Draft dated 31st January 2004
For Discussion
POLICY, REGULATORY AND ORGANIZATIONAL
FRAMEWORK CONCERNING DAM (AND WATER
INFRASTRUCTURE) DECISION MAKING IN KENYA
Prepared For
The Dams and Development Secretariat of the United Nations
Environment Programme
By
Dr Albert Mumma
P.O. Box 39374
Tel 2730132/164
amumma@uonbi.ac.ke
1
TABLE OF CONTENTS
I
INTRODUCTION .................................................................................................. 3
II THE WCD’S CORE VALUES AND STRATEGIC PRIORITIES ....................... 3
III
DAMS AND OTHER WATER INFRASTRUCTURE DECISION MAKING
IN KENYA ..................................................................................................................... 5
III.1
Gaining Public Acceptance ............................................................................ 5
III.1(a) Rights and entitlements ............................................................................... 5
III.1b
Addressing risks ......................................................................................... 6
III.1c
Public Information and Public Participation .............................................. 8
III.2
Comprehensive Options Assessment ........................................................... 10
III.3 Addressing Existing Dams ............................................................................ 12
III.3 Sustaining Rivers and Livelihoods ............................................................... 13
III.3(a) Basin wide management of water resources ............................................. 13
III.3(b) The Reserve .............................................................................................. 14
III.3(c) Water Quality Objectives ............................................................................ 15
III. 4
Recognizing Entitlements and Sharing benefits: ...................................... 16
III.4(a) Entitlement To Compensation And Benefits ............................................ 16
III.4(b) Access to Justice ....................................................................................... 18
III.5
Ensuring compliance ................................................................................. 19
III.5(a) Punitive Compliance Measures................................................................. 19
III.5(b) Incentive Based Compliance Measures .................................................... 21
111.6
Sharing rivers for peace, development and security ................................. 22
IV
POLICY, REGULATORY AND ORGANIZATIONAL FRAMEWORK
CONCERNING SOCIAL AND ENVIRONMENTAL IMPACTS OF
INFRASTRUCTURE AND NATURE CONSERVATION IN KENYA .................... 23
IV.1 Policy, Regulatory and Organizational Framework Concerning Social and
Environmental Impacts of Infrastructure ...................................................... 24
IV.2 Policy, Regulatory and Organizational Framework Concerning Nature
Conservation ................................................................................................. 26
IV.2(a) Nature Conservation Under the Environmental Management and
Coordination Act ........................................................................................... 26
IV.2(b). Nature Conservation Under the Water Act, 2002 ....................................... 27
IV.2(c) Nature Conservation Under the Agriculture Act ...................................... 28
IV. 3(d)
Nature Conservation under the Physical Planning Act, 1996 ............... 29
IV.3(e)
Nature Conservation Under the Forests Act ......................................... 30
IV.3(f) Nature Conservation under the Wildlife (Conservation and Management)
Act ............................................................................................................. 31
V
CONCLUDING REMARKS ............................................................................ 32
2
I
INTRODUCTION
1 This Report assesses the policy, regulatory and organizational framework concerning
dams and other water infrastructure decision making in Kenya. Specifically, the
Report analyses the policy, regulatory and organizational framework concerning:
(i)
(ii)
(iii)
(iv)
Dams and other water infrastructure planning, construction and operation in
Kenya.
Environmental impact assessment of dams and other water infrastructure in
Kenya.
Social and environmental impacts of infrastructure and nature conservation in
Kenya with a focus on contaminant emissions, water quality standards,
protected natural areas and freshwater ecosystems, environmental flows,
resettlement of population, affected indigenous people and so on.
Public participation and consultation in infrastructure planning and
management.
2. The Report is an input into the “Preliminary Assessment of Kenya’s Resilience to
Extreme Climate Events” being conducted with the Support of UNEP’s Dams and
Development Secretariat. It’s premise therefore is the World Commission on Dams
core values and strategic priorities as outlined in the Report, Dams And Development
- A New Framework For Decision Making: The Report of the World Commission on
Dams.
II
THE WCD’S CORE VALUES AND STRATEGIC PRIORITIES
3. WCD outlined five core values which it considered as providing the essential tests
that must be applied to decisions relating to water and energy development: equity,
efficiency, participatory decision making, sustainability and accountability. It argued
that the advancement of these values would lead to improved decision making
processes that deliver improved outcomes for all stakeholders.
4. On the basis of the core values the WCD developed seven strategic priorities and
related policy principles: gaining public acceptance; comprehensive options
assessment; addressing existing dams; sustaining rivers and livelihoods; recognizing
entitlements and sharing benefits; ensuring compliance; and sharing rivers for peace,
development and security.
5. The WCD translated these strategic priorities into a set of corresponding criteria and
guidelines for key decision points in the planning and project cycles. It recommended
that decision makers adopt the seven strategic priorities, as mechanisms for
innovatively assessing options, managing existing dams, gaining public acceptance
and negotiating and sharing benefits. This would lead to the achievement of equitable
and sustainable outcomes of dams related developments.
3
6. The WCD elaborated the strategic priorities as follows:
(a)
(b)
(c)
(d)
(e)
(f)
Gaining Public Acceptance: Public Acceptance of key decisions is
essential for equitable and sustainable water and energy resources
development. Acceptance emerges from recognizing rights, addressing
risks, and safeguarding the entitlements of all groups of affected
people. Decision making processes and mechanisms are used that
enable informed participation by all groups of people, and result in
demonstrable acceptance of key decisions.
Comprehensive Options Assessment: Alternatives to dams often do
exist. To explore these alternatives, needs for water, food and energy
are assessed and objectives clearly defined. The appropriate
development response is identified from a range of possible options.
The selection is based on a comprehensive and participatory
assessment of the full range policy, institutional and technical options.
The options assessment process continues through all stages of
planning, project development and operations.
Addressing Existing Dams: Opportunities exist to optimize benefits
from many existing dams, address outstanding social issues and
strengthen environmental mitigation and restoration measures. Dams
and the context in which they operate are not seen as static over time.
Benefits and impacts may be transformed by changes in water use
priorities, physical and land use changes in the river basin,
technological developments, and changes in public policy expressed in
environment, safety, economic and technical regulations. Management
and operation practices must adapt continuously to changing
circumstances over the project’s life and must address outstanding
social issues.
Sustaining Rivers and Livelihoods: Dams transform landscapes and
create risks of irreversible impacts. Options assessment and decision
making around river development prioritizes the avoidance of impacts,
followed by minimization and mitigation of harm to the health and
integrity of river systems. Releasing tailor made environmental flows
can help maintain downstream ecosystems and communities that
depend on them.
Recognizing Entitlements and Sharing Benefits: Successful mitigation,
resettlement and development are fundamental commitments and
responsibilities of the State and the developer. Accountability of
responsible parties to agreed mitigation, resettlement and development
provisions is ensured through legal means, such as contracts and
through accessible legal recourse at the national and international
level.
Ensuring compliance: Compliance with applicable regulations, criteria
and guidelines, and project specific negotiated agreements is secured
at all critical stages in project planning and implementation. A set of
4
(g)
III
7.
III.1
8.
III.1(a)
mutually reinforcing incentives and mechanisms is required for social,
environmental and technical measures. These should involve and
appropriate mix of regulatory and non-regulatory measures,
incorporating incentives and sanctions.
Sharing rivers for peace, development and security: Storage and
diversion of water of transboundary rivers has been a source of
considerable tension between countries and within countries. As
specific interventions for diverting water dams require constructive
cooperation. Consequently the use and management of resources
increasingly becomes the subject of agreement between states to
promote mutual self-interest for regional cooperation and peaceful
collaboration.
