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Lucie E. White is Louis A. Horvitz Professor of Law at Harvard Law School. Jeremy Perelman is Lecturer-in-law at Columbia Law School and a doctoral candidate at Harvard Law School.

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Stones of Hope

Stanford University Press

Contents

Foreword Jeffrey D. Sachs and Lisa E. Sachs.................................................................................................................................................................................xiContributors.................................................................................................................................................................................................................xixAcknowledgments..............................................................................................................................................................................................................xxvList of Acronyms.............................................................................................................................................................................................................xxviiIntroduction Jeremy Perelman and Lucie E. White.............................................................................................................................................................................11 A Place to Live: Resisting Evictions in Ijora-Badia, Nigeria Felix Morka..................................................................................................................................................172 Cultural Transformation, Deep Institutional Reform, and ESR Practice: South Africa's Treatment Action Campaign William Forbath, with assistance from Zackie Achmat, Geoff Budlender, and Mark Heywood.....................513 The Evictions at Nyamuma, Tanzania: Structural Constraints and Alternative Pathways in the Struggles over Land Ruth Buchanan, Helen Kijo-Bisimba, and Kerry Rittich.......................................................914 Freeing Mohammed Zakari: Rights as Footprints Jeremy Perelman and Katharine Young, with the participation of Mahama Ayariga...............................................................................................1225 Stones of Hope: Experience and Theory in African Economic and Social Rights Activism Jeremy Perelman and Lucie E. White...................................................................................................1496 The Long Arc of Pragmatic Economic and Social Rights Advocacy Peter Houtzager and Lucie E. White..........................................................................................................................172Epilogue Jeremy Perelman and Lucie E. White.................................................................................................................................................................................195Notes........................................................................................................................................................................................................................199Index........................................................................................................................................................................................................................239

Chapter One

Resisting Evictions in Ijora-Badia, Nigeria

Felix Morka

This chapter is the result of a dialogue between Felix Morka and Duncan Kennedy that took place at a Stones of Hope meeting in May 2008. It explores the threat of forced evictions faced by the residents of the Ijora-Badia community in Lagos, Nigeria, and the way their resistance created challenges, and also opportunities, for the community's development.

With a total area of about 160 hectares and a population of over 600,000 people, the community of Ijora-Badia is currently ranked higher than over one hundred other informal settlements as the most blighted community in Lagos. It provides a compelling example of a community's long struggle for a place to live against persistent efforts of government and city managers to forcibly evict them. The Badia story illustrates how an unbridled use of the combined political power of the state and the financial muscle of the World Bank can aggravate the poverty of target beneficiaries. While highlighting the repressive force of these actors, the chapter also examines the community's creative use of human rights to transform their consciousness and bolster their capacity to resist power asymmetries at the root of their deprivation and marginalization. The chapter also demonstrates that by challenging eviction, communities like Ijora-Badia can amass significant power and resources, which can potentially enable them to remap their development over the long term.

* * *

In 1973, three years after the end of the country's civil war, the federal military government of Nigeria acquired a large tract of land comprising a sprawling old settlement known as Oluwole Village in Iganmu (central Lagos) for the purpose of building Nigeria's National Arts Theatre. The theater was to be a key edifice gracing the African Festival of Arts and Culture, which Nigeria was to host in 1977. The festival was one of several sociocultural events convened to showcase a unified and resurgent Nigeria poised to tackle the challenges of reconstruction and development after a three-year civil war that claimed the lives of over one million people.

The grandiosity of the theater only masked the brutality and injustice meted out to the local landowners. In a sequence of events that is becoming increasingly familiar throughout the developing world, the federal military government, without adequate notice or consultation, forcibly evicted the Oluwole villagers from their ancestral homes. Following largely uncoordinated protests by the residents, the federal authorities retroactively paid paltry sums to some of the evictees as compensation for their demolished homes. Other evictees, who insisted on resettlement, were allocated vacant plots of land, measuring on average 9 meters by 15 meters (30 ft. by 50 ft.) in Badia, a community located less than one kilometer away. A final group of evictees was abandoned to find their own means to build new houses for their families. Many built sheds made mostly of stilts and corrugated iron sheets of various shapes and sizes, as each family could afford.

Prior to the displaced persons' arrival, Badia was already inhabited by the ancestral land-owning Ojora chieftaincy family, their assignees, and tenants. From the 1960s through the late 1970s, Badia had also become home to other populations displaced by development activities, such as major road and bridge construction and industrial layouts.

