Introduction
Does the law exist for the purpose of furthering the ambitions of those who have sworn to uphold the law, or is it seriously to be considered as a moral, unifying force, the health and strength of a nation?
James Baldwin, No Name in the Street, 1972.
In the world of work, informality is the prevalent human condition. Broadly encompassing all those individuals who are working for without being formally employed by, the persistent rise of the informal economy has evolved into an important social justice concern on the global governance agenda.Footnote 1 Still, the linkage of law and informality seems illusory, a defining characteristic of the diverse and expansive informal workforce being their structured exclusion from the world of law. Unrecognized “worlds of work”Footnote 2 link into the formal economy through complex webs of local, horizontal, hierarchical, transnational, and regional productive relationships that have historically fallen outside the “legal sight”Footnote 3 of labour law. Worlds of informal work are made up of individuals who also fall outside dominant iterations of the urban public or “mainstream” society; these workers are the “constitutive outside”Footnote 4 of the central economic sphere.Footnote 5 Informal workers are not socially protected as workers, nor are they perceived as belonging to the “city” even though the worlds of work they shoulder are a deep and enabling part of the urban social fabric, across the economic spectrum. This spatial dimension to the struggles of marginalization and belonging is one that legal formalization agendas often override.
This article’s main contention is that informality is a global injustice rooted in the denial of informal workers’ spatial citizenship, meaning, in the subordination of their claims to the urban spaces and productive resources upon which their livelihoods depend. Under dominant legal empowerment approaches, informality is largely regarded as a social reality that may be woven into law through a generous extension of the latter’s protective mechanisms (“formalizing the informal”). The relationship between State space and informal space continues to be characterized in the context of regulatory void, where law is treated as a state-imposed ideal that should be extended to the informal, in the form of a combination of property rights, labour rights, and business rights.Footnote 6 It is argued here that we need to re-examine state-centric understandings of legal empowerment, as they undermine the brutal legacy of the state’s complicity in marginalizing the urban poor. Conventional framings of legal empowerment fail to give full consideration to the importance of identifying the voice and place of informality in shaping the legal world. Conversely, the idea of spatial citizenship, originating from Henri Lefebvre’s concept of a right to the city, offers an alternative to existing legal empowerment theories, in embracing informality as a counter-space of legal reflexivity that displaces dominant spatializations of the State over urban space and resources.
Section I discusses the limitations of formalization approaches and proposes spatial citizenship as an alternative grounded way to see informal worker empowerment. In Section II, the limitations of legal formalization discourse are addressed in the context of the globalized electronic waste (e-waste) value chain—the series of socioeconomic networks along which electronic commoditiesFootnote 7 are designed, produced, consumed, disposed of, de-manufactured, and re-commodified as gold, copper, silver, and other resources. Using the example of informal e-waste workers at Agbogbloshie (Ghana), one of many informal worksites along the globally-connected e-waste value chain, it is argued that waste law landscapes are fixed in an absolute form of State-centricism that works to propel economic over human health interests. The way that the world of waste has been brought into the language of law has greatly benefited the waste commodity, while the worker has been lost in translation. Government-led legal formalization agendas for waste stewardship have historically excluded informal labour as relevant stakeholders in waste management, opposing and even criminalizing their traditional social claims to waste. And as the value of waste rises, so does the tension between new environmental legalisms and the world of informal work. Section III looks at how Agbogbloshie’s informal workers have deployed their spatial citizenship to counteract their dismissal under the state’s environmental regulatory agenda. Agbogbloshie provides a vivid example of State law’s distortion, homogenization, and abstraction of space, and of its stern oppositional stance towards recognizing, or legitimating, differential spaces created by the informal working population. Through the acts of appropriation and participation, informal economy workers traverse these official legal orderings, and their spatial claims should be viewed as expressing nothing less than a “labour law emerging from the peripheries.”Footnote 8
1. Conceptualizing Informality in the World of Work
The concept of the “informal sector” first appeared in the early 1970s, in the writings of anthropologist Keith HartFootnote 9 and in the International Labour Organization (ILO) Report “Employment, Income and Inequalities”Footnote 10 detailing the findings of an employment mission in Kenya. Their formulations of an informal sector challenged the economic development paradigm of the mid-twentieth century, which saw the economy dichotomously divided as modern and traditional, respectively productive and unproductive.Footnote 11 A workforce that had, until then, remained institutionally invisible, devalued, and ignored in statistical measurements of the economy was finally acknowledged and framed as a source of wealth. In consequence, an alternative development paradigm was beginning to emerge in which the traditional problem of unemployment was recast in terms of the promise of the informal workforce. At the same time, early approaches taken by Hart and the ILO insisted upon the autonomy and separateness of informal and formal sectors and, in this way, were inconsistent with real-world situations, where formal and informal activities were not so easily segregated but, instead, revealed a deep interaction and mutual constitutiveness.Footnote 12 Leys’s views of the economy as a unified continuumFootnote 13 catalyzed neo-Marxist scholarship on informality, an approach that places emphasis on the structural nature of informal and formal sector relationships and the global interests that enforce and reproduce exploitative relations.Footnote 14 At the heart of the structuralist argument is that the informal sector serves to support the globalized capitalist structure of production.Footnote 15 From this perspective, commercial and employment regulations are essential to creating a more level playing field and equalizing relationships between large firms and subordinated informal producers and wage workers.
