Archive for the
‘Land & Natural Resources’ Category

Topics

Project Overview

Capacity Building Seminar for Turkana County Members of County Assembly (MCAs)

Research on oil and gas governance framework in Kenya

Raising public awareness on critical extractive sector issues

Enhancing lawyers’ capacity to deal with extractive sector issues

Project Overview

Kenya is poised to become a key producer of oil and natural gas as well as other extractive resources. This follows the discovery of oil, natural gas and other mineral deposits in different parts of the country, and ongoing active exploration for more resources. However, concerns continue to be raised as to whether extracting these finite resources will lead to meaningful development for the country and her people, or plunge the country into the proverbial “resource curse”.

This project, supported by the MacArthur Foundation, seeks to ensure that the impending oil boom benefits the local communities in addition to ensuring sound environmental practices and the country’s economic development. The project is titled “Capturing the Promise: Securing Environmental Justice and Participatory Governance in Kenya’s Oil and Extractive Sector”. It is implemented in Turkana County, but with a nation-wide component.

 Activities:

  • Research on national and international legal and policy framework for the extractive sector governance
  • Capacity building/training for government, civil society and communities on the legal and policy issues of the extractive sector governance
  • Holding dialogues and policy outreach with different government officials to promote good governance in the extractive sector

Capacity Building Seminar for Turkana County Members of County Assembly (MCAs)

From 11th-12th November 2013, ILEG, in partnership with Friends of Lake Turkana (FoLT) conducted a two-day capacity building seminar for members of Turkana County Assembly. The focus of the seminar was to enhance the capacity of Turkana County Assembly members, with special focus on their legislative and oversight role in governance of land and natural resources. Renowned natural resource governance experts from Kenya and Ghana shared their analytical insights with the MCAs. They presented suggestions on how the MCAs can improve their performance on legislation and oversight especially in relation to land, oil and other natural resources.

Background to the meeting

In March 2012, Kenya announced the discovery of commercially viable oil deposits in its Turkana basin in the Northern part of the country, by the British company Tullow Oil. Since then Tullow has discovered more oil deposits with the company’s current estimates of estimated reserves standing at 600 million barrels. The oil exploration and extraction and the accompanying infrastructural development no doubt holds a promise for economic liberation and development of the hitherto marginalized county as well as the country. Indeed, the Kenyan government is keen to position the oil and extractive industry as a key driver of economic growth in line with the country’s development blue-print, Vision 2030. But these important discoveries have brought to the fore a number of key concerns including environmental impacts; irregular land transactions; corruption in awarding prospecting and mining licenses; conflicts between communities and mining companies; lack of transparency etc.

Unless these critical social, economic and environmental issues are carefully addressed, there are justifiable fears that the discoveries could be a source of conflict and lead to increased poverty among the host communities, a situation that has been termed the “resource curse”. In response to these concerns, ILEG is in the process of implementing a project aimed at promoting sustainable and transparent governance of the extractive sector in Kenya. The project, which is part of a wider project involving six other organizations, and supported by the MacArthur Foundation, involves research, policy advocacy and capacity building for communities, Civil Society Organizations and government officials. One important component of the project involves holding trainings and consultative meetings and engagements with different stakeholders in Turkana County. This particularly seminar was the first of those meetings.

The County Assembly was chosen for this first meeting due to the important role they play as the representatives of the local people, as the county legislators and in providing oversight over management of the County’s resources.

Below is the program agenda for the two-day seminar, where you may download presentations of the various presenters, as well as the final report.

Day One: 11th November 2013

Introduction and welcome remarks

  • Ikal Ang’elei
  • Hon. Geoffrey Kaituko

Challenges facing the county assembly in their oversight role in county governance

  • Hon. Geoffrey Kaituko

Legal and Policy Context for Oil and gas in Kenya

Energy, water and natural resource reforms and linkages to the extractive industry

  • Prof Patricia Kameri-Mbote

Ghana experiences with oil and gas in international context: Lessons for Turkana County government

 Day Two: 12th November 2013

Oil revenues and other county revenues: the oversight role of the county assembly

  •  Dr Mohamed Amin Adam

Strategic planning for assembly members’ engagement on extractives and natural resource

  • Ikal Ang’elei

Next steps

  • Ikal Ang’elei

 The full workshop report is available here

 

