Law in Practice in a Nairobi Slum: Legalization and Camouflage

Evoking Stateness: Camouflage and Legalization

Although perceptions and ideas of legality are not solely defined by the state, state institutions still have quite a crucial role in the process of legalization and legitimization by officially defining what is legal and what is not. The idea of the state is generally a powerful image constructed through everyday acts and a dialectical relationship with civil society (Abrams, 1977; Aretxaga, 2003; Migdal, 2001). Individual actors and non-state groups can also harness the idea of the state. Jusionyte (2015) uses the concept of ‘camouflage’ to describe how smugglers and corrupt state officials simulate the state, although simultaneously undermining it through illegal activities. Camouflage implies using one symbolic and material order to protect another from being recognized by blurring the boundaries between the two. In Jusionyte's example from Argentina, smugglers dress up as state officials and use fire trucks and other state-related symbols to get away with their activities. She describes how, through camouflage's perpetual reference to state code, transgressions ‘make the official form intelligible and relevant’ (ibid.: 123), and how, by blurring the boundary between state and crime, camouflage allows the state to happen. I want to explore how the state-owned water service provider tries to present certain practices and activities that go against the formal statutory governing system as legal, making them crucial in the production of law in practice. I am interested in how this affects the production of legality and governance structures and how mimicking the law and the state can work to legitimize both non-state actors and state officials.

In this endeavour, I will also draw on Lund's (2021) legalization concept. It shares some similarities with ‘camouflage’ in that it theorizes about how referring to the law underpins the idea of the law and the state, but Lund deals with this mainly in the context of making claims to resources. According to Lund (ibid.), claims, rules or administrative operations are often legitimated through reference to law, regardless of whether there is a genuine link between these and statutory law. This process of legitimizing claims through reference to the law, which he terms ‘legalization’, bestows an ‘air of legality’ upon a rule or claim by establishing a link between the claim and the state (by referring to statutory law) and evoking hope for the possibility of backing by state power through formalized rights and ownership. Legalization is therefore a strategy through which people work to formalize claims. State officials and representatives can be perceived as embodying the law but, as this article shows, in some contexts they may also need to legalize their claims to control over resources. While ‘camouflage’ is about making certain practices invisible by veiling them in ‘stateness’, legalization refers to a process of being made visible to the eyes of the state. The water provision in Kibera draws on both features. The vendors and, to some degree, the Nairobi Water employees use the language of the state both to camouflage illegal practices and blur the boundary between legal and illegal and to establish themselves as legitimate water providers to Nairobi's residents and the state authorities. The relationship between infrastructures and the state (Anand et al., 2018; Meehan, 2014; Ranganathan, 2014) and the use of the chambers to ‘legalize’ water in Nairobi suggests that legitimization also has a material side. This article explores how this process unfolds, and the governance structures it produces.

Legalizing Water in the Slum

Although Nairobi Water has implemented different interventions to extend its services and combat the water diversion in the informalized settlements, few have been very successful in terms of their intended function (Guma and Wiig, 2022; Guma et al., 2019). In this article, I examine one intervention, the chambers, in the country's largest unplanned settlement, Kibera. The chambers are clusters of water meters installed to provide water in bulk to the slum's water vendors and in this way to formalize their water provision. The informal settlement has an estimated population of 250,000 (UN Habitat, 2020). Water is primarily provided through water kiosks supplied by a tangled network of plastic pipes running above ground, on and along footpaths, and through ditches. While data on the exact density and population of Kibera vary, a study which finds that there are 87,500 residents per km2 (Desgroppes and Taupin, 2012), hints at a substantial difference to the overall average of the city at 6,247 residents per km2 (KNBS, 2019). This high population density makes it challenging for the residents to rely on shallow wells. Most water is diverted from the state grid by vendors illegally puncturing the supply lines and leading the water through plastic pipes to their water kiosk within Kibera. The largest source for the diverted water is the 24-inch main pipe located on the border between Kibera and Ngong Forest.

According to both vendors and Nairobi Water employees, the vendors are often organized locally, with the more powerful vendors regulating other vendors’ access to the market and the water pricing among themselves. Other vendors explain how they have sidestepped these powerful vendors and established a business without involving them, either based on paying off locals to protect their pipe or having established connections with the community and Nairobi Water employees. Still, a variety of actors are involved in water provision in Kibera. These include NGOs providing water from boreholes; the short-lived institution Nairobi Metropolitan Services which drilled boreholes and distributed water in trucks around the settlement; local politicians who donate water containers and make promises of free water; and Nairobi Water initiatives like water ATMs and the chambers.