Conversely, economist Hernando de Soto spearheaded the view that informality is not the result of exploitative patterns of production, but a common-sense entrepreneurial survival strategy invoked by the poor to overcome the barriers to employment created by excessively bureaucratic government regulation.Footnote 16 From this perspective, solutions to the ever-growing problems of poverty and unemployment require deregulation of the economy, elimination of bureaucratic constraints and subsidies, along with the legalization and promotion of the informal economy through the formalization of property rights (the “deregulation, de-bureaucratization and privatization”Footnote 17 agenda). Although acclaimed by international financial institutions and policymakers worldwide, de Soto’s neo-liberal approach to bridging inequalities between formal and informal livelihoods by making property rights “universally accessible”Footnote 18 has equally been criticized for being empirically challenged and advocating an overly homogenous agenda of privatization and individualism that ultimately benefits the global financial elite.Footnote 19 Roy links the allure and illusion of de Soto’s ideas to his promise of wealth transfer through wealth legalization.Footnote 20 She notes that a fundamental distinction should be made between the right to participate in property markets (which is effectively what de Soto’s legalization agenda guarantees) and actual participation in these markets “in the real space of unequal cities” Footnote 21 in which property markets are not free as abstractly implied, but clearly monopolistic.
By the 1980s, understandings of the informal economy moved from “Third World” condition to “fundamental politico-economic process at the core of many societies.”Footnote 22 With the informal economy expanding not only in the developing world, but also in the cities of Europe and North America,Footnote 23 it could no longer simply be characterized as a lingering remnant of the past. The informal sector object was re-conceptualized as the process of informalization, whose central feature was identified as the persistent downgrading and vulnerabilization of labour in a vast realm of non-regulated income-earning activities.Footnote 24 Castells and Portes’s framing of the informal economy succinctly captured the heterogeneity and complexity of the phenomenon, while also centralizing the experience of labour, specifically, the “disenfranchisement of the institutionalized power conquered by labor, with much suffering, in a two-century old struggle.”Footnote 25
Today, the labour-based approach to defining informality is widely embraced.Footnote 26 Contemporary scholarly and institutional understandings of informality, led in particular by the ILO, WIEGO, and Chen,Footnote 27 not only leave behind Hart’s original, narrow conceptual focus on the enterprise, but further illuminate the employment-like relationships and institutional frameworks that restrict informal workers to highly localized spaces of global economic integration.
1.1 Labour Law and Beyond
While we need to consider the role of labour rights and the state in the social protection of the informal worker, it is also necessary to acknowledge the limitations of this approach, particularly as traditional labour rights frameworks are centered on the contractual employment relationship and consequently fail to recognize a number of productive relationships as forms of work. In most countries, far-reaching normative transformations would be needed in order for labour law regimes to come anywhere close to addressing the vulnerabilities of the working populations they have traditionally ignored.Footnote 28 Moreover, given that the world is incessantly urbanizing and, at the same time, poverty and informalization keep rising in these urban spheres, it is also important to consider the determinative role played by the spatial forces of urbanity under contemporary global capitalism in the proliferation of the working poor. Integrating the worker rights perspective with the broader body of literature on urban citizenship moves us towards a better understanding of how working people are enacting urban space and resources as a counterpower to the state’s exclusionary legal utopias, labour law included. Spatial citizenship evokes a collective claim to land, resources and recognition that is broader than what might be understood under a traditional labour rights framework.
Labour law approaches to informality that stay within the confines of formalization discourse remain silent on the prevalent global trend that can be defined as the use and interpretation of law for the urban exclusion of the working poor, and the diminishing sphere of labour law in the era of globalized urbanism. Chen notes that formalization may not be “feasible or desirable” for all categories of informality while outlining a comprehensive approach to the formalization of informal enterprises and informal jobs in which law assumes a regularizing and protective role.Footnote 29 The ILO has adopted a recommendation on “facilitating gradual transitions from the informal economy to the formal economy.” La Hovary cautions that the narrow and continued focus on formalization as an objective of the global economy must be questioned, particularly in an era in which the benefits of formalization have steadily, in some cases drastically, receded.Footnote 30 The challenges faced by migrant, racialized, and women workers reveal that precarity, insecurity, and social injustice persist in urban spheres despite formal recognition; the struggle for justice presents a deep and continuous challenge to labour law systems.Footnote 31
Scholars across disciplines have been looking at informality through the lens of formalization for decades, and yet formalization has proven to be less than empowering in the era of urbanities coopted by neoliberalization. Legalistic dispossessions of the working poor in the name of urban renewal constitute a systemic form of injustice that can be witnessed in developed and developing countries alike. As Harvey has noted, judgments of the Supreme Court of India have “rewritten” the Indian Constitution so that the State’s obligations to protect the well-being of the entire population and to guarantee rights to housing and shelter can be interpreted so as to deny compensation to displaced slum dwellers based on the “illegal” status of their occupancy, while the U.S. Supreme Court has interpreted the government’s right of eminent domain so as to allow the displacement of urban residents for “higher-order” and higher-taxed land uses like condominiums.Footnote 32
In this context, there is another way to see informality: it is also a kind of citizenship, a spatial demand that resists dominant legalities. Contesting the familiar legal frames through which we know informality alerts us to the fact that reducing law to something that has no spatial awareness dilutes the transformational potential of legal empowerment. At the heart of informal populations’ spatial struggle is a challenge to the dominant legal paradigms within which formalization proceeds, notably, neoliberally-framed conceptualizations of land and resource ownership.