 Research on oil and gas governance framework in Kenya

ILEG has conducted policy research on oil and gas governance framework in Kenya. The research is a key component of a wider initiative supported by the MacArthur Foundation to promote sustainable governance of oil and gas in Kenya. The research component involves developing two research papers and a number of policy briefs, with the ultimate aim of providing knowledge and information for capacity enhancement and evidence-based advocacy. Consequently, two research papers have been developed and subjected to a peer review and validation process. While not officially published yet, both papers have been disseminated widely at trainings and policy dialogue forums, and also through emails to key stakeholders and policy makers. They have helped provide a clear status on the legal and policy landscape and provided ILEG with scientific information to help support different actors in their engagements on legal and policy reform, capacity building, awareness creation and stakeholder engagement around issues of oil and gas at the national, regional, local and even international level.

Summary of the research papers

The first paper gave a critical analysis of Kenya’s legal and policy framework relevant to oil and gas, with recommendations on how to improve the sector’s governance. It identified several gaps. First, there is no clear policy giving the government’s objectives and action plan for the sector. Secondly, the sector’s legal regime is outdated and does not adequately address critical sector issues such as equitable benefit sharing, community and environmental rights, transparency and accountability and local content development. Thirdly, the ongoing review of Kenya’s extractive sector-related legal and policy framework needs more coordination among different ministries and arms of government to avoid conflict, duplication and multiplicity of laws. Fourthly, there is an acute knowledge gap among key stakeholders on the technical and governance aspects of the upstream oil and gas, being a nascent sector in Kenya.  The paper made a case for addressing these issues as part of the reforms to the legal and policy framework which was being undertaken in earnest in 2014

The second paper was a comparative analysis of international best practice in the sector, to help Kenya draw lessons from countries with well managed extractive sectors and avoid potential pitfalls. The paper gives useful lessons from Ghana, Botswana, Nigeria and Norway but warns Kenya to consider her unique circumstances and avoid blanket application of any country’s policies or principles. The paper presents the Niger Delta crisis in Nigeria as a classical lesson on how lack of transparency and accountability and an exploitative relationship between oil producing communities on one hand and the multinational oil companies and the state on the other can lead to natural resource curse. In Ghana, it identifies lack of clarity in petroleum policy direction, slow momentum in development of legislative framework and institutional overlaps, as some of the issues derailing the country’s otherwise promising oil and gas industry. Botswana’s innovative mineral taxation regime has led to a considerable extractive industry success. Transparency; public participation; political will; the rule of law; and developed democratic institutions have contributed to Norwegian petroleum sector’s success.

The final research papers will be uploaded here upon official publication and launch. Below are the research consultants’ and main discussants’ presentations on the papers during the final peer-review on 16th June 2014 at Sarova Panafric Hotel, Nairobi.

Presentation: Legal and Policy Framework for Oil and Gas Governance in Kenya

  • Dr Stephen Anyango, Senior Lecturer, Centre for Advanced Studies on Environmental Law of Policy (CASELAP) Download presentation 

Discussants’ presentations on the paper on Legal and Policy Framework for Oil and Gas Governance in Kenya

Presentation: Comparative Analysis and International Best Practices for Oil and Gas governance

  •  Dr Collins Odote, Senior Lecturer, Centre for Advanced Studies on Environmental Law of Policy (CASELAP) Download presentation

 Discussants’ presentation on the paper on Comparative Analysis and International Best Practices

 

Raising public awareness on critical extractive sector issues

Public awareness is a critical pillar of effective citizen participation in, and ultimately, sustainable governance of natural resources. Awareness creation is even more critical in the extractive sector, given that the sector’s highly technical nature and the fact that it is not well developed in the country. ILEG understood these realities, and initiated campaigns to educate the public, stakeholders and policy makers particularly on the legal and policy aspects of oil and other extractive resources in the country. This was accomplished through policy briefs, newspaper commentaries, press interviews and presentations at public forums. The institute developed two policy briefs based on analytical insights from researches it conducted. The first policy brief gave recommendations for improving the country’s extractive sector-related legal framework while the second one gave recommendations on how to ensure a good benefits sharing regime. The policy briefs were disseminated widely at trainings and policy dialogue forums, and also through emails to key stakeholders and policy makers.