With a standard price of KES 5 (US$ 0.04) per 20-litre jerrycan in 2023, water sold at the water kiosks is five times more expensive than through a formal domestic grid connection — and, according to residents, much more during drought or after ‘crackdowns’ on unauthorized lines, when the price can shoot up to KES 40–50 per jerrycan. Moreover, in February 2024 the standard price went up to KES 10 per 20 litres. With an average daily income of KES 439, water is a substantial cost for a Kibera household (Soma et al., 2022). It is mostly women who take care of securing domestic water. Carrying the 20-litre jerrycan back from the water point is a laborious and time-consuming task. During a focus group, women explained how, in the dry seasons, they can queue by the water points at 4 am and even then, they cannot be sure that there will be any water left in the vendor's tank when it is their turn. There is no way of ensuring the quality of the water, so ‘we just fetch it and leave everything to God’, as one of the women remarked.5

In Kibera, the state has long ago lost its position as a legitimate authority and local gangs thrive in its place (De Smedt, 2009). The water vendors have substantial economic power to pay off employees from the public utilities. They are known to use force or vandalize interventions that threaten the status quo on which their position is built. The limited reach of services in the unplanned settlements represents not only an economic sore spot for the state water company but, to some extent, also a failure of responsibility. A Nairobi Water official from the headquarters office complained that Nairobi Water is being held responsible for the unhygienic conditions in the slums: ‘We are blamed for cholera outbreaks [in the slums]. People are saying, “Nairobi Water is not taking care of these people”’.6 This exchange shows that Nairobi Water's failure to fulfil its role as a water service provider for the inhabitants of Nairobi is harmful to its reputation and mandate, and that the company cannot write off the slums as being out of their service reach.

The chambers were introduced in 2018. They consist of clusters of water meters connected to a central pipe, protected from tinkering and vandalism by a concrete box with a padlock. As of May 2024, there were 11 chambers in Kibera, each with between 30 and 50 water connections. The chambers are supposed to provide previously unregulated water providers who source water illegally from the grid with an authorized connection with Nairobi Water. The vendors are given an individual meter and draw a pipe from the chamber to their water kiosks further inside the settlement. Nairobi Water is responsible for the free flow of water to the chambers on the days of the week they have been allocated water, and the company opens the concrete box once a month to read the meters and charge the vendors accordingly. As the vendors are responsible for everything beyond the chamber, in the event they have any leaks, they are charged for the leaked water. The vendors sell the water at the exact same cost as the illegally diverted water, and since they are paying for it, they make less money from the chamber water. Each chamber has an appointed chairman, who approves new members and communicates with Nairobi Water employees if there are issues with the chamber. According to a Nairobi Water official, the chairmen were elected by Nairobi Water, based on who already had the most unregulated lines. Thus, the chamber system builds on already established structures of water provision in the settlement, granting authority to the vendors who were already in the most powerful position. (See Supporting Information Photo S1 in the online article.)

Illegal and Legal Water

The chairwoman of the CBO resists the definition of the Kibera vendors as thieves because in some areas it is impossible to receive water from the chambers. Several residents in Kibera argued that, because of the inaction of Nairobi Water employees to improve the water supply and the tolerance of unregulated water lines in practice, it does not make sense to label the unregulated water lines to Kibera as illegal. By buying water from the vendors, and in some cases openly defending their role as water providers, residents are therefore also shaping local perceptions of legality and legitimacy.

These differing and contrasting perceptions demonstrate that legality is not a fixed category; actors, objects and practices are legalized and illegalized in specific contexts (Galemba, 2008; Heyman, 2013). Thus, when sociologists ‘sensitize’ people to appreciate the value of formal or legal water, we can view this as advancing a specific understanding of legal water. The chambers are instrumental in this understanding of legal water, which reinforces Nairobi Water's claim to control and distribute it. We will see how the chamber system is connected to a process of legalization and camouflage, bolstering the legitimacy of Nairobi Water but also of the water vendors they are trying to control.

Instrumentalizing Legality and Illegality

The chambers both camouflage and legalize illegal activities by shrouding the water sector in ‘stateness’ and referring to statutory law. The process of legalization is at the core of the chamber system, as it was adopted to bring legal water to the settlement. This is what the manager of the Informal Settlement Region highlights as the primary effect of introducing the chambers: ‘There has been a change since the chambers. At least we have formal and legal water there now’.9 Rather than being a question of access, the critical feature of the chambers for the man in charge of implementing them seems to be their legality. For the water company, the criterion of success of its interventions in Kibera seems to be, first and foremost, that the water is provided by Nairobi Water.