1.2 Informality as Spatial Citizenship
Whether it be in the context of rights to labour, to land, or to resources, the political capacity to claim space plays a critical role in counteracting oppression and exploitation. In this regard, it appears that the shared narrative of the global informal workforce is one of invisibility, social exclusion, and marginalizationFootnote 33—in other words, the forced and excessive imposition of spatial restriction. In almost all states, the spaces of informal street vendors are constrained by local authorities, through the use of zoning laws. In cities such as New York and Shanghai, it is not unusual to see street vendors hurriedly pack their goods when police cars approach—reinforcing the invisible dimension of their livelihoods. The lack of public space, of the authority to make spatial claims, cannot be seen as other than a fundamental factor in the prevalence and growth of unprotected, undignified forms of work. Before states seek to “formalize the informal” or “transition the informal,” this prevalent human condition needs to be understood from the perspective of how the informal, the formal, and the state produce and transform spaces and relations of (in)justice. Here, the spatial theory of French philosopher Henri Lefebvre provides a valuable conceptual opening.
Lefebvre locates the struggle for space between the state and citizens in the concept of the right to the city. He designates the urban space as the “œuvre”Footnote 34 of its people, incapable of being reduced to a mere product of material organization.Footnote 35 For Lefebvre, space projects the state agenda as much as it embodies emergent political, emancipatory possibilities manifested through different, counter-hegemonic uses of space.Footnote 36 He envisions a right to the city, emerging from an individual’s entitlement to occupy urban space (the right to appropriation) and to participate in decision-making related to shaping the urban space (the right to participation), as a means to counteract the “discriminatory and segregative organization”Footnote 37 of urban reality. The right to the city insinuates a turn to the democratization of the urban sphere and transcends dominant conceptions of citizenship and individual property rights. Exceeding the Westphalian paradigm of enfranchisement based exclusively on nation-state membership, the right to the city is grounded in human agency. It furthermore challenges privatization and the absoluteness of individual ownership, in affirming the right of the “urban dweller (citadin)”Footnote 38 to physically occupy (inhabit) space. In many ways, this turn synergizes with contemporary labour movements that are increasingly centred on worker enfranchisement. Many recent and successful informal labour movements embody forms of democratic control that have little to do with classic Fordism, the most prominent example being the forming of worker cooperatives and their participatory role in local governance.Footnote 39
A spatial and urban formulation of citizenship challenges the limitations of traditional models of citizenship based on nation-state membership. One of these limitations is the boundary drawn between those individuals who belong as citizens, those who don’t, and who decides. As Benhabib remarks, “every democratic demos has disenfranchised some, while recognizing only certain individuals as full citizens. Territorial sovereignty and democratic voice have never matched completely.”Footnote 40 In a similar vein, Dhawan emphasizes the effect of the imbalanced workings of postcolonial political systems on the rural and urban poor.Footnote 41 Indeed, the relevance and meaning of national citizenship have come under greater scrutiny in an era marked by a vanishing public and private divide, and a mixing of governments and corporations in ways that drastically efface the neutrality of “public interest” agendas. Still, the power of citizenship is undeniable; it is an ideal perceived as communicating status, identity, rights, duties and commitments of “the highest political value.”Footnote 42 The national citizenship lens does not, however, prove to be particularly useful in addressing or even recognizing pervasive spatial inequalities suffered by society’s internally excluded groups in our epoch of neoliberal urbanism. The globalized reality of overcrowded poor working neighbourhoods, gentrification, and increasing homelessness suggest that space is perhaps the fundamental denial, with respect to informal populations, that statist visionsFootnote 43 do not necessarily make visible.
