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LEADLawEnvironment and

DevelopmentJournal

VOLUME

21

USING EMINENT DOMAIN POWERS TO ACQUIRE PRIVATE LANDS FOR PROTECTEDAREA WILDLIFE CONSERVATION A SURVEY UNDER KENYAN LAW

Nixon Sifuna

LEAD Journal (Law Environment and Development Journal)is a peer-reviewed academic publication based in New Delhi and London and jointly managed by the

School of Law School of Oriental and African Studies (SOAS) - University of Londonand the International Environmental Law Research Centre (IELRC)

LEAD is published at wwwlead-journalorgISSN 1746-5893

The Managing Editor LEAD Journal co International Environmental Law Research Centre (IELRC) International EnvironmentHouse II 1F 7 Chemin de Balexert 1219 Chacirctelaine-Geneva Switzerland Telfax + 41 (0)22 79 72 623 infolead-journalorg

This document can be cited aslsquoUsing Eminent Domain Powers to Acquire Private Lands for Protected Area

Wildlife Conservation A Survey under Kenyan Lawrsquo21 Law Environment and Development Journal (2006) p 84

available at httpwwwlead-journalorgcontent06084pdf

USING EMINENT DOMAIN POWERS TO ACQUIRE PRIVATELANDS FOR PROTECTED AREA WILDLIFE CONSERVATION

A SURVEY UNDER KENYAN LAW

Nixon Sifuna

Nixon Sifuna PhD Candidate in Law University of the Witwatersrand Private Bag 3 Wits 2050 SouthAfrica Email sifunanstudentswitsacza

Published under a Creative Commons Attribution-NonCommercial-NoDerivs 20 License

TABLE OF CONTENTS

I Introduction 86A General introduction 86B Basic terms and words 86

II Wildlife Conservation 86A Importance of Wildlife 86

1 Economic Value 862 Ecological Value 873 Nutritional and Medicinal Value 874 Social-cultural Value 88

B Externalities and Opportunity Cost of Wildlife Conservation 88C Protected Area Wildlife Management 89

III Private Property Rights in Land 90

IV The Concept of Eminent Domain 90

V Using Eminent Domain for Protected Area WildlifeConservation under Kenyan Law 91A Kenyarsquos Protected Area Wildlife Estate 91B Human-Wildlife Conflicts Outside The Protected Areas 93C Land Ownership Rights in Kenya 94D Eminent Domain Powers Under Kenyan Law 94

1 Circumstances for Eminent Domain 942 The Process of Eminent Domain 963 The Amount of Compensation and How it is Paid 974 Mechanisms for Redress for an Aggrieved Landowner 995 The Position Under the Proposed New Constitution of 2005 99

E A Critical Appraisal of the Viability of Using Eminent DomainPowers to Acquire Private Land for Wildlife Reserves under Kenyan Law 100

VI Conclusion and Recommendations 102A Recommendations 103

1INTRODUCTION

A General introduction

This paper reviews in detail the relevant laws andprocedures for acquisition of private land by thegovernment and the subsequent conversion of such landinto wildlife use as protected areas or wildlife supportzones1 It also examines the safeguards in place forchecking excesses by the authorities in exercising thepowers of eminent domain This part is divided intofour sections The first discusses the place of privateproperty rights under Kenyan law The second highlightsthe circumstances under which private property may becompulsorily acquired by the State The third sectionsets out the statutory procedure on how this may bedone and then examines the position on compensationby the government to those whose lands it acquires Itanswers questions as to whether compensation isprovided how it is determined and how it is paid Partfour explores the remedies available under Kenyan lawfor persons with grievances arising from or related tothe governmentrsquos acquisition of private land Part fiveexplores the challenges and opportunities based on theactual situation and provides the way forward by makingrecommendations for reform

B Basic terms and words

Some terms used in this paper are open to more thanone meaning hence there is a need to state the contextin which they are used in order to avoid confusion Thefollowing are the basic terms used in this study namelywildlife eminent domain protected areas and privatelands The term lsquowildlifersquo as used in this paper refers towild animals as well as birds lsquoEminent domainrsquo in thecontext of this study refers to the power of the State tocompulsorily acquire privately owned land for publicuses lsquoProtected arearsquo means a national park gamereserve game sanctuary nature reserve or a biospherearea2 lsquoPrivate landrsquo refers to land that is under private

ownership The words lsquoconservationrsquo andlsquoprotectionrsquo are used interchangeably

2WILDLIFE CONSERVATION

A Importance of Wildlife

The importance of wildlife to society and the needto conserve it cannot be overemphasised It hasnumerous benefits than can be exhaustivelyenumerated It is a source of food a form of touristattraction3 a reservoir for genes a form of naturalheritage a source of employment4 and a principalcomponent of the ecosystem In sum wildlife is anatural resource of biological economic socialrecreational5 educational6 environmental andnutritional value to the present as well as futuregenerations It is a valuable resource that should beprotected and conserved7 The values of wildlifecan be grouped into four broad categories namelyeconomic ecological nutritional medicinal andlastly social-cultural These are explained below

1 Economic Value

Wildlife plays a major role in the economy in morethan one way Indeed wildlife is an economic sectorin its own right Firstly the wildlife sector is a sourceof employment for many8 Secondly it directlysupports the tourism industry as most of the touristsvisit to view wildlife and take wildlife trophies

Law Environment and Development Journal

1 Also known as lsquobuffer zonesrsquo2 Kenya Wildlife (Conservation and Management) Act Cap

376 of the Laws of Kenya creates four categories ofprotected areas These are national parks national reserveslocal sanctuaries and game reserves

3 Wildlife-based tourism is a major source of foreign exchangeBolen and Robinson (1995) report that tourists visitingKenya spend about $130 million yearly and that withoutwildlife Kenya would attract far fewer tourists See EGBolen and WL Robinson Wildlife Ecology and Management435 (New Jersey Prentice Hall 1995)

4 The wildlife sector has created direct employment for many5 Eg through sport hunting wildlife watching and

photographing6 For study and research to broaden onersquos mind and increase

onersquos understanding and knowledge7 DR Helliwell Planning for Nature Conservation 1 (Chester

Packard Publishing 1985)8 Wildlife staff and those employed in hotels tour companies

and beach resorts associated with the sector

86

Earnings from tourism some times run into billionsin direct income and foreign exchange therebycontributing a large share to the national incomeThis takes the form of taxes subsistence transportand park charges purchase of gifts and curios andsalaries for employees in the industry In Kenya forinstance wildlife tourism it is estimated contributesabout five percent of the countryrsquos Gross DomesticProduct9

It is difficult however to evaluate with precision themonetary worth of wildlife and its resources since it isnot easy to assign monetary value to it This is becausesome of these values are more ethical or emotional thanmonetary Wildlifersquos worth is hard to compute inmonetary terms because in most countries wildlife is apublic sector resource that is not in the market placeHelliwell10 however argues that while it is difficult toaccurately define the value of wildlife it is possible toestimate its economic worth by comparing it with otherthings and other forms of land use

In advancing the need to identify wildlife witheconomics Babich observes and rightly so that the bulkof the supporters of wildlife conservation aresentimentalists who by over-protecting wildlife do moreharm than good for their cause11 He then quotesLyndon Johnson a former US President who in aPresidential Address to Congress on 8 February 1965said the following about the difficulty of estimating theeconomic worth of wildlife

Wildlifersquos monetary worth is not an easything to measure It does not show up inthe Gross National Product in the weeklypay cheque or in the Profit and Lossstatement But these things are not ends inthemselves they are a road to satisfactionand pleasure and good life Wildlife makes

its own direct contribution to those finalends Therefore it is one of the mostimportant components of our true nationalincome not to be left out simply becausestatisticians cannot calculate its worth12

2 Ecological Value

Wildlife has a crucial ecological function This isforemost as wildlife is a major constituent of theecosystem (ecological system) All forms of wildlife aremembers of a biotic community in which there is asymbiotic relationship between the respective membersA natural ecosystem consists of all the living organisms(including man) as well as non-living things in a selectarea Essentially everything in an ecological system isintimately connected to everything else in the systemand any change in one part will invariably affect the otherpart(s) Wild animals also have a biological value as someof them are important in the biological control of certaininsects rodents and pests Without such animalsharmful things will dominate the world and make lifeunbearable Those that are scavengers like hyenas areinstrumental in public health by cleaning theenvironment

