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Large Scale Land Acquisitions for Investments in Kenya: Is the Participation, and benefits for affected local communities meaningful, and equitable? A case study of the situation in Lamu, Isiolo and Siaya Counties , Kibugi, Robert, Makathimo Mwenda, and Mwathane Ibrahim , Nairobi, (2016) Abstractlarge_scale_land_acquisitions_for_investment_in_kenya.pdfWebsite

Land acquisitions, either driven by foreign investments or domestic investment needs have continued to polarize opinions. When this research was proposed, it was premised on arguments by scholars Ruth Meinzen-Dick and Helen Markelova, who had analysed agricultural land deals, and argued that there were potentially two schools of thought about foreign acquisitions over agricultural land. Their school of thought regards them as “beneficial investments” whereby investors are viewed as bringing needed investment, possibly improved technology or farming knowledge, thereby generating employment and increasing food production. Meinzen-Dick and Markelova further argued that because these land acquisitions, foreign and domestic, are ongoing at a very fast rate, it is necessary for host countries to focus on what they can do to seize the opportunities and mitigate the risks associated with the deals.
During implementation of the research project in Kenya, it became clear that although prior illustrations of land deals included foreign acquisitions (e.g. Dominion farms), a government economic policy focusing on mega- infrastructure projects was driving (or expected to drive) a much higher pace of land acquisitions either for primary infrastructure, or for the economic activities that flowed from the primary infrastructure. This is in the context of the Lamu South Sudan Ethiopia Transportation Corridor (LAPSSET) project, which is a flagship means for realization of Vision 2030; Kenya’s current national development plan. Thus, a national conversation is necessary to debate the crucial question of how to provide safeguards to protect the interests of local communities directly affected by these investments, including compensation of land that is taken, and their place in the socio-economic and environmental continuum of investment projects from design to implementation.
The following findings and recommendations have resulted from this research, and it is anticipated they will be valuable in setting the agenda and tone of such a useful national conversation, as well as tangible actions:

A. Lessons, Conclusions and findings requiring policy level interventions

1. Regularization of landholding and tenure systems.
The absence or weakness of formal landholding, and land registration systems was evident in most of the research sites, in Isiolo and Lamu. This is despite Kenya having put in place new land laws in 2012 to give effect to constitutional provisions to protect land rights. This has resulted either in emergence of informal land administration and conveyance systems (Lamu), or the emergence of a complex system of formal land allocation that brings about multi-allocation of land through repeated issuance of allotment letters, (Isiolo), or non-adjudication and registration of community lands (Isiolo, Lamu). In either instance this results in undermining security of tenure, and enhances the vulnerability of concerned communities who will face difficulties securing their interests in the land ahead of any large scale land acquisitions, due to the entry of speculators, and persons interested in grabbing the land by being first to obtain formal registration. The Kenyan national government should consider partnering with the County government in Isiolo in order to identify the nature and extent of, and take steps to resolve the problem of multi-allocations of land there. In addition, putting in place a programme for regularization of tenure rights by addressing the challenges of those without title is important as it will enhance the security of tenure of people affected by compulsory acquisition.

2. Enhancing tenure of certain communities through implementation of the provisions of Community Land Act.
This conclusion is drawn from findings in research amongst the Aweer (Bargoni), and Turkana communities (Ngare Mara) where residents expressed apprehension over their tenure security in the face of land acquisition for LAPSSET infrastructure. This is because the land has not been (fully) adjudicated or registered in favour of the community notwithstanding existence of the Land (Group Representatives) Act that preceded the 2016 community land law. It is recommended that the government expedites the application of the provisions of the Community Land Act for the Lamu and Isiolo communities faced by these land acquisition projects as a first step to guaranteeing the beneficial interests of the community members, first by protecting tenure rights, and subsequently providing for equitable community land governance mechanisms.