Holston introduces the notion of “insurgent citizenship” to describe oppositional stances to space and citizenship as conceived by the state, in the context of the political and social movements of Brazil’s urban poor. Ideas and practices of insurgency as a means of claiming rights and asserting legitimacy contest the “modernist political project” rooted in positive law doctrine, according to which “the state is the only legitimate source of citizenship rights, meanings and practices.”Footnote 44 Like Holston’s concept of “insurgent citizenship,” Bayat’s notion of “quiet encroachment” is meant to capture the “silent, protracted but pervasive advancement of the ordinary people on the propertied and powerful in order to survive and improve their lives.”Footnote 45 It vividly elucidates a specific strain of the spatial activism of marginalized groups. Both conceptions raise questions on how we establish and transform senses and practices of belonging, consequently disrupting dominant legalities. Bayat draws attention to the subversive power within the everyday practices of migrants, squatters, hawkers, and other marginalized groups whose “quiet and gradual grassroots activism tends to contest many fundamental aspects of the state prerogatives, including the meaning of order, control of public space, of public and private goods […].”Footnote 46
In the same vein as Holston’s and Bayat’s ideas, the notion of a right to the city brings to light the imminence of spatial recognition and inclusion in framing urbanities that embrace historically excluded groups, such as informal workers. The right to the city presents an opportunity to shift from the exclusionary logic of institutional urban governance towards a newly articulated, civil society–driven legal paradigm. At its core, informality does not raise the problem/solution of formalization, but instead recasts the concept of citizenship, of belonging. The informal world of work forces us to go deeper than the issue of formalization, into a re-questioning of the neutrality and limitations of fundamental legal concepts such as public space and private property. The following section illustrates this argument by looking at the global e-waste value chain, with a focus on urban e-waste labour (also referred to as “urban mining”), a rapidly proliferating, dangerous form of work linked into the hi-tech economy. E-waste management is an area of invigorated environmental law-making and regulatory responses aim to curtail the increasing pollution emanating from informal e-waste recycling. There is no doubt that emerging, sustainable waste governance paradigms will help diminish e-waste pollution and secure the economic outlook for state-of-the-art environmentally-sound multinational recycling firms. However, the economic and social prospects they carry for informal waste workers are less certain.
2. Law and Informality in the World of Waste Work
One of the consistent trends in the history of waste management has been governmental failure to foster and promote waste industries that are inclusive of informal waste workers. International institutions such as the World Bank have facilitated loans for the import of waste technologies from developed countries that not only prove to be ineffective, but also locally disruptive and socially unsustainable,Footnote 47 in some cases even financially “crippling”Footnote 48 the municipalities they are intended to help. Waste workers have historically been treated as the most inferior segment of the informal economic sector, commonly suffering discrimination on the multiple levels of race, ethnic or national origin, administrative status, gender, caste, and indigeneity.Footnote 49 Informal waste workers contribute immensely to society by filling the void left by public health authorities in waste management, and yet they have been continuously denied worker status, rarely recognized as equal stakeholders in governance, harassed and intimidated by local governments, and outcast from official waste management plans.Footnote 50
In the hi-tech generation that is characterized by more lucrative and environmentally hazardous waste streams, dangerous forms of informal waste work (centred on recuperating precious resources from electronic wastes) have emerged in developing countries, where most of our globally-generated e-waste is processed.Footnote 51 While the globalized e-waste recycling chain constitutes a multi-billion dollar industry, the economic gains have been overshadowed by concerns over rampant illegal e-waste trading, environmental degradation and labour exploitation.Footnote 52 Informal e-waste workers constitute the highest profile and most controversial actors of the global e-waste crisis, even though they represent only one point along a globalized trade chain. This chain also involves electronics retailers, consumers, formal waste collectors, trading brokers, manufacturers, international metals dealers, and refiners in other parts of the world. Informal e-waste worksites reflect the stage of the chain at which profits are low, health risks high, and occupational resources few.
Responding to the global environmental and human health crisis that has materialized from hi-tech consumption, contemporary waste paradigms require governments to ensure the environmental stewardship of e-waste, in part, through the greater formalization or regularization of waste management and recycling industries. However, as exemplified by Ghana’s new e-waste legislation, State-led formalization efforts appear to be focused mainly on safeguarding the economic and environmental potential of e-waste, while further outcasting informal economy workers. Despite its stated concerns for environmental and human health protection, the emerging regulatory framework is centred upon the waste object, not the waste worker. This exclusionary e-waste regime is a pragmatic example of how legal formalization agendas may conflict with the needs and interests of informal economy workers, opposing their traditional political, social and economic claims to waste resources. The discussion below of Ghana’s new e-waste legislation shows that, as long as legal regimes consider informal spheres of work as sites of law enforcement without treating them as sites of law-making, juridification is unlikely to ameliorate the socio-economic conditions of informal work. Regulatory efforts to “green” the economy, protect the environment, and formalize the e-waste sector cannot lead to socially or environmentally just outcomes when they fail to integrate and build upon existing realities.