3 Nutritional and Medicinal Value

In many developing countries wildlife is animportant source of food In most African countriesfor instance people eat bush meat This meat rangesfrom small bats and lizards to larger mammals suchas antelope and buffalo If properly managed wildlands can yield a large crop of wild meat as well asnumerous ancillary animal and plant productsTraditionally most communities especially in Africahave relied on game meat and wild plants for foodThere are communities that were classified as hunter-gatherer hunting for meat and gathering fruits Tothis day game meat is still a delicacy in some hotelsBeing a major source of food it plays a significantrole in nutrition by providing the body with thenutrients it requires

Apart from this nutritional aspect of health someof these animals are of medicinal value when theirbody parts are used for curing diseases or for

Wildlife - Kenyan Law

9 L Emerton lsquoThe Nature of Benefits and the Benefits ofNature Why Wildlife Conservation has not EconomicallyBenefited Communities in Africarsquo in D Hulme and MMurphree eds African Wildlife and Livelihoods the Promise andPerformance of Community Conservation 207 210 (Nairobi EastAfrica Educational Publishers 2001)

10 See Helliwell note 7 above at 811 K Babich The Financial Implications of Wildlife Utilisation

1 (Southern African Wildlife Management AssociationTechnical Session Paper No 37 1973) 12 Id

87

manufacturing drugs Krunk notes that several wildanimals are popular for their supposed medicinalproperties with parts of some of them being usedeither in witchcraft or traditional medicine13 Itshould be noted however that wild animals not onlycontribute to traditional medicine but modern medicineas well with some of their extracts being used bypharmaceutical companies as raw material for themanufacture of drugs It is estimated that over 40percent of all prescriptions in the US for instance containone or more such drugs that originate from wild species14

Some species may also be used in medical research

4 Social-cultural Value

The social value of wildlife arises from the fact thatit is used for education research recreational andcultural purposes Firstly there is wildlife educationwith wildlife studies as a distinct career Secondlywild animals are also useful for scientific researchas most researchers use them as specimens forcarrying out tests Thirdly some forms of wildlifeare a source of recreation for humans throughwatching and sport hunting15 Fourth some animalsndashlions for instance- are part of traditional passingrites In the course of an informal discussion with avillage elder during the research period the authorlearnt that there is a cultural practice according towhich young adult men or morans (meaning aMaasai warrior) return home with the head of a lionas a symbol of bravery16 On a light note the said elderstated an age-old joke among the Maasai that a lionis likely to take to its heels if confronted by a moran

B Externalities and OpportunityCost of Wildlife Conservation

Meaningful conservation can best be understood inthe context of other larger economic and social

factors such as poverty culture livelihoods andpopulation expansion The IUCN in a resolution atits twelfth General Assembly held in KinshasaCongo in 1979 recognised that conservation effortscannot succeed without the support of the localcommunities Sayer observes that a wildlifeconservation strategy that does not take into accountthe needs aspirations and rights of the local peoplesis non-viable in the long-term17

Just as it is fit to highlight its positive contributionto human welfare it is also proper to examine theopportunity cost and externalities of wildlifeconservation There are two limbs to this Firstly theeconomic and even social viability of reserving land forwildlife vis-agrave-vis alternative land uses such as agricultureThis is in terms of competition with man for space andresources since wildlife conservation is a form of landuse that should be compared to other forms In the thirdworld especially Africa biodiversity continues to beundermined by human activities especially by thedemand for land for agriculture and settlement Thesecond limb is about the negative costs that these wildanimals impose on the people in terms of loss of lifelimb and property

With regard to the first limb population in most ofAfrica is predominantly rural-based peasantry mostlyclassified along ethnic lines A large portion of thepopulation lives in rural areas relying on subsistencefaming for livelihood In an agrarian society such as thisland should be devoted to agricultural use Agricultureis extremely important for it supplies the populationwith food that is the driving force of life and with rawmaterials needed for industry (for instance with teacoffee cotton sugarcane sunflower sisal etc)

Unfortunately only a small part of the total landsurface is suitable for arable farming18 This makesit imperative that such land be devoted to agricultureIt is also justified that the rest of the land that is notvery arable be applied to other forms of land useThis is coupled with the fact that some of the regionsin which wildlife is present are primarily agriculturalzones supporting livestock and arable farming The


13 H Krunk Hunter and Hunted Relationships between Carnivoresand People 121(Cambridge Cambridge University Press2002)

14 UNEP Taking Action An Environmental Guide for YourCommunity 128 (Nairobi UNEP 1995)

15 See eg ED Mungatana Recreation Value of WildlifeViewing A Case of Lake Nakuru National Park Kenya 5(Unpublished MSc Thesis Agricultural University ofNorway 1992)

16 This came up in an informal interview the author had witha Maasai elder in Narok in the course of research

17 J Sayer Rainforest Buffer Zones Guidelines for ProtectedArea Managers 1 (Cambridge IUCN Forest ConservationProgramme 1991)

18 Less than eighteen per cent in the case of Kenya

88

scarcity of land means that it should not beexclusively devoted to agricultural use for foodsecurity but should be available for other uses as wellThis is made worse by the fact that not all the landsuitable for arable farming is devoted to such use Thusarable farming has to compete for this land with otheruses such as industry forestry mining settlementrecreation and wildlife

Mungatana estimates that the net agriculturalopportunity cost due to wildlife protected areas ofalternative land uses and earnings forgone to the Kenyaneconomy is of approximately USD 203 million19 Thishe estimates to be 28 per cent of the GDP and enoughto support 42 million Kenyans20

Regarding the second limb despite their positivecontribution to human welfare wild animals alsocritically undermine the peaceful existence andlivelihoods21 of humans They also injure or kill peopletheir livestock eat their crops and destroy their physicalproperty This nuisance value of wild animals has givenrise to a raging human-wildlife conflict People in turnreact by attacking the animals and poisoning them

C Protected Area WildlifeManagement

One of the ways in which the law plays a role inwildlife management is through the establishmentof protected areas (also called PAs) The 1992Convention on Biological Diversity22 for instancesupports the protected areas system of wildlifemanagement It stipulates that parties must establishprotected areas restore degraded ecosystems controlalien species and establish ex situ conservationfacilities The World Conservation Union (IUCN)has defined a protected area as lsquoan area of land andor sea especially dedicated to the protection ofbiological diversity and of natural and associated

cultural resources and managed through legal orother effective meansrsquo23

There are various categories of protected areasnamely nature reserves national parks gamereserves biosphere areas and game sanctuaries24

The idea of protected areas and of national parks inparticular originated in the US In 1864 the USCongress set aside public lands and then gave themto the State of California These lands were in theYosenite Valley at Yellowstone A national park wasestablished there in 1872 becoming the first evernational park in the world

Notably there is however nothing so special aboutthe protected area system of wildlife managementThe system is certainly not inviolable UNEP forinstance reports that although the legally protectedareas cover almost three per cent of the earthrsquos landsurface area most of these areas exist only on maps25

They (PAs) are part of the land management systemand should not be looked at in isolation of allnational life goals and aspirations They are notjust places for mere fun and adventure by touristsAs such they need to contribute to the naturalobjectives such as poverty alleviation improvinglivelihoods and job-creation Being part of the overallland use practices they ought to be made an integralpart of land use planning and management

Except where there is a community-based policy ofwildlife management the traditional Protected Areamanagement approach is for confining animals insuch areas for viewing and recreational purposes Acase in point is Kenya where the government hasadopted indirect utilisation of wildlife throughtourism as opposed to direct utilisation throughhunting for instance The wildlife sector is anindustry that should justify its existence Until thepeople get from wildlife more than they receive fromtheir cows crops and other forms of land-use theywill not be prepared to support conservation


19 Mungatana note 15 above20 Id21 R Kamugisha et al Parks and People Conservation and

Livelihoods at Crossroads - Four Case Histories 190 (NairobiACTS Press 1997) define the term lsquolivelihoodsrsquo as the meansof earning a living implying availability of and access toproduction resources

22 Opened for Signature in Rio de Janeiro on 5 June 1992 Inforce since 29 December 1993 Kenya became a party tothis treaty on 26 July 1994

23 See generally World Conservation Union (IUCN) Guidelinesfor Protected Area Management Categories 1 (Gland IUCN1994) See also KB Ghimire lsquoSocial Change andConservation An Overview of Issues and Conceptsrsquo in KB Ghimire and M P Pimbert eds Social Change andConservation Environmental Politics and Impacts of National Parksand Protected Areas 1 10 (London Earthscan 2001)

