Kenya from the air

Credit: © Alex Shapovalov. In Kenya, as elsewhere, the government is faced with the need to strike a balance between meeting national public interests and protecting private property rights.

MAY 2013.  In 2006, a Kenyan court ruled in favor of the National Environment Management Authority (NEMA), upholding an order preventing a leaseholder from constructing a tourist lodge and camp in an area outside the Maasai Mara Game Reserve.  The order was intended to preserve a nearby cheetah breeding ground and protect local wildlife. 

Through its Environmental Impact Assessment process, NEMA has been able to restrict a wide variety of land uses in the interest of protecting the environment.  But some advocates argue that the broad authority of the Kenyan government to restrict land use is an infringement on private rights and a hindrance to development.  They suggest that such restrictions can have adverse effects on local livelihoods by limiting the allowable uses of land to such an extent as to render the land nearly valueless to the landowner and/or user.

The government of Kenya restricts private land rights through two main vehicles: eminent domain and police powers.  Eminent domain refers to the power of the government to extinguish private rights by forcing involuntary transfers of property to the state or a designated agency.  In Kenya, this power derives from Article 40(3)(b) of the 2010 Constitution, although the specific procedures are detailed in the Land Acquisition Act of 1968.  Police power refers to the legal authority of the state to limit private rights in order to protect national public interests, such as health and safety.  The Kenyan government has considerable authority to restrict private land use rights based on several key pieces of legislation, including the Environment Management and Coordination Act of 1999 (EMCA).

The EMCA grants the National Environmental Management Authority extensive power to control private land use in the interest of environmental management and sustainable development.  Of particular significance is NEMA’s authority to require Environmental Impact Assessments (EIAs) and reject or limit specified development activities.  Today, the government regularly uses EIAs and zoning ordinances to limit private land use, and these limitations are often upheld in court. 

In Kenya, as elsewhere, there is a need for development that is also environmentally sustainable. This will require the government to strike a balance between protecting private property interests and serving national public interests.  Advocates have recommended the development of mechanisms to restrict the government’s power to limit private land use rights, such as justification standards for any land use restrictions, a clear and more limited public purpose requirement, and requiring the government to compensate landowners for their losses.

Kenya’s parliament is currently developing and adopting new land laws and regulations, as required by the 2010 Constitution, presenting an opportunity for advocates to push for desired reforms.