2.1 Agbogbloshie Workers: Spatial Reality and Legal Invisibility
Agbogbloshie is an urban periphery of Accra, Ghana. It is also a transnationally-linked e-waste hub coiled into the global trade of used electronic goods. The informal e-waste sector located at Agbogbloshie began to gain major global public attention in 2008 following the publication of a series of Greenpeace reports on the international e-waste trade.Footnote 53 In comparison with other existing informal e-waste worksites in Asia and Africa, Agbogbloshie is amongst the more prominent, with scientific literature on informal e-waste processing dating back at least a decade.Footnote 54 In Accra alone, the informal e-waste sector employs 4,500 to 6,000 individuals, out of which at least 3,000 recyclers are based in the Agbogbloshie scrap yard.Footnote 55 Although not officially recognized, the national economic contribution of Ghana’s informal electronics refurbishing and e-waste recycling sectors together is estimated at somewhere between US$105 to 268 million.Footnote 56 Like traditional forms of informal waste work, e-waste recycling is primarily a livelihood strategy of the urban poor. E-waste collectors and recyclers are predominantly men, while women work in the scrap yard selling tools, water, and food.Footnote 57
With regard to working conditions, the Agbogbloshie e-waste sector is commonly understood as embodying oppressive work realities (such as poor occupational health and safety, no social protection, and exposure to toxics) for which national law proposes no remedies, no prospects for justiciability. Certainly, we can point to treaties in the international human rights and international labour law realmFootnote 58, and even Ghana’s expansive ConstitutionFootnote 59, that oblige Ghana to ensure the realization of citizens’ fundamental rights to health and to decent work in a healthy environment, yet the obstacles informal workers face in realizing these rights are numerous and include the lack of clarity on how labour law protections might apply to people outside a standard employment arrangement, municipal bylaws that curtail people’s rights to exercise certain economic activities (for example, street vending and waste collection), and the perceived illegal status of some informal workers as squatters.
Studying Agbogbloshie provides an understanding of the actors and interests entwined in the everyday and faraway governance of one place, or node, along the global e-waste chain, from informal waste collectors to international firms. Informal e-waste workers are often perceived as being engaged in illegal, detrimental activities, yet they are intimately linked into the formal urban fabric via consumers and businesses from whom they buy e-waste, and traders to whom they sell their recovered materials. In the case of Agbogbloshie, informal e-waste collectors are subject to constant harassment, hostility, and seizure by municipal authorities even though they are directly linked to actors in the metals-buying industry, to whom they trade “up” their products, and who, in turn, link upwards in trade, to foreign processors and refiners.Footnote 60 Informal e-waste dismantlers (who are mainly internal migrants from Northern Ghana) sell materials recovered from e-waste to Nigerian middlemen directly onsite, and in turn, these intermediaries trade with businesses located in the coastal city (and export processing zone (EPZ)) of Tema, from where the materials are exported to China, Dubai, and other countries.Footnote 61 Many e-waste recycling firms based in the EPZ are foreign entities, and the most prominent firms are registered as Indian companies.Footnote 62
These global e-waste networks confound the theoretical underpinnings of concepts classically used to analyze commodity chains, such as the global production chain and the global value chain, as these frameworks have never ventured into the post-consumption economic life of products.Footnote 63 It is well understood that via multiple layers of actors, the labour of informal e-waste workers located in Agbogbloshie eventually feeds into global manufacturing circuits. Moreover, it is estimated that 95 percent of the e-waste generated in Ghana is managed through the informal economy.Footnote 64 Ghana’s new e-waste legislation seeks to interrupt this spatial reality, in setting out to alter the flow of wastes while evading the needs and interests of this existing workforce.
2.1.1 E-waste Legislation
Five years after releasing its first draft legislation on electronic waste, Ghana adopted the Hazardous and Electronic Waste Control Management Act (2016).Footnote 65 The new e-waste regime lacks any coherent linkage to the existing waste management system in which almost all e-waste generated is collected by the informal sector. The legislation aims to protect public and environmental health from the hazards of e-waste, but does not concern itself with the inclusive dimensions of sustainability or the social protection of the informal sector.
Apart from clarifying that a State-led e-waste collection and recycling system will be established and funded through new levies introduced on a range of e-products entering the Ghanaian market,Footnote 66 the new e-waste law provides little insight into the operational aspects of permitting, collection, or recycling. It imposes on manufacturers, distributors, and wholesalers of e-products a duty to take back equipment they have sold at end-of-lifeFootnote 67 and obliges persons disposing of equipment to ensure that disposal is carried out in an environmentally sound manner.Footnote 68 These provisions appear to ignore the actual e-waste market dynamics in Ghana, where a dominant role is played by informal e-waste workers in collecting equipment from households and businesses at end-of-life. Rather than enabling the formal recognition and participation of informal waste collectors, the legal framework that has been imagined maintains the informal e-waste sector in invisible and insecure arrangements along the e-waste value chain. Plans for a state-led management system (from e-waste collection to processing) provide no clarity on potential opportunities for the legal recognition of small-scale informal collectors who currently dominate the system. Moreover, law enforcement officers are granted a “power of search, seizure and arrest”Footnote 69 over any person or place suspected of keeping or transporting hazardous wastes. Spaces that fall under the scope of this provision include vehicles, lagoons, ponds, landfills, buildings, structures, storage containers, and ditches.Footnote 70 This vaguely configured broad authority further legitimizes the persecution of informal waste collectors, who are already subject to constant harassment, hostility, and seizure by municipal authorities. The new legislation is likely to further drive the informal sector into places of invisibility that are characterized by environmental and social risk.