In addition, from the second half of 2014, ILEG’s senior researcher Dr Collins Odote became a regular contributor in the Business Daily, the premier regional business newspaper in East Africa. Dr Odote’s weekly column focusses on promoting sustainable governance of Kenya’s extractive sector. The platform was used to share some of the findings from ILEG’s research to a wider audience. Further to providing information and raising public awareness, the articles led to many inquiries for the research reports; requests for presentations at national and local level meetings on the extractive sector; and incorporation of some of the proposals in policy initiatives. Other than the Business Daily, the articles are also disseminated through ILEG’s website and on the Information Centre for Extractive Sector (ICES) website.  Some of ILEG’s partners like Environmental Law Alliance Worldwide (ELAW) have also used some of the information from the publications in their own publications.

The policy briefs and Dr Odote’s columns have greatly contributed to educating the public and policy makers on sustainable extractive sector governance, therefore contributing immensely to the realisation of the targeted outcomes of increased participation by communities in extractive sector policy discourse, contribution to the legal and policy formulation and putting a spotlight on the sector.

Below are internet links to some of Dr Odote’s articles on extractive sector as published in the Business Daily in 2014:

Extractive sector can learn from EAC dialogue, By Dr Collins Odote, Posted on the Business Daily on December 14, 2014

Conservation, exploration balance thin, By Dr Collins Odote, Posted on the Business Daily on December 7, 2014

Scale up human resource capacity, By Dr Collins Odote, Posted on the Business Daily on November 30, 2014

Let’s tax extractive industry prudently, By Dr Collins Odote, Posted on the Business Daily on November 23, 2014 

Enhance civil society role in mining sector, By Dr Collins Odote, Posted on the Business Daily on November 16, 2014

Stop multiplicity of laws in mining sector, By Dr Collins Odote, Posted on the Business Daily on November 9, 2014 

Balancing development and social needs, By Dr Collins Odote, Posted on the Business Daily on November 2, 2014

Why do communities always feel cheated?, By Dr Collins Odote, Posted on the Business Daily on October 26, 2014

Prioritize capacity building in oil sector, By Dr Collins Odote, Posted on the Business Daily on October 19, 2014

How to sustain role of extractive industry, By Dr Collins Odote, Posted on the Business Daily on October 12, 2014

Why access to information law is vital, By Dr Collins Odote, Posted on the Business Daily on October 5, 2014 

Let’s manage extractive industry prudently, By Dr Collins Odote, Posted on the Business Daily on September 28, 2014

Kenya need not suffer oil, minerals curse, By Dr Collins Odote, Posted on the Business Daily on September 21, 2014

 

Consultative Meeting with Turkana County Leaders and other stakeholders on sustainable exploration and development of oil and other natural resources in the county

From July 24th-25th, ILEG, in partnership with Friends of Lake Turkana (FoLT) conducted a two-day consultative meeting with key Turkana County stakeholders. The meeting was part of the two organizations’ initiatives to promote accountable, inclusive and sustainable governance of oil and extractive resources in Kenya. It was organized to empower local leaders to promote good governance of oil and other natural resources in the county. Participants were drawn from the Turkana County Government executive, Turkana County assembly, community-based organisations, and resource persons for the meeting. They discussed key oil and natural resources exploration and production issues and challenges as well as opportunities available to the various leaders for addressing the challenges.

Background to the meeting

In March 2012, Kenya announced the discovery of commercially viable oil deposits in its Turkana basin in the Northern part of the country, by the British company Tullow Oil. Since then Tullow has discovered more oil deposits with the company’s current estimates of estimated reserves standing at 600 million barrels. The oil exploration and extraction and the accompanying infrastructural development no doubt holds a promise for economic liberation and development of the hitherto marginalized county as well as the country. Indeed, the Kenyan government is keen to position the oil and extractive industry as a key driver of economic growth in line with the country’s development blue-print, Vision 2030. But these important discoveries have brought to the fore a number of key concerns including environmental impacts; irregular land transactions; corruption in awarding prospecting and mining licenses; conflicts between communities and mining companies; lack of transparency etc.

