Q & A
What are the problems in the sector?
The construction industry everywhere faces problems and challenges. However, in developing countries like Kenya, these difficulties and challenges are present alongside a general situation of socio-economic stress, chronic resource shortages, institutional weaknesses and a general inability to deal with the key issues. There is also evidence that the problems have become greater in extent and severity in recent years. One of the charges leveled at the construction industry, as at the beginning of the 21st century, is that it has a poor record on innovation, when compared with manufacturing industries such as aerospace or electronics.
Institutional weaknesses exist where a regulating authority is unable to effectively implement the set regulations. This is a fairly common challenge in the sector where incidence, incapacity and negligence of the parties concerned results in poor building construction and associated challenges. In order to come up with a way forward, it is critical to examine the existing codes already in place.
2. Present Regulations
The regulations governing the construction sector are distributed among the following:
(a) Government policies- Building codes.( DOWNLOAD HERE)
(b) Statutory regulations
(c) Contractual regulations
(d) Law of torts
(e) Rules of equitable law.
2.1 Government Policies
Property and land policies so formulated by the government were and still are gradually being adapted in the construction sector. These policies include;
i) The National Housing Policy- aims at ensuring sustainable construction and proper administration of land
ii) The national land policy- ensure sustainable use of land
iii) The Economic Recovery Strategy for wealth and employment creation strategy- Enabled urban renewal and rehabilitation of infrastructure and previous mining areas.
iv) Vision 2030- The present government policy that aims at ensuring effective, efficient and fast socio-economic development in Kenya.
v) Building Code (downloadable here)
2.2 Statutory Regulations
These are formulated by either government bodies or the associated agencies. These include, but are not limited to, The National Housing Corporation, The Central Organization of Trade Unions (COTU), The City Councils, The Professional associations, Bureau of standards, the courts among others. Such include the following;
2.2.1 The factories acts
It defines a factory as any premises in which, or within the close or curtilage or precincts of which, persons are employed in manual labour. In the context of manufacturers in the construction sector, subsection (VI) states as follows:
‘any premises in which articles are made incidentally to the carrying on of building operation or works of engineering construction, not being premises in which such operations or works are being carried on’
This act also makes provision for the health, safety and welfare of persons employed in factories and other places of work. The Act is predominantly socioeconomic in nature and focuses on the shop floor conditions of the factory, safety devices, machine maintenance, safety precautions in case of fire, gas explosions, electrical faults, provisions of protective equipment among others.
2.2.2 Kenya Public Procurement and Disposal Act 2005
In the construction context, this act governs the procurement and disposal of public property. It defines who a contractor is, the form of tendering (open), the procedures to be applied in both the procurement and disposal of property.
Other statutory regulations include;
- Environmental management and coordination act – Which established the National Environment and management authority (NEMA) to cater for all issue affecting the environment
- The Physical planning act- established to control land use
- The Land planning act
- The water act
- The energy act
- Building codes of 1968- Established to be enacted by the local authorities. They defined the building specifications and the quality of building material to be used. Connection to common facilities such as sewers, electricity and water pipelines was also defined.
- The land acquisitions acts- dealt primarily with the procedure of land acquisitions, ownership and disposal
- The Government Lands Act (Cap 280 Laws of Kenya)-This enactment is no doubt a replacement of the 1915 Crown Lands Ordinance. It was enacted to make further and better provisions for regulating the leasing and other dispositions of Government Land and related issues. Under this Act, only the President can sign documents granting title. The President can and has delegated his powers to the Commissioner of Lands. The GLA lays down the procedures the Commissioner of Lands must follow in allocating land.
2.3 Contractual regulations
The law of contract set out in the Kenyan laws is applied to the building and construction sector. A valid contract must feature the following:
- An agreement – offer and acceptance
- Intention to create legal relations
Specialty contracts such as those for land leasing or conveyancing of land for 3 or more years must be by deed. Contracts for the sale of land are required to be in writing all other form of contracts (simple) can be in writing and/or made orally.