An historically-informed reading of Agbogbloshie helps us understand the determinative role played by the denial of urban space in the proliferation of precarious, exploitative, and dangerous forms of labour, such as e-waste processing, and the complicity of the legal regime in this denial. Through the deployment of administrative and judicial strategies that restrict urban inhabitation and participation rights, State authorities have continuously reinforced the precarious and dangerous everyday life and work experience of the Agbogbloshie community. Informal e-waste workers are a new sub-section of a marginalized population that environmental legislation and “sustainable development” planning have, for decades, excluded from their realms of social protection and economic benefit.
3. Informal Workers and Legal Utopias: Agbogbloshie’s Legacy of Spatial Struggle
Struggles over Agbogbloshie and its adjacent area, Old Fadama,Footnote 71 between official authorities and residing communities date back to the colonial period and follow through to the current era. The local and national media, and even governmental authorities, commonly refer to the entire area derogatively as “Sodom and Gomorrah,” indicative of the social stigma and lawlessness attached to the population that works and resides here. Waves of internal migration to the area began in 1991, as a direct result of the Accra Metropolitan Assembly’s (AMA) urban governance agenda, which included “decongestion exercises” to eliminate street hawkers and other informal traders from Accra’s central business district.Footnote 72 The government’s implicit acceptance of informal settlement in Agbogbloshie and Old Fadama as part of its solution to “modernizing” the capital city came to an end with the realization that the coastal and immensely polluted parcel of land could be rehabilitated and developed. In the late 1990s, the Government of Ghana, supported by international partners, embarked on the multimillion-dollarFootnote 73 Korle Lagoon Ecological Restoration Project (KLERP) to rehabilitate the lagoon, restore its natural ecology, and develop it into a “major tourist attraction.”Footnote 74 This project has come into direct conflict with the spatial citizenship of the informal communities in Agbogbloshie and Old Fadama. In this cosmopolitan struggle, official authorities have used environmental, economic, and legalistic arguments to justify the eviction of so-called “illegal” communities.
Even before informal settlement in the area, the Korle lagoon was highly polluted due to decades of uncontrolled waste dumping to which the AMA silently acquiesced, and even contributed directly through its lax enforcement of environmental legislation and detrimental siting of waste dumps.Footnote 75 Despite clear evidence that the Korle lagoon’s “death” resulted from several decades of governmental mismanagement of industrial and municipal wastes, the informal settlement of “Sodom and Gomorrah” was pinpointed as the major source of pollution.Footnote 76 There has never been any attempt by the government authorities implicated, or their industry partners, to quantify the pollution load of the informal settlement in comparison with the pollution load of formal institutions located in the area. Nor has there ever been any serious consideration of socially inclusive alternatives to eviction, even though a study commissioned by the Geneva-based NGO Centre on Housing Right and Evictions (COHRE) demonstrated that: (1) the successful rehabilitation of the lagoon was not dependent upon the eviction of Agbogbloshie residents and (2) the Environmental and Social Impact Statement (conducted by a Belgian consulting firm) upon which the KLERP project was based had been carried out in a manner that unjustly responsibilized the Old Fadama community for the extensively polluted state of the lagoon.Footnote 77
Having been served with its first eviction notice in 2002, the Old Fadama community, assisted by the Accra-based NGO Centre for Public Interest Law (CEPIL), legally challenged the eviction notice, arguing that because their claims for resettlement or compensation had been ignored, the eviction violated their fundamental constitutional human rights to life and to human dignity, as well as their rights to work, shelter, and housing.Footnote 78 They also invoked the South African Grootboom case in support of their application, a groundbreaking decision in which it was essentially ruled that the constitutional rights of squatters could not simply be undermined due to the illegality of their status.Footnote 79
The Accra High Court upheld the eviction, insisting that as “trespassers,” the Old Fadama community held no rights to the land and by that rationale they were not entitled to resettlement or compensation. The Court compared the relationship between State authorities and Old Fadama citizens as one of “licensor and licensee.”Footnote 80 Using this analogy drawn from private law, the Court effectively legitimized the government’s decision to suddenly halt its decade-old permissive approach towards informal settlement in Old Fadama. The Court’s conclusions ignore the fact that the relationship between public authorities and citizens, with respect to the protection of constitutionally guaranteed fundamental human rights, is not the same as the relationship between equal contracting parties under private law. Using the language of “invasion” and “lawlessness” and referring to Old Fadama citizens as “wrongdoers” and “nothing but trespassers,” the Court decision denied the living law that unfolded over several decades under government acquiescence to give rise to a vast and highly organized informal settlement of tens of thousands of people actively contributing to Accra’s economy. The Court also dismissed the applicability of Ghana’s Limitation Act (1972) under which Old Fadama citizens may have acquired rights to the land through the doctrine of adverse possession.Footnote 81
With their “illegality” having been reinforced by the judicial system, the Old Fadama community extended their spatial citizenship practices to the transnational level, aligning themselves with COHRE, Slum Dwellers International, and UNHABITAT, and creating the Slum Union Federation of Ghana. This eventually compelled the government to come up with a resettlement and compensation plan. In 2006, the Government announced that it had secured 10 million euros from the KBC Bank of Belgium to resettle the community as “necessary extension work” to the KORLE project.Footnote 82 However, the resettlement process itself has triggered a new wave of contested displacements,Footnote 83 and the Old Fadama community has only been minimally engaged in determining the resettlement process, due to structural obstacles both within the community and outside it.Footnote 84
3.1 Spatializing Law from the Ground Up
Over the last decade, the government’s position on Agbogbloshie and Old Fadama has arbitrarily fluctuated, going from various attempts at forceful eviction and demolition through “dawn sweeps,” to advocating for a more “humane” stance through negotiation and participation in decision-making,Footnote 85 and back again to renewed campaigns for eviction and swift relocation.Footnote 86 All the while, the illegal status of the growing community and their permanent states of transiency and insecurity remain unchanged.Footnote 87 The State refuses to acknowledge the spatial citizenship of the community by denying them essential public services like sanitation, waste disposal, electricity, and water. The community is entirely self-reliant in these areas.Footnote 88 While some slums in Ghana have been granted legal recognition and transformed into municipalities, the looming profitability of the coastal space of Agbogbloshie and multimillion-dollar foreign investment into the area have destroyed any such inclusive possibilities for the residents of Agbogbloshie. It is against this backdrop of an intense battle for space and political recognition that an informal e-waste industry has emerged.
