Global Report on Human Settlements 2007 - PoA-ISS

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156 Security of tenure The state is obliged to act to progressively improve the housing conditions in South Africa. It is also required to ensure that policies and programmes are well directed and that they are well implemented Municipalities … are required to formulate master plans incorporating the constitutional principles linked to the ‘right to the city’ realization of this right. 3 No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions. Moreover, during the years since the adoption of the 1996 South African Constitution, the South African Parliament has adopted a series of key legislation dealing with various aspects of security of tenure (see Box 6.25). Accordingly, those suffering in circumstances of insecure tenure are in a dramatically stronger position legally than they were a decade ago. Court decisions have given them substantive protection under the constitution and an ability to obtain orders that the authorities produce constitutionally viable and acceptable plans for fulfilling their obligations. Eviction law has changed dramatically and new cases are developing a substantive rights jurisprudence and not merely interpreting procedural protections. The next key shift occurred with the so-called Grootboom case, when the Constitutional Court 55 – while not following the High Court’s order that shelter should be mandatory for children 56 – held that in failing to provide for those most desperately in need, an otherwise reasonable local authority housing policy was still in breach of the constitution. Thus, the decision stressed that the state is obliged to act to progressively improve the housing conditions in South Africa. The state is not only required to initiate and implement programmes, it is also required to ensure that policies and programmes are well directed and that they are well implemented. Other recent cases, such as the Port Elizabeth Municipality and Modderklip cases, build on this case and highlight the goal of avoiding evictions and stress the obligations to provide alternative and appropriate accommodation when evictions are unavoidable (see Box 6.26). These legislative efforts, however, have not always succeeded in achieving the results sought. Besides the fact that forced evictions have clearly not been eradicated from South Africa, efforts to provide security of tenure through the formalization process have also clearly fallen short of expectations. One analysis points out the following lessons from South Africa’s experience with formalization to date: • Formalization of property rights through titling does not necessarily promote increased tenure security or certainty and in many cases does the opposite. • Formalization of property rights does not promote lending to the poor. • Rather than giving their property the character of ‘capital’, formalization could expose the poor to the risk of homelessness. • The urban and rural poor already have some access to credit. • Formalization through registered title deeds creates unaffordable costs for many poor people. • Informal property systems currently support a robust rental market that is well suited to the needs of the poor. • Formalization via title deeds for individual property can very quickly fail to reflect reality. • The poor are not homogenous and those in the extra-legal sector should be differentiated according to income and vulnerability status. 57 Moreover, and tellingly, during recent years South Africa has witnessed accelerated urbanization and increased rural impoverishment, in addition to substantial increases in the price of land in the main urban areas where people are looking for houses and seeking jobs. The post-apartheid state deserves credit for a housing programme that has provided in excess of 1 million houses since 1994. The extent of the continuing challenge with respect to providing secure tenure is apparent from a recent survey, which records that notwithstanding the number of houses built, the number of households in the nine largest urban areas without formal shelter has increased from 806,943 in 1996 to 1,023,134 in 2001 and 1,105,507 in 2004. 58 Brazil The approval of the new democratic Constitution of Brazil in 1988 and the collapse of the national social housing system in 1996 led to the development of new policies and programmes targeting the situation of the population living in informal urban settlements. The promotion of the ‘right to the city’ and the right to housing were major components of these new initiatives. Under the constitution, all municipalities of more than 20,000 residents are required to formulate master plans incorporating the constitutional principles linked to the ‘right to the city’. These norms were significantly bolstered by the adoption in 2001 of the innovative City Statute (see Box 11.8). Property rights are regulated according to the special constitutional provisions addressing rural and urban land, indigenous peoples’ and Afro-descendants’ lands, and private and public land. As for property rights over urban land, the municipalities have jurisdiction to issue laws supplementing state and federal legislation as applied to local matters, such as environment, culture, health and urban rights. All municipalities are required to develop a master plan as the basic legal instrument for urban development and to ensure that both the city and the property owners fulfil their legal and social functions according to the law. The municipalities may also promote legislation and/or regulations as required for control, utilization, urbanization and occupation of urban land. National programmes to support the production of social housing, land regularization and slum upgrading have been implemented by the Ministry of the Cities created in 2003. Civil society, social movements and NGOs have been leading the implementation of such policies together with the federal government, and consistent with the principles and instruments provided by the City Statute. The process of
Policy responses to tenure insecurity 157 Box 6.27 Participatory housing policies and legislation in Brazil Various groups in Brazil have carried out innovative, independent and self-organized efforts to address housing and land rights. The most common experiences involve co-operatives, associations or other self-help efforts aimed at building or improving housing in urban areas. Since the 1980s, such efforts have been organized under the National Forum on Urban Reform, which is an umbrella organization of popular movements, professional organizations and non-governmental organizations (NGOs) in the areas of housing, urban management, urban transportation and sanitation. Among the major achievements of the forum is the development of a Platform for Urban Reform, which seeks to realize housing and land rights and to combat poverty and social inequalities. This platform was underwritten by 131,000 voters and presented by various organizations to Congress in 1987 as part of the process leading up to the adoption of the new constitution of 1988. In some cities, the forum is represented through local or regional forums, which deals with the following issues: • actions in the defence of the ‘right to the city’ and of communities whose housing rights are threatened with forced displacement by the implementation of projects for development or the promotion of tourism and/or infrastructure construction or improvement; • participation in programmes and projects for land regularization in informal and irregular urban settlements; • organization of counselling and