DAMS AND OTHER WATER INFRASTRUCTURE DECISION
MAKING IN KENYA
The report assesses dam and other water infrastructure decision making in
Kenya in the context of the WCD strategic priorities, and follows the same
sequence.
Gaining Public Acceptance
Under this strategic priority Kenyan’s policy and regulatory framework is
assessed with regard particularly to provisions on three key issues: the
recognition of rights and entitlements; addressing risks; and mechanisms for
public information and participation.
Rights and entitlements
9.
Kenya subscribes to a constitutional legal system. The Constitution is the
supreme law, and overrides any other law which is inconsistent with it.
Section 75 of the Constitution of Kenya enshrines the right to property. It
prohibits compulsory acquisition of property except in strictly defined
circumstances. Of relevance to dams related developments, one of the
circumstances in which compulsory acquisition is permitted relates to “the
development or utilization of property so as to promote the public benefit.”
10.
“Property” is defined by the Interpretation and General Provisions Act,
Chapter 2 of the Laws of Kenya. This states that ‘property’ includes money,
goods, choses in action, land, and every description of property, whether
movable or immovable …”
11.
As dams often involve resettlement of people, land tends to be the property
over which there is likely to be contention in the course of a dams project. A
5
number of statutes define land ownership in Kenya, among them the
Registration of Titles Act, Chapter 281, the Registered Land Act, Chapter 300
(the RLA) and the Land (Group) Representatives Act, Chapter 287. All these
laws provide systems under which interests in land can be acquired, primarily
through registration and documentation of title.
12.
Section 27 of the Registered Land Act, for instance, states that “the
registration of a person as the proprietor of land shall vest in that person the
absolute ownership of that land together with all rights and privileges …”
Following registration the owner is issued with a certificate of title as
evidence of ownership.
13.
Registration of land was introduced into Kenya as part of the colonial process,
and thus is relatively recent. Before the advent of colonial rule land was
owned on a communal basis, under traditional land tenure systems. These
entitled community members to acquire rights of occupation and use of land
and resources which were undocumented. These traditional land ownership
systems have continued to enjure, and to be practiced, particularly in rural
areas, despite the introduction of land registration and title documentation
systems. This is particularly the case with respect to second generation owners
who have not bothered to obtain their own title documents, but rather have
reverted to their traditional entitlements.
14.
Further, not all land in Kenya has been registered. Registration and titling of
land involves adjudication to determine ownership and entitlements;
consolidation of small holdings into bigger units; registration of title; and
finally issuance of title documents. This is a protracted and expensive process,
which has proved unsustainable due to lack of resources. The push in the
19602 and 1970s to register land in Kenya could not be sustained when public
resources dwindled and land portions of land have remained unregistered.
15.
The combined effect of these two factors has meant that many people in
Kenya occupy land without formal registration documents. Section 30 of the
Registered Land Act deals with “overriding interests,” which are interests
which subsist despite not being registered, but customary rights and
entitlements are not listed among them. Their entitlement to compensation in
the event of compulsory acquisition therefore unclear. It is recommended that
Kenyan law clarify the rights of occupants who do not have documented title
in situations of compulsory acquisition.
III.1b
16.
Addressing risks
Provision has been made under Kenyan law to address risks arising from dams
and water infrastructure related decisions by requiring that projects involving
dams, rivers and water resources undergo an environmental impact assessment
6
(EIA). The relevant provisions are found in the water Act, 2002 and in the
Environmental Management and Coordination Act, 1999 read together.
17.
Section 25 imposes the requirement for a permit for “any use of water from a
water resource.” The section however exempts state schemes from the
requirement for a permit. State schemes are defined as “a scheme for the use
for any public purpose of a water resource.” “Public purpose” includes using
water for hydro electric or public supply purposes, drainage and reclamation
of swamps, flood control and water storage. Many such schemes would
involve dams or other water infrastructure.
18.
Given the need for a mechanism for prior risk assessment for dams and other
water infrastructure projects, the exemption of state schemes from the permit
requirement is not satisfactory. It is recommended that either the exemption be
removed, or that alternative risk assessment mechanisms be introduced in
substitution.
19.
With respect to the projects requiring a permit under the section 29(4) of the
Water Act, 2002 provides that an application for a permit shall be subject to
both public consultation and to environmental impact assessment in
accordance with the Environmental Management and Coordination Act, 1999
(EMCA).
20.
Part VI of EMCA deals with EIA. Section 58 imposes a requirement for an
EIA licence to be obtained by all project proponents whose projects fall within
Schedule 2. These include dams, rivers and other water resources projects.
21.
The procedure requires project proponents to undertake an EIA study and to
prepare a report. The assessment is to be carried out in accordance with EIA
regulations, guidelines and procedures issued under the Act.
22.
The Environmental (Impact Assessment and Audit) Regulations, 2003 have
been issued to provide further guidance on the EIA process. The EIA
commences with a report submitted by the proponent stating issues many of
which relate to risk assessment, such as:
(i)
(ii)
The potential environmental impacts and the mitigating measures
to be taken during and after the project;
An action plan for the prevention and management of possible
accidents during the project cycle
(iii) A plan to ensure the health and safety of the workers and
neighbouring communities;
(iv) The economic and socio-cultural impacts of the local community
and the nation in general; and
7
(v)
Any other information that the Authority may require.
23.
If the Report discloses that the project will have significant impact on the
environment or that there are no significant mitigation measures, the
proponent would be required to carry out an EIA study.
24.
The EIA study report is required to address issues which are critical to the
assessment of risk, among them:
(i)
The environmental effects of the project including the social and
cultural effects and the direct, indirect, cumulative, irreversible,
short term and long term effects anticipated;
(ii)
An environmental management plan proposing the measures for
eliminating, minimizing or mitigating adverse impacts on the
environment;
(iii)
The provisions of an action plan for the prevention and
management of foreseeable accidents and hazardous activities in
the cause of carrying out activities or major industrial and other
development projects.
(iv)
The measures to prevent health hazards and to ensure security in
the working environment for the employees and the management
of emergencies.
25.
These provisions provide an appropriate regulatory framework for addressing
risk prior to commencement of a dams related or other water infrastructure
project. However the provisions have only been recently introduced, and
therefore their effectiveness cannot presently be assessed.
26.
Nevertheless even prior to the adoption of these legal provisions project risk
assessment risk has been carried out as part of project decision making,
largely through administrative procedures and requirements. They have also
usually been built into the licensing requirements of other statutes, such as the
Public Health Act, Chapter 242 as well as the factories Act, Chapter 514.
III.1c
27.
Public Information and Public Participation
Public access to information and public participation with respect to dams and
other water infrastructure projects is governed by the Environmental
Management and Coordination Act, 1999. This Act contains provisions
8
designed to reverse the practice of official secrecy that has in the past made it
difficult for the public to access official information held by public bodies.
28.
The Act establishes the National Environmental Management Authority
(NEMA) to coordinate environmental management in the country. Section
123 states that “any person may have access to any records transmitted to the
Authority under the Act.” Access to the records may be subject to the payment
of a prescribed fee.
29.
The Authority prescribed fees through the Environmental (Impact Assessment
and Audit) Regulations, 2003. The fees for the inspection of records or of a
register is Kshs 200 per record or per register. So far little use has been made
of this provision by members of the public. An evaluation of its effectiveness
cannot at this stage be conclusive.
30.
Public participation is dams and water infrastructure decision making is
provided for in the context of the environmental impact assessment procedure,
which is provided for in Part VI of the Environmental Management and
Coordination Act, 1999.
31.
