The private sphere, including private property, enjoys a long-standing cultural and religious sanctity. However, at the same time, private property should play a social function in the service of society and the realization of public good. These two, sometimes competing, interests (private and public) need to be balanced so that individual property owners enjoy their private property rights and that these rights are not violated by others, while concurrently ensuring that this property is not impeding the public good. This is further complicated in our cities today where those who live with insecure property rights in informal areas and in formally planned low-income areas are more prone to have their property rights threatened for the sake of “public good” than residents of wealthy areas. This reinforcement of the state’s inequitable urban development policies further widens the socioeconomic divide in our cities.
What is the Right to Private Property?
Effects on Our Everyday Life
Informal Housing and Security of Tenure
Tenure insecurity affects a significant portion of Egyptians with 44% of housing units built on land with insecure tenure, although they may have tenure of the housing unit itself. The right to property is not guaranteed for residents of informal settlements by the Egyptian government and for the most part, the government has not displaced them from their homes and businesses simply because a full-scale displacement of the millions living in informal areas would be impossible. However, when there are competing interests for land, typically from wealthy developers or government planners, the government has been quick to displace residents. Without any legal title, inhabitants are vulnerable to resource-draining disputes and potential evictions.
The right to private property is connected to several other rights to the city. Without legal recognition, residents of informal settlements are usually denied other rights such as the right to water and domestic and urban services. The Egyptian government does not provide sufficient services such as water and sewage infrastructure, electricity, as well as health and education services to residents of informal areas because they do not have legal tenure, forcing residents to pay for private services or to offer bribes to access these public services. To learn more about the security of tenure in informal settlements, please read The Right to Adequate Housing.
Investing in Local Communities
The right to private property also facilitates the ability of local residents to invest further in their communities, improving their homes, community life, local markets and commercial or industrial ventures. Residents of areas in historic Cairo, such as `Arab Al-Yasār have been facing difficulties for years in securing permits[ds1] to renovate their homes and businesses despite security of tenure. The district administration and Ministry of Antiquities enforce a building and restoration moratorium in the area due to its historic significance and location within the Citadel buffer zone. A study conducted in 2012 showed that 65% of residents attempting to improve their houses met legal and administrative problems, resulting in the deterioration of the structural condition of houses in the area. The inability to restore decrepit houses and ensure their structural integrity results in the frequent collapse of houses causing injuries and loss of life. A similar scenario occurs in areas with disputed ownership issues such as Maspiro and Bulaq Abu Al-`la.
The “Public Good”
According to the Egyptian Constitution, the state has the right to expropriate private property for the “public good” (2014 Egyptian Constitution, Article 35). This is not an unusual right for a government to claim – often referred to as eminent domain – the issue is with the legislation and implementation of this right. The Acquisition for Public Good Law (Law 10, 1990) makes the President the only authority with the power to dispose ownership of private property for the public good. However, the fluid nature of what constitutes “public good” leaves an opportunity for private interests to predominate and corruption to play a role, especially without a transparent mechanism to compensate the property owner. This law was used to expropriate residents of Ḥikr Abū Dūma – a low-income area on the Eastern bank of the Nile – of their property to create “Nile Dūma” a luxury recreational and tourism project. The creation of a luxury hotels is not what comes to mind when one thinks of “public good”, however the law gives the Cabinet of Ministers the authority to dictate what “public good” entails and they argued that this development project would create countless employment opportunities. It is needless to say that residents were not fairly compensated and the state made a significant profit from selling the land in an auction to Arab and Egyptian investors.
The Constitutional Right to Property in the Egypt
The newly drafted 2014 Egyptian Constitution is very similar to the 2012 constitution regarding private property rights. Article 33 of the 2014 constitution states, “The state protects ownership, which is three types: public ownership, private ownership, and cooperative ownership.”
Article 35 protects property owners’ right to pass on their assets to inheritors and protects them from confiscation except in cases specified by law. On the other hand, the article safeguards the state’s right to eminent domain:
Private property is protected. The right to inherit property is guaranteed. Private property may not be sequestrated except in cases specified by law, and by a court order. Ownership of property may not be confiscated except for the public good and with just compensation that is paid in advance as per the law.
As discussed earlier, the “public good” is left without clarification or guidelines governing who decides what constitutes the public good, leaving property owners vulnerable to the abuse of this article, particularly in low-income areas in strategic and commercially valuable locations.
Regrettably, the Constitution fails to recognize the ambivalent rights of millions of Egyptians living in informal areas and even though Article 63 prohibits “arbitrary forced displacement,” it does not address other types of forced eviction.
Most national constitutions guarantee the right to property in one form or another, but reserve the state’s right to put limitations on the right to property or to dispossess individuals of their property so long as it is not “arbitrary” or if it serves the “public need” without defining what is the “public need” or “public interest.” The vague language of some constitutions, including the Egyptian constitution, leaves the possibility of violating the right to private property. Few national constitutions, however, use very clear language to avoid such violations.
The South African constitution, for instance, states that “property may be expropriated only … for a public purpose or in the public interest” (Article 25). It also clearly defines what the public interest is: “The public interest includes the nation’s commitment to land reform and to reforms to bring about equitable access to all South Africa’s natural resources.”
The Brazilian constitution is one the most comprehensive constitutions in terms of the protection of property rights. Article 170 of the Brazilian constitution makes private property one of the general principles of the national economic order. Article 5 guarantees the right to property as a fundamental right for all Brazilians and foreigners residing in the country. Yet, Article 5 of the Brazilian constitution allows the state authorities to make use of private property only “in case of imminent public danger.” In contrast, the Egyptian constitution leaves open the possibility of forced eviction and does not draw tight conditions around such a devastating state policy.
More significantly, the Brazilian constitution allows the residents of informal urban areas and rural lands to obtain legal tenure for their residence and land under certain conditions. Article 183 defines the requirements for obtaining legal title for urban areas:
An individual who possesses an urban area of up to two hundred and fifty square meters, for five years, without interruption or opposition, using it as his or as his family’s home, shall acquire domain of it, provided that he does not own any other urban or rural property.
And Article 191 explains who can get legal title to his rural land:
The individual who, not being the owner of rural or urban property, holds as his own, for five uninterrupted years, without opposition, an area of land in the rural zone, not exceeding fifty hectares, making it productive with his labor or that of his family, and having his dwelling thereon, shall acquire ownership of the land.
The Egyptian constitution, on the contrary, is silent about the right of residents of informal areas to obtain legal title to their land, even when they have been living on it for years.
The Way Forward
The Egyptian constitution ignores the problem of informal settlements or obscures it with vague language. It recognizes the right to property, but it also allows state authorities to legally justify some forms of forced evictions. Furthermore, it does not help the residents of informal areas obtain title to their homes, as some other constitutions have done in innovative ways.
A constitution can be used to strengthen the right to property in a given country, facilitate private and public investment, and also encourage the more equitable provision of public services across urban areas and reduce overall inequality. The following basic principles can be considered:
1. Shawkat, Yahya (2013). “Social Justice and Urbanism – a Map of Egypt.” Shadow Ministry of Housing blog.
1. UNESCO World Heritage Centre – Management of World Heritage Sites in Egypt (2012). “Study on ‘Frozen Assets’ – Historic Cairo.” Unpublished report. Urban Regeneration of Historic Cairo Project.
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