capacity-building on public rights and policies for popular leadership and organizations; and • participation in city management processes. Source: Marques, 2007 Among the major achievements of the National Forum was the approval of the City Statute and its contribution to the establishment of the Ministry of Cities in 2003. The National Forum also played a major role in both the first and the second National City conferences, held in 2003 and 2005, respectively. The first conference led to the establishment of the National City Council in 2004. The council is a consultative body responsible for proposing guidelines and goals for public policies addressing national urban development, housing, sanitation and transportation. It also provides guidelines and recommendations for the application of the City Statute and initiates national and regional plans for territorial organization. Another result of the organization of the urban social movements was the approval of a bill creating the National Social Housing System and the National Fund. The proposal for this new law was presented in 1988 and was signed by 1 million voters, as is required for such popular initiatives. It proposed the creation of an articulated national housing system composed of an executive public authority: the Ministry of the Cities; the Federal Savings Bank as its operational agent; the National City Council and the National Social Housing Fund; housing councils and funds created at the municipal and state levels; and housing co-operatives and community associations. The law reflecting the demands of this popular initiative was approved by the Federal Senate in 2005 (Law No 11.124/2005) and established the National Housing System to facilitate access to rural and urban land and adequate housing by the poor people through implementation of a policy of subsidies. This law provides for the transfer of funds now used to repay the foreign debt to municipal and state programmes to subsidize housing and land for the low-income population. The National Social Housing Fund is managed by a council composed of 22 representatives, of whom 10 are from the governmental sector and 12 are from the non-governmental sector (social movements, the private housing sector, trade unions, professional entities, universities and NGOs). The council members are entitled to approve the annual plan of financial investment for housing programmes, considering the resources available in the National Fund; to establish criteria for the municipalities, states, housing cooperatives and associations to access these financial resources; and to monitor the full application of such resources. There are still many structural obstacles of a conceptual, political, institutional and financial nature to be overcome before the legal concessions become a reality implementing national policies and legislation concerning the promotion of land and housing rights by the federal government and the civil society is assisted by specific policies and programmes, such as the National Policy to Support Sustainable Urban Land Regularization, established in 2003 by the Ministry of the Cities; the National Social Housing System and its Social Housing Fund, approved in 2005; and the National City Conferences, held in 2003 and 2005 (see Box 6.27). 59 Brazil continues to face serious land-access problems both in urban and rural areas, as can be seen from the many and varied conflicts over land possession. Despite the fact that the federal government has managed to advance significantly in formulating comprehensive national housing and land policies and in creating the essential legal–institutional bases, some programmes are isolated and ineffective, and have little significant impact on the Brazilian reality. There are still many structural obstacles of a conceptual, political, institutional and financial nature to be overcome before the legal concessions become a reality. Recent statistics show that the Brazilian housing deficit has increased over the last decade from 5.4 million housing units in 1991 to 6.7 million in 2000 – an increase of 22 per cent in only ten years. Furthermore, it continues to grow at a rate of 2.2 per cent per year. In 2000, the urban housing deficit was estimated at 5.4 million units. Paradoxically, according to the 2000 census, there are 4.8 million unoccupied residences in the cities. 60 India In India, the national housing policy of 1994 states that central and state governments must take steps to avoid forced evictions. Moreover, they must encourage in-situ upgrading, slum renovation and other initiatives with the provision of occupancy rights. When evictions are unavoidable, the policy states that the government ‘must undertake selective relocation with community involvement only for
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ENHANCING URBAN SAFETY AND SECURITY
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First published by Earthscan in the
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INTRODUCTION Enhancing Urban Safety
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ACKNOWLEDGEMENTS The preparation of
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x Enhancing Urban Safety and Securi
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xviii Enhancing Urban Safety and Se
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LIST OF FIGURES, BOXES AND TABLES F
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1 CHAPTER CURRENT THREATS TO URBAN
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46 Urban crime and violence Box II.
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54 Urban crime and violence Per 100
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56 Urban crime and violence Burglar
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58 Urban crime and violence Percent
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60 Urban crime and violence Figure
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62 Urban crime and violence Table 3
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76 Urban crime and violence Abused
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78 Urban crime and violence General
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82 Urban crime and violence porate
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220 Natural and human-made disaster
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310 Summary of case studies environ
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322 Summary of case studies Housing
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330 Statistical annex Islands, Micr
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332 Statistical annex NOMENCLATURE
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334 Statistical annex Population, u
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336 Statistical annex SOURCES OF DA
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INDEX ACHR (Asian Coalition for Hou
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Index 435 security of tenure 134 co
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Index 437 domestic abuse see intima
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Index 439 hazard management 169 haz
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Index 441 Kosovo, security of tenur
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Index 443 participation 38, 296-299
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Index 445 individual 34-35 municipa
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Index 447 gun ownership 78 Homeless
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