3. Clarification on the practice and methodology of valuation of land and non-land assets for compensation.
The repeal of the Land Acquisition Act, and with that the Schedule that defined the methodology of valuation of land requires to be resolved. In any event, based on the analysis in the research, and findings, there is need to formally resolve the entitlement to compensation for persons without legal title. In addition, it is imperative for Kenya to state in law or regulations the methodology to be applied in valuation of non-land assets, including the loss of livelihoods. Application of the full replacement cost methodology, as discussed, provides a viable option because, in addition to anchoring on the market value of the land, the replacement cost approach extends compensation to non-land assets, using the real cost of full replacement, and not factoring in any depreciation of the non-land assets being replaced, and takes into account all the transaction costs of purchasing (conveyancing fees, etc), or logistical costs of replacement of non-land assets.

4. Internalization of resettlement safeguards principles and practice into Kenyan law of compulsory acquisition of land
A review of the current legal situation in Kenya concerning compulsory acquisition of land discloses the absence of safeguards governing interaction with host community, as well as involuntary resettlement safeguards in the event of displacement by land acquisition. This includes exploring the possible application of an FPIC process that emphasizes the quality and meaningfulness of affected community participation, including the impact that views obtained during consultations have on the final decision. Equally critical is the decision to vertically integrate the process by requiring the consultation of the affected public during project planning. In the sense of feasibility studies, and project designs, this suggests that community participation may add value to the process by being conducted much earlier on in the process, and contribute to analysis of project sites, and alternatives.

For practical purposes, Kenya could consider a legal requirement for a national Resettlement Policy Framework (RPF) that would govern internalization of resettlement safeguards, including participation of communities. Key to this is that if a Resettlement Action Plan (RAP) is required, in terms of EMCA, both the RAP and RPF would have undergo a Strategic Environmental Assessment thereby providing a means for risk assessment in advance of major implementation steps being underway.

5. Policy linkage of investment promotion rules with investments flowing from land acquisitions to secure community benefit through contracts and business models
At a policy level, it is important for Kenya to revisit, in a framework sense, how to use investment promotion rules and binding contracts to safeguard socio-economic, environmental benefits and livelihoods of local communities. This is mainly in context of the continuum of an investment, from land acquisition, and during its implementation. The Investment Promotion Act, while addressing the benefit to Kenya threshold, is not aggressively applied, and as evidenced by the Dominion contracts, critical socio-economic safeguards were not included. A clear policy evaluation of business models application, either contracts in the context of farming investments, or other types, should be undertaken and public disclosure of the proposed business model(s) should be undertaken early enough, to ensure affected project communities do not experience anxiety over their future.

This could be done in context of section 12 of the Land Act, which requires the National Land Commission to make regulations to govern how investments on public land will safeguard community benefits and livelihoods. The details of these considerations have been discussed at length earlier in this report.

6. Regulations to regulate methodology for assessment of just compensation
Kenya is currently engaged in a number of infrastructural projects that call for the compulsory acquisition and compensation of land. As noted in the study, Section 111 of the Land Act requires the National Land Commission to develop rules to regulate the assessment of just compensation where land is compulsorily acquired. As at the time of this report, these rules had not yet been developed. The rules will help to standardize the methodology for the anticipated assessment and make the process more predictable and, in an environment where the government is involved in the development of infrastructure calling for massive compensation of compulsorily acquired land, the development of these rules should have been accorded priority.

It is however noted that regulations to operate the entire Land Act have not yet been developed. Perhaps the development of these regulations, and the rules to govern assessment for just compensation, may have been delayed by the amendments recently effected to the Land Act. Now that the amendments were concluded, it is recommended that the development of the rules to govern the assessment of just compensation payable to landowners affected by large scale investments on land be expedited.

B. Lessons, conclusions and findings requiring direct actions at community level
In this category, the conclusions and findings are drawn to highlight matters that directly affect the voice and equitable benefit or participation of affected local communities, either in land acquisition process, or in the continuum of investments introduced in their midst.