As indicated, section 58 of the Act imposes a requirement for environmental
impact assessment (EIA) on proponents of all listed in the Second Schedule to
the Act. Included in the Second Schedule are projects involving dams, rivers
and water resources. The process of EIA provides for public participation.
32.
Section 59 provides for the publication of the EIA study report. Its states that
NEMA shall cause to be published for two successive weeks in the gazette
and in a newspaper circulating in the area of the proposed project a notice
about the project inviting oral or written comments on the report.
33.
The provisions on public participation are further elaborated in the
Environmental) Impact Assessment and Audit) Regulations, 2003 (LN No.
101). Rule 17 states that during the process of conducting an EIA study, the
proponent shall, in consultation with the Authority, seek the views of persons
who may be affected by the project. In doing so the proponent shall publicise
the project through posters and notices in the print and electronic media, and
hold at least three public meetings.
34.
Rule 21 provides that, following the submission of the EIA Study report the
Authority shall invite the public to make written or oral comments on the
report. For this purpose it shall publish invitations for comments in both the
print and electronic media. Further, the Authority may hold a public hearing at
a venue convenient and accessible to the people likely to be affected by the
project. The report of the public hearing is to be submitted to the Director
General, who will take into account in reaching a decision on the application
for the EIA licence.
9
35.
The provisions on public participation have only recently been enacted into
law. Whereas the Authority has been publishing in the print media notices of
the submission of EIA Study reports, to date no public hearing with respect to
a Study Report has been held. It is also unclear whether comments received in
response to the notices have influenced the decision of the Authority.
Consequently the extent to which these provisions will enable the public to
participate effectively in the dams and water infrastructure decision making
process is as yet unclear.
III.2
Comprehensive Options Assessment
36.
This section deals with the provisions for the assessment of options for
providing water and energy needs. It is premised of the assumption that real
options for meeting needs for water, food and energy do exist. The challenge
is to put in place mechanisms and procedures that would enable these options
to be identified. This can only be done if the options have not been foreclosed
by earlier decision making processes.
37.
Development decision making is a heirachical process comprising policy
making, strategy development, planning, and project implementation. Project
implementation is thus the last stage in the decision making process. Ideally,
the decision making process should facilitate options assessment right from
the policy making stage in order to avoid foreclosing real options. In practice
however, most decision making procedures, such as EIA are put into effect at
the project implementation stage, when many options will have been
foreclosed by earlier phases decision making.
38.
The EIA as it is enshrined in the Environmental Management and
Coordination Act, 1999 is project based EIA. Section 58 provides that “any
person being a proponent of a project ………” Thus, on a strict interpretation
of its terms EMCA does not make provision for policy, strategy or plan EIA
assessment. This limits its ability to provide for the assessment of real options
to the dams or water infrastructure project into which the EIA is being
conducted.
39.
The Environmental (Impact Assessment and Audit) Regulations 2003 have
attempted to close this gap. Part VI of the Regulations make provision for
strategic environmental impact assessment. It provides that:
(a)
Lead agencies shall in consultation with the Authority subject all
proposals for public policy, plans and programmes for implementation
to strategic environmental assessment to determine which ones are the
most environmentally friendly and cost effective when implemented
individually or in combination with others.
10
(b)
The assessment shall consider the effect of implementation of
alternative policy actions taking into consideration –
(i)
(ii)
(iii)
(iv)
(v)
(c)
the use of natural resources;
the protection and conservation of biodiversity
human settlement and cultural issues
socio-economic factors; and
the conservation of natural physical surroundings of scenic
beauty as well as the protection and conservation of the
built environment of historic cultural significance.
A strategic environmental impact report is to be prepared which shall
include alternative policy, programme, or plan options and an analysis
of the alternatives as compared against environmental indicators.
40.
These rules constitute an important step in the effort enshrine comprehensive
options assessment with regard to environmental impacts of planned
developments into the laws of Kenya. Typically policy and plan making in
Kenya has been undertaken without a strategic assessment of options against
environmental indicators. It thus marks an important milestone with regard to
the policy, regulatory and organizational framework for dams and other water
infrastructure decision making.
41.
Nevertheless, the legal validity of the approach adopted to prescribe a
requirement for strategic environmental assessment is uncertain. The
Environmental Management and Coordination Act, 1999 itself, under which
the Regulations in question have been made do not provide for strategic
environmental assessment, but only for project based EIA. It is, in law,
improper for rules to deal with matters not provided for in the parent statute.
In order to put the legal validity of these provisions beyond doubt it is
recommended that EMCA be amended to provide expressly for strategic
environmental assessment.
42.
A further point is that the Regulations do not provide for public participation
in the strategic assessment process: the process seems to have been limited to
the lead agencies and the Authority. It is recommended that this be amended
since public participation in strategic environmental assessment is critical to
the acceptability of the recommended policy options.
43.
Another important regulatory mechanism for the assessment of options is
provided in the Physical Planning Act, 1996. This Act provides for the
preparation and development of physical development plans.
44.
The Act provides for the office of a Director of Physical Planning whose
functions include to:
11
(a)
(b)
(c)
Formulate national, regional and local physical development policies,
guidelines and strategies;
Be responsible for the preparation of all regional and local physical
development plans; and
Advise the Commissioner of Lands and local authorities on the most
appropriate use of land including land management such as change of
user, extension of user, extension of leases, subdivision of land and
amalgamation of land.
45.
Section 16 of the Physical Act provides that the Director may prepare a
regional physical development plan. The plan shall consist of, inter alia, a
statement of policies and proposals with regard to the allocation of resources
and the locations for development within the area. The Act requires the
Director to invite any person interested to make representations to do so
within sixty days of the publication of the plan. On approval of the regional
physical development plan no development shall take place on any land unless
it is in conformity with the plan.
46.
Section 24 provides for the Director to prepare also a local physical
development plan whose purpose is to guide and coordinate development and
for the control of the use and development of land.
47.
Physical planning can thus provide a mechanism for the assessment of options
and establishment of policy objectives and goals. These provisions
notwithstanding the physical planning process has so far not been used to
elaborate of policy options for development. This omission does not however
detract from the potential of the physical planning process to facilitate the
identification and regulation of policy options for resource development and
use.
III.3
48.
49.
Addressing Existing Dams
This section focuses on the policy and regulatory framework for optimizing
benefits from existing dams, addressing outstanding social issues and
strengthening environmental mitigation and restoration measures.
The environmental and social impacts of existing dams are addressed through
the mechanism of environmental audit. This is provided for under Part VII of
the Environmental Management and Coordination Act, 1999. Section 68
provides that the Authority shall be responsible for carrying out environmental
audit of all activities that are likely to have significant effect on the
environment. The section empowers an environmental inspector to enter
premises “for the purpose of determining how far the activities carried out on
that land or premises conform with the statement made in the EIA study
issued in respect of those premises.”
12
50.
III.3
Further the Act requires the owner of premises or operator of a project to take
all reasonable measures to mitigate any undesirable effects not contemplated
in the EIA study report submitted, and to prepare and submit an
environmental audit report on those measures to the Authority annually or as
the Authority may require.
Sustaining Rivers and Livelihoods
51
As the WCD noted dams transform landscapes and create risks of irreversible
impacts, particularly on downstream users. This necessitates a basin wide
understanding of the ecosystem. Releasing tailor made environmental flows
can help maintain downstream ecosystems and communities that depend on
them. This requires the establishment of a minimum flow which must be
maintained at all times. Sustainability requires however that policies should
go further and strive to maintain selected rivers with high ecosystem functions
and values in their natural state.
52
These issues bring to the fore three mechanisms for managing the use of water
resources: basin wide or catchment management; the concept of “the reserve”
and “water quality objectives.”