24 See generally IUCN Guidelines note 23 above25 UNEP The State of the World Environment 24 (Nairobi UNEP 1991)

89

balance private interests of ownership with widersocial interests such as heritage future generationssocietal interests and public concerns One way inwhich the law secures the latter is through theexercise of eminent domain powers There are anumber of reasons for justifying the Statersquosintervention in the institution of private ownership ofland

Firstly land and other natural resources are a heritageof mankind that should be available for present andfuture generations In fact it is argued that suchresources are only held by the State in trust for futuregenerations and that the citizens should ndash while utilisingthem ndash take into consideration the interest of futuregenerations Therefore since land is entrusted in thehands of the State on behalf of all future generationsit is held by the present generation under the sameconstraints and the State is entitled to administer thistrust by enacting laws and regulations This trust alsoputs on the individual landowner an obligation topreserve the land for future generations Secondly itsimportance and scarcity dictates that its tenure anddistribution be controlled for the benefit of society

4THE CONCEPT OF EMINENTDOMAIN

As already noted elsewhere in this paper the termeminent domain in the context of this study refers tothe power of the State to compulsorily acquire privatelyowned land for public uses The exercise of eminentdomain powers is one way in which the State lifts thecloak of private property for public benefit This poweralthough stricto sensu inconsistent with the concept ofprivate property is one way in which the private interestof a landowner 28 is reconciled with wider publicinterests such as conservation For land ownership tobe a viable institution it should be possible for it to beexpropriated in the public interest lest it becomes acurse upon society

3PRIVATE PROPERTY RIGHTS INLAND

Land is a very sensitive aspect of manrsquos life and especiallyin Africa where the economies are predominantlyagrarian Agriculture in general and arable farming inparticular is the main stay of Kenyarsquos economy Henceapart from the land in urban areas and the land underprotected area management all the remaining land ischaracterised as agricultural land

In fact land is one of the basic natural resources availableto man for his economic activities Its efficient use andthe appropriate distribution of its benefits shouldtherefore be the concern of all peoples and nationsSince it is manrsquos heritage it should be well managed togenerate the nationsrsquo resources needed by the presentand future generations It is a source of resourcesproviding irreplaceable sustenance for social as well asnatural systems and should therefore be used wiselySince land is a non-renewable resource it will foreverremain a scarce commodity in a world of continuingpopulation expansion

Despite its characteristic as a public resource when it issubject to private ownership it is regarded as privateproperty Like any other private property the inviolabilityof its ownership is guaranteed by the Constitution26

The Registered Land Act buttresses this position TheAct designates the registered landowner as aproprietor and guarantees him absoluteproprietorship27 Indeed the protection of privateproperty is one of the primary concerns of thegovernment This argument has foundations in legaltheory as well as practice Thomas Hobbes forinstance depicted the state of nature as one in whichthere was no ownership of property and thatsafeguarding private property is one of the mainreasons for people installing sovereign authority

The individualistic concept of property however isnot limitless There is for instance the need to


26 Kenya Constitution of the Republic Section 7527 Kenya Registered Land Act Sections 27 and 28 28 Usually selfish interests

90

Absolute rights however are unfathomable in themodern world hence the private property rights canonly be understood in the context of society29

Besides in most jurisdictions the radical principleof title to land belongs to the crown and the subjectsonly tenants of the crown merely enjoying certainbundles of interests in it at the latterrsquos pleasure isprevalent For this reason the sanctity of privateproperty is in reality a mere phrase These powersshould however be strictly regulated to prevent theruling elite from whimsically alienating privatelyowned lands

The foregoing observations result in eminentdomain being a fairly contentious legal issue Thelaw on the one hand guarantees the right of privateownership yet on the other hand it turns around toallow the government to expropriate such propertyeven against the will of the landowner This is akinto giving with one hand and taking with the otherThere is a legal obligation on the State to respectand protect private property With regard to landthe State has a corresponding moral obligation toensure that the land is available to sustain otherforms of life as well

5USING EMINENT DOMAIN FORPROTECTED AREA WILDLIFECONSERVATION UNDER KENYANLAW

Kenyarsquos performance in wildlife conservation is ofsignificance for two main reasons First her wildlifeis rated as one of the most abundant and varied inthe world30 Secondly Kenya hosts the headquarters

of the United Nations Environment Programmewhich is the only environment programme of theUnited Nations This status in a way creates the needto assess her participation in environmentalconservation efforts such as wildlife managementCirelli observes that the establishment of protectedareas is a traditional means for pursuing wildlifeconservation31

A Kenyarsquos Protected AreaWildlife Estate

Wildlife conservation is perhaps as old as man himselfbecause even in early times there were traditionalcustoms rules taboos beliefs and practices relating towildlife32 However formal wildlife management beganwith colonialism Prior to this there existed no formalpolicy or regulations on wildlife People were free toutilise wildlife as they needed and in accordance withAfrican customary practices and values33 After theestablishment of colonial rule the government adoptedstiff regulations mainly on hunting and wildlife productsThe major argument of the colonial government wasthat wildlife needed to be protected from the adversitiesof the natives It claimed that African hunters were crueland wasteful while nomads over-grazed the land andout-competed wild animals34

In 1945 protected areas (PAs) were established andformal regulations imposed on them Wildlife ownershipwas also vested in the Crown35 Apart from beingintended to protect wildlife by keeping it separate frompeople PAs are a western concept of conservationUnder this concept wildlife is confined in designatedconservation areas as required by the land useplanning regulations in western countries36


29 Legal theorists such as Locke and Rousseau have arguedthat only rights in the state of nature (natural rights) wereabsolute and that in the modern state man can only enjoycivil liberties which are subject to limitations

30 SN Muturi et al Resources Allocation in AgriculturalResearch in Kenya Part I Findings and Recommendations4 (Kenya National Council of Science and Technology1982) In some habitats live certain species that occurnowhere else on earth

31 MT Cirelli Legal Trends in Wildlife Management 47 (RomeFAO 2002)

32 Overseas Development Administration (ODA) AfricaWildlife Policy Consultation ndash Final Report of theConsultation 77 (London ODA 1996)

33 JN Muriuki Cooperation or Conflict Managing ScarceResources of Africa A Case for Community WildlifeConservation in Kenya 8 (Mimeo 1996)

34 G Monbiot lsquoKeepers of the Artificial Wildernessrsquo BBCWildlife Magazine 4 (July 1994) available at httpwwwmonbiotcomarchives19940701keepers-of-the-artificial-wilderness

35 Id36 SM Munthali lsquoTraditional and Modern Wildlife

Conservation in Malawirsquo 272 ORYX 1 (1993)

91

In setting up these PAs the natives were displacedsometimes forcibly without any monetarycompensation for the huge tracts of land that hadbeen appropriated for conservation The process wasrather draconian and undemocratic since it wascarried out without the participation or consent ofthe natives37 Monbiot says some of these placeswere among the longest inhabited places on earthand most of them agriculturally high potentialareas38 This is corroborated by Munthali who notesthat many of these areas were either habited bypeople used by them for cultivation ancestral burialgrounds or sacred areas39 In almost each of theseareas the people claim that the land occupied by PAswas their ancestral land from which the colonialistsejected them without compensation of any kind

While no compensation was paid by the colonialgovernment for the land acquired from the natives forthe establishment of protected areas such a draconianapproach may not work in the post-independence eraFor one independence meant expansion of thedemocratic space and regard for tenets of goodgovernance which require that the people be consultedBesides in those times the land was unregistered andthe natives neither owned any land nor had anydocumentary proof of ownership Since independencehowever most of the land is registered and people havetitles with their ownership rights protected by both theConstitution40 and legislation41

More PAs have been established in the post-independence era Presently they constitute at least


seven per cent of Kenyarsquos total land area42 It isestimated that there are a total of 26 National Parksand 30 National Reserves in the country43 Despitedesignating some protected areas for wildlifeconservation not all wildlife is in these areas Aconsiderable portion of wildlife is outside the PAsBesides animals sometimes leave the PAs and roampeoplersquos lands causing damage to the people and theirproperty This means therefore that most wildlifein Kenya spends a substantial amount of time oncommunity land usually leaving havoc in theirwake44 These rural peasants lose more than theygain from wildlife in PAs In Kenya the localcommunities are not prepared to share their landwith the state There are three major justificationsthat are usually cited