1. A community dissemination manual for transfer of knowledge about land laws, policies and land administration processes
In focus group discussions held in the course of field work, the research team got similar feedback multiple times that the (potentially) affected “had heard” on radio, or through other fora that Kenya had new land laws in place, they did not really know the content of these laws. A similar sentiment was expressed with regard to knowledge of details about the components of the various LAPSSET projects. Communities indicated that they would want to have some form of civic education on this, especially regarding tenure rights, the land administration system (surveying, adjudication and registration), the implications and contents of the new community land law, and legal protection of community rights during land acquisition. One key finding was a preference by community members to have some of their own members trained in order to pass the knowledge to the communities, a sentiment that arose from a desire to receive information from a trustworthy source who was part of the community. Another finding was that community members did not have clear details on available grievance mechanisms on the land administration system, and while some had managed to access the National Land Commission, they lamented that it was based in Nairobi.

This finding suggests there is a need to develop a basic community dissemination manual, that includes a provision for empowerment of community based trainers (through a Training of Trainers concept). In such an approach, the dissemination manual can be published in simple language, including translation to Kiswahili or local languages where preferable.

2. Enhancement of meaningful public participation in the entire continuum through effective consultations and disclosure of relevant information

In order to enhance the voice of the community ahead of any process of land acquisition, it will be helpful to integrate a constructive and meaningful process of consultation with potentially affected communities, from early on during project planning, feasibility studies to onboarding of investments. This would particularly aid in providing value on local circumstances and risks that may not be obvious to technical teams. Occurrences such as in the Isiolo Kiwanjani settlement (displaced for the airport) where residents of Kiwanjani Zone G Squatter complained that maps generated during the acquisition process continued to record their land as being part of the airport complex despite there being a 75 feet road between the airport boundary, and the plots in question, would be avoided.

Enhanced community participation would further provide a valuable avenue through which the [potentially] affected local community can enhance its voice by having an opinion (which is taken into account) early on in the stages of the project design. However, this approach would also require protection from speculative behavior, that could result in an artificial increase in market value of land, due to market behavior triggered by anticipation of a project, and land acquisition. Access to information requires that this type of information is made available to the public, but in order to control speculative behaviour that drives up the cost of land compensation, government can apply the new 2016 Access to Information Act to sieve out aspects that are either confidential or considered deliberative and therefore not to be publicly disclosed. Another helpful approach would be to undertake the feasibility studies focusing on multiple alternative sites, without showing preference for any particular site.

Meaningful community participation requires a legal or policy definition of how to ensure consultations are effective. This could include possibility of requiring consulting (public) agencies to return to the host community and disclose how they considered the various opinions, and provide feedback. The community dissemination manual proposed above would provide a valuable tool through which to structure techniques that affected local communities can apply in order to have meaningful consultations. The manual could also include implications of the procedures set out in the new 2016 Access to Information Act.

3. Promotion of Networking by Project Affected communities in various parts of Kenya to build knowledge and exchange thoughts
There are multiple instances of compulsory acquisition of land in Kenya (e.g. For LAPSSET projects), or the allocation of land by government for private investments (Siaya – Dominion). The processes are at various stages, either at conceptual point, or having gone through various steps of acquisition and onboarding of investments. Equally, others are complete and the investment has been operational for a number of years. In all these cases, there multiple lessons to be learnt between the various affected local communities. In both Lamu and Isiolo for instance, the research engaged with multiple focus groups drawn from within the same project locality but in different geographical sections – and there was evidence that there was no integrated system to promote consultations and learning from each other. Further, even where acquisition and investments have been undertaken in separate parts of the country, people from Isiolo or Lamu could learn coping techniques from those in Siaya, or by learning the adverse impacts in Siaya, become more interested in enhancing their voices in the local context to avoid a similar outcome. Therefore, the idea of a network that brings together representatives of the various communities is useful to consider. Such a network would also include policy makers drawn from the national and county governments. Already in most of these local communities, the research observed that chiefs (who are national government administration officers) are an integral part of the community process. Learning forums could be organized, and a feedback process put in place such that when representatives return to their local communities, they can provide details to their neighbours. Such a network would however require that policy makers also commit to provide valuable information and feedback to any questions and problems raised by participating communities.