III.3(a)
Basin wide management of water resources
53
Kenya’s laws on the management of water resources have always been
designed on the basis of catchments. Under the Water Act, Chapter 372 (now
repealed) the country was divided into six catchments, as the basis for water
resources management. In practice catchment management has been made
difficult by the Government’s commitment to an administrative system based
on districts, as outlined in the policy paper on District Focus for Rural
Development Strategy, 1986.
54
The Water Act, 2002 has continued the catchments approach. It requires the
Water Resources Management Authority to designate catchment areas and to
formulate for each catchment area, a catchment management strategy. The Act
further provides that the Authority shall establish regional offices for each
catchment area. The Authority shall also appoint a catchment area committee
to advise its regional officers.
55
Basin wide of catchment management of water resources is supplemented by
the establishment of catchment based regional development authorities. This
series of statutes establishes six regional development authorities as follows:
13
(a)
(b)
(c)
(d)
(e)
(f)
56
The roles of these bodies, within their respective catchment areas are wide
ranging and include, to:
(a)
(b)
(c)
(d)
(e)
57
III.3(b)
58
The Kerio Valley Development Authority established by the Kerio
Valley Development Authority Act, Chapter 441;
The Lake Basin Development Authority established by the Lake Basin
Development Authority Act, Chapter 442;
The Tana and Athi Rivers Development Authority established by the
Tana and Athi rivers Development Authority Act, Chapter 443;
The Ewaso Ngiro South River Basin Development Authority
established by the Ewaso Ngiro South River Basin Development
Authority Act, Chapter 447;
The Ewaso Ngiro North River Basin Development Authority
established by the Ewaso Ngiro North River Basin Development
Authority Act, Chapter 448; and
The Coast Development Authority established by the Coast
Development Authority Act, Chapter 449.
Plan for the development of the area;
Coordinate the present abstraction and use of natural resources,
especially water and set up effective monitoring of abstraction and
usage;
Ensure that landowners undertake measures to protect the water and
soils;
Collect relevant water related data;
Examine the hydrological and ecological effects of the development
programmes and evaluate how they affect the economic activities of
the persons dependent on the river enevironment; and
consider all aspects of the development of the area and its effects on
the river’s inflow and outflow.
In exercise of this mandate a number of these regional development
authorities, in particular the Tana and Athi Rivers Development Authority
(TARDA) and the Kerio Valley Development Authority initiated the
development of the major hydro-electric power dams in Kenya. Subsequently
they managed the dams as a key economic activity. However following a
change in Government policy which saw the management of hydro-electric
power dams being transferred to the national electricity generating company,
Kengen, these institutions have lost their early pivotal role in water and energy
development and management.
The Reserve
Kenya’s recently enacted Water Act 2002 deals, inter alia, with the regulation
of the use of water resources. It provides for a “reserve” defined as “the
quantity and quality of water required to (a) satisfy basic human needs for all
14
people who are or may be supplied from the water resource, and (b) protect
aquatic ecosystems in order to secure ecologically sustainable development
and use of the water resource.”
59
The Section 11 provides for a national water resources management strategy
which shall, among other things, prescribe the principles and procedures for
determining the requirements of “the reserve” for each water resource. Section
13 requires the Minister to determine “the reserve” for the whole of part of
each water resource. It stipulates that a determination of “the reserve” shall
ensure that adequate allowance is made for each aspect of “the reserve.”
60
In providing for a reserve the Water Act, 2002 has broken new ground in the
management of water resources in Kenya, placing the country on course to
comply with the WCD principles on “environmental flows.”
61.
The Act imposes an obligation on all public bodies to take into account, and
give effect to, the requirements of “the reserve” when performing any
statutory function in relation to the water resource concerned. Further section
32(1) stipulates that, in issuing a permit for the use of water the Water
Resources Management Authority shall take into account, inter alia, “the
quality of water in the water resource which may be required for the reserve.”
III.3(c) Water Quality Objectives
62
As the WCD noted sustainability requires that policies should go beyond mere
maintenance of “the reserve.” An effort should be made to preserve selected
rivers with high ecosystem functions and values in their natural state. This
requires that water resources be classified and that resource quality objectives
be defined for each class of water resource. Doing so opens the way for a
defined category of water resources to be classified as of high ecosystem
value deserving to be maintained in their natural state.
63
The Water Act, 2002 has broken new ground in Kenyan water laws by
providing for a system of classification of water resources and the
establishment of water quality objectives.
64.
Section 12 stipulates that the Minister shall prescribe a system for classifying
water resources for the purpose of determining water resource quality
objectives for each class of water resource. Water resources may be classified
according to type, location or geographical or other factors. In this respect the
Act opens the door for the designation of water resources of high ecosystem
value to be classified as such.
65
Following classification of water resources, the Minister is required to specify
resource quality objectives for each class of water resource. He is required
15
also to specify the requirements for achieving the objectives, and the dates
from which the objectives will apply.
66.
Resource quality objectives are defined to mean “the level to be achieved and
maintained in each aspect of resource quality for the water resource” where
the resource quality means the quality of “all aspects of a water resource.”
67
The statutory obligation to achieve and maintained resource quality for all
aspects of a water resource, combined with the classification system for water
resources, provides a mechanism for striving beyond the achievement of the
reserve, and maintaining a defined category of water resources of high
ecosystem value, in their natural state. The realization of this potential
however will depend crucially on the effective implementation of these
provisions, an exercise that has yet to commence.
III. 4 Recognizing Entitlements and Sharing benefits:
68.
This section looks at the issue of the need to recognize the entitlements of
those likely to be affected by dams and other water infrastructure related
projects, as well as the imperative to share the benefits arising from such
projects equitably.
68.
Successful mitigation, resettlement and development are fundamental
commitments and responsibilities of the State and the developer.
Accountability of responsible parties to agreed mitigation, resettlement and
development provisions is ensured through legal means, such as contracts and
through accessible legal recourse at the national and international level.
69.
This section focuses on the mechanisms which exist for recognizing and
giving effect to entitlements with respect to property which people may have.
Thy include compensation mechanisms, including the replacement or
substitution of lost assets, and land for land resettlement. The effectiveness of
these mechanisms however depends crucially on the provisions for accessing
justice, including the accessibility of the courts and other judicial review
mechanisms as well as the access to legal assistance.
III.4(a)
70
Entitlement To Compensation And Benefits
Compensation flows from the constitutional right to property, discussed
above. With regard to land the relevant law is to be found in the Land
Acquisition Act, Chapter 295. This deals with the compulsory acquisition of
land for public benefit. It defines land to include “things attached to the land.”
16
71
Section 6 provides that a notice must be given prior to compulsory
acquisition. The preconditions for compulsory acquisition are that the Minister
must be satisfied that:
(a) Land is required for the purposes of a public body;
(b) The acquisition is necessary in the interests of “…… the development or
utilization of any property in such a manner as to promote the public
benefit”; and
(c) The necessity therefore is such as to afford reasonable justification for the
causing of any hardship that may result to any person interested in the
land.
72.
Section 9 stipulates that where land is compulsorily acquired, “full
compensation shall be paid promptly to all persons interested in the land.” An
inquiry shall be held into claims to compensation by all persons interested in
the land. The value of the land shall be assessed on the basis of the market
value at the date of the publication of the notice of the intention to acquire the
land. To the amount of compensation so determined shall be added a sum
equal to 15% of the market value.
73.
There are however a number of limiting factors inherent in these provisions.
First, they operate within a legal regime in which land ownership is evidenced
by title certificates, which many occupiers likely to be affected by compulsory
acquisition do not have. Secondly, the compensation provided for is assessed
with reference to the market. This downplays the non-material values that
many occupiers attach to their land, including spiritual values. In fact, the Act
stipulates expressly that, in determining the amount of compensation to be
awarded, consideration shall not be given to “any disinclination of the person
interested to part with the land.”