Unless these critical social, economic and environmental issues are carefully addressed, there are justifiable fears that the discoveries could be a source of conflict and lead to increased poverty among the host communities, a situation that has been termed the “resource curse”. In response to these concerns, ILEG is in the process of implementing a project aimed at promoting sustainable and transparent governance of the extractive sector in Kenya. The project, which is part of a wider project involving six other organizations, and supported by the MacArthur Foundation, involves research, policy advocacy and capacity building for communities, Civil Society Organizations and government officials. As part of the project, ILEG and FoLT have been holding a series of meetings and engagements with different stakeholders in Turkana County. This consultative meeting thus builds on previous capacity enhancement meetings conducted in the county.

Below are some of the topics covered during the two-day seminar, where you may download presentations and the final workshop report.

Day one 24th July 2014

Opportunities and challenges facing Turkana County Government in management and oversight of County natural resources

  • Hon. Peter Lokoel, Deputy Governor, Turkana County

Status of the legal and policy framework governing natural resources in Kenya, and Options for Policy Reforms

  • Benson Ochieng, Executive Director, Institute for Law and environmental Governance (ILEG)

General Introduction to Petroleum Exploration and Production Issues

Day two 25th July 2014

The role of County Government and Parliament in natural resources management. The case of Turkana County

  • Dr Collins Odote, Senior lecturer, centre for Advanced Studies on Environmental Law and Policy (CASELAP)

Review of the Petroleum Exploration and Production Bill

Way Forward and Next Steps

  • Ikal Ang’elei

 The final workshop outcome report can be downloaded here

 

 

Enhancing lawyers’ capacity to deal with extractive sector issues

In 2014, ILEG partnered with the Law Society of Kenya (LSK) to introduce capacity building on the extractive industry as part of LSK’s Continuing Legal Education (CLE) programme. CLE involves regular and continuous education and capacity building for lawyers so as to equip them with modern and relevant knowledge and skills on various aspects of the law. ILEG’s Benson Ochieng and Collins Odote made presentations at over five sessions organized for that purpose during the year in various parts of the country. Furthermore, ILEG partnered with LSK to organize sessions on extractives during the society’s 2014 annual conference. As a result of these engagements LSK established a standing Committee on Minerals, Oil and Gas to follow up the issues around the extractive industry.

In addition, ILEG in partnership with Environmental Law Alliance Worldwide (ELAW) and the Law society of Kenya (LSK) organized training workshops in Kenya and Uganda for young lawyers interested in Public Interest Law and Litigation and social justice in Kenya and East Africa. Over 60 young lawyers from Kenya, Uganda and Tanzania participated at the trainings, which mainly focused on extractive sector-related issues. Trainings were delivered by seasoned public interest lawyers from Kenya, Tanzania and United States, and covered a wide array of topics including mineral rights contracting; and championing legal reforms for public interest. The Kenya seminar was held on 23rd June 2014 at the Sarova Stanley Hotel in Nairobi. Below you will find the workshop program where you may download presentations of the various presenters, as well as the final report of the workshop.

Session I: Official Opening & Introductions Chairperson: Benson Owuor Ochieng – Director, ILEG

Opening remarks

  • Jennifer Gleason – Staff Attorney, ELAW
  • Eric Mutua – Chairman, Law Society of Kenya
  • Maurice Odhiambo Makoloo, Regional RepresentativeEastern Africa Office – Ford Foundation

Session II: Nature and Scope of Public Interest Environmental Litigation Chairperson: Dr. Collins Odote – Director, ILEG; Senior Lecturer, CASELAP

Innovative Public Interest Environmental Lawyering for Sustainable Development

  • Waikwa Wanyoike (Discussant) – Executive Director, Katiba Institute; Co-Chair, Public Interest Committee, LSK

 Session III: Making Economics Relevant Chairperson: Dr. Collins Odote – Director, ILEG

Valuation of Natural Resources: What Lawyers Need to Know

  • Ernie Niemi – University of Oregon Download presentation

 Session IV: Public Interest Environmental Litigation Beyond National Borders Chairperson: Dr. Rugemeleza Nshala – Director, LEAT

Public Interest Litigation in Regional and International Fora.

