UNIVERSITY OF NAIROBI
RRI ON CONSTITUTIONAL IMPLEMENTATION AND PUBLIC
SERVICE INTEGRITY PROGRAMME
MANAGEMENT SENSITIZATION PROGRAMME
Land, Environment and Natural
Resources
3rd September, 2013
Presented by:
The University of Nairobi
TEAM MEMBERS
Dr. Winifred Kamau (TL)
Prof. Patricia Kameri-Mbote,
Dr. Daniel Ichang’i,
Dr. Winnie Mwangi
Dr. Robert Kibugi
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Significance of Land
 Land is an emotive issue in Kenya
 Significance of land and land based resources for
livelihood, identity, security
 Land is not just a commodity that can be traded in the
market. It represents multiple values which should be
protected by both policy and law
o
o
o
o
An economic resource that should be managed productively
A significant resource for equitable access of livelihood
A finite resource which should be utilised sustainably
A cultural heritage which should be conserved for future
generations
o Has social, cultural and religious significance for individuals,
families and communities
Historical and contemporary
context of land relations
 Legacy of unlawful acquisition of public and community lands by the colonial
administration
 Continued dispossession in post-colonial era: squatters, landlessness; informal settlements
 Issue of land rights for minority and marginalized groups, e.g. women, pastoralist groups,
indigenous communities
 Sub-regional issues – e.g. Coast, pastoral areas,
 Politically instigated land clashes; internally displaced persons, etc.
 Complexity of multiple land regimes including customary land tenure
 Weak legal framework: proliferation of scattered and uncoordinated land laws
 Weak and corrupt institutions of land administration and management;
 Weak institutional enforcement; state capture
 Slow/repetitive/inaccessible land administration processes
 Land grabbing; double allocation of titles
 Environmental degradation and poor land use practices
Q: As a landowner, has UoN been affected by any of these? How does the University approach
teaching and research on these land questions?
What is Land?
 Space that encompasses the surface of the earth and all things
that are attached to it,
 Land includes areas covered by water such as seas and lakes,
as well as the air space above it
 Includes all natural resources found on it, such as rocks and
minerals that are just below it and all natural vegetation.
 Also includes buildings and and other permanent attachments
 Legally, it includes the physical and abstract attributes such as
rights and interests embedded thereon (“bundle of rights”).
 Rights include ownership, access and use
Constitution and Land
Constitutional definition of the term “land” in Art. 260:“land” includes—
(a) the surface of the earth and the subsurface rock;
(b) any body of water on or under the surface;
(c) marine waters in the territorial sea and exclusive economic
zone;
(d) natural resources completely contained on or under the
surface; and
(e) the air space above the surface;
Constitution of Kenya, 2010
 Represents a new era in dealing with land relations
 Recognizes the unique and complex nature of land: land no
longer seen merely as “property” in contrast to the
repealed Constitution
 Attempts to deal with some of the historical
exclusions/injustices relating to land
 Contains an entire chapter on land, i.e. Chapter 5 entitled
“Land and Environment”
 Part 1 is on land (Arts. 60 – 68)
 Part 2 is on environment and natural resources (Arts. 69 – 72)
Changes brought by the Constitution of
2010:
1.
-
-
Introduces progressive principles of land policy
Art. 60: Land in Kenya to be held, used and managed in a manner
that is equitable, efficient, productive and sustainable in
accordance with the following principles:
Equitable access to land
Security of land rights
Sustainable and productive management of land resources
Transparent and cost effective administration of land
Sound conservation and protection of ecologically sensitive
areas
Elimination of gender discrimination in laws, customs and
practices related to land
Encouragement of communities to settle land disputes through
recognized local community initiatives
Changes brought by the
Constitution
2. Ownership of land is vested in the people (Wanjiku)
Art. 61 (1): All land in Kenya belongs to the people of
Kenya collectively as a nation, as communities and as
individuals.
Art. 62: all public land (whether held by the national or
county government) is held in trust for the people
Contrast: the old legal regime where land was vested in
the Commissioner of Lands on behalf of the State (in
the person of the President)
Changes brought by the
Constitution
3. Introduces new classification of land
Art. 61 (2): Land classified as:
a) Public land – Art. 62: unalienated land; land held by State
organs; minerals and mineral oils and other natural
resources
b) Community land – Art. 63 – land vested in and held by
communities identified on the basis of ethnicity, culture
or similar community of interest. Community land
recognized for the first time
c) Private land – Art. 64 – land held under freehold or
leasehold tenure
Q: Under what tenures does UoN hold its rights to land and how
are they secured?