Even though these PAs are surrounded by humansettlements the inhabitants hardly get any benefitsfrom such areas and usually do not participate inthe revenue collected The real benefits of wildlifego to urban-based tourist companies In most casesthere is hardly any mechanism for ensuring that suchrevenue trickles down to the local communitiesIncidentally these rural peasants are the people whodaily interact with wildlife since they share the sameecosystems If their concerns and welfare are welladdressed there could probably be a stronger lobbyfor conservation

37 E Barrow and M Murphree lsquoCommunity ConservationFrom Concept to Practicersquo in D Hulme and M Murphreeeds African Wildlife and Livelihoods The Promise and Performanceof Community Conservation 24 (Nairobi EAEP 2001)

38 Id This means that these areas were very important for thesubsistence of indigenous people

39 Munthali note 36 above at 540 Section 75 of the Constitution of the Republic of Kenya

Sub section (1) thereof provides that even where therequirements as to the public interest have been satisfied noproperty shall be compulsorily acquired without paymentof compensation The compensation required under thissection is lsquoprompt and full compensationrsquo whatever thatmeans

41 Kenya Section 27 and 28 of the Registered Land Act Cap300 provides that the rights of an owner of land registeredunder it are absolute and indefeasible subject only to certainoverriding interests stipulated in Section 30 of the Act

42 See generally UNEPUNDPDUTCH Joint Project onEnvironmental Law and Institutions in Africa East AfricanSub-Regional Project 1999 Development andHarmonisation of Environmental Laws in Report on theDevelopment and Harmonisation of Laws Relating toWildlife Management (Nairobi UNEP 2000) In Botswana37 per cent of the total amount of land area is devoted towildlife conservation See also Government of BotswanaGovernment Paper No 1 of 2001 Community BasedNatural Resources Management Policy (2001)

43 KWS Wildlife Human Conflicts Executive Summaryavailable at httpwwwsafariwebcomkwildsummeryhtm But see E Barrow et al in D Hume and MMurphree eds African Wildlife and Livelihoods The Promiseand Performance of Community Conservation 59 (Nairobi EastAfrica Educational Publishers 2001) who estimate thesewildlife areas to comprise 36 National Parks and GameReserves occupying together at least 43 673 km2

(approximately 75 per cent of the total land area)44 B Sibanda lsquoWildlife Conservation in Kenya Wildlife or

Local Communities at Crossroadsrsquo 51 Environmental Policyand Practice 35 40 (1995)

92

B Human-Wildlife ConflictsOutside The Protected Areas

Undeniably Kenyarsquos wildlife is one of the mostvaried in the world45 It is Kenyarsquos stated policy topreserve these species46 The government in itspolicy recognises the need to establish optimumbalance between devoting land to wildlife and thedemand for human settlement47 This iscompounded by the fact that only less than 25 percent of Kenyarsquos wildlife is within the PAs48 Withover 75 per cent of the wildlife population occurringoutside the PAs49 the human-wildlife conflict is criticaland threatens the future of wildlife conservation Muchof the original wildlife habitat of Kenya has been lostdue to human interventions Such interventions includeexpansion of permanent cropland expansion of humansettlements construction of infrastructure such as roadsas well as other anthropogenic activities

Experience has shown that this conflict is initiallydetrimental to humans when wildlife occasions themharm and loss but subsequently the wildlife suffers toowhen people start attacking them in retaliation50 UnlikeBotswana where the PAs are surrounded by bufferzones in order to separate wildlife from humansettlements51 in Kenya they are generally bounded byareas of human habitation In this kind of scenario thehuman-wildlife conflict is an increasing phenomenonWith a human population growth rate of four per centper annum the wildlife habitat will increasingly shrinkas human beings settle and extend agricultural anddevelopment activities in what used to be the wildlife

areas52 In some cases the population in areas aroundprotected areas seems to be increasing at rates higherthan the national population growth rate53 A recentstudy reported that in the Maasai Mara environs forinstance the human population and cultivated landincreased by seven per cent and 1000 per centrespectively between 1977 and 199754 During the sameperiod the numbers of non-migratory wildlife declinedby 58 per cent55 This is also the situation in otherregions with wildlife

In Laikipia District for instance people bought hugetracts of land that were formerly game ranches and sub-divided them into small pieces of land for settlementand farming activities56 In the Mount Kenya regionpeople have moved onto and settled on elephantmigration routes and corridors57 In Kajiado districtthe land under cultivation has expanded by almost 800per cent since 1971 while in Narok agriculture has beenexpanding rapidly into areas previously used for grazingand as wildlife dispersal zones58

It has been asserted that while such land-use changestake place people often ignore the fact that these areashave been wildlife habitat59 Despite the presence ofhuman settlements and activities in these areas that wereformerly under vegetation wild animals still try tomigrate through them Initially many communitiesbordering game parks and reserves were essentiallynomadic60 Over time they have radically changed theirlifestyles Many of them have adopted permanentsettlements and sedentary subsistence farming for


45 NW Sifuna Kenyarsquos Criteria for Participation inEnvironmental Treaties 5 (Moi University School ofEnvironmental Studies MPhil (Environmental Law) Thesis1999)

46 See Kenyarsquos current and preceding National DevelopmentPlans

47 Id48 See Sibanda note 44 above49 See Kenya Wildlife Service Wildlife-Human Conflicts in

Kenya The Five-person Review Group (Nairobi KWS1994)

50 N Sifuna lsquoProviding Compensation for Damage Caused byWildlife A Case of Kenya with Particular Reference toElephantsrsquo 20(1) Journal of Social Development in Africa 7 11(2005)

51 See Government of Botswana Government Paper No 1of 2001 Community Based Natural Resources ManagementPolicy (Gabarone Government Printers 2001)

52 See Kenya Wildlife Service Wildlife-Human ConflictsExecutive Summary available at httpwwwsafariwebcomkwildsummeryhtm See also M Coughenour et al TheSavanna Model Providing Solutions for Wildlife Preservation andHuman Development in East Africa and the United States 4(Research Report February 2000) These facts also emergedfrom interviews with conservationists and KWS officials

53 Id54 W Ottichillo et al lsquoPopulation Trends of Large Migratory

Wildlife Herbivores and Livestock in Maasai MaraEcosystem Kenya 1977-1997rsquo 38 African Journal of Ecology202 204 (2000)

55 Id56 See Muriuki note 33 above57 Id58 J Mbaria lsquoIs KWS a Relevant Outfitrsquo Daily Nation (Nairobi)

12 December 200159 See Ottichillo note 54 above60 The Maasai community for instance

93

food The fact is that over 75 per cent of Kenyarsquoswildlife population roaming out there most of iton private land indeed exacerbates the already ragingclash between humans on the one hand and wildlifeon the other One way in which this trend can bestemmed is by increasing the wildlife habitat Thiscalls for acquisition of more land for expansion ofprotected areas and for establishment of buffer zones

The Wildlife (Conservation and Management) Act61

seems to underscore the need to reconcile human needsfor land and the competing wildlife requirements as wellThe Act in its preamble recognises wildlife as animportant resource and goes on to note that proper land-use and management is essential for its conservationgiven that it takes time to revitalise it if not properlymanaged62

C Land Ownership Rights in Kenya

When the British colonised Kenya at the turn ofthe nineteenth century they realised that there werenot any well defined land ownership and land tenuresystems The colonial government introduced thethen English property law according to which thesubjects held land as property of the crown In factafter 1915 Africans were said to be mere lsquotenants-atwillrsquo of the crown and thereafter beneficiaries of atrust established by the government to administerthe land they occupied63 The situation has notchanged much because even now the practice is thatin Kenya a person owns land at the pleasure of thePresident Ideally the President has powers toallocate public lands as well as control the use ofprivate land (police powers)

There are various legal regimes of land ownership inKenya Land is governed by various pieces of legislationThe predominant system of land ownership is the oneunder the Registered Land Act (RLA)64 which is

fashioned on the Australian Torren model Thismodel was adopted after independence in order tosecure the proprietary interests of white settlers whothen owned most of Kenyarsquos arable land Theregistration and ownership of land was consolidatedinto the RLA This piece of legislation gives theregistered proprietor of land an absolute andindefeasible title by virtue of the issuance of titledeeds65

D Eminent Domain Powers UnderKenyan Law

1 Circumstances for Eminent Domain

In Kenya the law protects the sanctity of privateproperty and no private land can be acquired by thegovernment compulsorily except in accordance with thelaw Such land is private property and has to first beacquired by the State under the powers of eminentdomain under the Land Acquisition Act66 Once it hasbeen acquired and has become public land it is thenand only then that it may be converted into a protectedarea for wildlife conservation This means thereforethat it is a two-tier process first by the Minister for landsthen by the Minister for wildlife If the latter wants toacquire private land for conservation he has to informthe former who then initiates the process

