|CHAPTER TWO: SITUATIONAL ANALYSIS AND THEMATIC AREAS OF FOCUS
2.3 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.
International human rights law guarantees against arbitrary deprivation of property and provides a standard of conduct to be followed in case of evictions. Furthermore, there are additional protections for indigenous people in recognising the unique importance, cultural and spiritual values that they attach to their lands, territories and natural resources.2 These guarantee land rights for indigenous people and provide protections against displacement from their lands. They also provide for consultation and consent to development projects. Several SDGs targets relate to land and natural resources3.
Kenya has a relatively progressive constitutional and statutory framework for the ownership, management and access to land and natural resources found within her boundaries. 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, the Land Act, 2012 deals with public land under Article 62 of the Constitution, private land under Article 64 of the Constitution, and community land under Article 63 of the Constitution. Further, the Community Land Act, 2016 deals more substantively with community land which is vested in and held by communities identified on the basis of ethnicity, culture or similar community interest. All matters relating to compulsory land acquisition, including access to land for business purposes, are governed by the Land Act, 2012.
The country has made strides in the legal and policy protection of women’s property rights as relates to ownership, inheritance, management and disposal. The 2009 National Land Policy amongst other provisions cites the need to protect women’s right to inherit land and the land rights of widows and divorced women. It also distinguishes the inheritance rights between married and unmarried women directing the Government to secure the rights of unmarried daughters. The Matrimonial Property Act, 2013 provides that a married woman has equal rights as a maried [sic.] man to acquire, administer, hold, control or dispose of property whether movable or immovable. The Act further provides that ownership of matrimonial property vests in the spouses according to their contribution, either monetary or non monetary, in its acquisition and upon divorce should be divided between the spouses. The Marriage Act, 2014 provides that parties to a marriage have equal rights and obligations at the time of the marriage, during and at the dissolution of the marriage. However despite these laws, there are still obstacles including cultural traditions, historical injustices and lack of awareness that inhibit women from accessing and owning their fair share of property and attendant rights.
Furthermore, the Constitution guarantees access to information, community empowerment and inclusion in decision-making and benefit sharing from exploitation of natural resources. Additionally, Kenya has various laws and policies to ensure that communities hosting extractives projects benefit through revenues, employment of local people and utilisation of local goods and services.
The NAP consultations identified the following concerns related to land, natural resource development and business:
2.7 Access to Remedy [Page 14-15]
Article 20(1) of the Constitution provides that the Bill of Rights binds all persons, including businesses. Indeed, since the promulgation of the Constitution in 2010, courts have adjudged several businesses to be in violation of human rights and awarded victims varying remedies. 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:
iv. 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 which they hardly report to authorities. 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; and
CHAPTER THREE: POLICY ACTIONS
3.1. Pillar 1: The State Duty to Protect [Page 17]
The Government will:
v. 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;
vii. Sensitise relevant sections of the public especially women and other marginalised and minority groups on –
viii. 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;
ix. 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
A) State-based judicial and non-judicial remedies [Pages 19-20]
The Government will:
i. Enforce all applicable laws as well as respect internationally recognised human rights laws and standards as they relate to land access and acquisition and natural resources, environment and revenue management;
CHAPTER FOUR: IMPLEMENTATION AND MONITORING
ANNEX 1: SUMMARY OF POLICY ACTIONS