Community Benefit in Large Scale Land Investments: Where is the Optimal Policy
Balance?
(1) ROBERT KIBUGI,
Centre for Advanced Studies in Environmental Law and Policy (CASELAP), University of
Nairobi, Kenya
Presenting author: [email protected]
(2) MWENDA MAKATHIMO, (3) IBRAHIM MWATHANE
Land Development and Governance Institute, Kenya
Paper prepared for presentation at the
“2016 WORLD BANK CONFERENCE ON LAND AND POVERTY”
The World Bank - Washington DC, March 14-18, 2016
Copyright 2016 by author(s). All rights reserved. Readers may make verbatim copies of this
document for non-commercial purposes by any means, provided that this copyright notice
appears on all such copies.
Abstract
The impact of large-scale land-based investment projects on communities has become of concern
to investments policies, and includes a focus on land rights, procedural justice, awareness,
involvement in investments, and access to justice mechanisms. In Lamu County (along northern
Indian ocean coast neighbouring Somalia) for instance, field research by the authors of this paper
established that a gap exists in the knowledge on land rights. Equally, the land administration
system that should secure land rights through registration is dysfunctional, giving way to a
thriving informal land market system that opens room for abuse of government procedures,
insecure tenure for residents, as well as difficulties in ascertaining land rights during processes
for land acquisitions. Nonetheless, a robust relationship was found to exist between local
community leaders and the government officials. Still, not much knowledge was found to exist,
amongst local leaders, on the exact breadth and scope of the LAPSSET project that will
undoubtedly affect much of the lifestyle in Lamu County. The situation was found to be same in
the other LAPSSET affected County of Isiolo. Yet, the residents will not only be directly
affected by the investments, but may likely be displaced by the activities that derive from the
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land use based investments. Where compensation has been made for large scale land acquisition,
e.g for Lamu Port, there was no apparent sign of the money being reinvested locally, with
research indicating the funds were either moved to other parts of Kenya, or abroad.
This situation obtains despite Kenya having in place a recent (2010) Constitution that redefines
and protects community and individual land rights, as well as a new land administration system.
In reality, the challenge arises because of historical problems in adjudication and registration of
land rights in places like Isiolo and Lamu County, where now land rights are central due to
LAPSSET investments.
Key Words: land, land rights, gender, Kenya, water, investments
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Introduction
Kenya’s Vision 2030 has been the official development blue print since 2008, with a focus on
increasing food security, as well as enhancing infrastructure, and manufacturing. Notably, in
October 2015, the Kenya Government released the “Kenya Industrial Transformation Plan
(KITP), which focuses on enhancing agriculture’s role in the economy, and more so the value
addition through agribased manufacturing. This will in effect open up more parts of Kenya to
socio-economic advancement. These approaches resonate with the ongoing construction of a
Standard Gauge Railway line (SGR), a second port in Lamu, road infrastructure, and proposals
3
for a resort city and complementing infrastructure in Isiolo, as part of the Lamu Port South
Sudan Transport (LAPSSET) Corridor.
1.1
Background
The LAPSSET project is a key plank of Vision 2030 that seeks to develop infrastructure to
develop parts of northern Kenya that have been historically marginalized. The impact of largescale land-based investment projects on communities has become of concern to investments
policies, and includes a focus on land rights, procedural justice, awareness, involvement in
investments, and access to justice mechanisms. Legally, private property is protected in Kenya,
as a fundamental right enshrined in the Bill of Rights to the 2010 Constitution together with
various socio-economic rights. These protections bring into focus the tensions that often arise
when a society needs to implement interventions that uphold, and lead to realization of
sustainable development while bypassing inequity and its pitfalls, like poverty, and lack of voice
for affected people/communities. Equity is a helpful tool in this context because, with its link to
sustainable development, equity may provide both opportunity and voice that enhances benefit of
affected persons/communities. These are relevant to address questions of accountability and
legitimacy, including of formal mechanisms proposed or set up by government to govern land
acquisitions. These are the issues that this research set out to achieve in 2013, and has been
exploring for the last two years during complex literature review, and field research involving
interviews, observation and focus group discussions.