With regard to the exercise of the powers of eminentdomain the law addresses four major questions as thebare minimum required for determining whether tocompulsorily acquire a particular land First the use forwhich the land is being acquired Second the priorrequirements to be fulfilled before the land is acquiredThird the procedure to be followed for acquisitionFourth the safeguards necessary to prevent excesses bythe authorities

The circumstances under which land may be soacquired and the conditions to be observed areexpressly stipulated in the Constitution67 and in theLand Acquisition Act68 Under these laws thegovernment may compulsorily acquire private landonly when the acquisition is in the public interest


61 See note 2 above62 The Act in its preamble states as follows lsquoAND WHEREAS

it is necessary for the achievement of that objective thatfull account should be taken of the varied forms of landuse and inter- relationship between wildlife conservation andmanagement and other forms of land usehelliprsquo

63 HWO Okoth-Ogendo Tenants of the Crown EvolutionAgrarian Law and Institute in Kenya 5 (Nairobi ACTS Press1991)

64 Cap 300 Laws of Kenya

65 Id66 Cap 295 Laws of Kenya67 See note 40 above68 See note 66 above

94

Section 8 of the Land Acquisition Act provides thatlsquowhere land is acquired compulsorily under this partfull compensation shall be paid promptly to allpersons interested in the landrsquo

The Environmental Management and Co-ordinationAct provides that all citizens have a right to a cleanenvironment and a duty to safeguard it75 One of theimplications of this provision is that environmentalamenities such as wildlife also being public resourcesresponsibility for their well being is a collective aswell as singular responsibility of all the citizens Thisis in accordance with environmental ethics underwhich man is a custodian of nature

The above provisions are the ones that set the stage forthe compulsory appropriation of private land and clearlystipulate the reasons and uses for which that is to bedone It follows therefore that under Kenyan law privateproperty is sacrosanct and no land of such descriptionmay be compulsorily acquired by the State except forreasons of defence public safety public order publicmorality public health town and country planning orthe promotion of public benefit Acquisition of landfor protected area management or any wildlifeconservation purpose therefore falls under thepromotion of public benefit The doctrine of eminentdomain entitles the State to acquire land compulsorilyIt entails the right of the Government to take privateproperty for public use on providing just compensationfor it It is the power of a sovereign State to take or toauthorise the taking of any property within itsjurisdiction for public use without the ownerrsquos consent

Under Kenyan law and practice the opinion of theowner on whether or not the government should acquirehis land is not considered Accordingly objections bythe landowner are irrelevant and provided the laid downprocedural requirements are complied with by thegovernment the land will be acquired In fact any formof resistance or obstruction from protesters iscriminalised It is an offence to wilfully obstruct orhinder a government officer from carrying out anyfunctions necessary for the acquisition of land76

The Minister for Wildlife has discretionary powersunder the Wildlife Conservation and Management

The Constitution upholds the inviolability of privateproperty and prohibits the taking of such land exceptwhere the following conditions are satisfied69

a) the taking of or acquisition is necessary inthe interests of defence public safetypublic order public morality publichealth town and country planning or thedevelopment or utilisation of property soas to promote the public benefit and

b) the necessity thereof is such as to affordreasonable justification that may result to anyperson having an interest in or right over theproperty and

c) provision is made by a law applicable to thattaking of possession or acquisition for theprompt payment of full compensation

The conditions as to the public interest are alsocontained in the Land Acquisition Act which directsthe Lands Minister to satisfy himself as to the existenceof such public need before setting in motion theprocess It requires the Minister to be satisfied that suchland is required for the purposes of a public body andfirst that the acquisition is necessary and likely topromote public benefit70 In fact it expressly providesthat the necessity should be such as to justify thehardship that the intended acquisition may cause to anyperson having a legally protected interest71

The obligation of the government to pay compensationfor the land it acquires compulsorily under the powersof eminent domain is expressly stipulated in theConstitution72 and the Land Acquisition Act73 TheConstitution expressly states that no private propertyshall be compulsorily acquired by the government unlessamong other conditions provision is made by a lawapplicable to that taking of possession or acquisitionfor the prompt payment of full compensation74


69 See note 40 above70 See section 6 (1) note 66 above71 Id72 See note 40 above Section 75 (1) which provides that even

where the requirements as to the public interest have beensatisfied no property shall be compulsorily acquired withoutpayment of compensation The compensation requiredunder this section is lsquoprompt and full compensationrsquo

73 See note 66 above74 Id

75 See section 3 note 66 above76 See section 32 note 46 above

95

Act (WCMA) to establish protected areas77 The Actsays that he may declare lsquoany landrsquo a national parkgame reserve or sanctuary which strictly speakingconnotes any land be it public land or privatelyowned However in practice this does not happenwith private land as it would infringe theproprietary rights guaranteed by the Constitution78

Besides the Act stipulates the conditions underwhich this may be done79 One of them is that theminister shall exercise his discretion to declare afterconsultations with the competent authority80

For practical purposes the land subject to the exerciseof these powers should mean and exclude private landThis is because such land may only be acquired eithervoluntarily by the Ministry of Wildlife from the owneron a willing seller-willing buyer basis or compulsorilyby the Ministry of Lands through the powers of eminentdomain The first one is a voluntary procedure governedby the freedom of contract and the market forces ofdemand and supply and has little potential forcontroversy81 Compulsory acquisition for its part isfairly controversial due to the lack of free will It is thissecond type of acquisition that is the subject ofcompensation and therefore falling within the scope ofthis paper

In this paper we are concerned with the acquisition ofprivate lands for conservation

Theoretically it would seem that the wildlifeminister would in exercising his statutory powersjust declare any land a protected area In practicehowever this does not happen to private land as itwould infringe the proprietary rights guaranteed bythe Constitution Such land has first of all to beacquired by the Minister of Lands to become publicland It is then and only then that further steps maybe taken by the government through the wildlife

minister and the lands minister working in concertso that it may be declared wildlife protected area

2 The Process of Eminent Domain

The law specifically sets out the procedure to be followedby the government in compulsorily acquiring privateland This statutory procedure has been laid down inthe Land Acquisition Act as read together with theWCMA82 and the Environmental Management andCoordination Act83 This process can be summarisedinto nine steps Because even after the land has beenacquired by the State changes in ownership need to beeffected at the land registry and it cannot just be turnedinto a wildlife conservation area Two further steps arenecessary namely consent of the Minister for lands andan Environmental Impact Assessment (EIA) The initialcompulsory acquisition process can be summarised innine steps set out below

Step one Ministerial Directive to the Commissioner ofLands

The process is initiated by the Minister of Lands whoin writing directs the Commissioner for Lands to acquirea particular parcel of land These instructions shouldindicate the description of the land and the purpose forwhich the land is required

Step two Notice of Intention to Acquire

Upon receiving the Ministerrsquos instructions thecommissioner then prepares a notice of theGovernmentrsquos intent to acquire the said land andpublishes it in the Kenya Gazette84 He also servescopies of the notice on every person who appears tohim to be interested in the land It was held by the Courtof Appeal in Commissioner for Lands v CoastalAquaculture Ltd85 that the notice must state the publicpurposes for which the land is being acquired andif it is for a public body state the name of that bodyIn this case the notice had neither indicated the


77 See section 6 note 2 above78 See note 40 above79 Id80 The meaning of competent authority is found in section 2

of the Act which defines it as follows lsquo(a) In relation toGovernment land the minister for the time being responsiblefor matters relating to land (b) In relation to trust land thecounty council in which the land is vested ( c) In relation toany other land the owner thereof or the person for thetime being entitled to rents and profits thereofrsquo

81 The consideration of which is the agreed price

82 See note 40 above83 Kenya Environmental Management and Co-ordination Act

Act No 8 of 199984 This is the official government gazette published by the

Government Printing Press85 Commissioner for Lands v Coastal Aquaculture Ltd Mombasa

Court of Appeal No 252 (1996)

96

purpose nor the name of the public body The courtdeclared the notice defective and by an order ofcertiorari quashed the acquisition Pall JJ (as he thenwas) observed that for compulsory acquisition to belawful it must strictly comply with the provisionsof the Constitution and the Land Acquisition Act