In building and construction contracts, the parties involved are the employer (the client) and the contractor. A typical contract would include the articles of agreement and Conditions of contract, Contractual bills and documents,
2.4 Law of torts
A tort is a civil wrong. It is a breach of a legal duty or an infringement of a legal right which gives right to a claim for damages.
Where a tortuous act is committed where a valid contract exists such as is the case in the building sector, remedial action may be sought by:
- The amount of damages is awarded to restore the claimant to the position they would have been had the contract been properly performed
- The damages are awarded to restore the claimant to the position they would have been had the tortuous act not been committed.
Acts of negligence are a particularly common are of tort. In order to establish the existence of negligence, it is crucial to establish that a duty of care exists, that the duty was breached and that injury or loss was a result of the breach.
2.5 Rules of equity
Equitable law is established by courts. It deals with fairness and therefore undue delay in seeking equity defeats it. Remedies at equity include damages, injunctions and specific performance.
3.0 The Current state
The construction sector is an intertwined web of various players including the developers, the contractors, the government and affiliated bodies, the public stakeholders and the various professionals within the sector. As such, when a building fails, it is critical to examine the players and the part they played. In most circumstances, the blame falls on either contractor negligence or failure of the regulating authorities.
Building inspections are currently conducted by the city council under the Physical planning act. Boraqs currently can only inspect and regulate sites where its members are involved and as such a limited professional opinion. This results in a recurrence of the series of disasters in the sector including collapsing structures, building demolitions, fire outages among others.
4.0 Way forward
The national Construction bill is yet to be adapted. The key elects of this bill will include:
- Establishment of national Construction authority to oversee construction projects. The authority is expected to rid the sector of rogue contractors and put in check poor workmanship as it will consolidate tasks involved in the approval of the construction process. It will also be mandated to monitor the construction process as detailed in the Physical Planning Act (2.2.2) currently being implemented by the local authorities. Under the Act, only the local authorities can conduct inspection of building sites.
a) Prescribe the qualifications or other attributes required for registration as a contractor under this Act;
(b) Promote, stimulate and assist in the exportation of services connected to the construction industry;
(c) Provide consultancy and advisory services with respect to the construction industry;
(d) Promote quality assurance in the construction industry;
(e) Encourage the standardization and improvement of construction techniques and materials;
(i) Initiate and maintain a construction industry information system;
(f) Provide, promote, review and coordinate training programs organized by public and private accredited training centers for skilled construction workers and construction site supervisors;
(g) Accredit and register contractors and regulate their professional undertakings; and
(h) Accredit and certify skilled construction workers and construction site supervisors.
Another issue of contention is the government abject preference for foreign contractors for major projects. The government should come up with means of funding local contractors to enable them compete fairly against their foreign counterparts.
Contractor should have adequate/formal training. This would require institutions that would be specialized for the sector. This will enable proper project execution, an understanding of structures and how they operate and a comprehensive knowledge of the technologies to apply in actual construction.
Building inspections should be done by industry professional under updated regulations. This will play a key role in averting construction disasters.
Information concerning land should be made publicly available and on the internet for easy access. This is important in curbing land grabbing and allocation of land already in possession of others. This will check on the problem of repossession, development and forceful demolitions of property.
On matters of planning, all property developers should be required to provide the plans for their proposed developments to the authorities. The developments should be in line with the city/town plan so as to prevent improper use of land and subsequent demolitions. This will also check on the growth of unplanned settlements and slums.
With regard to the building professionals, the Architect who has been contracted by the developer is supposed to offer periodic supervision of the building construction until completion of the building whereby he is supposed to certify that the building is complete and ready for human habitation. These processes are enforced by the local authority who as we said earlier, are understaffed and don’t have enough technical personnel hence this step is rarely taken unless when the developer wants to insure his building and the insurance company insists that they need to see the completion certificate.