For nearly one hundred and ten years the Arboretum has been Nairobi’s lung, an easily accessible public space in the city. Originally created when a ready supply of logs was needed to fuel steam engines, the Arboretum was conceived as a site for seed experiments to determine if plentiful amounts of softwood could be grown in East Africa. Seeds were brought from as far away as Australia and Mexico and planted there. Over the years, the Arboretum has been much loved. It has also been free to use. This month it was announced that for the first time an entry fee would be charged. There has been little consultation with its users. On Sunday 4th September, a public meeting was held at Freedom Corner to raise objections to the charge.

Like many cities, Nairobi is experiencing unprecedented but haphazard growth. Inequality between urban dwellers is growing. Whether in relation to adequate housing, safe transport, or access to clean water and sanitation, we know that citizens experience the city very differently as rich or poor. Although it is rarely quantified or discussed, one very visible manifestation of growing urban inequalities is differential access to green space. This has been described as ‘green inequality’. Imposing a charge for access to the Arboretum will widen the considerable green inequalities we already see in Nairobi. To understand why, we need to connect the Arboretum proposals to Kenya’s struggles over property and politics more widely.
Political scientists and environmentalists have long drawn attention to land grabbing as an enduring feature of political corruption and patronage. The findings of the Ndung’u commission are well known.

They influenced the provisions of the National Land Policy and of Chapter Five of the Constitution of Kenya 2010 (‘the land chapter’). The damage caused by illegal and irregular allocations of land – for example on river basins and on wetlands – is clear for everyone to see. It has posed a threat to safety, to livelihoods and to biodiversity. And as the excellent documentary #NotMySchool, which aired this week on KTN, shows land grabbing is far from over. But we need to remember that land grabbing can happen in a range of ways.
The emerging struggle for the Arboretum is about who controls access to public space. The idea of imposing a fee raises broader questions of who has a right to decide how public spaces in the city are used. I have seen it said in relation to the Arboretum fee that it is necessary because people only appreciate what they pay for. This suggestion needs to be vigorously resisted. It is a neo-liberal platitude from people who, in the words of Oscar Wilde, ‘know the price of everything and the value of nothing’. And in the context of a country where the illegal acquisition of property (at no cost to land grabbers) is rife, it is also manifestly untrue.

A further argument made in support of imposing a charge to use the Arboretum is that this is needed for its maintenance. In my view, this is a lazy justification. It excuses us from thinking about other, more inclusive ways to sustain green spaces in the city. The charge is hugely regressive. Fifty shillings demanded of a day labourer making their way through the Arboretum to work – a common short cut – is an unjust tax on the poor. The impact on a person earning a few thousand shillings a month is much greater than the impact on the wealthy. The latter, in their leafy suburbs, will continue to enjoy a still green city. An alternative proposal is to increase the longstanding membership fee for the Friends of the Arboretum most of whom can afford a little more, to contribute towards its sustainable future on behalf of all citizens.

It will no doubt be stated that the new entry fee will safeguard the ecological future of the Arboretum. This argument runs: we are doing this to conserve (save) the Arboretum. The problem is that this guardianship argument can sound persuasive and can mask what is really going on, that is, exclusion. Once upon a time, no doubt, the Arboretum was for Europeans. Do we now want it to be for another sort of minority—the financially comfortable —only? The best way to save the Arboretum is to use it, every day, in our hundreds, for free.
There will also be reassurances, in response to those who oppose the charge, that schemes will be put in place to offer reduced fees to schoolchildren and others. Even now for example, children are to pay Kshs 20. Again, this is something to think about carefully. Put starkly, the offer is ‘we will enclose public spaces that rightfully belong to citizens and then devise schemes to give some of you back access to what is yours.’ It is a great ‘enclose and lease back’ scheme. Two adults and 2 children will now have to pay Kshs. 140. Many Kenyans will think twice about this. Lower fees for school parties does make it easier for organised groups, but it does not address affordability for families wanting to visit the Arboretum.

To accept a user fee is to begin to walk an unhappy path. In time, a perimeter fence will appear. Then it will be electrified. This will be followed by the construction of gates and the presence of armed guards. Maybe there will be “improvement” of the Arboretum by the removal of some species of trees?
We need to be alert to the wider property politics of what is proposed. No doubt already property prices around the Arboretum are higher because of it. We know that elsewhere in Nairobi, being in the proximity of safe, green spaces has led to significant increases in property values. But the windfall arising from proximity to these public goods has accrued in ways that are inequitable. The unearned gain has benefited individual landowners. Admittedly, they may pay a little extra tax if they rent the property out. But no comprehensive land value tax has been designed to capture the windfall that has accrued to private landowners as a consequence of their proximity to a public amenity. The same will apply for the Arboretum as it is enclosed and developed. Keep a close eye on property prices around the Arboretum if the fee proposal succeeds..

Who determines how public spaces are used in rapidly changing cities? Article 40( 1 ) of Constitution guarantees equitable access to land. People commuting through the Arboretum, sitting under its trees, enjoying a walk are not an inconvenience. They are exercising their democratic Constitutional rights. In the colonial era, African urban inhabitants were treated with hostility and viewed as being out of place. After independence, there have been repeated attempts to shape the city against the needs of the poor. The nibbling away of bits of City Park and Uhuru Park are examples, as is the Railway Pension Board scheme to evict the people of Muthurwa so they can build houses and a shopping mall for the much wealthier. These cases are evidence of how Nairobi has in its very recent history behaved towards those whom the great planner of New York City, Robert Moses, described as ‘people in the way’.
At a time of rapid urbanisation, the question of how green space in the city is used, and by whom, has never been more important. Like the struggle to save school land from being grabbed, it is a question of social justice.

Ambreena Manji is Professor of Land Law and Development at Cardiff University in Wales, UK. She was Director of the British Institute in Eastern Africa 2010-2014 and member of a consortium on changes in land law in 2012 ledby the Katiba Institute. She has published widely on land law in Eastern Africa.