Governing Land Use in Kenya: From Sectoral Fragmentation to Sustainable Integration of Law and Policy

The research aims to develop a legal and policy framework that will facilitate integration of environmental protection with socio-economic activities during land use decision-making, as a mechanism to achieve sustainability. A statutory duty of care, with respect to land use, would make it clear that land owners or occupiers have definite responsibilities to protect and enhance the sustainability of the land that they use or manage; it would aim to reverse existing land degradation, or include a duty to inform other land owners or the state about some kinds of foreseeable degradation. The paper proposes some models for codes of practice

Governing Land Use in Kenya: From Sectoral Fragmentation to Sustainable Integration of Law and Policy

The research aims to develop a legal and policy framework that will facilitate integration of environmental protection with socio-economic activities during land use decision-making, as a mechanism to achieve sustainability. A statutory duty of care, with respect to land use, would make it clear that land owners or occupiers have definite responsibilities to protect and enhance the sustainability of the land that they use or manage; it would aim to reverse existing land degradation, or include a duty to inform other land owners or the state about some kinds of foreseeable degradation. The paper proposes some models for codes of practice

Securing and Managing Community Land: Lessons from Kenya

This paper was presented in the 2021 Conference on Land Policy in Africa held in Kigali, Rwanda, in November 2021. It is based on a three-year study by the Land Development and Governance Institute (LDGI), in partnership with the International Development Research Centre (IDRC), Canada, to test the efficacy of the application of Kenya's new Community Land Act. The study sites are in Isiolo and Marsabit Counties, both in the Arid and Semi-Arid (ASAL) Northern Kenya.The study results demonstrate the importance of adequate sensitisation of the key actors (government, political and community) at county level and the grass root communities, the use of participatory and inclusive processes to establish the community governance organs and fulfil the statutory requirements provided under this new law. The study also highlights the importance of the use of community champions to ensure the continuous sensitisation of community members, and to to galvanise the communities in the registration and management of their land.Through the study, communities were supported to develop basic tools to guide them in land use planning and investor negotiations. The land use planning guide developed will help the communities to liase with the county government to prepare a land use development plan which is expected to enhance the sustainable use of the community land, while the investor negotiation guide developed will be helpful during negotiations with investors interested in partnering with the communities for investments on their land. The use of the investor guides is expected to inform the preparation of mutually beneficial investor agreements as anticipated under the Community Land Act.It is expected that the lessons from the study, which include: community empowerment, use of participatory inclusive processes, ensuring gender equity in the composition of governance organs and in decision making processes, embracing the youth, use of champions and avoiding the negative impacts of the adjudication of community land will be useful to state and non-state implementers of the new law, and may be used to inform the scaling up implementation countrywide. It is also expected that gaps identified in the new law, such as the management of the inheritance rights of children married outside the community, and those divorced, will inform law review

Large scale land acquisitions for investment in Kenya : is the participation, and benefits of affected local communities meaningful, and equitable? - a case study of the situation in Lamu, Isiolo and Siaya counties

The paper examines the pace of land acquisitions in terms of creating legislative and policy options to safeguard local communities that are directly affected, including compensation for land that is taken, and protecting community interests in the socio-economic and environmental continuum of investment projects, from design to implementation. The absence or weakness of formal landholding and land registration systems was evident in most research sites in Isiolo and Lamu. Putting in place a programme for regularization of tenure rights for those without title is important for enhancing the security of tenure of people affected by compulsory acquisition and land grabbing

Applying the Law to Advance Sustainability: Making the Case for a Mechanism on Payment for Ecosystem Services for Sustainable Agriculture in Kenya

According to official literature, agriculture production, although a significant contributor the Kenyan economy, has been on the decline due to unsustainable land use practices, leading to land degradation and loss of fertility. This has far-reaching implications because agriculture is mainly small-scale, and practised by the dominantly rural population. As a consequence, food insecurity and rural poverty have been on the increase in recent decades. This outcome results in non-fulfilment of certain socio-economic rights to food or water, and undermines the constitutional right to a clean and healthy environment. This right to a clean and healthy environment whether sets a basis for legal measures that will protect and conserve natural ecosystems, including agricultural lands. In Kenya, this right now encompasses a constitutional duty on every person, to collaborate with other persons, and with the state, to conserve the environment and ensure ecologically sustainable use and development. Although this duty may dominantly be implemented through regulatory legal provisions, this paper explores a hybrid legal approach involving a statutory duty of stewardship on land owners/farmers and an entitlement to payment for ecosystems service, when the minimum obligations set by the duty are exceed. In this context, payment for ecosystem services provides a mechanism to conserve the environment, and provide economic benefits to land owners or local communities. With the antecedent on fulfilment of the statutory stewardship duty, the benefits are ecological (stewardship + ecosystem services), and economic (sustainable agricultural production + payments for qualifying ecosystem services). The normative challenges of such proposal are numerous: What is the scale of ecosystem benefits in context of small-scale farming and numerous small parcels of land; How does the law protect the rights of persons holding secondary interests in land such as spouses and children; What is the scope of qualifying ecosystem services? What are the safeguards for monitoring, certification and verification? It is necessary to ensure that rules on valuation of ecosystem services are not subject to instrumental (anthropocentric) notions which could exclude certain ecological functions – cultural; spiritual; aesthetic. The research comparatively examines existing explicit mechanisms on payment for ecosystem services, and other legal approaches to land uses that could further environmental conservation. We seek to propose a mechanism that goes beyond legislatively mandated stewardship to promote sustainable small-scale agriculture, conserve the environment and bring economic benefits to land owners/farmers