1.2
The Research Project inquiring into community benefit during large scale land
acquisitions
It is against this background that we have been undertaking a research project entitled “Towards
Local Community Benefit in Large Scale Land Acquisition for Investment in Kenya,” funded by
the International Development Research Centre (IDRC) of Canada. The research was proposed
as an inquiry into the critical areas highlighted above in order to determine the most effective
way of ensuring accountability of formal legal processes to secure community interests during
large scale land acquisitions for investments in Kenya. The principal research objective is to
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explore the legislative and policy options that will entrench accountability of formal processes to
protect interests of communities in circumstances of large-scale land acquisitions. The research
is guided by the following specific objectives –
1. To review the current policy and legislative criteria for acquisition and granting of land
for investment purposes in Kenya
2. To examine the formal and procedural guarantees of accountability and legitimacy in the
policy and new laws enacted to implement the 2010 constitution
3. To explore and propose mechanisms of implementing social, economic and
environmental safeguards for communities during acquisition of land for investment
purposes
These objectives have been guiding the research to inquire into the legal and policy dimensions
that, in light of the 2010 Constitution, would enhance accountability and legitimacy for large
scale land acquisitions, whether through (public) land banking or compulsory land acquisition
that results in involuntary resettlement therefore protecting the interests of local communities for
sustainable development. As at the time of writing, the research project has just began the
Second phase, in Year 2 – to undertake actual field research in order to obtain answers to
questions framed as a result of conceptual and literature review, and inception missions to
research sites set out below:
(i)
Siaya County– The County of Siaya has been subjected to large scale land acquisitions
when the County Council granted a 25 year lease over the expansive Yala Swamp to
Dominion Holdings to undertake large scale irrigation farming. This lease has been
controversial as it was granted on trust land (community land held in trust by the County
Council) and resulted in evictions and denial of people the access to farmlands, clean
water and fishing waters. Residents have also complained they were not consulted by the
local authorities. In recent years, people have complained they cannot access clean water
for domestic use, as their access to the Yala Swamp has been blocked or limited.
(ii)
Lamu and Isiolo Counties –: These are two counties that are at the centre of
implementation of the Lamu Port Southern Sudan Ethiopia Transportation Corridor
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(LAPSSET). According to Vision 2030 Medium Term Framework (MTF) 2008-2012,
(Kenya, 2012) the project involves the development of a new transport corridor from the
new port at Lamu through Garissa, Isiolo, Mararal, Lodwar, and Lokichoggio to branch
at Isiolo to Ethiopia and Southern Sudan. This will comprise of a new road network, a
railway line, oil refinery at Lamu, oil pipeline, Lamu Airport and free port at Lamu
(Manda Bay) in addition to resort cities at the coast and in Isiolo. It will form the
backbone for opening up Northern Kenya and integrating it into the national economy.
The government intends to compulsorily acquire private and community land within
proximity of the LAPSSET corridor, which will be vested in the National Land
Commission as public land, and the Commission, working with relevant government
departments, would oversee allocation to private investors.1 Lamu is a UNESCO
protected World Heritage site, while Isiolo is a semi-arid environment therefore raising
significant concerns on vulnerability that the law and policy should address. This
category is a critical candidate to apply the social and environmental safeguards,
including informed consent, proposed by the Prevention, Protection and Assistance to
Internally Displaced Persons and Affected Communities Act, 2012
2
A philosophy for large-scale land acquisitions in Kenya?