  • Dr. Abraham Korir – Advocate; Legal Advisor, Executive Office of the Deputy President Download presentation
  •  Japheth Yegon (Discussant), Legal Resources Foundation, SA

Solving Contemporary Public Interest Environmental Litigation Challenges

  • Open Question and Answer Session

 Session V: PIEL, Land and the Extractive Sector in Kenya Chairperson: Anthony Mulekyo, LSK, Kenya

Understanding Natural Resource Concessions: The Role of Public Interest Litigation

Session VI: PIEL and Legal Reforms Chairperson: Anthony Mulekyo – Advocate; Member, PCC

Championing Legal Reforms for the Public Interest

  • Mr. Apollo Mboya

The final workshop report is available here

READ MORE →

The link between sustainable management of natural resources and deepening democracy in Kenya is not difficult to fathom, much less now when the country is headed for a general election. Apart from being the sole livelihood source for a great majority of Kenyans, land is also the subject of great emotional attachment. Discontent over ownership and utilization of land and natural resources has remained the most notable source of frequent conflicts and tribal clashes between Kenyan communities. No wonder it emerged as a critical issue – Agenda 4 – in the National Accord which defined the framework for reforms following the 2007/2008 post-election violence. Following the accord, the country embarked on a series of activities aimed at improving the management of land and natural resources. Among other things the on-going reforms have established guiding principles which must be observed while managing and using land and natural resources, including sustainable development, public participation, equity, and accountability. However, these principles are yet to be fully understood and appreciated by the duty bearers and citizens alike, leading to continued unsustainable use of, irregular allocations, tensions, and conflict over natural resources.

Funded by Danish International Development Agency (DANIDA) through URAIA Trust, the project aims to strengthen democracy through participatory governance of natural resources in Kenya by building the capacity of local communities, County Government officials, national government officials and the private sector to understand, appreciate and uphold the principles of governance; and supporting participatory development of national and county-level natural resource legislation, policies and action plans. The specific objectives are to: –

  1. build the capacity of local communities and government institutions for participatory governance of natural resources.
  2. support local communities and government institutions to develop policies and laws necessary for proper governance of natural resources in line with the Constitution.
  3. promote accountability in use and allocation of natural resources for sustainable development.
  4. Build the capacity of ILEG staff through seminars, workshops and conferences and training

 

The project has five main outputs:

  1. Improved adoption and implementation of laws and policies that ensure sustainable, transparent and accountable management and utilization of land and natural resources in Kenya
  2. Enhanced knowledge base and understanding of principles of environmental and climate change governance
  3. Understanding and appreciation of land and natural resource rights and their impacts on democracy, peace and security enhanced.
  4. Media and civil society oversight in the management and utilization of natural resources improved.
  5. Local level advocacy and engagement mechanisms on environment and natural resource issues improved
  6. ILEG’s staff capacities to implement responsive and sustainable environment and climate change governance projects enhanced

 

Summary of proposed activities:

  1. Policy outreach and technical support in the development of Community Land Bill, 2015; The Natural Resources (Classes of Transactions Subject to Ratification) Bill, 2015; The Access to Information Bill, 2015; The Mining Bill, 2014 (Meditated Version); The Climate Change Bill ,2014 and The Petroleum (Exploration, Development and Production) Bill, 2015
  2. Training of County Assembly committees of land, agriculture, water and environment on principles of environmental and climate change governance
  3. Training of civil society on environment, natural resource management and climate change
  4. Awareness and sensitization on land and natural resource rights and their impacts on democracy, peace and security
  5. Strengthening Media Oversight of use and allocation of natural resources at the county level
  6. Strengthening civil society oversight of use and allocation of environment and natural resources
  7. Strengthening Local Community Networks and Advocacy Forums

Target group:

National level – Parliament, Media and civil society, and county level – county assemblies, county-based civil society; and county-wide natural resource networks in Nairobi, Kwale, Kilifi, Turkana, Narok, Kericho, Siaya and Kisumu. Final beneficiaries – community members across the country, especially women, youth and minorities

READ MORE →

What do you see when you look at these pictures?They say a picture is worth a thousand words.This is quite true.When i look at these pictures,i see the present generation,the future generation and an unborn generation.All these generations depend on earth’s natural resources for survival.How can the present generation not deplete these resources for the future and unborn generation?

The answer is simple.SUSTAINABLE DEVELOPMENT.If needs are to be met on the sustainable basis the earth’s natural resource base must be conserved and enhanced.Environmental law has a major role to pay in ensuring that consumption is kept at sustainable levels and guarantee that present development needs are met while ensuring that future generations will be able to meet their own needs.