The federal military government failed to address the host community's (Badia's) preexisting severe lack of basic social and economic infrastructure, such as water, roads, drainage facilities, a solid waste disposal system, healthcare facilities, and schools. The unplanned relocation of the Oluwole evictees to Badia only worsened an already dire situation. These exacerbated social, economic, and environmental deprivations have come to characterize and continue to frame the heightened blight levels in Badia.

The urgency to rebuild Nigeria's infrastructure, which was devastated because of the country's civil war, an unprecedented oil boom in the 1970s, and the international development agenda, drove massive infrastructural investments. These investments were neither carefully planned nor carefully implemented, however. These forces, as well as groups of elites capturing rents corresponding to increasing values of urban real estate, all came together to promote a high tolerance for forced evictions as being necessary for building a solid infrastructural base that would support rapid economic growth and development. At the same time, observes Professor Kennedy in the commentary that follows this case study, in some circumstances resisting forced evictions can enable threatened communities themselves to capture these rents and use them to choose development strategies for themselves. Nowhere were these risks and potentials more evident than in Lagos, which until 1991 was the capital city of the Federal Republic of Nigeria.

Lagos, a City in Crisis

Although Lagos is one of the largest cities in the world, it is unquestionably one of the least planned, studied, and understood. With an estimated population of fourteen million in 2010, Lagos is also one of the world's fastest-growing cities: with only 252,000 people in 1952, Lagos is projected by the United Nations to have a population exceeding seventeen million by 2015. The rise of Lagos as a major economic and political center, its sprawling seaports, and its offer of an alluring (but elusive) promise of the "good life" to all manner of migrants have contributed to the city's population pull.

Arguably, the most important factor in Nigeria's rural-urban population surge is the reckless destruction of the agricultural sector (both as a major provider of sustenance and as the largest employer of labor), owing to the discovery of crude oil in 1956 and the country's near total dependence on its export earnings. The dramatic wealth from crude oil created a perverse set of incentives that discouraged investment in non-oil sectors of the economy, especially agriculture. Lacking critical essential inputs such as seeds, fertilizers, pesticides, irrigation facilities, tractors, and other modern tools and machinery, many people who were once gainfully employed in the agricultural sector abandoned their occupations. The international dip in prices of commodities during the 1970s further discouraged growth in that sector. The emergence of a new class of upwardly mobile oil merchants, speculators, and skilled and unskilled workers in the oil industry further escalated the momentous drift to the cities, worsening the upward trend in real estate values. As land values inflated at extraordinary rates, these forces came together to lock impoverished people and elites in a struggle over the soaring rents this inflation generated, particularly in Lagos.

To say that Lagos is a city in crisis is to understate the severity and enormity of the challenges that confront its residents. Lagos remains the epicenter of Nigeria's high urbanization rate of 5.5 percent. This rapid population growth has not been matched by the provision of social and economic infrastructure, such as adequate housing, healthcare facilities, schools, roads, transportation, water, solid waste disposal, and drainage facilities. Over the years, successive state and federal governments have approached the inadequacy of the city's infrastructure with astonishing levity. Where infrastructure development initiatives have been launched, they have generally been haphazardly planned or implemented.

For example, the Lagos Master Plan (1980-2000), which was developed in 1979 with the support of the United Nations Development Programme (UNDP), laid out a framework for addressing various challenges, including the provision of housing, creation and expansion of economic activity centers (to disperse pressure and population concentration on existing city centers), and the identification and upgrading of major informal settlements. In a recent report, the Presidential Task Force on the Lagos Mega City concluded that the Lagos Master Plan "was not implemented." Instead, the experience had been one of "significant distortions in many parts of the plan" with impacts that have been "far reaching, resulting in lopsided population distribution, high cost of infrastructure development, drainage obstructions, environmental and sanitation challenges, traffic congestion and numerous other problems." Perhaps unrealistically given the lack of political will, the Lagos Master Plan mandated that "between 1980 and 2000, 1.4 million additional housing units should be constructed, out of which a million should be deliberately earmarked for low income households." Commenting on the failure to implement this plan, Francisco Bolaji Abosede, the Lagos State commissioner for physical planning and urban development, stated that although the plan "accurately analyzed the housing needs of Lagos [...] by the year 2000 when the plan expired, not more than ten percent of the housing needs were satisfied." The state's failure to implement the master plan entrenched a regulatory framework that left poor people without basic services and thus vulnerable to housing instability.

Indeed, one major consequence of the population explosion in Lagos is an acute housing shortage. Less than 20 percent of the city's residents own their homes. Furthermore, over two-thirds of the population of Lagos live in the informal settlements that are scattered around the city. The 1980-2000 Lagos Master Plan had identified and classified forty-two slums or informal settlements in the city. There are now over one hundred such communities in Lagos. Many poor and low-income families excluded from access to land and housing in the formal sector find refuge in these informal settlements, where housing can be built according to means and capacity. Although they generally lack security of tenure (by virtue of not having the requisite certificate of occupancy), many residents of these informal settlements hold bona fide legal rights and interests in the land on which they live, having validly acquired land from legitimate landholding families, communities, or authorities.