Step three Notice of Inquiry

After the publication of the Notice of Intention toAcquire the Commissioner then appoints a date for theholding of an inquiry to hear claims for compensationby persons interested in the land subject to acquisition86

He then publishes it in the Kenya Gazette and againserves it on every person who appears interested or whoclaims to be interested in the land87 This notice shouldbe published in the Gazette at least fifteen days beforethe inquiry

Step four Holding of an Inquiry

This inquiry should be convened at least 21 days fromthe date when the Notice of Intention was publishedOn the date appointed for hearing of the inquiry thecommissioner shall make full inquiry into and determinethe persons interested in the land the value of the land(determined in accordance with the principles set outin the schedule to the Act) and what compensation ispayable to each of the people who he has determinedto be interested in the land

Step five Award of Compensation

Following the inquiry and subsequent determination ofthe amount of compensation the government thenmakes an award of compensation to the person entitledto it

Step six Transfer of Ownership to the State

After the award of compensation the State thenassumes ownership of the land Appropriate changesmade in the Ministry of Lands take place removingthe said parcel of land from the register of privateownership and placing it in the public domain as

public utility land It is from then on that it can bedeclared a protected area

Step seven Consent of Lands Minister

In Kenya most public land is under the Ministry ofLands To declare it a protected area the WildlifeMinister is required by section 6 of the WCMA toconsult with the Minister for Lands and obtain hisconsent If the latter consents he may go ahead to makethe declaration In case of dissent he has no powers toappropriate the land except by obtaining the approvalof the Parliament through a resolution But even aftersuch consent or the Parliamentrsquos approval as the casemay be has been obtained a series of requirements ofthe Environmental Management and Coordination Actas to Environmental Impact Assessment (EIA) have tobe complied with The next step will be accordingly anEIA

Step eight Environmental Impact Assessment

Under the Environmental Management andCoordination Act of 1999 (EMCA) no national parksgame reserves and buffer zones may be created withoutundertaking a prior EIA88 This may come before orafter the consent of the Minister for Lands and it isimportant because the EMCA supersedes all other piecesof legislation when it comes to environmental issues89

Step nine The land is declared a wildlife area

After fulfilling the requirements as to EIA and theMinister of Landsrsquo consent the Wildlife Minister maythen by declaration place the land under protected areamanagement

3 The Amount of Compensation and howit is paid

The formula for determining the amount ofcompensation is stipulated in the Land Acquisition


86 The date of the inquiry should be not earlier than 21 daysafter the publication of the Notice of Intention

87 The notice of inquiry calls upon the person interested inthe land to deliver to the commissioner not later than thedate of the inquiry a written claim for compensation

88 See section 58 and the second schedule89 See section 148 of EMCA note 83 above which states as

follows lsquoAll written law in force immediately before thecoming into force of this Act relating to the managementof the environment shall have effect subject to modificationsas the case may be necessary to give effect to this Act andwhere the provisions of any such law conflict with anyprovisions of this Act the provisions of this act shall prevailrsquo

97

Act In assessing the lsquofull compensationrsquo the Actrequires the Commissioner to appoint a date for theholding of an inquiry for the hearing of claims tocompensation by persons interested in the land Toarrive at the appropriate amount he is required toapply the principles set out in the schedule to theAct90 These are summarised below

(i) Matters to be considered in computing thequantum91

bull Market value of the land

bull Damage sustained or likely to be sustained bypersons interested at the time of the Commissionertaking possession of the land by reason of severingthe land from his other land

bull Damage sustained or likely to be sustained bypersons interested at the time of the Commissionertaking possession of the land by reason of theacquisition injuriously affecting his other propertywhether movable or immovable or in any othermanner or his actual earnings

bull If in consequence of the acquisition any of thepersons interested is or will be compelled to changehis residence or place of business reasonableexpenses incidental to the change

bull Damage genuinely resulting from diminutionof the profit of the land between the date ofpublication in the Gazette of the notice ofintention to acquire the land and the date thecommissioner takes possession of the land

(ii) Matters not to be considered in computing thequantum92

bull Degree of urgency which has led to acquisition

bull Any disinclination of the person interested topart with the land


90 See section 8 Cap 295 of the Laws of Kenya note 66 above91 Principle 292 Kenya Principle 3 of the Schedule to the Act

bull Damage sustained by the person interestedwhich if caused by a private person would notbe a good cause of action

bull Damage which is likely to be caused to the landafter the date of publication in the Gazette of thenotice of intention to acquire the land or inconsequence of the land or in consequence ofthe land will be put

bull Any increase in the value of the land likely to accruefrom the use to which it will be put when acquired

bull Any outlay or additions or improvements to theland incurred after the date of publication in theGazette of the notice of intention to acquire theland unless the same were necessary for themaintenance of any building in a proper state ofrepair

Once the quantum of compensation has beendetermined it has to be paid before the governmentcan assume possession of the land Under the LandAcquisition Act93 compensation need not be in theform of money it may either be money or land providedthat if it is land the value of such land shall not exceedthe value of the compensation that would have beenallowable Over and above the actual value of the landthe law also stipulates an additional payment of fifteenper cent of such value to the amount awarded ascompensation94 It also provides for an interest of sixper cent per year where the compensation awarded isnot paid or paid into court on or before the taking ofpossession of the land calculated from the time oftaking possession until payment or payment before thecourt95

The Act further fortifies the governmentrsquos positionby asserting the finality of the award Section 10(2)of the Land Acquisition Act provides that everyaward of compensation shall be final and conclusiveevidence of the acreage value of land and amountpayable irrespective of whether or not the ownerattended the inquiry It further states that an awardshall not be invalidated by reason only of a

93 See section 12 note 66 above94 Kenya Principle 4 of the schedule to the Act95 See section 16 (1) note 66 above

98

discrepancy which may thereafter be found to existbetween the area specified in the award and theactual area of the land

4 Mechanisms for Redress for anAggrieved Landowner

A person aggrieved by the acquisition of his land bythe government may petition the High Court for redressHis right for redress arises from the Constitution96 theLaw Reform Act97 and the Land Acquisition Act98Under section 84 of the Constitution any person whoseConstitutional rights have been infringed may apply tothe High Court for a determination on the issue and anappropriate remedy Section 75 (2) also gives anaggrieved party a direct right of recourse to the HighCourt for determination of his interest or right thelegality of taking possession or acquisition of theproperty and the amount of any compensation to whichhe is entitled It further provides that such a suit mayalso be for the purpose of obtaining prompt paymentof that compensation99

Such a suit may also be in the nature of an applicationfor judicial review By dint of Section Eight and Nineof the Law Reform Act a person aggrieved by anexecutive decision like this one may apply to the HighCourt for prerogative orders of certiorari mandamusand prohibition100 The Act empowers the High Courtto issue prerogative orders in instances where theSupreme Court in England would issue them

These orders are usually granted in judicial reviewproceedings where the High Court is exercising itssupervisory powers over decisions of inferior tribunalsand the exercise of executive functions Decisions bythe Commissioner of Lands pursuant to the statutorypowers granted by the Land Acquisition Act are subjectto the supervisory jurisdiction of the High Courtand amenable to being judicially reviewed by it InRe Kisima Farm Ltd the High Court of Kenya heldthat the Commissioner for Lands in determining

claims to compensation under the Land AcquisitionAct should act judicially and accordingly issued anorder of prohibition restraining him fromcontinuing to hold an inquiry into compensation101

The court further observed that the existence of aright of appeal from the Commissionerrsquos decisiondoes not preclude judicial review

5 The Position Under the Proposed NewConstitution of 2005

Kenya has for the last three years been undergoing aConstitutional review process to revise the currentConstitution The Attorney General last year publisheda draft of the proposed new Constitution102 that wassubsequently submitted by the government to a nationalreferendum The draft was however rejected by anoverwhelming majority of Kenyans who voted againstit103 Despite this rejection the Wako Draft providedinteresting insights into how the law on compulsoryacquisition of land might look in future104

It is important to examine provisions in the draftConstitution relating to the exercise of these powers ofeminent domain and compare them with the provisionsin the current Constitution This comparison is toestablish whether the Kenyan government has realisedthe problem associated with compulsory acquisitionunder the present legal regime discussed in the precedingpart It is also important to find out if the governmenthas learnt from the past and is willing to improve Thesefacts can of course be established from an examinationof the said draft that follows below