Looking at the discussion in the foregoing section, the concerns raised relate to guarantees for
benefit, and participation of individuals/communities in processes of land acquisition – in a
manner that assures their place in the sustainable development paradigm. The concept of equity
stands out prominently here, first as central principle of sustainable development, and secondly
because it provides a foundation to frame an entitlement for opportunity and voice for
communities. This is important where land acquisition and involuntary displacement of people is
concerned, questions arise that are both procedural, and substantive. In certain cases, matters of
equity are both procedural and substantive, for instance the right to be heard in consultation, and
a concomitant entitlement to have that voice considered by those making the eventual decision,
as well as feedback to those consulted. It may even extend beyond acquisition of land, to include
1
Interview with Vision 2030 Secretariat official, 19 May 2012
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securing the systems of production for the displaced people, including their participation as
investors in the incoming business that has taken over their land. The outgrower model,
commonly applied in agribusiness (such as sugar industry), is a helpful example – although other
models could suffice. Similarly, equity emerges as a strong conceptual basis for the mechanisms
that could promote opportunity and benefit. Therefore the application of equity in this context
would not only help in framing accountability and transparency mechanisms that provide
optimally structured socio-economic and environment safeguards for those affected, such as
community as investor – but would also provide the room for meaningful participation of the
local communities in decision making regarding their fate/future, including enabling meaningful
roles for women in the decision making process.
On the contrary, the absence of equity, whether actual or perceived, creates challenges for rule of
law and brings the relevance of national development priorities to citizens of a country into
question. It is, at this stage, that any conversation on ensuring interventions support sustainable
development could be lost. It therefore helps to explore further philosophical justifications, as
these would anchor government policy towards land and investments, especially through large
scale land acquisitions. Renowned scholars Ruth Meinzen-Dick and Helen Markelova (2009)
have analysed the often polarized debate on foreign land acquisitions for investments. Although
their analysis is focused on agricultural land deals only, the concept provides a normative basis
for analysis in a broader context. They argue that there are potentially two schools of thought
about foreign acquisitions over agricultural land. One school of thought regards them as
“beneficial investment” whereby investors are viewed as bringing needed investment, possibly
improved technology or farming knowledge, thereby generating employment and increasing
food production. Another school of thought refers to “neocolonial land grab” whereby foreign
investors are viewed as expropriating local land with little local input, and growing crops that are
exported directly, even when local people do not have enough to eat. Meinzen-Dick and
Markelova (2009) further argue that because these foreign land acquisitions are ongoing, at a
very fast rate, it is necessary for host countries to focus on what they can do to seize the
opportunities and mitigate the risks associated with the deals.
Local and foreign land acquisitions for investments raise accountability questions, including
transparency and openness that allows participation of concerned persons. In late 2014, questions
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began to arise as individuals/communities in Makueni county, one of the places that the Standard
Gauge Railway (SGR) line (costing US$3.6 Billion) will pass through, began complaining about
lack of consultations, and problems with compensation for land taken through eminent domain.
This resulted in an injunction, by the High Court, on 24 October 2014, preventing activities
relating to the SGR project in Makueni County (The Standard, 24 October 2014). Although the
injunction was eventually lifted, the situation suggests the concerned community members were
seeking to exercise their voice through judicial action. Similarly, concerns about fraud have
arisen surrounding another mega-investment project in Kenya, the Konza Technopolis project
proposed in Machakos County. In September 2014, the Director of Public Prosecutions publicly
reported that he had sufficient evidence to prosecute various individuals for the loss of Kenya
shillings 1 Billion in the purchase of the 500 acre Malili ranch - owned by community members
– and intended to be the venue of the technopolis. A special prosecutor has been appointed in
that respect. (Business Daily, 29 September 2014)
In addition, a history of patriarchy in land ownership brings to the fore the need for gender
disaggregation of land ownership and use rights, including consent for granting of leases or sale
of land. It is therefore important to explore policy options for Kenya that could facilitate
entrenchment of legitimacy and accountability in large-scale land acquisitions for investments.
Such questions relate to the formal rules and procedures for acquisition of land, either through
compulsory powers of eminent domain or through rules that seek to protect local community
interests where land banking of public land is applied to set aside land for investment purposes.
Since acquisition of land by private agreement is quite prevalent, it becomes necessary to
examine possible safeguards that land owners and their families should look out for in order to
secure their interests. In addition, since legitimacy and accountability overlay between formal
and informal (customary/cultural/contemporary context) it is necessary to examine power
arrangements within the community and between the communities and State organs to establish
the wielders of cultural influence and/or political authority, and how this benefit or undermine
community benefit.2 Thus although there is a search for community benefit, inequity within the
2
Looking at this questions from the perspective of affected individuals/communities is important because
the interests and considerations of investors may be quite different from those of affected members of the
public, and communities.