74
Due to these limitations, Kenyan law on compensation is therefore not able to
provide a successful mitigation of the adverse impacts of the acquisition of
land for development purposes. Although compensated monetarily affected
peoples may still find that they are impoverished and their lives within their
communities disrupted as a result of the project.
75
It is recommended that changes be made to the law to provide for recognition
of the entitlements of occupiers without formal title documents, as well as the
recognition of the non-material values of land.
76
To its credit the Act provides for an exchange of land, in place of monetary
compensation. This is provided for in section 12, which states that the
Commissioner of Lands may agree with the person whom he has determined
to be the proprietor of the land that that person, instead of receiving an award,
shall receive a grant of land, not exceeding in value the amount of
compensation which would have been awarded. This section is however silent
17
on what happens in the situation in which the affected person prefers an
exchange of land, but the Commissioner prefers to offer monetary
compensation. This lacunae in the law should be clarified by providing that
where the affected person wishes to have an exchange of land then that shall
be the form of compensation adopted.
III.4(b)
77
Access to Justice
The right of persons whose land is compulsorily acquired to seek judicial
review of the acquisition is enshrined in the Constitution. Section 75(2) states
that every person having an interest or right in or over property which is
compulsorily taken possession of shall have a right of access to the High
Court:
(a) For the determination of his interest or right, the legality of the taking of
possession or acquisition of the property, interest or right, and the amount
of compensation to which he is entitled;
(b) The purpose of obtaining prompt payment of that compensation.
78
Section 29 of the Land Acquisition Act states provides that the right of access
to the High Court which is provided under section 75(2) of the Constitution
shall be by way of appeal from the decision of the Land Acquisition
Compensation Tribunal established under the Act.
79
The Land Acquisition (Appeals to the High Court) Rules stipulate that no fees
shall be chargeable on the presentation of the memorandum of appeal,
although other court fees are chargeable. Nevertheless litigation is, on the
whole, expensive involving lawyer’s fees, the costs of adducing evidence,
particularly expert evidence in addition to the various court charges that may
arise. This is particularly significant because Kenya does not have a system of
state provided legal aid. Consequently, the access to justice of many affected
people is limited.
80
A second issue relates to the enforcement of court awards. Section 21(4) of
the Government Proceedings Act, Chapter 40 states that “no execution or
attachment shall be issued out of any court for enforcing payment by the
Government of any money or costs … “ In stead the Government is obligated
simply to pay the money awarded on receipt of a certificate of the award from
the court. This can at times lead to lengthy delays in receiving payment, as it
depends on the willingness of the Government to cooperate.
81.
Generally for the enforcement of environmental rights section 3 of the
Environmental Management and Coordination Act, 1999 has widened access
to the courts by removing the previous requirement that only those directly
affected by an environmentally damaging act could seek legal redress. The
18
section stipulates that ‘every person in Kenya is entitled to a clean and healthy
environment.” It then states that “if a person alleges that that the entitlement is
being or is likely to be contravened in relation to him, then that person may
apply to the High Court for redress … notwithstanding that that person cannot
show that the act or omission has caused or is likely to cause him any
personal loss or injury …”
III.5
Ensuring compliance
82.
Compliance is critical to successful mitigation of adverse impacts and
fulfillment of commitments. Compliance with applicable regulations, criteria
and guidelines, and project specific negotiated agreements needs to be secured
at all critical stages in project planning and implementation. A set of mutually
reinforcing incentives and mechanisms is required for social, environmental
and technical measures. These should involve an appropriate mix of
regulatory and non-regulatory measures, incorporating incentives and
sanctions.
83.
This section explores the main compliance measures – both punitive and
incentive based – which apply to the management of dams and other water
infrastructure projects in Kenya. The measures are on the whole intended to
ensure that project proponents comply with their environmental and other
obligations, as outlined in the statutes and in the mitigation plan.
III.5(a)
Punitive Compliance Measures
84
Kenya has had a tradition of reliance on punitive compliance measures. These
are formalized in a diverse range of offence provisions, backed up by criminal
sanctions of the nature of fines and imprisonment and licence revocation or
suspension. With respect to dams and other water infrastructure decision
making these provisions are found primarily in the Environmental
Management and Coordination Act, 1999 which imposes a requirement for
EIA licensing and the newly enacted Water Act, 2002.
85
Section 67 provides for the revocation or suspension of a licence. It states that
the Authority shall cancel, revoke or suspend any EIA licence for up to 24
months where the licensee contravenes the
provisions of the licence.
Whenever the licence is revoked, suspended or cancelled the holder shall not
proceed with the project until a new licence is issued by the Authority.
86
Environmental Restoration Orders and Environmental Conservation Orders
are dealt with in Part IX of the Act. Section 108(1) gives power to the
Authority to serve “on any person in respect of any matter relating to the
management of the environment … an environmental restoration order.”
19
87
An environmental restoration order shall be issued to:
(a) Require restoration of the environment as near as it may be to the state in
which it was before the damaging action;
(b) Prevent action which would or is likely to cause harm to the environment;
(c) Award compensation to be paid by the person on whom it is served to
other persons whose environment or livelihood has been harmed by the
action which is the subject of the order; and
(d) Levy a charge on the person on whom it is served representing the costs of
any action taken by an authorized person or organization to restore the
environment.
88
An environmental restoration order shall be backed by penalties which may be
imposed if the required action is not taken. The Authority shall specify such
penalties in the order.
89
An environmental restoration order may also be sought by any person This
requires that the person apply to a court of competent jurisdiction asking for
an environmental restoration order against the person who has harmed, is
harming or is reasonably likely to harm the environment. It shall not be
necessary for the person seeking the order to show that he has a right or
interest in the property, environment or land alleged to have been or likely to
be harmed.
90.
There are other punitive compliance measures, which focus on particular
environmental media. Many of these are found in sector specific legislation,
such as the Water Act, 2002. Additionally, they are also provided for in the
Environmental Management and Coordination Act, 2002.
91.
The Water Act 2002 makes it an offence punishable by a fine and/or
imprisonment to use water resources by abstraction, obstruction,
impoundment or discharge of pollutants without a permit issued by the Water
Resources Management Authority. Section 96 gives the Authority power to
require a person to clean up any pollution or make good any detriment caused
to a water resource and to remove or destroy any works, plant or machinery
used in the contravention, failing which the Authority may take the necessary
action and recover its costs from the contravenor.
92
Additionally, Part VIII of the Environmental Management and Coordination
Act, 1999 provides penalties for failure to comply with environmental
management requirements. Thus section 72 prohibits water pollution and
imposes a penalty of imprisonment of up to two years and/or a fine of up to
one million shillings. Section 91(6) imposes similar penalties with regard to
handling of hazardous wastes. Section 98 also imposes similar penalties with
respect to pesticides and toxic substances. And section 138 makes it an
offence to fails to submit a project report for purposes of an EIA licence.
20
93.
III.5(b)
Generally, therefore, the law does make provision for punitive measures to be
taken in the interest of compliance with environmental requirements,
including those relating to dams and other water infrastructure decision
making. However, in Kenya there is a history of poor implementation and
enforcement. Consequently, these punitive measures have not, on the whole
been relied on. It is therefore difficult to assess the extent to which punitive
measures have facilitated implementation of commitments made to sound
environmental practice.
Incentive Based Compliance Measures
94
Incentive based compliance measures are a relatively new phenomenon in
Kenyan statutory law and practice, and are yet to prove themselves as
instruments of environmental management. Examples of these kinds of
measures may however be found in the Environmental Management and
Coordination Act, 1999, including trust funds, restoration funds, deposits
bonds and fiscal incentives and disincentives.
