At a recent international conference, we asked one of the participants in drafting South Africa’s 1996 Constitution “Do people really need a Constitution? Does a Constitution really make so much of a difference? Some powerful, thriving nations do not even have one.”

She answered:

Maybe we do not need a Constitution. Drafting some well-thought-out laws and policies might have been enough. Adhering too literally to some Constitutional articles may strip them of their meaning and purpose. But on the other hand, for South Africa, the Constitution was indispensable for two reasons: first, it became the ‘reference’ to define the state’s role and its obligations towards its citizens, as well as to regulate the relationships between different state powers. Second, and more importantly, it was an opportunity for a shattered nation to rediscover itself, for citizens to recognize their rights, and for all South Africans with no exceptions to participate in shaping their common vision of a better country.

So, it is not enough to draft a good Constitution. What is more essential is that citizens recognize their rights, devise ways to hold the state accountable to protecting and promoting those rights, and actively participate in consolidating them and realizing them on the ground.

Following the recent approval of the New Egyptian Constitution (NEC), “TADAMUN: the Cairo Urban Solidarity Initiative” is launching this series of articles to raise awareness about a specific category of rights: those which strengthen and develop urban areas and the environment. This policy alert suggests that Egyptian citizens need to keep demanding these social rights to promote an equitable and sustainable urbanism even after the NEC is in place.

A Constitution must be a living document that evolves over time around raised awareness and more determined claims to secure important rights. The NEC now recognizes the state’s commitment to a set of urban and environmental rights that previous Egyptian constitutions never stipulated, however, these ‘new’ rights still need further constitutional development because they are too vague and the constitution is silent on how the state and its various bodies will enforce and implement these rights. We hope to open the door, through these articles, for wide-ranging discussion and public deliberation about these critically important urban and environmental rights as a vehicle to address some of the most important challenges facing Egypt.

As if 40 years have not passed

The NEC lacks a coherent vision about economic, social and cultural rights of the citizenry particularly when it comes to addressing urban development and the role of the state in this domain.With few exceptions, the NEC appears as a modest attempt to modify Egypt’s 1971 Constitution as if 40 years had not passed between drafting these two Constitutions, or as if the 1971 Constitution is the only reference to measure how ‘modern and progressive’ the NEC is.

Unfortunately, the NEC drafting process did not benefit from innovative constitutional mechanisms that other countries have developed over the past three decades (either on the level of drafting process or the final product itself) to protect citizens’ economic, social and cultural rights, particularly in regard to urban challenges, the environment, and the built environment.

The Brazilian (1988), Colombian (1991), South African (1996), Ecuadorian (2008), and Bolivian (2009) constitutions are instructive models for Egypt. Each one of these countries had experienced political violence, military dictatorships and authoritarian rule, and grave economic inequality and political volatility before deeply contested democratic transitions and it was through the drafting of new constitutions that these countries addressed their conflicted pasts and designed political institutions and social processes to heal their nations and move forward. In particular, these constitutions:

• Intentionally engaged and solicited large numbers of citizens in drafting their constitutions – disregarding their ethnic, religious or political backgrounds;
• Included clear and coherent principles throughout the constitution to enshrine citizens’ political rights and freedoms as well as economic, social and cultural rights, while stressing the state’s responsibility to respect, protect and fulfill these rights;
• Developed new concepts that became important guiding principles to realize these rights.These principled convictions included:

1. The Right to Adequate Housing: access to housing within integrated, equitable and sustainable communities in a way that addresses the needs of different citizens;
2. The Right to Adequate Standard of Living: public services, public utilities and public transportation;
3. The Right to Private Property and Collective Ownership: either citizens’ equitable share in the country’s properties and natural resources, or protection of citizen’s private properties from violations of the state or any other parties;
4. The Right to a Sustainable Environment: clean air, water and natural environment; protect natural parks and protectorates, protect the rights of future generations in natural resources);
5. The Right to Heritage: protect tangible and intangible heritage, cultural diversity, protect heritage and historical events from falsification due to different biases, and protect the rights of future generations to access this heritage;
6. The Right to Participation in Urban Management: citizen participation in urban planning decisions, participatory budgeting at the village, district and city scales, citizen accountability and management of different aspects of the city, and right to access to information;
7. The Right to the Public Space: prioritize the common use of public space over individual interests, protect the right to use public spaces as a sphere for deliberation, social cohesiveness and the promotion of equality, allow citizens to express their cultures and opinion without restriction, and provide public spaces with appropriate facilities for disabled persons;
8. The Right to the City: equal right of all citizens to fully enjoy the city, fair and equitable distribution of the city resources among all citizens, balance between urban and rural development, and democratic management of the city to achieve full citizenship for all city inhabitants.

