The Building Control Act, a law passed in 2013, has recently been amended by parliament and the president of Uganda has assented to the changes in the act. Laws, like the human body, are in constant evolutionary motion. As such, law makers and public policy wonks are always on the look out for what areas of the law ought to be tweaked, which loose nuts and bolts need tightening. In a world that is changing at the speed of light, lawmaking is often time playing catch up with the trends. It is important, therefore, that parliaments do not sleep on the job.
The Building Control Act is an important law for our country. It sets a legislative framework for building standards, establishes a National Building Review Board and Building Committees (in districts) and seeks to promote and ensure planned, decent and safe building structures that do not harm our environment.
An act of parliament is accompanied with Regulations to ensure that its enforcement is smoothened and clarified. An important starting point is the National Building Standards Code, 2019. In 230 pages, the government lays down what building sites ought to comply with, how design and planning of buildings must be done, how to deal with temporary buildings, industrial structures, residential dwellings, school buildings, quality of materials; all the way to environmental protection and energy efficiency. If only we complied with just 50 per cent of the Code, as we say in kina-Kampala speak, Uganda would be far. There are other codes on the irreducible minimum standards for electrical and mechanical installations.
Another significant component of the law is encompassed in the Building Control (Accessibility Standards for Persons with Disabilities) Code, 2019. Under these regulations, public buildings (those accessible to the public, including privately owned shopping malls, for instance), are required to provision for persons with disabilities (PWDs) by putting in place accessible entrances, ramps, parking spaces and places of convenience. The widths, breadths of a door handle for instance, and such other granular detail, are explicitly specified in the regulations.
In essence, we have a good law. Weak areas such as composition of the building committees and their powers, demolition power of the committees, stiffer fines and prison sentences for offenders, bolstering innovation in terms of materials, have been addressed in the amendment.
Why then, with such a robust legal and regulatory framework, do we still struggle with enforcement and compliance?
Conduct a compliance audit
It will be useful for the government to conduct a national compliance audit to ascertain how many buildings, both privately and government-owned, have complied with the law since 2013. Despite this legal framework, we still see buildings being erected without provisions for PWDs. Any of us is one accident away from becoming a PWD. Why then, do we still see buildings without accessibility provisions for PWDs? Why do we continue to raise buildings that do not conform with the Building Codes? The national compliance audit can tell and inform how government addresses the root cause of low compliance.
There are no easy answers to these and more questions. From the legal side of things, I have read draft contracts from lawyers which do not make mention of the need to comply with the Building Control Act and the regulations. Very few lawyers appreciate the importance of advising their clients to ensure that their construction projects comply with the law even when the client can afford compliance with the standards. Beyond processing the building permit and clearing a contract usually prepared after a copy and paste job from templates, the lawyer’s conception of their role diminishes. We ought to, however, be advising and encouraging our clients to ensure that their construction projects comply with the law otherwise we become complicit in a vicious cycle of lawlessness. We must be agents of change and transformation.
The National Building Review Board, Uganda Law Society and private outfits like the Construction Law Institute run by my mentor Mr. David Kaggwa, ought to partner to create awareness within the profession about the Act and the regulations. If legal advisors who are clearing contracts have never read the 230 page-long Building Codes, how will they advise their clients about compliance with a law that they themselves need education about? Most construction contracts in Uganda, indeed, are silent on this compliance component and for bigger projects, lawyers are simply lifting entire pages from standard form contracts, designed for international construction contracts and the attendant context of developed economies, without tweaking them to align with Uganda’s laws on building standards, aligned to the milieu of a developing country.
That however, is the least of ones worries as technical capacity can be built progressively.
The elephant in the room is a structural one and it is not limited to Uganda. Across Sub-Saharan Africa, our governments excel at formulating polices and laws that never come to life on the enforcement front. Why is this the case? Part of the problem is the small resource envelop that we are working with which has to compete for a million needs, all of which are priorities in their own right. To ensure a modest 25 per cent compliance with the Building Control Act for example, each district must have a Building Control Officer, a Building Committee staffed with engineers, who must be facilitated to ensure compliance with the law and regulations, process and approve permits for building and occupation, after a rigorous scrutiny of the application and site visits. A district struggling to fuel an ambulance may not find resources for 12 site visits in a month by the building control officer and the committee.
There is also, the inconvenient truth that compliance with building standards is a tall order in a country where only 1 per cent of the working population earns 1 million shillings in a month and affordable, decent housing remains a luxury for the few affluent members of society. There is, indeed, no dignity in poverty. A broke government cannot ensure that every building in every hamlet complies with the law and its broke citizens too, cannot raise buildings that tick every box in the rule book. The novelist Julius Ocwinyo, termed this the fate of the banished.
As such, the Building Control Act is nothing but an aspirational legislation, setting high level policy aspirations, ideals and standards which, in the immediate, are incapable of being enforced. Now, aspirational legislation is not a bad thing; society must aspire to be better and through progressive realisation of its ideals, continue on the path of self-improvement. That, dear brethren, is the enduring story of the human race across history and geography.
However, on this path of progressive realisation, we can go for some low-hanging fruits. In the context of the law for example, one starting point is for the urban authorities to ensure strict compliance with the accessibility standards for PWDs. No building or occupation permit should be approved without compliance with this requirement. We can start with the bigger public buildings whose developers can afford to install these facilities. The other is construction projects that harm our environment and buildings that are a nuisance and social hazard to the community. These can be razed down and the skies won’t fall on earth.
The other is to put in place a special mechanism under the judiciary for prosecution and trial of offenders, as government did with the court for wildlife poachers and thieves of water and other utilities. The National Building Review Board would, of course, have to be more resourced financially and human resource wise, to be able to do a good job and building committees in the districts must have a good budget to keep them running.
Buildings that do not conform to standards and the law, are not only an eye sore but also recipe for accidents and fatalities as we have seen whenever such tragedies of collapsed structures, strike. Building without minimum standards does pose a systemic threat to our national psyche and the value system of younger generations on what it means to live in an orderly society. Disorder and outright impunity, as we have seen in the roads sector, must never become the norm in a society. To normalize anarchy is to watch a nation lose its soul. Potea, kabisa!
This must, however, be met with political commitment to ensure that there are no sacred cows and bulls in the kraal who make one phone call to sneak their way out of infractions with the law. This is easier said than done but as a society, we must start from somewhere.
We cannot bequeath to our future generations, cities that are simply too chaotic, unplanned and unsafe, with lawlessness the order of the day yet we have legislative direction on what to fix and how.
Ivan Okuda is a Construction, Arbitration and Energy Lawyer with Anguria & Co. Advocates and a Fellow of the Chartered Institute of Arbitrators, UK