I attended a panel discussion on the role that affordable housing could play in Fostering the growth of inclusive cities. “Local Authorities are compelled through national legislation to set policies and regulations in place to encourage the growth of inclusive cities to redress the fragmented urban forms that we live with as a result of years of segregationist planning.” This event was organised by the Cape Institute for Architecture.

The panel discussion was moderate by Khalied Jacobs, JAKUPA Architects, and Urban Designer, and the panellists were: Anthea Houston, Communicare CEO, Aditya Kumar, Ndifuna Ukwazi executive director. Simone Le Grange, Architect, and Urban Design; School of Architecture Planning and Geomatics, UCT. Lunga Ntsabiso, LN Architectural Designers. Nigel Titus, Head of District Planning and Mechanisms at the City of Cape Town

At the end of this debate, Khalied Jacobs asked what the participants were bringing home after this debate. Many of the participants expressed their frustration with laws and administrative acts which, suppose to implement the growth of inclusive cities, have in practice been found to be bureaucratic and ineffective.

During the conversation, I wondered if the problem wasn’t that there was something wrong with the approach and paradigm used. The idea that a “right”, “correct” and “comprehensive” law must lead to the resolution of a complex problems.

Perhaps the problem lies in the illusion that to tackle a complex problem, such as affordable housing, it is necessary to break the problem into small pieces and steps and that in this way it can be dealt with better.

But complex problems hardly accept processes of simplification; indeed, paradoxically, these reductionist approaches risk generating only an exponential growth in fragmentation and multiplication of apparent solutions, which do not work or are inapplicable, increasing both the chaos of the system, and the frustration of the people involved.

In dealing with complex problems we must accept with there are no solutions, laws and administrative acts that work for all situations. We are often led to think that rules and procedures that are the same for all citizens are fairer and more equitable.

The problem is that citizens are not all the same, not all have access to possibilities and resources equally and a rule that seems acceptable and reasonable if you have a certain level of resources, and education and if you live in the “right” part of the city, could becomes an empty declaration if you have others living conditions and if you live in the “wrong” part of the city.

I believe that one way to tackle a complex problem is to scale down the application area or context, not break up the complexity, but scale down the application context.

Once the appropriate local level has been found (not an easy process..), the project could be implemented through the definition of a formal Collaboration Agreement or Pact where the administrative acts and the procedures necessary for its implementation are defined.

This approach that reverses the way of looking has advantages and risks:

The advantage is that the rules of application are moved from an abstract level that applies to everyone, but which for the reasoning made above does not work, to a more practical local level: we must do A, B, C and we do it using the rules X, Y, Z …
The risk is arbitrariness: a power group, more or less colluding, agrees to bend the rules, for example on building development, to its particular interest.

To avoid risks it is necessary to work on several levels:

  1. in the creation of policies, and bylaws that define the general rules, principles, and values to which the Collaboration Agreements must comply. It must be made explicit that the agreements must be within a framework of “general interest or public interest” in which they are explicit and defined values, such as “fairness” “sustainability” “social justice” etc. The City, in authorising an agreement, has the task of verifying that this “general interest or public interest” is not put at risk.
  2. In the transparency and visibility of the process that leads to the signing of Collaboration Agreement. There can be no acts and informations that only those who participate in the Collaboration Agreements know, any information must be public and accessible.
  3. We must weigh the “Collaboration Agreements” as a co-governance tool in which citizens participate through their structures, civic organisations, social, cultural organisations etc. but also recognising “informal” forms of aggregation of citizens, therefore the “Collaboration Agreements” see a multi-stakeholder composition in which the participation of civil society is mandatory.

It would be very useful to have a dialogue on how to rethink the laws, regulations, and acts with which public administrations function and act (or do not act).

A dialogue could takes inspiration from experiences of generative justice, from the various forms of Transitional justice and Restorative justice.

This reasoning on the construction of generative legal contexts also arises from the Italian experience where the implementation of the constitutional principle on the “Citizen Right to Participation” led to the creation of municipal “Regulations for the management of common goods and on the participation of citizens”, these regulations provide for the creation of “Collaboration Agreements or Pact” as a legal and administrative tool for implementing co-governance or partnership activities.

In these years, more than a thousand Italian municipalities have promulgated regulations for participation and management of common goods with thousands of stipulations of Collaboration Agreements with citizens, associations, companies and institutions.

This experience has “generated”, together with new laws on social enterprise and on volunteering activities, the birth of an area/space of “shared administration”, and a sentence of the Constitutional Court has ruled that this concept/right is consistent with the Italian constitutional provision.

It would be useful to continue this conversation at least on two questions:

  1. Is it possible to think and imagine laws, policies, bylaws and regulations that do not define the solutions to be implemented, but that they can be tools that can “generate” solutions?
  2. What is the legal nature of a “Collaboration Agreements”? Or perhaps, what could be the multiple legal tools that could be used for creating Collaboration Agreements?

I believe that to reason on these issues it would be useful to involve jurists such as Jaap de Visser of the Dullah Omar Institute who have been working about aspects of governance in public institutions.

Fostering the growth of inclusive cities