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fabric of the concerned community (including a family unit) could likely undo or minimize
benefits by creating challenges in the path of participation.
Although it cannot be said that land acquisitions for investments are inherently beneficial, it is
arguable that they present an economic moment of opportunity that could be framed for benefit,
especially through enhancing equity for communities. Therefore there is a need to examine the
concepts, law and architecture of institutions to establish how to frame equity for communities as
the central organizing principle. This reasoning is compelling as it creates an internal imperative
for a national conversation on land acquisitions for investments, both by local and foreign
investors. Local investments in land, especially for agricultural uses, have been prevalent for
years, even at a very local scale where farmers acquire formal/informal use rights through rental
and lease agreements. This manifests the use of land as a means of production, and with
commercialization of agriculture, these local investments are on the increase. Irrigated
agriculture, is for instance, developing fast to provide perishable foods for urban areas, and local
investors engage in greenhouse farming for vegetables, including tomatoes, sukuma wiki (kale),
and capsicum. It is important to analyse and document the scale at which these local land
acquisitions are occurring, and determine the required degree of safeguards for socio-economic
and environmental sustainability.
3
3.1
Discussion of the research outcomes
Siaya County
The following are the synthesized preliminary findings from our field research in Siaya. This
will be concretized and/or varied based on the much firmer outcomes of the ongoing data
analysis process a) Situation of mistrust: Dominion concluded a lease agreement with the County
Council, which was the local authority, now replaced by the County Government.
The lease agreement did not bind the investor to undertake much extensive
agriculture and community economic support – but the investor promised the same
nonetheless at the outset – but did not deliver. The community views this as a broken
promise while the investor argues that business reality made it impossible – and with
9
a broken community relationship – there is no imperative to pursue this further.
Therefore, a deep sense of mistrust and misunderstanding exists between residents in
villages neighbouring the vast Dominion farms on the Yala Swamp.
b) Weak approach to boundary identification: Although the specific sizes of the
parcels of land allocated to the investor were specified, the acquisition was to be in
phases. No evidence of survey beacons demarcating the perimeter boundary of the
land leased out to Dominion farm were found – and this creates a problem. When the
investor attempts to extend farming within the remaining portion of the leased
parcel, the community views this as further encroachment. No safeguards were put
in place – leaving possibility for further disagreement
c) Environmental oversight - There is a clear failure in the National Environment
Management Authority (NEMA) liaising with the investor and the community to
monitor conditions of the EIA license. Thus, the community has not had feedback on
their allegations that water discharged from the farm contains toxic chemicals.
Dominion has made an application for EIA license to develop a sugar factory in the
swamp. The community did not have any knowledge of this development.
d) Difference in interpretation of benefit to community - The investor has certainly
brought some benefits to the local community, key among them employment.
However, the investor employs local women as unskilled labour “to support local
families” while the local community views this as shrewdly done to “allow room for
exploitation with low wages and long working hours.” The investor reported that
initially, they provided actual food to the community but that proved to be
economically unviable such that now, they operate a shop on-site where they sell
rice and other farm produce to the local community at subsidized rates. On the
flipside, the local community believes the food is expensive, and others suggested
the produce may contain toxic chemicals.
e) The unmitigated negative impacts to downstream communities: Yala Swamp
extends between the neighbouring Siaya and Busia Counties, but the investor only
has a lease on the Siaya county portion. As a consequence, the canals to discharge
irrigation water into Lake Victoria have been directed towards villages in Busia
County, where local communities are now inundated under floodwaters, bringing
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extensive risk to public health, education, and socio-economic activities. The
investor indicates that since no contract exists between them and Busia County –
there is nothing the investor can do about it. However, NEMA has residual powers
as the national environmental regulator to address this. NB – no interviews were
undertaken with Busia County government officials to establish their position on this
issue. However, during planning of field research, we visited and held a focus group
in Bunyala, on the shores of lake Victoria, and administratively in Busia County,
where residents from the town, and some respondents from the Busia County part of
the Yala swamp inundated by the irrigation flowing from Dominion participated in
our FGD. It is notable there was similarity of opinions between the residents, and
public administrators that more should be done to protect the socio-economic,
environmental and health interests of the downstream residents. During the
dissemination stage, we will aim to validate the results with the residents, and
explore whether it is viable, within project resources, to organize a communication,
learning and feedback forum between the two counties, and with the investors.