Leveraging integrated spatial planning for sustainable regulation of coastal tourism activities in Malindi town, Kenya

Unprecedented demand for both land and ocean space within the coastal zone to support tourism has continued to negatively impact the coastal marine environment leading to degradation. Poorly planned and regulated tourism activities on land and sea have led to degradation of environmentally sensitive marine areas, encroachment on public beaches, erosion of the shoreline and blockage of public access points to the beaches. These impacts transcend the land and ocean continuum necessitating the need for regulation. Spatial planning is one of the key tools that provides a pre-emptive strategic framework for regulating tourism uses so as to prevent harmful development and mitigate the impact of potentially polluting activities. However, spatial planning as applied in Kenya has focused on the regulation of physical developments on land such as the construction of hotels but not on the related tourism activities that emanate from such developments. In this case, activities that tourists engage in outside of the physical hotel structure such as swimming, leisure walks, sport fishing, souvenir collection, and snorkeling are not the subject of spatial planning leading to unsustainable use within the coastal zone. This study makes a case for adopting an integrated spatial planning approach as a lever for regulating tourism activities within this expanded lens, beyond just the buildings and activities that take place within the hotel establishments. The spatial planning approach would include a holistic regulation of coastal tourism activities within both terrestrial and marine spaces in order to attain sustainable management of the marine ecosystem

Community Perceptions of Ecosystem Services and the Management of Mt. Marsabit Forest in Northern Kenya

Identifying and characterizing ecosystem services (ES) has been shown to have an important role in sustainable natural resource management. However, understanding communities’ perspectives is critical in determining opportunities and constraints for ES management in multi-use landscapes. To do so, a study was conducted around Mt. Marsabit forest, a multiuse landscape in Kenya. Using stratification, participants from 11 administrative locations adjacent to the forest were selected. A total of 265 households were interviewed using semi-structured questionnaires. The study analyzed local communities’ perceptions of ES derived from the forest and their involvement in its management. Respondents identified trees, forage, water, fallback land cultivation, aesthetic enjoyment, and shade as key services derived from the forest. However, overexploitation of forest resources has led to degradation. Degradation and insecurity were perceived as the major threats to the ecosystem. The local communities were minimally involved in developing governance structures or management of this forest. Family size, education level, and age were important predictors of level of involvement in management. Lack of involvement in the forest management may have largely contributed to the unsustainable extraction of resources by local communities. We suggest that meaningful engagement of communities in the management of this forest will be critical to its sustainability

Earth System Governance in Africa: knowledge and capacity needs

Traditional approaches for understanding environmental governance - such as environmental policy analysis or natural resources management - do not adequately address the gamut of human-natural system interactions within the context of the complex biogeophysical cycles and processes of the planet. This is perhaps more so in the African regional context where the complex relationships between modern and traditional governance systems and global change dynamics are arguably more pronounced. The Earth System Governance (ESG) Analytical Framework encompasses diverse systems and actors involved in the regulation of societal activities and behaviors vis-a-vis earth system dynamics. The concept encompasses a myriad of public and private actors and actor networks at all levels of policy and decision-making. The existence of, and interaction among, these diverse actors and systems, however, is under-researched in the African context. Various research approaches taken to address crucial global environmental change (GEC) challenges in Africa have proven to be inadequate because they tend to overlook the complex interactions among the various local actors, players, and indigenous conditions and practices vis-a-vis GEC system drivers and teleconnections. Similarly, the regional peculiarities in terms of governance typologies and sociocultural diversity highlight the need for nuanced understanding of the complex interactions and nexuses among multiple actors and interests and Earth system processes. However, this diversity and complexity has often been lost in generalized enquiries. We argue that examination of the governance-GEC nexus through the aid of the ESG Framework would provide a much broader and more helpful insight