As if to set the stage for rights to land the draft beganby stating that land is Kenyarsquos primary resource and thebasis of livelihood105 It also provided for twocategories of land namely private land and publicland where the term lsquoprivate landrsquo refers to landheld by any person106 It then prohibited Parliamentfrom enacting a law that permits the State or any

96 See the Constitution note 40 above97 Kenya Law Reform Act Cap 26 of the Laws of Kenya98 See note 66 above99 See the Constitution of the Republic of Kenya note 40

above100 In such a suit he may cite the provisions of the Land

Acquisition Act andor the rules of natural justice or otherestablished grounds for judicial review as well

101 KLR 36 (1976)102 Dubbed lsquothe Wako Draftrsquo (named after Kenyarsquos Attorney

General Amos Wako whose office prepared the draft)103 At the referendum presided over by the Electoral

Commission of Kenya the lsquoNOrsquo vote won against thelsquoYESrsquo vote

104 See article 58(1) note 101 above105 Id article 78(1)106 Id article 54(1)

99


person to arbitrarily deprive a person of any interestin or right over property107 and proceeded toenumerate three instances in which acquisition ispermitted108 The three instances are109

bull If it is for a public purpose or in the publicinterest and is carried in accordance with an Actof Parliament

bull If prompt payment of fair and adequatecompensation is made to the person before theproperty is taken and

bull If any person who has an interest in or rightover that property has a right of access to a courtof law

E A Critical Appraisal of theViability of Using Eminent DomainPowers to Acquire Private Land forWildlife Reserves under KenyanLaw

Under Kenyarsquos current law the exercise of eminentpowers is still largely fashioned along the draconianapproach of the colonial regime It is draconian andundemocratic in that it fails to recognise the landownerrsquosright of dissent which is an integral part of the freedomof conscience enshrined in the Bill of Rights Theprocess is devoid of considerations of human valuesand principles of good governance such as negotiationconsultation livelihood and human rights The Stateretains an upper hand as apparently all that it is requiredto do is put the owner on notice thereafter his viewsare irrelevant

Such militaristic laws are not only unacceptable but alsounsuitable to be used in conservation efforts Wildlifeconservation cannot succeed without the support ofthe local communities because these are the people whointeract with animals on a day-to-day basis This isespecially true in the case of Kenya where despite theestablishment of protected areas a large population ofwildlife still roams outside such areas An unfair regimeof acquiring private lands for conservation will

further heighten the already existing human-wildlifeconflict

In 1975 the International Union for theConservation of Nature (IUCN) at its twelfthGeneral Assembly held at Kinshasa Congo adopteda resolution discouraging the establishment ofwildlife reserves without adequate consultation110

Such consultation indeed thrives where the processis democratic and not where the process is asundemocratic and unfair as Kenyarsquos Although inrecent times there has not been any compulsoryacquisition of private land by the State for expansionof protected area in Kenya this is an avenue thatcan be explored to conserve wildlife for futuregenerations However it still remains unsuitable forconservation until it is democratised

The regime envisaged by the lsquoWako Draftrsquo is perhapsKenyarsquos best formulation with regard to the Statersquosexercise of powers of eminent domain Apart frombeing fairly elaborated it also sought to put in placelaudable safeguards in the exercise of these powers withadequate checks and balances For this reason if adoptedin the future the draft may set the stage for sweepinglegal reforms that would have subsequently led to theamendment of the Land Acquisition Act But even thisdraft could still have provided for a better and moredemocratic regime than it did Suggestions on some ofthe issues that it should have addressed are made in therecommendation section of this paper

Another flaw in the Kenyan practice is that thereasons set out in the law for compulsory acquisitionare so vague and ambiguous as to be incapable ofcertainty There is need for the law to clearly definethe meaning of terms such as public uses publicbody public interest prompt and full compensationUnless the contexts in which these terms areconstrued are expressly spelt out in the law theymay be cited to justify even uses that are against thepublic good such as the selfish interests of the rulingpolitical elite There ought to be safeguards to ensurethey are used in good faith and for the public goodPresently these are lacking and the consequencesof their arbitrary use can be disastrous To avoid

107 Id article 54(2)108 Id article 58(3)109 Id

110 M Colchester lsquoSalvaging Nature Indigenous Peoples andProtected Areasrsquo in K Ghimire and MP Pimbert eds SocialChange and Conservation 97 116 (London Earthscan 1997)

100


injustice for instance instead of using the wordlsquopromptrsquo the law could provide a time limit withinwhich the government must pay compensation tothe owner of any land it compulsorily acquires111

Besides a glance at the reasons stated in the law forcompulsory acquisition shows that there was nointention to acquire private land for purposes ofconservation Neither the Constitution nor the LandAcquisition Act lists environmental protection orconservation as uses for which land may be compulsorilyacquired This is a great omission in this age and timewhere the environment has come to be recognised theworld over as an integral component of sustainabledevelopment and a common concern of mankind Thereis the need to make express provision for conservationThis is because under the regime set in place by theEMCA for instance all citizens have a right to a cleanenvironment and a duty to safeguard it112 One of theimplications of this provision is that environmentalamenities such as wildlife are public resources and thatthe responsibility for their well being is a collective aswell as a singular one

The only innovation by the post-independence approachperhaps is the provision of compensation unlike incolonial times when land was taken without anycompensation being paid However the issue ofcompensation is still flawed With regard to computationof the amount of compensation for instance the lawcould provide a formula for calculation Failing toaddress such concerns is tantamount to leaving such animportant task to the whims of public officials therebymaking it one-sided This may result in unfairnessespecially where a wrong formula is used or where theofficials fail to take into consideration the right factorsSifuna asserts that leaving compensation process entirelyto the public sector increases the likelihood ofcorruption as is reported to have been the case in respectof compensation schemes for wildlife damage113 Incountries like Kenya with a high index ofcorruption some public officials may collude withclaimants to inflate the value of the land

Indeed eminent domain like any other power issubject to the likelihood of abuse and should be

strictly regulated to avoid being abused or evenmisused Without adequate safeguards expresslycrafted in the law to check the whimsical or arbitraryexercise of these powers they can be misused bymischievous political elites to attain selfish ends thatare not in the interest of the people This is importantfor instance to reign in unpopular governments suchas those that ascend to power through military coupsor rigged elections The strict control of such powersis even more imperative in Africa where land is avery sensitive thing In the continent the peoplehave very strong psychological and cultural attachmentto land114

In almost all communities in Africa particularly in thesub-Saharan region a manrsquos wealth is measured in termsof how much land he holds Losing any inch of hisland is something that he will resist at any cost Secondlyvirtually all the land in Africa is ancestral having beenhanded down from generation to generation Thirdlythe African economy is predominantly agrarian relyingmainly on land with agriculture as the main source oflivelihood Under such circumstances the exercise ofeminent domain powers is a fairly delicate issue

This is even more delicate if the land is being acquiredto expand wildlife reserves especially in a country likeKenya where the relationship between the localcommunities on the one part and wildlife concerns onthe other is not cordial due to the stiff competition forscarce resources such as land and water It is also due tothe damage that wildlife occasions to people when itkills injures them or destroys their crops and propertyBecause of these factors there is hardly any publicsupport for wildlife conservation Compulsoryacquisition of private lands for expansion of wildlifeterritory is like adding insult to injury furtherexacerbating an already raging human-wildlife conflictThe government needs to be careful about policies andconducts that may further inflame this passion Toaddress the conflict the State is well advised to adoptan approach likely to win the peoplersquos support forconservation

In jurisdictions such as the Kenyan -one where theConstitution provides for the inviolability of private

111 Eg six months before date of acquisition112 See section 3 of the EMCA note 83 above113 See Sifuna note 50 above 18

114 In Africa many lives have been lost in defence of land Infact the violent resistance by natives to the colonialists wasmore because of land than because of political conquest

101


property rights over land- problems related to landallocation for conservation interests abound especiallyof two typically competing interests namely therights of the individual landowners versusconservation imperatives Private property in landhas far reaching implications for society in terms ofprivate use and other public uses such asenvironmental conservation This is because privateownership elevates ownership rights to aConstitutional plane where the individual owner hasalmost inviolable rights to own Moreover theKenyan Constitution guarantees the inviolability ofprivate property