Pressure on resources increases when people lack alternatives.Environmental laws have the potential to widen people’s options for earning a sustainable livelihood,particularly for poor households.It has potential to curb over-exploitation of resources.This is with a combination of effective and innovative litigation.

Short-term unplanned improvements in productivity can create different forms of ecological stress such as the loss of genetic diversity in standing crops.Ecologically more benign alternatives can be adopted through environmental laws,as such laws would ensure future increases in productivity.Environmental law also plays a major role in ensuring sustainable energy consumption.It has also played a major role in prevention and reduction of air and water pollution.An article on sustainable development would not be complete without specific emphasis on the role of environmental impact assessment (EIA). This is the tool through which environmental law integrates environmental concerns into socio-economic and development planning.It studies the effects of a proposed action on the environment.It ensures that environmental resources are recognized early and protected through planning and decision-making.

It is imperative to note that the task of realizing sustainable development will obviously run beyond mere litigation.It involves the concerted efforts by the society to remedy past and present wrongs that have continued to degrade our environment.This combined with environmental litigation will be an effective tool in achieving sustainable development.

*Ruth Nzioka is a Legal Researcher at the Institute for Law and Environmental Governance (ILEG). The views expressed here are purely her own and do not necessarily reflect ILEG’s position.

READ MORE →

This past week, one of the local dailies ran a story narrating how many county and national government institutions are squatters on what used to be public property, and even face eviction by new owners. It described how in Meru for instance, land meant for the most critical public institutions — police stations, hospitals, government offices, roads, even sensitive installations like the County Commissioner’s residence — has been allocated to individuals. Land grabbing and irregular land allocation is commonplace in Kenya. Just last month, Kenyans were treated to disturbing scenes of injured pupils of a primary school in Lang’ata after police threw tear gas canisters at them as they protested the grabbing of their school’s playground.

The Lang’ata school land saga came hot on the heels of what is believed to be the biggest single heist of private land in independent Kenya — the invasion and acquisition of a multi-billion shillings 134-acres property in Karen, with the alleged connivance of state officials. And there is the five-acre wetland plot allegedly grabbed by a church in Nairobi’s Westlands area recently. Examples of land grabbing in Kenya could go on and on. But Kenya’s land problems are not limited to land grabbing. A number of other unresolved critical land issues have also impeded the use of land to support economic growth and sustainable livelihoods. They include issues of tenure security; maximum and minimum land holding; unsustainable land use; and women and other vulnerable groups’ right of access to land.

But why the fuss about land?

Land is not only the most important factor of production but also a very highly emotive issue in Kenya. For starters, ours is a country where over 80% of the population rely on agriculture, yet only 20% of the land mass comprise arable land. Those in political class and in business regard land as a source of personal wealth and power. For citizens especially the majority rural population, land is not only their soul livelihood source but also the subject of great emotional attachment. Land was in fact one of the key issues that drove the fight for independence from the British colonial powers. But even after independence, discontent over land ownership has remained the most notable source of frequent conflicts and tribal clashes between Kenyan communities. The way land is used and managed is therefore extremely critical to Kenya’s peace, prosperity and posterity.

A history of land problems

Kenya’s history of land problems can be traced back to the colonial government’s apparent conviction that private ownership of land created more incentives for long-term investment, access to capital, and growth. Instructively, this conviction has been pursued with remarkable consistency and success by successive post-independence governments. As a result, the vast majority of commercial, residential, and arable land in Kenya was brought under private individual ownership by a process of systematic first registration. For anyone, especially the indigenous people to obtain land, they had to go through the state. This bred a culture of selective land allocation for political support by those in power, inefficiency and corruption. The result was many indigenous people remaining landless and many other land-related problems.

The clamour for land reforms, the National Land Policy and the Constitution

This led to a clamour for land reforms which eventually yielded the Kenya National Land Policy (NLP) adopted in 2009, and a comprehensive treatment of land in the Constitution of Kenya promulgated in August 2010. Both the NLP and the Constitution followed a well-structured process of wide consultation and public participation. The two documents brought a raft of changes in the way land is managed and utilized, in essence laying the foundation for sustainable management and utilization of land. They detail land policy principles which must be adhered to when holding, using or managing land, and provide the framework for addressing several critical land issues. Among the land policy principles are equity; security of tenure; access to land information; transparency; and good democratic governance.