Changes brought by the
Constitution
4. Imposes limitations on rights of land ownership and use:
- Limits on land tenure by non-citizens: maximum of 99 year
leases (Art. 65); previously ran to 999 years
- Envisages limits on land sizes - Parliament to prescribe
minimum and maximum holdings (Art. 68(c))
5. Seeks to promote gender equality: particularly the
matrimonial home as well as the intereselimination of
gender discrimination in law, customs and practices
related to land and protect (Art. 60); protects interests of
spouses in matrimonial property,ts of dependants of
deceased persons (Art. 68 c)
Changes brought by the
Constitution
6. Secures protection of the right to property
Art. 40: Every person has the right to acquire and own property of
any description and in any part of Kenya (subject to Art. 65
relating to non-citizens)
No arbitrary deprivation of property – there must be prompt, full
and just compensation
Right to access to a court of law
Property rights extended to intellectual property
Art. 43 (1)(b): every person is entitled to ‘accessible and adequate
housing’- inherent in this right is provision of secure land tenure.
7. Opens up possibility for review of titles to determine their
propriety or legality
Art. 68 – unlike in the past where sanctity of title was upheld
irrespective of means of acquisition
National Land Policy
Provided for in Art. 60 – principles to be implemented through
a national land policy developed and reviewed regularly by
the national government
National Land Policy predated Constitution: Sessional Paper
No. 3 of 2009
The Policy is a milestone in the land sector as it promises to
tackle the issues that have negatively hounded the land
sector since independence.
It addresses the following issues; land laws, land tenure, land
administration and land information management systems,
land use planning, areas requiring special intervention
(marginalized groups/historical injustices and institutional
framework
National Land Policy
 Policy provides a broad framework and set of values
to guide sectoral, legislative and institutional reforms
in land administration and management.
 Entails a rethinking of land relations in Kenya with a
view to laying a firm foundation for use of land in a
productive, efficient, equitable and sustainable
manner.
National Land Policy
Land Reform Principles in the Land Policy
1. Redistribution: purpose is to facilitate equitable access to land
for residential purposes
2. Restitution: purpose is to restore land rights to those that have
unjustly been deprived of such rights
3. Resettlement: seeks to procure adequate land for reorganisation of both rural and urban settlements in light of
expanding population, conflicts, historical injustices and
disasters
4. Land Banking
5. Benefit sharing
6. Land taxation
 Q: To what extent does the Constitution and legal framework
effectively deal with land issues?
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Legal Framework on land
Principles of Land Policy
Public Land
Constitution
Substantive Land law
Registration processes
Community
Land
Community
management of land
Private
Land
Registration
of Land Act
Land Act
Legislation on Land
National Land
Commission
Act
New Legal Framework
 Previously, land law consisted of numerous pieces of
legislation
 Constitution provides for revision, consolidation and
rationalization of existing legislation (Art. 68)
 Schedule 5 – land laws to be passed within 18 months of
passing of the Constitution
 Pursuant to this, Parliament has repealed several land laws
and enacted the following new legislation
 Land Act
 Land Registration Act
 National Land Commission Act
 Environment and Land Courts Act
New Legal Framework
 The National Land Commission Act, 2012: aims at providing
the institutional framework for the management and
administration of land in Kenya;
 The Land Act, 2012 -consolidates the substantive land law
in the repealed Acts;
 The Land Registration Act, 2012 -Consolidates and
harmonizes the land registration provisions in the repealed
statutes.
 The Environment and Land Court Act, 2012 - gives effect to
Article 162(2)(b) of the Constitution; establishes a superior
court with status of the High Court to hear and determine
disputes relating to the environment and the use and
occupation of, and title to, land.