For example, Article 31 of the Constitution of the Republic of Ecuador (2008),provides one of the best examples of a clear vision about the direct link between urban and environmental rights on the one hand, and democracy and citizenship on the other. The article reads as follows:

Persons have the right to fully enjoy the city and its public spaces, on the basis of principles of sustainability, social justice, respect for different urban cultures and a balance between the urban and rural sectors. Exercising the right to the city is based on the democratic management of the city, with respect to the social and environmental function of property and the city and with the full exercise of citizenship.

Where is Egypt’s legacy and traditions in this Constitution?

Despite the fact that the NEC largely ignored global constitutional models which prioritized economic, social and cultural rights, the constituent assembly also squandered the opportunity to incorporate Egypt’s urban values, culture, and traditions into the constitution in an innovative and creative manner. The NEC is full of clichés and promises to “instill and protect moral values,” [1] “teach …values and ethics,” [2] or “observe the values and constructive traditions of society.” [3] However,it does not appropriate Egypt’s own legacy of a socially just urbanism nor utilize indigenous ideals to create new understandings of principles and rights, similar to the experience of many Latin American countries which drew upon their particular heritage and history to draft their constitutions and make them meaningful.

For long periods of our history, urban practices in Egypt led –more than today –to an economically and socially diverse city, and allowed for more equitable and sustainable distribution and management of the city resources.What many people also do not know is that Islamic Law (Shari’ahand Fiqh) – which has evolved over decades through practices of different communities – adopted a rights-based approach towards urban development in a way that guaranteed a level of equality among different citizens. The concept of an urban ‘neighborhood’ developed into the notion of a “Neighbors Right” (Haq al-Jeera) and its relevant rights such as Preemption Right (Haq al-Shuf’aa) or Right of Easement (Haq al-Ertifaq) which provided equal rights to access to water, disposal of water,rights of passage, and building norms that took into account other neighbors’ interests and opinions.

Many of these concepts are already incorporated into Egyptian law and can be found in other Muslim countries. We should not only incorporate these rights in our own constitution and develop them further since they have long served to protect and strengthen the urban fabric of our cities, but they might also be useful models for other constitutions.

It is not that we should essentialize these historic rights and disregard contemporary circumstances, but we should be creative and try to develop these rights and concepts so Egypt can contribute-even a small share -to furthering the “Right to the City.”

Accepting the status-quo or dreaming of a better country?

Constitutions serve a basic fundamental need to forgea ‘social contract’ between citizens and the state dividing rights and responsibilities while setting down the guiding principles, limits, and design of the state itself.Constitutions are built upon the moral, legal, and normative foundations of a society, but they are often reactions to severe conflict, civil war, revolution, or government failure. Certainly, constitutions should not be written to evade obvious problems, ignore destructive practices, or legalize today’s misdeeds. They are meant to endure the passage of decades, if not centuries, embodying the most critical beliefs, values, and norms of their societies and settling intrinsic questions about the raison d’etre of a state. Constitutions are not written to restrict our dreams and aspirations about what is possible with our limited resources – yet, that is what we see too frequently in various articles of the NEC.

For instance, instead of strictly prohibiting child labor, NEC’s Article 70 admits and legalizes this practice through its vague wording which reads as follows: “Child labor is prohibited before passing the age of compulsory education, in jobs that are not fit for a child’s age, or that prevent the child from continuing education.” Such loose wording will not guide the state to protect and enforce children’s rights when the constitution does not delineate what kind of jobs “are fit for a child’s age.”

The vague language of the NEC, in many places, dilutesits commitment to urban and environmental rights. For example:

• The NEC does not include an article that prohibits or regulates forced eviction of citizens from their homes (especially those without official documents). Forced evictions are a sensitive and controversial practice that were unfortunately, not uncommon, over the past few decades and without language prohibiting forced evictions, NEC Article 68, which enshrines the right to adequate housing, is compromised. In contrast, the South African Constitution includes clear mechanisms to address such incidents in a way that guarantees the rights of citizens;
• The NEC does not include articles that encourage citizen engagement and participation in decision making, urban management, and participatory budgeting for their districts and cities; or constitute clear and obligatory mechanisms for this participation process to take place. These practices have encouraged millions in Brazil and elsewhere to take serious decisions about their cities in a way that limits, to a certain extent, administrative corruption and improves service provision and active engagement in public life across cleavages;