However, the company's control over the legalizing infrastructure proved difficult to maintain. Several chambers quickly became controlled by groups of influential vendors, often referred to as the ‘cartels’, who would only allow certain people, paying a certain amount, access to the chamber. A former chamber member, an older woman operating a shower facility when the chamber was introduced, explained to me how she had to forfeit her chamber line. She often saw her chamber left dry while others had water, and her pipe would regularly be vandalized. The chamber system, therefore, is not accessible to everyone, but primarily to those already well-connected in the Kibera water sector. Although the chambers were intended to place water provision in Kibera under state regulation, the system has been adapted and integrated into the existing structures rather than redefining them.

Both water vendors and Nairobi Water employees explained that the chambers worked well for the first year or so. For the vendors, however, they soon stopped being a sustainable business: the pressure dropped, meters and pipes were stolen, and the chambers would be dry for days or weeks. According to Nairobi Water employees, the diminishing water in the chambers resulted from the diversion of water through unregulated lines tapped from the distribution pipe placed before the chamber which caused the pressure to drop. The vendors claim that the pressure dropped quite suddenly after a year, and only then did they go back to diverting water directly from the grid. In any case, the low pressure became a self-reinforcing cycle, incentivizing more vendors to acquire an unregulated line to supplement their chamber water supply. There are often several kilometres between the point of connection and the meter to the selling point, and the pipes are constantly at risk of vandalism, theft and leakages. An issue with the pipe can therefore be expensive even before the vendors have tracked down and stopped the leakage that they are billed for. As such, the chambers lost their legitimacy as infrastructural systems controlled by Nairobi Water. The low water pressure and unreliability of the chambers mean that most vendors get the greater part of their water from outside the chambers. Thus, it may seem that efforts to provide legal water in Kibera have largely been unsuccessful. At the same time, the chambers have served as a means for existing power structures, such as the vendors and Nairobi Water employees, to exploit the system for their own benefit and shape its function accordingly. In this way, the chambers fulfil a central role in producing competing local legitimacy, legality and structures for water governance.

Despite the limited role of chambers in the provision of water, having a chamber line is necessary to an established vendor. While I did meet a youth group that would sell water from their ablution block without having a chamber line, all major water suppliers in the study with a consistent supply of water had a line, and agreed to its necessity. My key informant among the vendors, Boniface, told me that to start as a vendor, you need ‘to go the legal way first and get a chamber line’.10 According to him, the company must know that you are becoming a vendor, and without a chamber line Nairobi Water field employees will not let you do your business. The vendors, such as John, framed the chambers as a question of security: ‘We use chambers as our security. We need to make sure the meters are working no matter what. Without one's meter, you can't bargain about what you are doing selling water. Where you are getting it from’.11 Therefore, despite their limited capacity to provide water, a chamber line is a necessity to establish oneself as a water vendor in the informalized settlements. Having a piped connection to the chamber means the water you sell could come from a legal source. The complex and dynamic network of plastic pipes also makes it nearly impossible to trace whether a pipe is coming from a chamber. Some lines might even be coming from the chamber but bypass the meter. Having a registered chamber line and paying the chamber bill is not necessarily enough to appear legal. To some extent, the vendors also need to appear to rely only on a chamber line, reflected in their limited visible storage space. Boniface talked about wanting a second 10,000-litre tank at his water point. He provides water primarily to resale vendors on three-wheeled motorcycles and pull-carts; he gets through several tanks in a day and will run out on days with no direct water supply. However, he explained, filling several tanks with only water from the chamber would not be believable, so instead, he has hidden storage tanks in other parts of Kibera, from where he pumps the water when he runs out.12 In this way, he can discreetly replenish his one visible tank several times a day. Although few vendors were willing to talk much about their storage capacity, and nobody would give an exact number of the tanks they owned, they agreed that such a network with hidden storage tanks was quite common and necessary to avoid drawing too much attention from Nairobi Water employees or from other vendors from whom you might want to hide your success. In this way, the water vendors appear to adhere to the rules that Nairobi Water is trying to establish, and the chambers sprinkle the water provision in Kibera with a lawfulness as the water coming to the vendors appears to be regulated by the state. It both camouflages activities that go against statutory law in the language of the state (Jusionyte, 2015) and gives an ‘air of legality’ (Lund, 2021) to Kibera's water sector. It makes visible the legal aspects of the water sector and conceals the illegal but central aspects.