Proposed legislation
 Community Land Bill– provides for matters relating to
community land
 Evictions and Resettlement Bill –provides for
procedures on evictions and protection of rights to
property
 Matrimonial Property Bill, 2013- Provides for the rights
and responsibilities of spouses in relation to
matrimonial property
New land institutions





National Land Commission
County Registrars
County Land Management Boards
County Governments
Environment and Land Court
National Land Commission
Established by Art. 67 of the Constitution
Operationalized by National Land Commission Act, 2012
Functions include:
–to manage public land on behalf of the national and country
governments (Art. 62 (2) and (3)
- to conduct research related to land and the use of natural
resources
- to initiate investigations into present or historical land injustices
- to encourage application of traditional dispute resolution
mechanisms in land conflicts
- to monitor and have oversight responsibilities over land use
planning
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Management and administration
of land in a devolved context:
 Role of national government - formulation of policies,
legislation and institutional frameworks on
management and administration of land
 Role of County governments - Implementation of
land management and administration policies and
programmes :
 County land management boards- sanction, approve
and monitor land development proposals
Management and administration of land
in a devolved context:
 Art. 62 (2) Certain categories of public land shall vest
in and be held by county governments in trust for the
people resident in the county
 Categories are: unalienated government land; land
transferred to the State by way of sale, reversion or
surrender; land in respect of which there is no
established individual or community ownership or
heir
 land held or occupied by a State organ (other than a
national State organ)
Management and administration of
land in a devolved context
 Art. 62 (3) Categories of public land which shall vest in
and be held by the national government in trust for
the people of Kenya
 These consist primarily of:
Natural resources such as: minerals and mineral oils;
government forests, game reserves, water catchment
areas, rivers, lakes, territorial sea, exclusive economic
zone and the sea bed,
All roads and thoroughfares provided for by an Act of
Parliament
Land Management and Administration
in the Context of Devolution
Schedule 4 of Constitution: Distribution of functions between county
and national governments
Functions and powers of National government:
i)
Intellectual property rights
ii)
General principles of land planning and coordination of policy by
the counties
iii) Protection of the environment and natural resources with a view
to establishing a durable and sustainable system of development,
including in particular:
a)
fishing, hunting and gathering
b) Protection of animals and wildlife
c)
Water protection, securing sufficient residual water, hydraulic
engineering and the safety of dams; and
d) Energy policy including electricity and gas reticulation and energy
regulation
Land Management and Administration
in the Context of Devolution
Functions and powers of county governments
 Agriculture, including fisheries
 Control of air pollution, noise pollution, other public
nuisances
 County planning and development, including land survey
and mapping, boundaries and fencing, housing, electricity
and gas reticulation and energy regulation
 Implementation of specific national government policies
on natural resources and environmental conservation,
including soil and water conservation and forestry
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Dispute Resolution
 Cf: Art. 159: Principles - Need to ensure access to
timely, efficient and affordable dispute resolution
mechanisms
 Environment and Land Court: special jurisdiction
 National Environment Tribunal
 Traditional dispute resolution mechanisms, (Art. 60)
Alternative dispute resolution methods, including
mediation, arbitration (Art. 259)
Environment and Natural
Resources
Meaning of environment
Environment has a very broad meaning and includes:
 the physical factors of the surroundings of human
beings including land, water, atmosphere, sound,
odour, taste,
 the biological factors of animals and plants; and
 the social factors of aesthetics, and includes both the
natural and the built environment.
Environment
Significance of the environment
 Crucial for the survival and socio-economic wellbeing of
mankind
 Fragility of ecosystems requires care for the environment
 Finite resources, therefore need to be properly managed
and used in a sustainable manner
 Environmental degradation in Kenya stems from two main
types of human activities:
 Use of resources at unsustainable levels; and
 Contamination of the environment through pollution and
waste at levels beyond the capacity of the environment to
absorb them or render them harmless.
Constitution of Kenya
 The Constitution marks a fundamental change in
approach regarding the environment.
 Preamble: recognition of the need to respect and
sustain the environment for the benefit of future
generations.
 Art. 10 National values and principles of governance in
the Constitution includes the principle of sustainable
development.
 Sustainable development is development that meets
the needs of the present without compromising the
ability of future generations to meet their own needs.
Constitution of Kenya
Art. 60(1) stipulates that land should be held, used and
managed in accordance with the principle of sound
conservation and protection of ecologically sensitive
areas.