• The NEC pays very little attention to the issue of ‘decentralization’ in a country that suffers from centralization in every aspect. In the entire NEC, the word ‘decentralization’ appears only once in article 183 in a very vague manner. Article 187 also avoids direct election of governors and mayors as one of the ways to foster democracy and support decentralization. And finally, the fact that the existing Local Administration system with all its atrocious deficiencies will remain in place and that the new system will be applied gradually over 10 years following the date of its adoption, as stated in Article 235, is a grave disappointment after a revolution which was made in the name of democracy, social justice, freedom, and dignity. Apparently democracy and elections are fine at the national level, but Egyptians at the local level are still “not ready” for democracy. This argument was heard constantly as a legitimization for authoritarianism during the Mubarak era and it is shocking that the Constituent Assembly wasted this historic opportunity to further democratize Egypt, broaden the political spaces and spheres of deliberation and decision-making throughout the country, and remedy the deeply unfair and inequitable financial support for local government.

Unfortunately, most of these articles avoid dealing with our real problems and challenges, or addressing them seriously. And instead of dreaming and aspiring for a better life and vibrant cities, we accept the status-quo with all its deficiencies as if it is inevitable.

On definitions and concepts

One of the positive aspects of the NEC is that – for the first time in the history of Egyptian constitutions – it recognizes adequate housing as a right for all Egyptians. Article 68 states that “Adequate housing, clean water and healthy food are given rights.” This article is consistent with Article 11 of the 1966 ‘International Covenant on Economic, Social and Cultural Rights’ that recognizes “the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions” and holds state parties accountable for “taking appropriate steps to ensure the realization of this right.” Despite the fact that Egypt has been one of the signatories of this Covenant since August 1967, this commitment towards the right to adequate housing was not included in Egypt’s 1971 Constitution or any recent Egyptian law.

While a good step forward, identifying the definition of the ‘Right to Housing’ remains a problem. The NEC does not include such a definition which opens the door for an interpretation which would render it devoid of meaning. The Right to Housing does not merely refer to ‘shelter’ or a roof over one’s head located anywhere,such as a remote desert area which does not provide its inhabitants with a minimum standard of living. The Right to Housing encompasses certain principles which shift its meaning from the narrow or restrictive sense of ‘shelter’ to the more comprehensive concept of ‘adequate housing’ in a livable community.

In 1991, the United Nation CESCR’s [4] General Comment 4 paid special attention to this specific problem. Point 7 of this general comment states that:

• The Right to Housing should be ensured to all persons irrespective of income or access to economic resources,
• And, the reference in article 11 (1) must be read as referring not just to housing but to adequate housing. As both the Commission on Human Settlements and the Global Strategy for Shelter to the Year 2000 have stated: “Adequate shelter means … adequate privacy, adequate space, adequate security, adequate lighting and ventilation, adequate basic infrastructure and adequate location with regard to work and basic facilities – all at a reasonable cost.”

Therefore, leaving article 68 on ‘Adequate Housing’ undefined might allow the continuation of practices such as the involuntary relocation of inhabitants of informal areas to remote locations, comprising their economic status. This lack of definition also affects inhabitants’ security of tenure and puts many residents of Egypt’s cities and villages at risk, facing threats of forced eviction by the state or the private sector since they do not possess legal title.

It would have been possible to accept Article 68 of the NEC had there been a clear definition of the standards of the ‘Right to Housing,’or even a mention of Egypt’s commitment to international covenants and treaties in this field which support this right. This leads us to a bigger issue. In light of the current public discourse in Egypt, there are inadequate assurances about Egypt’s commitment to the standards of international covenants and treaties. For instance, the NEC’s Article 145 states that “no treaty contrary to the provisions of the Constitution shall be approved.” Again, this is an unprecedented article in the Egyptian constitution which may pave the road for a weaker commitment to international law and treaties more generally.

In the end, there is still an opportunity to address this matter related to the definition of the ‘Right to Housing’ through different initiatives that the Egyptian Government may propose in the near future. However, this requires more deliberation and public awareness to strengthen different urban and environmental rights that this notion encompasses.

On the role and commitments of the state                 

Many of the NEC articles are too vague about the Egyptian state’s commitment towards its citizens and their rights. Globally, constitutions delineate three levels of commitments towards citizen rights, in the following manner:

• To respect a right means refraining from interfering with the enjoyment of the right.
• To protect the right suggests enacting laws that create mechanisms to prevent violation of the right by state authorities or by non-state actors. This protection is to be granted equally to all.
• To fulfill the right means to take action to put in place institutions and procedures, including the allocation of resources, to enable people to enjoy the right. A rights-based approach develops the capacity of duty-bearers to meet their obligations and encourages rights holders to claim their rights.