95.
Section 24 establishes the National Environment Trust Fund. The Fund shall
be used to facilitate research intended to further the requirements of
environmental management, capacity building, environmental awards,
environmental publications and grants. The Trust Fund shall consist of monies
received by way of donations, endowments, grants and gifts.
96
Section 25 establishes another fund, the National Environmental Restoration
Fund, which shall consist of a proportion of fees or deposit bonds, and sums
donated or levied from industries and other project proponents as a
contribution towards the Restoration Fund. The Restoration Fund shall be a
supplementary insurance for the mitigation of environmental degradation
where the perpetrator is not identifiable or where exceptional circumstances
require the Authority to intervene towards the control or mitigation of
environmental degradation.
97
A third incentive based compliance mechanism is that of deposit bonds.
Section 28 provides that the Authority shall create a register of those activities
and industrial plants and undertakings which have or are most likely to have a
significant adverse effects on the environment when operated in a manner that
is not in conformity with good environmental practices. The Minister
responsible for finance prescribe that persons engaged in activities or
operating designated industrial plants or undertakings pay such deposit bonds
as may constitute appropriate security for good environmental practice.
98
The deposit bond shall be refunded to the operator of the activity, industrial
plant or any other undertaking if within 24 months the operator has observed
21
good environmental practice. On the other hand, the Authority may, after
giving the operator an opportunity to be heard confiscate a deposit bond where
the operator is responsible for unlawful environmental practice, and the
Authority may also cancel the operator’s licence, where that operator is a
habitual offender.
99
Fiscal incentives are dealt with in section 57,which states that the Minister for
finance may propose to the Government tax and other fiscal incentives,
disincentives or fees to induce or promote the proper management of the
environment and natural resources or the prevention or abatement of
environmental degradation. Such measures may include:
(i)
(ii)
(iii)
(iv)
customs and excise waiver in respect of imported capital goods which
prevent or substantially reduce environmental degradation caused by
an undertaking;
tax rebates to industries or other establishments that invest in plants,
equipment or machinery for pollution control, recycling of wastes,
water harvesting and conservation, prevention of floods and for using
other energy resources as substitutes for hydrocarbons (for instance
hydro electric power);
tax disincentives to deter bad environmental behaviour that leads to
depletion of environmental resources or that cause pollution; and
user fees to ensure that those who use environmental resources pay
proper value for the utilization of those resources.
111.6 Sharing rivers for peace, development and security
100
Storage and diversion of water of transboundary rivers has been a source of
considerable tension between countries and within countries. As specific
interventions for diverting water dams require constructive cooperation.
Consequently the use and management of resources increasingly becomes the
subject of agreement between states to promote mutual self-interest for
regional cooperation and peaceful collaboration. This section looks at the
Kenyan legal frameworks for cooperation with regard to shared water
resources.
101
Kenya shares several water resources with its neighbours, with the most
significant being Lake Victoria, which lies between Kenya, Tanzania and
Uganda. Others are Lakes Jipe and Natron. Lake Victoria forms part of the
Nile Basin, which extends to ten countries, including countries as far away as
Egypt. Dams and other water infrastructure developments in Kenya can
therefore raise transboundary issues, and, as such, require a framework for
cooperation.
22
102
Kenya is a member of the United Nations and, in its international relations,
subscribes to the UN Charter edict that disputes be resolved peacefully and
through cooperative frameworks. Specifically with regard to shared water
resources Kenya is bound by customary international law as reflected in the
UN Convention on the Non-Navigable Uses of Shared Trans-boundary Water
Resources,1997, whose key tenets codify customary international law. Among
these is the principle of equitable use of shared water resources.
103
Additionally Kenya’s relations with its immediate neighbours is governed by
the Treaty of the East African Community. This sets framework for
cooperation over a wide range of issues, including the use of natural
resources. The Treaty provides for protocols with respect to specific issues.
The use of Lake Victoria and its basin is high on the list of priorities of issues
to be governed by a protocol. Already the use of fishery resources is governed
by the Convention on the Lake Victoria Fishery Organization. More widely
with regard to the Nile basin the ten countries are cooperating under the aegis
of the Nile Basin Initiative whose task is to develop and facilitate the entry
into force of a binding Treaty with regard to cooperation over the use of the
resources of Lake Victoria.
104
Kenya subscribes to system of treaty implementation requiring treaties to be
domesticated before becoming effective internally. Kenya’s record with
respect to domestication has been poor. Many treaties are signed by the
Government but are not presented to Parliament for adoption.
105
The Environmental Management and Coordination Act, 1999 has sought to
remedy this by providing at section 124 that where is a party to an
international treaty concerning the management of the environment the
Authority shall, in consultation with the relevant lead agencies, initiate
legislative proposals for consideration by the Attorney General for purposes of
giving effect to such treaty or for enabling Kenya to perform her obligations
or exercise her rights under such treaty, and identify other measures necessary
for the national implementation of such treaty.
106
The Water Act, 2002 also provides a framework for the implementation of
treaty obligations with respect to shared water resources through section 12
which provides for the classification of water resources and assignment of
quality objectives. A shared water resources could therefore be classified as
such and assigned quality objectives which would facilitate equity and
cooperation in the utilization of the resource.
IV
POLICY, REGULATORY AND ORGANIZATIONAL FRAMEWORK
CONCERNING SOCIAL AND ENVIRONMENTAL IMPACTS OF
INFRASTRUCTURE AND NATURE CONSERVATION IN KENYA
23
107
This section focuses on two issues: policy, regulatory and organizational
frameworks concerning social and environmental impacts of infrastructure,
and policy, regulatory and organizational framework concerning nature
conservation in Kenya. With regard to nature conservation the spotlight
extends beyond environmental impact assessments to encompass broadly
contaminant emissions, water quality standards, protected natural areas and
freshwater ecosystems and other relevant natural resource management issues.
IV.1 Policy, Regulatory and Organizational Framework Concerning
Social and Environmental Impacts of Infrastructure
108
The management of social and environmental impacts of infrastructure
developments are provided for in the Physical Planning Act, Chapter 286 and
in Part IV of the Environmental Management and Coordination Act, 1999, as
supplemented by the Environmental (Impact Assessment and Audit)
regulations, LN No 101 of 2003.
109
The Physical Planning Act provides for the preparation and implementation of
physical development plans. It defines development to mean “any material
change in the use of … any land.”
110
The Physical Planning Act establishes the office of the Director of Physical
Planning, whose functions include to:
(a)
(b)
(c)
(d)
111
Formulate national, regional and local physical development policies,
guidelines and strategies;
Prepare regional and local physical development plans;
Advise the Commissioner of Lands and local authorities on the most
appropriate use of land including land management such as change of
use; and
Require local authorities to ensure the proper execution of physical
development control and preservation orders.
The Act provides for the preparation of a regional physical development plan
“for the purpose of …providing for the proper physical development of such
land, and securing suitable provision for transportation, public purposes,
utilities and services, commercial, industrial, residential and recreational areas
…” the regional physical development plan shall consist of, inter alia:
(a) A technical report on the conditions, resources and facilities in the area;
(b) A statement of policies and proposals with regard to the allocation of
resources and the locations for development within the area.
24
112
The Act provides also for the preparation of local physical development plans
whose general purpose is to guide and coordinate development of
infrastructural facilities and services of an area.
113
The Act makes it the responsibility of the local authority to ensure the proper
execution and implementation of approved physical development plans, as
well as to grant development permissions. It is an offence to carry out
development without development permission. In considering an application
for development permission for a proposal which may have injurious impact
on the environment, a local authority may require the applicant to submit an
environmental impact assessment report.