Performing Distinctions

The way in which the chambers add to the appearance of legality in the water sector not only benefits the water vendors who are allowed to operate without getting into too many problems with Nairobi Water. The state-owned water service provider similarly benefits as it appears to provide water to the settlement. The way in which the appearance of the rule of law is central to Nairobi Water's work in Kibera is reflected in its routine operations, one of which consists of a cycle of disconnections of illegal lines a few times a month, followed by reconnections by the vendors. These operations occur along the Ngong forest on the periphery of Kibera, on a 24-inch mains pipe running from northeast of Kibera to Langata. This area around the pipe by the forest is where most chambers are located and where most unregulated lines come from. Getting a direct line from this mains pipe is the best way to secure a continuous and pressurized water flow, as the pipe has a lot of water and is only rationed on Fridays.

Being the primary source of Kibera's water (state-regulated or not), the mains pipe has become a central site of struggle, not just over the material infrastructure but of a more symbolic character. Wilshusen (2019) argues that political theatre, through big events, can reinforce expressions of legitimacy and authority that shape governance. Expressing legitimacy and authority seems to be exactly what the operations are about since they have little practical long-term effect. The lines are reinstalled almost as swiftly as they are removed. Vendors are often told about the operations beforehand, allowing them to remove their lines before Nairobi Water arrives and saving them the cost of replacing the pipe. Some lines are left alone entirely. Boniface, the vendor who wanted a new tank, claimed he was no longer affected by these operations. One day after such a round of disconnections, I called and asked whether he had lost his line or whether it had caused him any problems. He just exclaimed, ‘No, me, I'm okay with them [Nairobi Water staff]!’.13 It takes a lot of resources to carry out the operations. Nairobi Water must hire the police for security and bring a lot of employees to the scene. Even though the pipe is partially excavated, the unregulated lines are covered with soil and must be dug out. The short-term impact of the disconnections suggests that the objective of this exercise is not predominantly economic. Individual employees might have more to gain from these operations than the company. Allegedly, it is sometimes the same Nairobi Water employees doing the operations who have helped install the illegal lines in the first place. Interviews and conversations with vendors imply that individual Nairobi Water employees receive money to provide information about the operations.

However, for Nairobi Water headquarters to keep this monthly ritual going, there must be more to it than a potential financial gain for field employees. The recurrent operations seem to signal to the vendors that they have not won, and uphold the idea that Nairobi Water remains engaged in the fight against the illegal water sector. This symbolic fight against unlawful water connections diverting water to Kibera sustains the image of the rule of statutory law. Nairobi Water depends on producing this image of the rule of law: just as the vendors need the chambers to appear legal and establish their claim to control water resources, Nairobi Water needs the operations for the same reason. Through showcasing its fight against illegal water connections, Nairobi Water's operations bestow an air of legality on its work in Kibera (Lund, 2021). This highlights how even state representatives must work to establish their legitimacy and claim to controlling resources and shows how legalization works to produce distinctions between the illegal and the legal. At the same time, demonstrations of the rule of law blend with norms that go against the very same notion. The following section examines how the illegal and the legal water blur and become dependent on one another.

Practical Water Law

Nairobi Water employees operating in Kibera know that the vendors get most of their water outside the chamber system. One Nairobi Water employee called the chamber lines a ‘hideout’ and said the vendors would have four to five unregulated lines in addition to their chamber lines. Nairobi Water employees are not only aware that water provision is dictated by pre-chamber logic, where most water is diverted from the grid, many field employees actively enable the system or are a direct part of it. Nairobi Water employees routinely visit the vendors for money ‘for lunch or tea’, something I witnessed when I helped Boniface out at his water point. This was confirmed by the other vendors as well as one Nairobi Water employee. Staying on good terms with Nairobi Water employees is crucial for the water vendor's business, as they can threaten to close you down otherwise. Everyone I met who had tried to get a chamber line knew that the official fee of KES 5,000 (approximately US$ 36) is only a fraction of the actual cost, as there is an additional fee of KES 30,000–40,000 payable to Nairobi Water employees and the chamber chairmen. The exact distribution of the money is not clear. Still, the water vendors and CBOs who had tried to get a chamber connection were certain that Nairobi Water employees and chamber chairmen were collaborating around the current chamber system. This is how the chamber system facilitates a relationship between Nairobi Water and vendors in Kibera through which a ‘practical water law’ is produced.