The informal settlements at issue in this section are often called slums. An expert group of the United Nations Human Settlements Programme (UN-Habitat) defines a slum as a contiguous settlement where the inhabitants are characterized as having inadequate housing and basic services. It is often not recognized and addressed by public authorities as an integral or equal part of the city. The expert group identifies insecure residential status, inadequate access to safe water, inadequate access to sanitation and other infrastructure, poor structural quality of housing, and overcrowding as eminently characteristic of slums. Nearly one billion people now live in such settlements around the world. In policy and planning circles, these informal settlements are perceived and treated as anomalies rather than as integral and equally important parts of the city. Officials also tend to be in denial of the fact that the residents of these communities are human beings.

While there are several explanations for the proliferation of informal settlements and the acute shortage of formal housing in Lagos, three are highlighted here: (1) use of forced evictions as an urban planning tool, (2) restrictive and discriminatory land use policy, and (3) executive focus on direct government provision of housing stock. All three can be sources of opportunities as well as risks for urban communities like Ijora-Badia, seeking to stabilize themselves and ensure their residents' basic social and economic protections.

Use of Forced Eviction as an Urban Planning and Development Control Tool

In its quest to eliminate or drastically curb the spread of informal settlements, the government has used forced eviction as a preferred tool of urban engineering, with counterproductive outcomes. Since 1990, over 700,000 people have been forcibly evicted from their homes or businesses in Lagos without adequate notice, compensation, or resettlement. Across the country, nearly three million people have been forcibly evicted since May 1999, when the present elected civilian government was inaugurated. In all more people have been forcibly evicted from their homes and businesses than the government has been able to provide housing for since the country's independence.

In addition to the broad range of social, economic, psychological, cultural, and physical havoc inflicted on the victims, forced evictions also fuel the growth of new slums and the expansion of existing ones. These communities are routinely denied funds needed for the provision of basic services, such as community health centers or potable water.

In a downward spiral, these new communities' poverty and lack of basic services are cited as justification for their demolition. The government typically rationalizes the mass evictions in paternalistic terms. For example, when the military government of Lagos State demolished the homes of over 300,000 residents of the Maroko community in July 1990, it claimed that the community was prone to flooding and unfit for human habitation. When the democratically elected government of Rivers State forcibly evicted over one million Rainbow Town residents in 2001, it claimed that the community harbored too many criminals. When the government of Lagos State forcibly evicted and burned the homes of over three thousand Makoko residents in April 2005, it claimed that it was helping some private citizens flush out miscreants and undesirable squatters. Further, the ongoing indiscriminate forced eviction of hundreds of thousands of residents in Abuja by the Federal Capital City Development Authority has been presented as an effort to correct distortions to the city's 1979 master plan. In addition, the Lagos State government's persistent efforts to forcibly evict the Badia community have been explained by the need to rid the community of filth, flooding, and prostitution. As these examples show, however, the threat of a forced eviction can offer skillful activist-lawyers a foundation for rallying community members around economic and social rights campaigns and thus greatly enhance their power.

Restrictive and Discriminatory Land Use Policy

Among the many reasons for which the dwellers of informal settlements have little access to formal sector land is the misapplication of the Land Use Act of 1978. Enacted to harmonize preexisting customary land tenure systems and free up land for new development, the act constitutes the most aggressive and far-reaching declaration of the power of eminent domain over urban and rural lands in Nigeria. It provides that "all land comprised in the territory of each State in the Federation are hereby vested in the Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act." The act makes certain that "all land in the urban areas shall be under the control and management of the Governor of each State." Similarly, "all other land shall [...] be under the control and management of the Local Government within the area of jurisdiction of which the land is situated." The act invests immense powers in the state governor and the local government to determine, regulate, and manage land use, including the power to grant statutory and customary rights of occupancy.

Although the Land Use Act preserves the entitlement of the holder of a right of occupancy to the sole and absolute possession of all improvements on the land, it provides that such improvements may be transferred, assigned, or mortgaged only subject to the prior consent of the governor. Furthermore, the act makes it unlawful "for the holder of a statutory right of occupancy granted by the Government to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer possession, sublease or otherwise however without the consent of the Governor first had and obtained." The most significant and controversial power vested in the governor by the act is the power to revoke a right of occupancy or to compulsorily acquire land for "overriding public interest" subject, in some cases, to compensation.

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