114
Physical planning lays the framework for the regulation of infrastructure
developments. In effect it provides a mechanism for indicating, in advance of
the development proposals being made, the kinds of infrastructure
developments which would be allowable in given locations. It thus operates at
the level of strategic planning, and may be complemented by the strategic
environmental assessment provided for in Part VI of the Environmental
(Impact Assessment and Audit) Regulations.
115
The Environmental Management and Coordination Act focuses on project
level EIA. Section 58 imposes a requirement for an EIA licence for all
projects falling within the Second Schedule to the Act. These are projects
involving urban development; transport; dams, rivers and water resources;
mining; forestry; agriculture; processing and manufacturing industries;
electrical infrastructure; the management of hydrocarbons; waste disposal; and
nature conservation.
116
117
The organizational framework for the management of social and
environmental impacts of infrastructure is dispersed among a wide range of
institutions. The preeminent institutions for EIA in Kenya is the National
Environmental Management Authority (NEMA). NEMA is still a young
institution however, and has not stamped its authority of EIA processes in
Kenya. Local authorities also have the mandate to require EIA reports as part
of the process of determining an application for development permission. To
date they have not exercised this power. Many licensing authorities, such as
the Kenya Wildlife Service, also tend to require an EIA during the licensing
process, although the statutes under which they are set up do not expressly
give them this power.
With regard to physical planning the mandate has placed in the hands of the
Director of Physical Planning, who is the head of the Physical Planning
Department of the Ministry of Lands and Settlement. Additionally certain
planning functions, with relevance to environmental management have been
given to regional development authorities. This dispersed organizational
mandate is often blamed for the ineffective implementation of the policy and
25
law. Ideally, NEMA should coordinate all EIA licensing and regulation, but it
has not yet begun to do so.
118
An additional complicating factor arises from the fact that the same
organizations tend to be developers themselves, and thus face an inherent
conflict arising from being developers, while at the same time regulating the
development projects of others. This has undermined their regulatory
effectiveness. It is recommended that the policy and law should be reformed
to streamline regulatory responsibility by requiring that development agencies
should not at the same time exercise regulatory functions over environmental
management.
IV.2 Policy, Regulatory and Organizational Framework Concerning
Nature Conservation
119
Nature conservation in Kenya is governed by a wide range of laws ad
regulatory arrangements. Among the key one are the Environmental
Management and Coordination Act, 1999; the Physical Planning Act, Chapter
28; the Water Act, 2002; the Forestry Act, Chapter 385; the Wildlife
(Conservation and Management) Act, Chapter 376; and the Agriculture Act,
Chapter 318. On the whole these laws are not well coordinated, with they
consequence that they overlap and even conflict with each other.
IV.2(a)
Nature Conservation Under the Environmental Management and
Coordination Act
120
The Environmental Management and Coordination Act provides for the
establishment of an appropriate legal and institutional framework for the
management of the environment. The Act establishes a National Environment
Council to be responsible for policy formulation. It also establishes a National
Environmental Management Authority (NEMA) to exercise general
supervision and coordination over all matters relating to the environment. The
Act also establishes Provincial and District Environment Committees who
shall be responsible for the management of the environment within the
province or district in respect of which they are appointed.
121
Part V deals with the protection and conservation of the environment. Section
42 provides for the protection of rivers, lakes and wetlands against erection or
demolition of structures, excavation, drilling, disposal of substances or
diversion form its natural course. Section 44 deals with the protection of
hilltops, hill sides, mountain areas and forests so as to protect water
catchments areas, prevent soil erosion and regulate human settlement. Section
45 provides that every District Environment Committee shall identify the hilly
and mountainous areas under their jurisdiction which are at risk from
26
environmental degradation because of, inter alia, land use activity in such an
area is likely to lead to environmental degradation.
122
Section 47 provides that the Authority shall, in consultation with relevant lead
agencies, issue guidelines and prescribe measures for the sustainable use of
hill tops, hill sides and mountainous areas. These may include measures
relating to –
(a)
(b)
(c)
(d)
(e)
(f)
Appropriate farming methods;
Carrying capacity in relation to animal husbandry;
Measures to curb soil erosion;
Disaster preparedness;
The protection of these areas from human settlements; and
The protection of water catchment areas.
123
The Act also establishes the Standards Enforcement and Review Committee.
Its principal function is to set standards for water quality, air quality,
classification of waste for purposes of proper handling, pesticide residues in
raw agricultural commodities, noise emissions, noxious smells and ionizing
radiation.
124
The Act prohibits water pollution through polluting discharges and imposes a
criminal penalty but also the requirement to clean up the pollution and pay
compensation to those harmed by the polluting discharge. The Act empowers
the Minster to declare a “controlled area” within which prescribed air
emission standards will apply. Additionally, the Act imposes a prohibition
against the dangerous handling and disposal of wastes.
IV.2(b). Nature Conservation Under the Water Act, 2002
125
The Water Act 2002 which was passed by Parliament in July 2002 establishes
the Water Resources Management Authority to manage water resources in the
country. The Act continues the principle of management of water resources on
the basis of catchments. The Authority will designate catchments and
establish Catchment Advisory Committees to advise it on management at
catchment level. The new law also makes provision for the formation of
Water Resources Users Associations as fora for co-operative management of
water resources and for resolution of conflicts.
126
The Act imposes on the Minister a duty to develop a national water resources
strategy setting out how water resources are to be managed. The Authority is
required also to develop catchment management strategies for each of the
catchments. These provisions aim to introduce strategic planning as a water
27
resources management concept in order to reverse the alarming degradation of
water catchments.
127
The Act also imposes a duty on the Minister to develop a classification system
for water resources and to develop for each class of water resource quality
objectives to be achieved within defined timeframes. A classification system
will facilitate prioritization of management efforts. A catchment area with
great significance for, for instance, hydro-power generation, would be
classified as a water resource of strategic importance.
128
The Act imposes a requirement to obtain permits for water resource use. Use
of a water resource includes abstraction, obstruction, or diversion of the water
as well as discharge of materials or substances into the water. The permitting
process involves public consultation, and if required, an EIA in accordance
with the Environmental Management and Coordination Act, 1999. In
considering an application for a permit the Authority must taker into account,
inter alia, the strategic importance of the proposed water use.
IV.2(c)
Nature Conservation Under the Agriculture Act
129
The Agriculture Act, Chapter 318 has significant provisions on nature
conservation. The aim of the Act is to promote and maintain a stable
agriculture, to provide for the conservation of the soil and its fertility and to
stimulate the development of agricultural land in accordance with the accepted
practices of good land management and good husbandry.
130
Part IV of the Act deals with the preservation of the soil and its fertility.
Section 48 provides that whenever the Minister considers it necessary or
expedient for the purposes of the conservation of the soil of, or the prevention
of the adverse effects of soil erosion on, any land, he may make rules
regulating a diverse range of agricultural activities including grazing of
livestock, cultivation of land, afforestation and other similar land managemant
activities.
131
The Agriculture (Basic Land Usage) Rules have been made under the Act.
Two issues are relevant to the nature conservation and environmental
management: rules 3 and which seek to protect slopes, and rule 6 which
protects river banks.
132
Rule 3 seeks to protect land with a slope exceeding 35%, and states that any
person who cultivates, cuts down or destroys any vegetation or despatures any
livestock on any land of which the slope exceeds 35% shall be guilty of an
offence, unless he has the permission of an authorized officer. Rule 4 provides
that an authorized officer may prohibit cultivation or cutting down or
destruction of vegetation on any land of which the slope exceeds 20%. Rule 5
28
provides that any person who cultivates any land of which the slope exceeds
12% but does not exceed 35% when the soil is not protected against erosion
by conservation works shall be guilty of an offence.