The preliminary findings in Siaya are instrumental because they point to specific
challenges that have arisen during implementation of an ongoing project. As our
control site, these findings will be very helpful in framing policy and community level
corrective interventions in Isiolo and Lamu.
3.2
Lamu County
The following are the synthesized preliminary findings from our field research in Lamu. This
will be concretized and/or varied based on the much firmer outcomes of the ongoing data
analysis process a) Failed/failing land administration system - In Lamu, it was evident that the
system of national land administration (rights adjudication, allocation, registration)
was not working well, or at all. There was extensive evidence of residents allocating
themselves what is technically public land, at will. In fact, the colloquial term
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“witemere” – which is Kikuyu/slang equivalent of “assign yourself” was used a lot
by respondents, and a number of settlements were named “witemere.”
b) Tensions of increasing internal migration to Lamu from other parts of Kenya Lamu has a history of land allocations for agricultural settlement. This has resulted
in settlement of people from various parts of Kenya – and with current unclear land
rights, and prospects for money through government compensation for the
LAPSSET projects – this is clearly increasing levels of tension between
communities that consider themselves “ethnically native” to Lamu versus those
considered “immigrants.”
c) Well developed informal land market, and procedures - Despite the fact that
much of the land is not adjudicated and/or registered, there has developed a thriving
informal land market where a successful sale is marked by the “endorsement of local
elders” some of them including “government chiefs (local administrative officials).”
The “sale” is marked by payment of “compensation for developments” made so far
on the land, such as trees, housing, fence, water, etc – and not actual land – since this
belongs to the government of Kenya. The involvement of government chiefs in the
informal land market is problematic because they continue to play an important role
in the local security and intelligence establishment – thus a clear case of conflict of
interest is evident
d) Observation research, and interviews disclose “export” of compensation funds Despite the first round of compensation having been undertaken for the Port land,
transect walks and other observatory research did not disclose evidence of any
discernible investments made in the local community – from the compensation
proceeds. Discussions with local people during FGD’s also confirmed this
e) Questions on eminent domain compensation to people occupying public land There are fundamental constitutional questions concerning payment of compensation
for land acquisition to people occupying what is essentially unallocated public land
Effect on indigenous communities - Lamu is home to the Aweer community, one of
Kenya’s indigenous communities – whose land will be affected by the LAPSSET
infrastructure, and who occupy an area of land whose neighbours are mainly military
barracks, or national youth service barracks. The local community’s principal complaint
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was failure to adjudicate their land boundaries making it difficult to know how much
compensation they are entitled to.
Weak knowledge on land rights and procedures- Lack of knowledge over land rights
is evident across all areas of Lamu County. This is attributable to weak land
administration mechanisms in Lamu, especially the complicated and slow process of
land titling and registration.
It is important to report that the team is analyzing data on the actual process of land
compensation, including the mechanisms applied in the already completed compensation process
for the Lamu Port – and will provide conclusive reporting on this at the conclusion of the data
analysis.
3.3
Isiolo County
The following are the synthesized preliminary findings from our field research in Isiolo. This
will be concretized and/or varied based on the much firmer outcomes of the ongoing data
analysis process a) Extensive challenges from poor implementation of land administration rules.