E-waste recycling, which is the most recent and lucrative world of work undertaken within this contested public space, adds a new dimension to the spatial citizenship struggle. Agbogbloshie’s e-waste workers’ effective command over urban waste streams directly challenges the State’s new e-waste management agenda. In the area of e-waste collection, the informal workforce possesses greater skill, knowledge, and access than the local authorities or formal firms, strengths it has developed over time, filling the void left by the public authorities in waste management.Footnote 89 The Accra Metropolitan Assembly seems willing to treat the e-waste scrap yard as a temporary semi-formalized workspace, and while the arrangement benefits authorities in terms of rent collection and revenue generation, this form of “recognition” does not translate into anything beyond a highly spatially restricted and precarious form of urban citizenship for the informal recyclers.
An informal collective of e-waste recyclers, known as the Greater Accra Scrap Dealers Association (GASDA), is based in the Agbogbloshie scrap yard and possesses a membership of at least 3,000 individual recyclers, half of whom work in e-waste recycling, the other half in automobile dismantling and recovery.Footnote 90 Each e-waste recycler typically employs three to four individuals, including e-waste collectors who are paid to go around the city gathering e-waste.Footnote 91 Although the GASDA is widely mentioned in the literature as representing informal e-waste workers and advocates on their behalf in the media and in relations with official authorities and NGOs, literature on the scope of the association’s activities is in early emergence. According to Okolo,Footnote 92 the GASDA collects dues from its members, represents the latter in disputes with local authorities, and transfers fees on members’ behalf to the Accra Metropolitan Assembly (AMA), ensuring their right to operate on the government-owned land. Grant and Oteng-Ababio note that the GASDA offers a microfinance scheme for emergencies or business expansion, and more importantly, the association provides solidarity and much needed protection against “intimidation, physical abuse, and excessive exploitation.”Footnote 93 In addition to offering the vulnerable e-waste workforce with a social network and some degree of social protection, the GASDA fulfills a de facto governance role in the Agbogbloshie scrap yard, as a gatekeeper through whom access to the space must often be negotiated, and as the unified voice of recyclers who inhabit the space.
In October 2014, the US-based Blacksmith Institute for a Pure Earth, in collaboration with local NGO Ghana Green Advocacy and the GASDA, launched a pilot project at Agbogbloshie consisting of a mobile recycling facility that offers an environmentally safe alternative to the burning of cables for copper recovery. The facility is located on land that has been donated for use by the National Youth Authority (a governmental body that holds ownership of the land on which the scrap industry is located). The project is led by GASDA’s “vision to promote Agbogbloshie as a recycling knowledge centre by setting up a model e-scrap facility that protects livelihoods while minimizing the adverse health and environment risks of scavenging and exposure to toxic substances.”Footnote 94 GASDA co-finances the facility and employs two full-time trained workers to safely dismantle collected materials that are brought in by informal collectors and recyclers (who would otherwise resort to burning). Footnote 95 The facility pays for the materials according to a pricing structure determined by the GASDA and local NGO GreenAd Ghana. There does not appear to be any sort of vertical integration of the informal collectors that bring their materials to the facility. It also appears that collectors themselves do not participate in determining the pricing structure. In this sense, the pilot project does not seek to challenge the invisibility of the broader workforce of informal e-waste collectors so much as it aims to end pollutive work practices. While the technical and operational upgrading of Agbogbloshie’s e-waste sector that is being led by the GASDA and its international and local partners is clearly beneficial to the community of e-waste recyclers, it is uncertain how these initiatives transform the Government’s traditional politics of non-recognition of the informal sector, particularly in light of newly adopted national e-waste legislation that seems to exclude informal sector interests altogether.