Notably, the two documents repudiate the long-standing priority of privatizing land, by recognizing communal ownership of land as a legal tenure regime equal in status to the other two – private and public tenure. Another important feature of NLP is that it identifies subsistence farmers, pastoralists, hunters and gatherers as vulnerable groups who require special recognition and facilitation in order to gain secure land rights and effectively participate in land-related decision making. The Constitution and NLP also encourage application of recognized local community initiatives for settling disputes over land.

The Constitution recognizes that lasting solution to the land problem lies in an effective legal and institutional framework. It thus requires all laws relating to land to be revised, consolidated and rationalized. Consequently, parliament has enacted the Land Act 2012 which aims to revise, consolidate and rationalize land laws in order to provide for the sustainable administration and management of land and land based resources. Parliament also enacted the Land Registration Act 2012 whose object is to revise, consolidate and rationalize the registration of titles to land. In the same year, the National Land Commission Act 2012 was enacted purposely to establish and provide for the functioning of the National Land Commission (NLC), the public body charged with managing public land on behalf of the national and county governments. A number of other land-related laws are under consideration, including the Community Land Bill, the Evictions and Resettlement Bill and the Investigation and Adjudication of Historical Land Injustices Bill.

So what’s ailing the land reform process?

Despite this enormous progress, Kenya’s land reform process seem to have hit a snag, and there are justifiable fears that even the gains made so far in the legal and legislative front are on the verge of being reversed.

Four closely linked and inter-related factors have contributed to this. First, deeply entrenched vested interests have denied the land reform process the much needed political and business support. Many powerful people in politics and business, especially the beneficiaries of the past flawed land regime and those who are angling to benefit from a non-streamlined land sector, see the reforms as a hindrance to personal wealth and power. Very closely related to this is a lack of political goodwill as senior national and county government officials as well as several members of parliament are deeply entangled in land-grabbing and other irregular land allocation cases. Many of them will go any length to ensure the desired land reforms don’t see the light of day. The third challenge is that the laws that have so far been enacted to effect land reforms have not counted for much because of poor implementation. In fact, even the legislative reforms have lost momentum as evidenced by the slow pace of developing a law on community land, lack of which continue to disenfranchise many communities.

The fourth challenge is a weaknesses in terms of resources, capacity and independence among the public institutions charged with managing land. This weakness is perhaps epitomized by the power struggles and persistent wrangling between the National Land Commission (NLC) and the Ministry of Land, Housing and Urban Development. In President Uhuru Kenyatta’s own words, the internal differences between the commission and the ministry has not only caused uncertainty and concern, but also impeded the government’s ability to move ahead in terms of economic development. Although there exists grey areas in law in terms of clearly defining the roles of the two institutions, pundits believe that a strong political will to implement the desired land reforms would very easily surmount this. Moreover, the NLC especially its chairman Dr Mohammed Swazuri is seen as too meek to survive amidst deeply entrenched political and business interests that surround land reforms. NLC has also not reached a level of functional independence as it still relies very much on the national government for its staff needs and resource allocation, making it vulnerable to manipulation and control.

Which way land reforms?

As a result of these challenges, and despite the enormous progress, most current and historical land injustices remain unresolved. Grabbing and illegal allocation of public and communal land goes on unabated almost throughout the country. The rights of communities, especially vulnerable groups including women and youth continue to be infringed upon or violated, and critical ecosystems continue to be degraded.

For the land reform process to proceed and succeed, as it must, the challenges and constraints, mainly entrenched political and business interests, and poor capacity of state organs to deliver on their mandates have to be confronted and overcome. Going forward, Kenya’s land reform process should prioritize: a strong political will to achieve land reforms; supporting state organs to deliver on their mandates; acquisition of land to settle the landless; completing and enacting the Community Land Bill; securing land rights and tenure in various contexts for citizens and non-citizens; developing a land use policy to promote land settlement and productive land use; and facilitating public access to information and participation in land management and utilization.

*Duncan Okowa is a Programme Officer at the Institute for Law and Environmental Governance (ILEG). The views expressed here are purely his own and do not necessarily reflect ILEG’s position. Twitter: @duncanokowa

READ MORE →