When applying this concept to the new constitution’s Article 68 which states that “Adequate housing, clean water and healthy food are given rights. The state adopts a national housing plan; its basis is social justice, the promotion of independent initiatives and housing cooperatives, and the regulation of the use of national territory for the purposes of construction, in accordance with public interest and with the rights of future generations,”we find the following:

• There is a recognition of the citizens’ rights, but it is not clear who ‘gives’ this right, or how committed the state is to such a right either on the level of respecting, protecting or fulfilling the right, especially vis-à-vis underprivileged inhabitants and the other classes of the society;
• The article states that ‘the state adopts a national housing plan’ but it does not clarify the mechanisms through which this plan is produced, who is responsible for drafting the plan (the state adopts, not produces the plan), or which state bodies are responsible for implementing and financing the plan.

On the other hand, there are many constitutions that clearly identify the commitment of the state as well as the roles of other urban development related stakeholders. Such constitutions also state clear and tangible mechanisms to fulfill the rights, and more importantly, the state’s vision of its social purpose and role in regard to the issue of housing. Here are some examples:

• Mexico (1917): According to Article 123 the State obliges every agricultural, industrial, mining or other sort of enterprise to provide comfortable and hygienic housing for its workers. This obligation is met by contributions made by the enterprise to a national housing fund in order to build up deposits in favor of their workers and establish a financing system enabling cheap credit to be granted to them sufficient for them to become owners of such housing. Until today, and based on this article, this national housing fund still plays a major role in building hundreds of thousands of housing units for workers based on enterprise contributions and a cheap credit mechanism;
• Turkey (1982): Article 57 obliges the state to take necessary measures to meet the needs for housing, within the framework of a plan which takes into account the characteristics of cities and environmental conditions and supports community housing projects. Accordingly, the state established its Housing Development Administration ‘TOKI’ 25 years ago. TOKI adopts the ‘Right to Housing’ as an approach and has built to date hundreds of thousands of housing units especially for underprivileged inhabitants;
• Colombia (1991): Article 350 clarifies the mechanisms of public social expenditures, and how resources are distributed among different territories according to the number of individuals with unsatisfied basic needs, the population and fiscal administrative efficiency of every local unit. Article 365 declares that “public services are inherent to the social purpose of the state. It is the duty of the state to ensure their efficient provision to all the inhabitants of the national territory.” And as if the above was not enough, Article 366 obliges the state to give priority to public social expenditures over any other allocation in their plans and budgets.

The previous points do not mean the state should build houses or directly provide housing units to inhabitants. Rather, these points prove without a doubt that a good constitution must clearly assign certain roles and commitments to the state – as well as to other involved parties – which it has to fulfill. It is also the role of the constitution to identify mechanisms to fulfill these commitments in a way that prevents any of the involved parties from evading their roles and responsibilities. And more importantly, constitutions -and states at large -have ‘social purposes,’ which necessarily should shape the priorities of expenditures and public budgets.

So, where do we go from here?

Now that the New Egyptian Constitution has been adopted, is this the end of the road?

The answer is of course, no. Although many people would argue this point, the constitution itself is a small step in the Egyptian people’s march – claiming their right to a better life they surely deserve. The Constitution is important, but what is more important is that we protect our rights and keep claiming them until they become a tangible reality on the ground. Therefore we find ourselves faced with three parallel avenues that we should concurrently explore:

• Encourage public debate and deliberation about NEC articles which fall short of respecting, protecting, fulfilling urban and environmental rights discussed above, including the Right to the City;
• Build a broad coalition in the near future to review and investigate existing policies, and procedures which may conflict with, or defeat the rights we recently gained in the NEC. This coalition will work to ensure the fulfillment of the state’s commitments towards it citizens and instill these rights into the public fabric of Egyptian society;
• Finally, and more importantly, Egyptians must know their rights are and claim these rights. It is less important how ‘modern and progressive’ the NEC may be compared to Egypt’s 1971 Constitution.What we should aspire to is the best possible constitution which reflects the values, beliefs, and dreams of Egypt’s citizens and innovative constitutional principles.

This is merely a beginning to start a public dialogue. It will be followed by a series of articles that address each individual urban and environment right to launch public discussion, not only among experts, but among all Egyptians. Such dialogue and debate is greatly needed now in order to realize a set of rights that will improve daily life and address some of Egypt’s most challenging problems around housing, local governance, development, public services, public goods, and the environment.

Our journey is still long, but it is worth the effort.