The Nairobi kiosk menace

Several indices tell you whether a country is on the path to people-centred holistic development. One of those is the quality and rationale of its infrastructure, especially the road and traffic networks. Is there order, or decorum, in the way motorists behave on the road?

Are urban and periurban areas designed to be pedestrian-friendly? What’s the relationship between motorists, bicyclists and pedestrians? Who, in other words, owns the road? Does the country have “walking cities” and towns, or is the gas guzzler the king of the road? Do zoning laws establish what can be done where, how and by whom? Or is the city a free-for-all? Regarding Nairobi, I want to focus on the menace of illegal kiosks. 

But first, let’s talk about the relationship between norms and laws. The laws of a state are the distillation of a value system about what’s good and what’s bad in society. In other words, what type of citizen does a state and its society want to inculcate in the citizenry.

Burkina Faso, a country in West Africa, means the land of “honest men”. Except judging by its tribulations over the last several decades, the Burkinabes are far from “honest men”. But you get the point. Out of that norm — honesty — one is supposed to erect a legal edifice that creates and sustains a country of upstanding, or “upright men”. You shouldn’t incubate a country of crooks and thieves.

Let me give an example of the relationship between a stop, or traffic light, and a motorist, or the relationship of a motorist to the speed limit, or stop light. One day, there was a terrible snowstorm in Buffalo, New York. It’s the type of storm Americans in the Northeast call a Nor’easter. It’s so-called because the winds come out of the northeast.

In the winter, a Nor’easter is a life-threatening weather event because it brings tons of snow. On this one day, the Nor’easter knocked out the power grid and all power to homes, traffic lights, and everything. We got eight feet of snow. At one four-way traffic stop, all lights were out. Would motorists take turns in an orderly way?

I approached the stop with trepidation because of the heavy traffic without alternating lights. Shockingly, motorists on all four stops took turns to go through. I didn’t see a single person force their way through out of turn. The same thing often happens on highways in areas with posted speed limits. Of course, you don’t know when a cop will come out of nowhere and force you to stop for speeding. 

Culturally internalised 

That’s a powerful incentive to keep within the speed limit because the fines are heavy. But most motorists go at a good clip within the speed limit. Most people know when they are speeding. However, most drivers have culturally internalised a reasonable speed limit within the law. 

Laws don’t exist in a vacuum. None do. They grow out of norms in society. Those norms are either grown out of necessity or the idea of the public good. That’s how civilisations mature. What maximises our best interests to allow the pursuit of happiness for the largest number in society? Laws come out of those norms, or what we may call collective wisdom. But a society, or a strong segment thereof, may also decide that thieving, cheating and murder are the norms by which its people will live. That’s how violent societies emerge. Many countries in the region and outside Africa live and die by the sword. This brings me to the phenomenon of illegal kiosks in Nairobi.

An abomination in Nairobi is the emergence of roadside kiosks that sell anything from cooked meals to groceries in makeshift setups. The illegal kiosks are totally unregulated. My understanding is that the city agencies that enforce zoning and other laws are completely compromised by cartels of thuggish Mafioso. 

City agencies and askaris who should knock down these dens of illegality are on the take – they are bribed every time they come to conduct a raid. The result is that the road reserve, and often the road itself, becomes part of the kiosks. The roads are impassable as people eat and litter the streets with garbage strewn everywhere. They start with one kiosk and then tens mushroom overnight. 

No part of Nairobi has been spared the epidemic of the illegal kiosk. I’ve seen them in Karen, Westlands and elsewhere. The whole of Nairobi is quickly becoming a slum city. The County Government of Nairobi – the executive and the legislature – are both complicit in establishing the norm of the illegal kiosk to turn our city into a dump. 

Governor Sakaja Johnson and his mandarins are either complicit or completely impotent. The County Assembly is mute and unable to act. Who owns these illegal kiosks and why can’t the county act? Either we are a nation of laws, or we aren’t. We can’t allow Nairobi to become a giant dumpsite.

Makau Mutua is SUNY Distinguished Professor and Margaret W. Wong Professor at Buffalo Law School, The State University of New York. Twitter: @makaumutua.