Concern about the exercise of police powers in general and eminent domain in particular in relation to the management of natural resources is not a recent phenomenon in Kenya. The country environmental management history is replete with radical decisions of compulsory acquisition of land to create protected areas as the main basis of conservation policy and practice to-date.
These radical decisions of compulsory acquisition have engendered justifications on the basis of expected improvements in productivity and land-use planning in the interest of the public. While compulsory acquisition by its nature runs counter to the very foundations of the concept of property, especially in so far as freedom of use and full enjoyment are concerned, the general response of the conservation community has tended to support compulsory acquisition no matter its consequences and procedure as long as it is geared towards conservation.
However, an emerging crop of conservationists are beginning to break ranks with this traditional position by interrogating the manner in which eminent domain is exercised in the creation of protected areas. This interrogation finds credence not only in the arbitrariness with which compulsory acquisition tends to be done, but also in the failure of protected areas to deliver on their stated goals and promises. While the ideals of conservation remain a core concern of this crop of conservations, they assert the need to ensure due process in order to legitimize protected areas in the eyes of the communities whose benefit is usually invoked as the justification for compulsory acquisition.
It is in this regard that in 2005 ILEG undertook a study to establish how the power of eminent domain has been used in the process of establishing protected areas in Kenya.
The aim was to find and propose ways and means of how the process creating protected areas and the exercise of eminent domain authority can be democratized with a view to
The study examined the exercise of eminent domain in the creation of protected areas in Kenya. It used case studies to assess the law and practice of establishing protected areas. In so doing, it examined the specific step-by-step procedures for acquiring privately held land for protected areas and whether those procedures were followed in creating some newly established parks.