It is evident that Nairobi Water employees are aware not only of the vendors circumventing the chamber, but also of their active involvement in the functioning of the system. This dynamic seems to produce a localized form of legality. In my conversations with vendors, most of them spoke about ‘going the legal way’, which referred not just to going through the chambers but also engaging with individual Nairobi Water employees. As the water vendor Joseph explained: ‘To avoid losing money, you have to be legal. If you do anything illegal, you can't succeed. So, you have to talk to Nairobi Water to keep your line … It's all about a good relationship with Nairobi Water. You make sure of having a good relationship by giving them money’.14 At first, I was confused by Joseph's wording. He knew that I knew he was getting his water from unregulated lines. Was doing something illegal not at the heart of his whole business? I probed a bit: what does it mean to be legal? Joseph insisted, ‘If you pay for your line, you are on the safe side. Even your direct line [the unregulated lines diverting water illegally]’, he said. ‘You don't spend that much money without being genuine’.15 Having a chamber line as well as interacting with Nairobi Water employees and giving them money make the unregulated, direct water lines safe. Joseph is not the only one making the connection between ‘safe’ and ‘legal’. Other vendors would talk about ‘going legal’ as the same thing as ensuring your ‘safety’ or ‘security’, exactly as John does above, in talking about the chambers as security.

It appears that legality in this context is about reliability, that things will go predictably so your money will not be wasted. The water business in Kibera requires a fair number of initial investments, not just to obtain the chamber connection but also to buy pipes and pay for water connections to the grid. Such costs can be related to the installation, such as paying off policemen patrolling the area of the connection point, or costs for installation equipment and services. Water connections can, moreover, be bought from other vendors. Security is another constant cost of the water business. The monthly costs amount to around KES 20,000–30,000 (appr. US$ 125–190): ‘And you know “security” means Nairobi Water, the police, area leaders and boys in the area’.16 For these reasons, there is much money to lose if your business is suddenly shut down. Engaging with various state and non-state actors is a way to ensure that will not happen. The interactions with Nairobi Water create a structure providing assurance that your money will not be lost. When Joseph talks about ‘doing anything illegal’, he means going around Nairobi Water, going against the established structure; engaging with Nairobi Water equals security and legality. In other interviews, two vendors refer to water lines illegally connected to the grid as ‘direct lines from Nairobi Water’,17 highlighting the role of the utility in facilitating these. This shows how the parastatal utility (through its employees) has become a central part of water provision in practice, facilitating processes of illegalization and coproducing local legality and legitimacy, ultimately creating a ‘practical water law’.

Structures for water governance are produced in the everyday encounters between the employees of Nairobi Water and the vendors. The state water service provider and the non-state vendors are dependent on each other and their seemingly contradictory norms and governance structures. While reference to statutory law camouflaging certain aspects of the water sector and giving the operations an air of legality is central to this process, an air of illegality and unofficial codes of conduct are just as central to producing a ‘practical water law’. The next section discusses how the latter expands our understanding of law and legality in practice.

Camouflage, Legalization and Practical Illegality

Like Jusionyte's (2015) camouflage, reference to the rule of law is used to carry out activities which go against statutory law, and this process produces both the idea of the state and the law itself. Lund (2021) argues that the act or claim to a resource often comes before the actual rule or right, and formalization of a claim comes after attempts at legalization. This means that when claims are understood to be legal, they tend to have that effect. The chambers seem to produce such an effect of legality, mainly through facilitating interactions between the water vendors and Nairobi Water. Interacting with Nairobi Water and getting a chamber line is what it takes to be legal in practice. This produces a certain regularity and accountability whereby vendors are less likely to be shut down or lose their investments. In this way, giving an air of legality to the water sector in Kibera through installing the chambers has the effect of law, showing how the material, legal and institutional infrastructures tie into one another. The state and non-state water actors in Kibera are dependent on both camouflaging unregulated diversions of water and legalization, that is, tying their activities to statutory law. The water actors produce a functioning structure, a practical law, for water provision, making some features visible using the language of statutory law while camouflaging others that go against it. Using the language of statutory law creates an acceptable image of how the governance system works for the media, the state regulator and, according to several Kibera vendors, the utility company's headquarters.

Water governance in Kibera underlines how non-state actors shape processes of legalization and illegalization in practice (Thomas and Galemba, 2013). However, it also highlights that these processes are intertwined, and that legalization and law can simultaneously depend on practical illegality. This finding points to the conflict-ridden process of legitimization and the making of law (Lentz, 1998) and its multidirectional nature. While the appearance of legality and state law is crucial to how water is governed in Kibera, the system is paradoxically and completely dependent on practical illegality. The rule of law is not merely camouflaging illegal activities or acting as a means to present the claims to water control as legitimate. The rule of law, the appearance of Kibera's water sector operating according to state law and its definitions of legality, is intricately linked to these illegal activities. This reflects how the categories of legal/illegal are both completely entangled and dependent on a distinction in the way they are mutually constitutive.