such guidelines introduce consis-tent standards to improve the homogeneity of legislative texts, thus contribut-ing to clearer and simpler legislation However, draftcontribut-ing manuals can prove counterproductive if they are too detailed or instructive They are useful if they combine the broad principles and aims of drafting legislation with spe-cifi c conventions that ensure consistency Clarity and consistency in the law means that the social contract is expressed clearly and transparently in law— and actors and stakeholders, including regulators, policy makers, and those implementing or enforcing the law, can be held accountable for their decisions and actions

Improve the Capacity of Legislation to Deliver Results

A good law is clear, implementable, and enforceable Planning laws often seek

to achieve ambitious and radical reforms without considering the resources and infrastructure required for their implementation Legislators may assume that the administration will automatically adapt to ambitious provisions even though institutional capacity and resources might be lacking These create laws that become eff ectively unusable, cannot be properly implemented, and are incapable of delivering intended results For example, a draft planning law in Uganda was designed in such a way that its enforcement and imple-mentation would require 20,000 civil servants.27 In the Arab Republic of Egypt, the law in force calls for detailed plans for cities and villages to be prepared

by planning offi ces within local governments However, because the central government does not provide the required fi nancial and human resources to allow local authorities to perform this mandate, only 10 of the 228 participat-ing cities in Egypt have approved detailed plans to date.28

Institutional and fi nancial capacity, coordination mechanisms, roles, and functions need to be considered early in the process of lawmaking Enforce-ment and impleEnforce-mentation do not come about magically—they do so only

27 Patrick McAuslan, Law Reform in East Africa: Traditional or Transformative? 89 (Routledge

2013)

28 UN-Habitat, Mohamed Nada (U.N 2014).