In 2016, Ghana’s EPA announced plans to strengthen the country’s capacity to manage e-waste sustainably by establishing e-waste collection points and treatment facilities through funding received by the European Union, and implementation cooperation from UNEP and the University of Cape Coast. The EPA estimates that the implementation of what is known as the HANISA e-waste model will create 320 jobs in e-waste management.Footnote 96 A close study of the practical operationalization of this and other pilot e-waste management initiatives that aim to integrate the informal sector into sustainable recycling chains will, over time, provide us with critical insight into the meaning, actualization and evolution of legal empowerment in the context of informal e-waste workers. It is clear though that the new e-waste legislation creates new legal powers and entitlements that essentially all belong to the state. The main concern with this is that historically, the state and its industry partners have preferred to conceptualize and implement formal waste systems that have tended to disempower urban poor communities that make up the majority of the waste workforce.
Conclusion
Ghana’s e-waste law is marked by absences, gaps, and silenced ‘waste chain’ relationships. Shifting perspective from the closure of conventional law as imagined by the state to the more fluid and inclusive reality of space allows us to move beyond textual rules into the emergent materiality of the e-waste chain, as it unfolds in spatial arrangements and interactions. The history of the space of Agbogbloshie—which today, constitutes Ghana’s largest site of informal e-waste processing—shows that both strategic environmentalism and the deployment of the notion of “public interest” have long been utilized by official authorities to advance an exclusionary urban development agenda. The urban space of Accra and its peripheries, as conceived by the State, have never included a legal space for the informal working poor. Instead, environmentalism and urban beautification have served as motivational bases for the government to repress informal populations’ right to inhabit and to use the resources of the places where they live and work, in other words, to curtail their spatial citizenship.
Critical labour law scholarship reminds us to approach formalization carefully so as not to undermine the politicized nature of place, the entrenched marginalization of certain social groups and occupations, and the pervasive uncertainty of the labour market that condition the world of work.Footnote 97 Rittich notes that “[d]ifferent actors and institutions mean different things by formalization and they expect to advance different—and sometimes incompatible—objectives from formalization.”Footnote 98 The living and work conditions of Agbogbloshie’s informal traders illustrate the inherent limits of the formalization thesis in a context of unequal urban citizenship.
Although the people inhabiting this space are de jure citizens of Ghana, their migrant identities, ethnicity and severe poverty lead to an inegalitarian citizenship that is legitimized through the Court, the popular media, and government policy. In these circumstances of systemic urban injustice, legal formalizations led by the state do not necessarily translate into secure livelihoods.
None of the current strategies to formalize the Ghanaian e-waste sector question the existing power relations in the global recycling chain. While they aim to eliminate the most serious occupational health hazards, current initiatives do not alter the socio-economic insecurities of the informal worker. In essence, the e-waste continuum does not change. Perhaps it filters resources and pollutants through a more ordered, transparent, and consolidated “green” channel, but the volatility of the continuum remains, as does the subordinated position of e-waste collectors at the bottom of a recycling chain that functions according to pure market dynamics. Suggested models to link the informal and formal sectors, whereby the informal sector collects and segregates wastes before handing them over to the formal sector for further processing, escape the more fundamental issue of the precarious, insecure, and arduous nature of informal waste work. After all, the only legitimate expectations one can hold regarding society’s daily generation of waste are uncertainty and chance. Current formalization efforts do not emancipate informal economy workers from this reality.
While the conceived law of the State imagines the population as illegal, the lived law of Agbogbloshie contests this categorization. The people who live and work in Agbogbloshie challenge the closure of the legal system and the normative space of the State; their spatial presence and resistance have forged a legal counterspace to the law of the state. The resistant nature of their spatiality transgresses the legal order, forcing governments to enter into conversation with them, despite the law.
The possibility to transform work into alternative, oppositional forms of productive solidarity depends largely, if not exclusively, on peoples’ access to, and control over, the land and resources on which their livelihoods depend. In this way, the concept of spatial citizenship provides an avenue towards another kind of urbanism, one that is embedded in the autonomy of people and place, rather than in the classical notions of industrial citizenship and the employment relationship. These latter concepts do not always correspond to the realities of the informal world of work. Nor do they seek to “assert the collective œuvre over the state’s strategic drives for urban competitiveness,”Footnote 99 as do “quiet” and “insurgent” movements of marginalized working people.
In the dynamic interplay between law and informal work in Agbogbloshie, space is simultaneously an ideological instrument of the state and a means of social agency and social resistance, at once “part of the state’s productive machinery of social regulation […] and a site of political struggle and creative appropriation.”Footnote 100 The spatial perspective provides a portal into the material reality of pervasive inequality that affects the informal workforce, highlighting problematic conditions and oppressive relationships that formal legal perspectives have traditionally neglected, or at least kept at jurisdictional distance. It is only by taking into account this spatial knowledge that the legal pursuit of formalization has any hope of contesting existing monopolies of power and the dispossession of the internally excluded working poor, whose labour lies at the core of our global economy.