In order to improve the system of compulsoryacquisition and make eminent domain a useful tool inconservation efforts Kenya can draw some importantlessons from systems that seem to be working well Theauthor considers the one envisaged by the South AfricanConstitution more democratic and therefore illustrativeand desirable Even if like its Kenyan counterpart itallows eminent domain on conditions of public goodand the payment of compensation the difference is inthe way the clauses are framed It stipulates that lsquoPropertymay be expropriated only in terms of law of generalapplication- for a public purpose or in the public interestand subject to compensation the amount of which andtime and manner of payment of which have either beenagreed to by those affected or decided or approved by acourtrsquo115 It further requires116 that such amount timeand manner must be just and equitable reflecting anequitable balance between the public and private interesttaking into account the following factors among others

bull The current use of the property

bull The history of the acquisition and use of theproperty

bull The market value of the property

bull The extent of direct State investment and subsidyin the acquisition and beneficial capitalimprovement of the property and

bull The purpose of the expropriation

It should be noted that while there is need forprotected area conservation there are some non-PAstrategies that may in the long run be moresustainable One of them is conservation of wildlifeoutside the protected areas Kenyarsquos legislationmakes provisions for the development of wildlifeon privately owned land The Wildlife(Conservation and Management) Act allows ownersof such land with the permission of the Minister incharge of wildlife to establish wildlife ranches ontheir farms and even maintain facilities for gamehunting117 Such private wildlife amenities canbecome a way for people to participate in wildlifeconservation as opposed to a protectionist approachwhere wildlife is an exclusive domain of the state

6CONCLUSION AND RECOM-MENDATIONS

The paper has discussed the principles of eminentdomain and has demonstrated that the power ofcompulsory acquisition of land if exercised rightlyand in good faith can be instrumental in protectedarea wildlife management Kenyarsquos laws andprocesses of eminent domain have also beenexamined and found to be unfair and undemocraticThe processes disregard the landownerrsquos right ofdissent which is an integral part of the freedom ofconscience enshrined in the Bill of Rights It alsofails to embrace human values and principles of goodgovernance such as negotiation consultationlivelihood and human rights Unless the presentlaws are revised to embrace democracy and fair playthe eminent domain processes will remainunpopular and therefore unsuitable for use inconservation efforts Apart from the process itselfthe mechanisms provided in the law for computingthe quantum of compensation as was noted in the parton analysis are largely vague and therefore unhelpful

To set out the Kenyan context and provide abackdrop for critically examining the viability using

115 Article 25 (2)116 Article 25(3) 117 See sections 29 and 47 note 2 above

102


eminent domain for conservation purposes thepaper has discussed the importance of wildlife118 andKenyarsquos wildlife situation The human-wildlifeinterface has also been highlighted to provide abackup for discussing the issue of compensation Itis otherwise out of the scope of the current paperbut has been discussed by the author in a relatedjournal article elsewhere119

The study established that there has in recent times notbeen any compulsory acquisition of private land by theState for expansion of protected area It is the authorrsquosview however that if democratised and exercised rightlyand in good faith this power can be instrumental inconserving wildlife for the present as well as for thefuture generations Where the government decides touse eminent domain as a means of acquiring land forcreating or expanding wildlife reserves it should ensurethe process is democratic fair and transparent This isin the realisation that for conservation to thrive on along-term basis it requires public support Indeedconservation efforts that are insensitive to the needsand aspirations of the people such as the ones thatignore social dimensions marginalise the localcommunities or violate their rights are doomed to fail

Environmental protection and conservation howeverare not listed among the reasons stated in theConstitution and the Land Acquisition Act forcompulsory acquisition This may elicit an inference thatthe law does not envisage the use of eminent domainpowers for purposes of conservation which is a greatomission in this age and time where the environmenthas come to be recognised the world over as an integralcomponent of sustainable development and a commonconcern of mankind There is the need to makeexpress provision for conservation

The article also established that despite its goodattributes the protected area management strategy hastotally failed to achieve its goals especially in Africawhere the circumstances differ from those of the westwhere the concept originated For one having PAssurrounded by communities who are seriouslyafflicted by poverty120 is an undoing unless there is

a system of revenue sharing between the players inthe wildlife agencies and the local communities

A Recommendations

Although in recent times there has not been anycompulsory acquisition of private land by the State forexpansion of protected areas it is nevertheless theauthorrsquos view that if democratised and exercised rightlyand in good faith this power can be instrumental inconserving wildlife for the present as well as futuregenerations Where the government decides to useeminent domain as a means of acquiring land forcreating or expanding wildlife reserves it should ensurethe process is democratic fair and transparent

In order for eminent domain to be of any meaningfuluse to conservation there is the need to urgentlyundertake the reforms listed below121

Firstly amend the Constitution and the Land AcquisitionAct to include environmental protection andconservation among the uses for which private land canbe compulsorily acquired122 Secondly make provisionfor exhaustive prior consultations with the landownersto allow for more dialogue and exchange of views Thiswill also increase tolerance to dissent by the landownersAfter all such dissent is an extension of the freedomsof conscience and speech guaranteed by theConstitution Fourth to ensure certainty in the processthe law should stipulate clear definitions for words suchas public uses public body public interest prompt andfull compensation This will avoid arbitrariness andensure uniformity in the exercise of the powers

Fifthly there is need for a provision in the lawexpressly stating that the exercise of the power ofeminent domain be exercised guided by thefollowing considerations human values the landownerrsquos Constitutional right of dissent as well asthe principles of good governance such asnegotiation consultation livelihood and humanrights Lastly the law should address the quantumand payment of compensation This can be done by

118 Its importance the need to conserve it as well as itsexternal costs and opportunity cost

119 See generally Sifuna note 50 above120 Where PAs stand as islands in a sea of poverty

121 Aimed at increasing democracy fairness and certainty inits processes

122 Kenyarsquos present law for compulsory acquisition does notseem to show that it is intended to be used for conservationpurposes

103


setting an empirical and objective formula forcomputing the amount stipulating the maximumamount of time for which the owner should wait toreceive the compensation cheque and providing thatthe amount be adequate in line with economicrealities such as the market value123

Kenyarsquos draft Constitution -rejected by Kenyans atthe referendum- presented perhaps her bestformulation with regard to the Statersquos exercise ofpowers of eminent domain Apart from being fairlyelaborate it also attempted to put in place laudablesafeguards in the exercise of these powers withadequate checks and balances For this reason ifpassed it will set the stage for sweeping legal reformsthat will lead to the amendment of the LandAcquisition Act It is recommended in this paperthat the draft be re-introduced and passed into lawor that any future draft Constitution adoptsprovisioning such as the one contained in the saiddraft as regards eminent domain

Given the numerous demerits of the Protected Areasystem of wildlife management as discussed in thispaper it is advisable to consider alternative systems aswell One of the alternatives is to encourage people toallow wildlife on private land By doing so interest shallbe aroused in people to support conservationWildlife agencies and interest groups could alsoconsider leasing private lands for use as buffer zonesor wildlife dispersal zones A case in point is in theKitengela area in Kenya where the African WildlifeFoundation (AWF) has leased tracts of land fromthe local Maasai people to be used as dispersal zonesand migration corridors for wildlife from theNairobi National Park Another way of easing theburden imposed on the government by the protectedarea system is by encouraging non-governmentalplayers to establish private ranches Besides asalready stated in this paper Kenyarsquos Wildlife(Management and Conservation) Act allows forwildlife conservation outside protected areas124 andpeople can be encouraged to establish private ranchesand wildlife support facilities on the land they own

123 The law should have a legal provision expressly using thewords lsquoadequate compensationrsquo and even defining whatamounts to adequate compensation

124 See note 117 above

104


Figure 1 Kenyarsquos Wildlife Protected Areas

Source B Sibanda lsquoWildlife Conservation in KenyaWildlife or Local Communities at Crossroadsrsquo 51Environmental Policy amp Practice 35 (1995)

105


LEAD Journal (Law Environment and Development Journal) is jointly managed by theSchool of Law School of Oriental and African Studies (SOAS) - University of London

httpwwwsoasacuklawand the International Environmental Law Research Centre (IELRC)

httpwwwielrcorg

LEAD Journal (Law Environment and Development Journal)is a peer-reviewed academic publication based in New Delhi and London and jointly managed by the

School of Law School of Oriental and African Studies (SOAS) - University of Londonand the International Environmental Law Research Centre (IELRC)

LEAD is published at wwwlead-journalorgISSN 1746-5893

The Managing Editor LEAD Journal co International Environmental Law Research Centre (IELRC) International EnvironmentHouse II 1F 7 Chemin de Balexert 1219 Chacirctelaine-Geneva Switzerland Telfax + 41 (0)22 79 72 623 infolead-journalorg






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