Thursday 6 September 2018


Save the Buildings!! Or, How to Avoid Demolition?

This blogger's office is about 500 m from a mall that was built about two years ago, existed for two years and had tenants, and then was demolished over the last month. The demolition was conducted by NEMA, the Kenyan environmental protection authority, because the building was built on riparian land (i.e., built on or near a river). Several buildings in Nairobi have been similarly demolished or are about to be demolished.
Southend Mall, no more.
Photo Credit: Margaret Maina

Recalling a popular campaign from the 80s to "Save the Whales", this blogger got to thinking about creative ways of saving such buildings. (Please note, however, that this blogger is not arguing that illegal buildings SHOULD be saved, but only wondering how to do it creatively.) Finally, inspiration hit during an IP Law lecture to 3rd year LLB students!

The Copyright Act in Kenya provides for moral rights, including the right to prevent a work from distortion, mutilation, or other modification if prejudicial to the author's honour or reputation. So, perhaps a building owner wishing to avoid demolition should commission an artist to create a mural on a wall of the building. Demolition of the building and, consequently, demolition of the mural, would certainly be mutilation of the work. (Although, would it be prejudicial to the author's reputation or honour?  Hmmm.....) Then the building owner can request the author to sue NEMA for an injunction to prevent demolition!

Of course, NEMA could just cut the wall out of the building and deliver it to the author, so it would need to be a very carefully selected work of art. For example, a mural of a river running under a building - the author could claim that the location of the work provides critical context for the understanding of the work, thereby preventing destruction of the entire building.

This blogger loves the rule of law, and does not wish to justify illegal buildings, but would love to test the limits of copyright law and hopes that someone out there will try this approach......



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