An alternative to utilization of physical meetings for such a network is application of internet-based technology. In this case, a network can be developed through low cost options, such as through the WhatsApp Platform. Although this requires internet access through a smartphone, the Land Development and Governance Institute has been piloting a WhatsApp based platform that creates a Network aptly named Community Land Matters. The experience with this platform is discussed at length in section 9.

4. Involvement of Women in Community Interventions
The study exposes some good lessons in the involvement of women in community interventions and leadership on communal land rights. It was instructive that for instance in the discussion with the Aweer group in Bargoni, Lamu, some women participants in the focus group discussions were very active and made crucial contributions. In addition, the women also made distinguished contributions too during discussions with the Turkana community at Ngare Mara, Isiolo County, where critical leadership positions in the community are held by women.

Yet, the two communities, like many others in Kenya, are largely patriarchal. This experience provides a good benchmarking lesson that, despite the cultural practices that have informed many communities in the past, given opportunity, women may play critical roles in helping communities protect and mitigate their communal land rights where circumstances so demand.

5. Compensation to “occupants in good faith” without title to land
As noted in the study, Article 40(4) of the Constitution of Kenya states that ‘provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may not hold title to the land”. While the rules to govern how the discretion implied by this Article are yet to be developed, the study reveals that the State has exercised this discretion positively in the studied Port site in Lamu and the Airport site in Isiolo. Despite land owners not holding title to their land in the two places, cash-for-land and land-for-land compensation was made to the claimants in Lamu and Isiolo respectively.

These are good precedents for other parts of the country where formal processes to register communal land have not been applied or completed. Lessons learnt from these two Counties may be borrowed to inform and improve similar compensation exercises elsewhere.

6. Protection of interests of legitimate beneficiaries during compensation

Incidents were recounted of husbands and fathers pocketing the proceeds of compensation and departing home with the entire compensation sum. This leaves the wives and children vulnerably exposed and without alternative livelihoods. Such people become a problem for the community and State. To avoid such negligence, the government should consider regulating the release of compensation funds. The practice under the Land Control Act Chapter 302 of the Laws of Kenya which regulates transactions of agricultural land could be borrowed. Though not written into the law, Land Control Boards always require the proprietor’s spouse to be in attendance before approval to any application for approval of a transaction such as subdivision or sale of family property. And where they are in doubt about the facts to any application, they will usually refer to an area elder or the Assistant Chief for pertinent information in an effort to ensure that spouse and children are in agreement. Such a procedure could be enforced in the case of compensation following acquisition.

It is recommended that the Government, in liaison with the National Land Commission, puts in place modalities to explore how a similar social safeguard procedure could be instituted in the proceedings for compensation under the Land Act to protect legitimate beneficiaries in instances where acquisition of land for projects has to be done with requisite compensation to landowners.

7. Preservation of indigenous and local knowledge:
Project activities involving large scale land acquisition have the inevitable consequence, in some cases, of interfering or totally defacing available traditional/indigenous knowledge from the affected site. This is the case in some parts of Lamu and Isiolo where invaluable oral and cultural knowledge, including some cultural sites, have been preserved over the years. In any event, if enhanced community participation is adopted, and a threshold placed to examine if the participation is meaningful, the indigenous and local knowledge of the communities will also benefit the project at the point of local risk assessment. In this case, recording of such knowledge can be undertaken for posterity use.
It is therefore recommended that the implementation of such projects be preceded by a quick knowledge mapping to determine and document such knowledge before destruction or adulteration, together with enhanced community participation. Where possible, such knowledge can be proactively preserved in collaboration with the relevant state organs. Such a mapping can still be done for the LAPSSET Corridor and Isiolo Resort City before implementation takes off.

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