Land – Kenya

CHAPTER TWO: THEMATIC AREAS OF FOCUS

2.1 Land and Natural Resources [Page 12-14]

Land is a prerequisite for the enjoyment of economic, social and cultural rights relating to an adequate standard of living, housing, food and natural resource benefits sharing. The Constitution states that “all land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals”. However it is often a source of conflict due to population pressure, rapid urbanisation, environmental degradation, land-intense large-scale projects such as mining, oil and gas and commercial agriculture, all of which result in competition for available productive land.

Both the Constitution of Kenya and international human rights law guarantee against arbitrary deprivation of property and provide a standard of conduct to be followed in the case of evictions. Furthermore, there are additional protections for indigenous peoples in recognising the unique importance, cultural and spiritual values that they attach to their lands, territories and natural resources (United Nations Declaration on the Rights of Indigenous Peoples [2007] and the ILO’s Indigenous and Tribal Peoples Convention [1989]). These guarantee land rights for indigenous peoples and provide protections against displacement of these peoples from their lands. They also provide for consultation and consent to development projects.

Kenya has a progressive constitutional and statutory framework for the ownership, management and access to land and natural resources. The Constitution provides that land, whether public, private or communal, shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable. The Constitution also guarantees the right to property and the protection from arbitrary deprivation of one’s property including land. In addition to the Constitution provides for public land under Article 62 , private land under Article 64 and community land under Article 63. The Community Land Act, 2016 deals substantively with community land which is vested in and held by communities identified on the basis of ethnicity, culture or similar community of interest. All matters relating to compulsory land acquisition, including access to land for business purposes, are governed the Land Act, 2012.

The country has also made strides in the legal protection of women’s property rights in matters of ownership, inheritance, management and disposal. Despite the new laws, there are still obstacles including cultural traditions and lack of awareness that inhibit women from accessing their fair share of property and attendant rights.

The Constitution also guarantees access to information, community empowerment and inclusion in decision-making and benefit sharing from the exploitation of natural resources. Additionally, Kenya has various laws and policies to ensure communities hosting extractives projects benefit through revenues, employment of local people, and utilisation of local goods and services.

The NAP consultations identified the following challenges related to land, natural resource development and business:

1. Lack of a predictable compensation and resettlement framework for the voluntary and compulsory acquisition of land;

2. Lack of guidance on community consultation in the context of natural resources governance ,resulting in inadequate participation of local communities in decision making;

3. Land adjudication has not been undertaken in some areas where businesses are operating or propose to operate, complicating decisions on who are the rightful parties to be consulted and compensated;

4. The Mining Act has not been fully operationalised with regards to the sharing of revenues, effectively denying local communities impacted by the operations of mining companies the rights and protections under the law;

5. Cultural and historical barriers to access to land by women, minorities and marginalised groups such as indigenous persons. These barriers limit these groups’ participation in and decision-making power over land-related issues; and

6. Lack of sustainable benefits for host communities from the exploitation of natural resources despite the constitutional imperative for equitable sharing of benefits.

2.5. Access to Remedy [Page 19-20]

Article 20(1) of the Constitution provides that the Bill of Rights binds all persons, including businesses. Furthermore, there are a number of legislative provisions regulating business conduct to protect those within Kenya’s jurisdiction from business-related human rights violations.

The breach of these and other relevant laws may result in administrative and judicial sanctions. Judicial avenues include the Human Rights Division of the High Court, the Environment and Land Court, and the Employment and Labour Relations Court.

Despite these legal protections, the community consultations conducted as part of the NAP process revealed structural and procedural barriers to access to remedy, including:

4) There have been instances where human rights defenders who have lodged cases against businesses, especially land and environment grievances, have reportedly faced death threats and other forms of intimidation. Such hostility may instil fear in others who may wish to lodge complaints, robbing communities and individuals of the protection that the law could have offered against business-related abuses;

 

CHAPTER THREE: POLICY ACTIONS

3.1. Pillar 1: The State Duty to Protect [Page 21-22]

Policy Actions

The Government will:

6) expedite land adjudication and registration with a view to securing the protection of land owners/users and communities especially in areas ear-marked for major projects.;

8) Sensitise relevant sections of the public especially women and other marginalised and minority groups on Land laws, including resettlement and compensation frameworks Labour laws and the rights of migrant workers and environmental laws and standards;

9) develop procedural guidelines for use by businesses, individuals and communities in their negotiations for land access and acquisition. These guidelines will ensure and safeguard the participation of women, persons living with disabilities, youth, children and other marginalised groups;

10) work with stakeholders to develop a natural resource revenue management policy and regulatory framework for administering and managing natural resource revenue paid to host communities. This framework should seek to promote equity, inclusivity and community decision-making and will include training to enhance the capacity of communities to manage their affairs. It will also serve to guide the operationalisation of mining revenue as envisaged by the Mining Act, 2016;

3.3. Pillar 3: Access to Remedy

Policy Actions

A) State-based judicial and non-judicial remedies [Page 25]

The Government will:

1. enforce all applicable laws as well as respect internationally recognised human rights laws and standards as they relate to land access and acquisition, natural resource management, environment and revenue management,

 

CHAPTER FOUR: IMPLEMENTATION AND MONITORING

4.1. SUMMARY OF POLICY ACTIONS [Annex]

Strategic Objective Policy Actions Responsible Actor(s)
Strategic Objective 1:

Enhance existing policy, legal, regulatory and administrative framework for ensuring respect of human rights by business through legal review and development of specific guidance for business

Expedite land adjudication and registration  
Develop procedural guidelines for use by businesses, individuals and communities in their negotiations for land access and acquisition. These guidelines will safeguard the participation of vulnerable and other marginalized groups.

 

 
Enforce all applicable laws as well as respect internationally recognized human rights laws and standards as they relate to land access and acquisition and natural resource management, environment and revenue management.  
Strategic objective 2:

Enhance understanding of the obligation of business to respect human rights

Sensitise relevant sections of the public on: Land laws, including resettlement and compensation frameworks  
Strategic Objective 3:

Enhance access to justice for victims of business-related human rights abuses

Review the operations of the Human Rights Division of the High Court, Employment and Labour Relations Court, and the Environment and Land Court to ensure that they are accessible avenues for remedying business related human rights abuses