133
Rule 6 provides that any person who, except with the written permission of an
authorized officer, cultivates or destroys the soil, or cuts down any vegetation
or despatures any livestock on any land lying within 2 metres of a
watercourse, or in the case of a watercourse more than 2 metres wide, within a
distance equal to the width of that watercourse to a maximum of 30 metres
shall be guilty of an offence.
134
These provisions are comparable to the provisions which enable NEMA to
take action for the conservation and management of catchment areas and
hilltops and slopes. Consequently, principles of integrated management of the
environment would require that these issues are dealt with together under one
overall policy objective rather than separately. As it is these statutes are
administered by different administering bodies, and in a sector specific
context. This leads to both duplication and lack of action, where action is
needed.
135
Nevertheless, the far reaching provisions in the Agriculture Act which
empower quite strong action to be taken against bad land management are not,
in practice, used as much as one would have thought. Part of the explanation
lies in the fact that the statute is punitive and heavy handed in its approach.
Little room is given for the involvement of communities and land owners and
occupiers in the enforcement and management of the resource. The statute
envisages implementation by the administration, single handedly. The result is
that the statute has not been effective on the ground and land and
environmental degradation has continued unabated.
IV. 3(d) Nature Conservation under the Physical Planning Act, 1996
136
The basic provisions of the Physical Planning Act have been outlined. The
Physical Planning Act has the potential to provide a basis for the nature
conservation and environmental management in Kenya. Its impact has so far
been limited, due largely to limited implementation of the Act. Additionally, it
has not been the practice in Kenya to carry out land use planning with respect
to rural areas, and with respect to agricultural activities. Rural areas have
ordinarily been dealt with under the provisions of the Land Control Act,
Chapter 302.
137
The Land Control Act provides a mechanism for controlling developments on
agricultural land. It establishes a Land Control Board whose consent must be
obtained for activities with respect to agricultural land, including change of
29
use, sub division amalgamation and so on. The focus of the Land Control Act
however has not been on nature and environmental conservation, but on the
promotion of agriculture. consequently, rarely does the Land Control Board
consider the potential impact of a proposed development on the environment
or on nature conservation.
IV.3(e)
Nature Conservation Under the Forests Act
138
The Forest Act Chapter 385 is relevant to water resources management and
the development of dams as forests tend, on the whole, to run alongside
watercourses, particularly the upper catchments. Therefore, one significant
area of impact of dams and other water infrastructure developments is on
forest cover. It is administered by the Forest Department, which is a
department within the Ministry of Environment, Natural Resources and
Wildlife, under the Chief Conservator of Forests.
139
The Forest Act provides for the establishment, control and regulation of
Central Forests, forests and forest areas in the Nairobi Area and on
unalienated Government land. Section 4 states that the Minister may, from
time to time, by notice in the Gazette,
(a) Declare any unalienated Government land to be a forest area;
(b) Declare the boundaries of a forest and from time to time alter those
boundaries
(c) Declare that a forest area shall cease to be a forest area; and
(d) Declare any forest area to be a nature reserve.
140
Section 8 prohibits various activities in a forest area unless licensed by the
Chief Conservator of Forests. The prohibited activities include felling, cutting,
burning, injuring or removing forest produce; setting fire to any grass or
undergrowth; despaturing cattle; clearing, cultivating or breaking up any land
for cultivation; and capturing or kinlling any animal.
141
The Forest Act’s limited area of jurisdiction inhibit it from providing a
comprehensive framework for the management of forests. The Act is limited
to gazetted forests, and does not deal with areas of tree cover which do not lie
within gazetted forests. Given that Kenya’s gazetted forest cover is an area of
less the 2% of the land surface to the country, the remit of the Forest act is
limited. Additionally, the Act operates on the basis of a protected area
philosophy and seeks to exclude communities from the use and management
of forest resources. This has alienated many local people from their forest
resources, which is inimical to sustainable management of the country’s
forests. These weaknesses have led to the development of a Forest Bill to
replace the present Act, but the Bill has not yet been published.
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IV.3(f)
Nature Conservation under the Wildlife (Conservation and
Management) Act
142
The Wildlife (Conservation and Management) Act, Cap 376 deals with the
protection, conservation and management of wildlife in Kenya. The Act
creates the Kenya Wildlife Service, headed by the Director of Wildlife.
143
The Act provides that the Minster may declare any area of land to be a
national park. The Act prohibits a diverse range of activities within the
national park. These include cutting down vegetation, fishing, entering or
residing in the national park or cultivating in the national park. The Act gives
power to the Minster to prohibit activities in areas adjacent to a national park
if these activities might hamper the proper management of wild animals.
144
As is the case with forests, national parks are protected areas, from which
local communities are excluded. This has tended to alienate communities from
their local resources. It has also made the management of national parks
resource intensive as heavy investments are needed to separate the wildlife
from local communities. This management approach has come under scrutiny
in several quarters and the trend internationally has been to find ways if
involving communities in the management of local resources, including
wildlife.
145
The management of wildlife protection areas by the Kenya Wildlife Service is
relevant to nature conservation in a number of respects. Under present
governmental arrangements, KWS has the mandate to deal with wetlands,
particularly wetlands under the Ramsar Convention. It is therefore responsible
for the management of Lake Nakuru, Bogoria and the other wetlands. These
are areas of great ecological signifcance, both nationally and internationally.
Secondly, in a number of cases, such Mount Kenya National Park, Kenya
Wildlife Service has been given responsibility to manage park areas which
cover gazetted forests. Its jurisdiction therefore tends to go beyond national
parks boundaries as such. Its role is therefore of significance to nature
conservation and environmental management generally.
146
On the whole, Kenya has not been successful in integrating communities into
the processes of nature conservation and environmental management, despite
policy statements which suggest a commitment to this objective. At best
communities have been given a limited share of the proceeds of revenues
arising from the use of the resources. Wildlife is simply one area of national
life which illustrates this general problem. It is recommended that this area
should be explored to bring it into line with the strategic objectives of the
WCD and its core values.
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V
CONCLUDING REMARKS
147
This review of the policies, laws and organizational frameworks relevant to
dams and other water infrastructure decision making in Kenya has indicated
that there is in place a regulatory framework for dams and other water
infrastructure planning, construction and operation in Kenya. This framework
makes provision strategic environmental planning, physical development
planning and the consideration of environmental impact assessment at key
points in the decision making process. It also provides for nature conservation
and environmental management generally.
148
The regulatory framework has not however successfully in integrating the
WCD core values and strategic objectives in day to day decision making. On
the whole the experience of the ordinary Kenyan has been that dams and other
water infrastructure decision making has not provided adequate opportunities
for public consultation, and has rarely led to an improvement in the lives of
those affected by the development in question. Similarly, critical ecological
resources have suffered in the course of the developments.
149
The reasons for this state of affairs is that there is a poor record of
implementation of policies and laws. This can be seen with respect to the
whole range of laws which have been reviewed and assessed in this paper. The
key recommendation therefore is that focus needs to be placed on the
implementation of polices and laws which already exist, in preference to
developing additional laws and regulatory frameworks dealing with the same
issues. Improved implementation requires a significant element of capacity
building in the areas of institutional development, resource provision and
technical and human resource development in the areas of compliance and
enforcement.
150
The above recommendation notwithstanding, there is need for legal reform to
remove duplication and overlap in the regulatory provisions. This has the
potential to undermine effectiveness as institutional rivalry and conflict
detract attention from actual implementation.
32