Art. 42: Right to a clean and healthy environment
(constitutionally protected for the first time)
Art. 70: Right may be enforced in a court of law – locus
standi (right of standing) in court made easy
Constitution of Kenya
Article 69: State obligations with regard to the environment:
 Ensure sustainable exploitation, utilization, management and
conservation of the environment and natural resources and ensure
the equitable sharing of the accruing benefits
 Work to achieve and maintain a tree cover of at least 10% of the land
area of Kenya
 Protect and enhance intellectual property in, and indigenous
knowledge of biodiversity and genetic resources and biological
diversity
 Establish systems of environmental impact assessment,
environmental audit and monitoring of the environment
 Eliminate processes and activities that are likely to endanger the
environment
 Utilize the environment and natural resources for the benefit of the
people of Kenya
Legal Framework
Environmental Management and Coordination Act, 1999 (EMCA)
Framework law which establishes the legal and institutional framework
for the coordination of diverse sectoral initiatives for the conservation
and management of the environment in Kenya.
Establishes National Environment Management Authority (NEMA)
Sectoral laws: There are various sectoral laws relating to the environment.
These regulate agricultural, water, forests, trade, health, mining and
industry sectors which have significant implications on the environment.
Natural Resources Development and Management Policy, 2013 – envisages
legislation providing a framework architecture in the management,
coordination and regulation of natural resources in Kenya
National Environment Policy (draft)
International obligations which has ratified (significance in light of Art. 2
(6) )
Natural Resources
Importance of natural resources for livelihood and economic
development
Kenya has diverse natural resources, namely:
 Biodiversity in its widest sense, including fisheries, etc;
 Forest and Water Towers; Wildlife; Water; Industrial Minerals and
Rocks e.g. limestone, trona, feldspar, mica, salt, etc.
 Ore (Metallic)Minerals e.g. gold, copper, zinc, iron, titanium,
uranium, niobium and rare earth metals, etc.
 Gemstones.
 Energy Resources: Coal, Oil and Gas, Geothermal resources, Wind,
Sunlight, the Ocean
 Recent discoveries of oil and valuable minerals
 Holds potential for economic transformation of Kenya.
 Need to develop our natural resources in a way that benefits all the
Kenyan people and avoid the “resource curse”
Constitution of Kenya
Art. 260: “natural resources” means the physical non-human factors
and
components, whether renewable or non-renewable, including—
(a) sunlight;
(b) surface and groundwater;
(c) forests, biodiversity and genetic resources; and
(d) rocks, minerals, fossil fuels and other sources of energy;
Article 62 (1): Natural resources included within public land, e.g.
 All minerals and mineral oil
 Forests
 National parks and game reserves
Natural resources included as part of the definition of land in Art.
260
Constitution of Kenya
Article 67(1) (d): National Land
Commission is mandated to conduct
research related to land and use of
natural resources and to make
recommendations to appropriate
authorities
Article 71 (1) and (2): Parliament is
responsible for ratifying grant of rights
or concessions for exploitation of any
natural resources in Kenya
Role of the University of
Nairobi
Internal governance and management of land, environment and
natural resources
 Adopt policies and align existing ones to the Constitution –
 Land use policy
 Environment policy
 Natural resources policy
 Sustainable land use – e.g Conservation of own lands. planned
increase of tree cover in its own lands
 Comply with requirements of NEMA regarding environmental
standards, environmental impact assessments etc.
 Ensure security of tenure for its own properties
 Ensure real property is optimally utilized
 Document and keep inventories on UoN’s properties
University
Role of the University of
Nairobi
Research, training and capacity building
 Conduct Research related to land and use of natural resources:
see Art. 67 (2) (d);
 Audit and collation of data
 Training and capacity building: e.g.lawyers in relation to
concessions, contracts; engineers, geologists, environment
professionals
 Regional and international collaborative partnerships in capacity
building and research in the area of natural resources are a
priority in order to create wealth for Kenya and employment for
the youth.
 Protection of intellectual property rights
 Preservation of indigenous knowledge
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Role of the University of
Nairobi
For Mineral Resources, for example, what is now required is
research into the typology, geologic setting, genesis and
controls of economic mineralization and of oil and gas in the
country.
For other natural resources, a multi-skill and dimensional approach
should be adopted and incorporate all sectoral experts in
formulating policies and consultancies, most of whom are
domiciled within the UoN
As a matter of priority, build capacity to handle the vast mineral
resources from the East and Central African region by turning
Kenya into a Logistics, processing and trading hub. University of
Nairobi is a crucial cog in this effort.
Summary on Role of
University
Contribution to National, Regional and International
Efforts
Contribute to policy formulation in land, environment
and national resources
Offer leadership in capacity building, research and
training in the key sectors
 Spearhead environmental conservation efforts
 Create environmental awareness
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THE END
Thank you!
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