This weakness in land administration was evident in multiple instances. In the
Isiolo township area, respondents, including public administration officials,
reported the single most complex challenge was the double, triple or quadruple
allocation of the same parcel of land to multiple people. This had diminished
security of tenure extensively, and in 2014 resulted in violent clashes, loss of life,
and loss of property.
b) Lack of information on intended land acquisition - Along the Isiolo-Moyale highway,
residents are worried about government attempts to further acquire land for expansion of the
road, and building of a railway line. Locals showed survey beacons installed deep into their
compounds – without any consultations by the government. The Kenya National Highways
Authority was accused of entering people’s residents without prior notification or consent and
began to undertake surveys and installing beacons that indicate the extent to which land will be
13
acquired, supposedly for expansion of the highway to cater for LAPSSET infrastructure, as well
as creating space for a railway line.
c) Incongruence in land acquisition and compensation procedures - Several years after it was
undertaken, there are persisting disputes over relocation of persons previously resident on land
now occupied by Isiolo International Airport. For this land, in Kiwanjani location, compensation
in the area was not done in the common way of monetary compensation. Instead, a balloting
process was used where persons whose land had been acquired were involved in a raffle, where
they picked a ballot paper from a box at random and the name and number on the ballot signified
the place where they would be relocated. One woman still has her family home a few metres
from the runway, deep inside the airport fence. She claims that the land allocated to her was
unsuitable, and too far away for it to have utility value to her. This point was echoed several
times over.
d) Lack of information on future plans for LAPSSET Infrastructure - The proposed Isiolo
resort city is earmarked for construction in an area of land that local people consider the principal
source of water and pasture for dry season grazing for the dominantly pastoralist community.
Although claims have been made that the area is unsettled, research evidence shows the contrary,
including the location of a local school and other infrastructure.
e) Lack of information on land rights, including procedures for adjudication over community
land. Much of the land outside the town area is community land, mainly occupied by pastoralist
communities, and which has not been adjudicated despite Kenya having had legislation on
adjudication of pastoralist lands as group ranches since 1968. In all the areas visited for
interview, the community demonstrated a need to have the land adjudicated, so that boundary
disputes are eliminated, but also land registration documents issued to secure tenure. An acute
lack of knowledge of land rights, laws, procedures was evident – and the communities
specifically pointed to a need for civic education – preferably by locally trained community
members (as paralegals) that they can trust. It is interesting to note that these pastoralist
communities were also very organized internally, and present an opportunity for structured
interventions that could aid in dealing with this challenge.
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4
Cross-cutting policy findings
Based on the findings in the foregoing section, the research has, at this preliminary stage,
identified the following issues, being of cross-cutting policy relevance, that should be addressed
in Kenya, in order to optimize community benefit from large scale land acquistions:
1. Weakness in land administration, and land registration through titling process.
This was found to be an endemic problem in both Lamu and Isiolo, and is attributable to the
challenges facing land tenure security, and difficulty in undertaking compensation, and eventual
resettlement for LAPSSET – but generally, impacting livelihoods negatively.
2. Gender equity in land management
The aspect of gender equity in land rights came out very strongly during the field research
missions. In the three research sites, women mostly enjoyed user rights but did not have actual
ownership of land, due to cultural stratification (patriarchal) of society, although the law assumes
joint ownership of matrimonial property. By way of illustration, this disparity was experienced in
Lamu where, the compensation process had only involved the person with registered ownership,
although spouses and children depended on the land for livelihood. In some instances there had
been social effects arising from this, whereby, men after compensation, would relocate to other
parts of the country and leave the women without any course for redress. This brought up the
need to have persons with user rights be consulted and considered during compensation. One
contrast arose during visit and interviews in Ngare Mara group ranch in Isiolo where women
held all the most important leadership positions, in the group ranch, and the community
leadership, and their role in leadership was visibly evident during the focus group discussion
where other members (include males – young and elders) deferred to the women in leadership
positions to articulate important points.
3. Role played by the community elite (leaders, opinion shapers)
The role of the elite in every community of the three research sites the role of the elite was
clearly played out in land acquisition for development purposes. Often times, the elite are privy
to information about anticipated projects and development requiring land. They also are better
placed economically, compared to the other community members. This combination of access to
15
knowledge and financial resources gives rise to elite capture. For instance, in Lamu, respondents
reported instances of high profile citizens, government officials and other professionals who had
acquired land within the Baragoni and Hindi Magogoni area right before commencement of the
project. In Kiwanjani location, Isiolo county respondents told of purchase of land both legally
and illegally by persons in government and other wealthy citizens who acquired land near the
airport and did not put it to productive use. This further, created an informal land market where
unscrupulous persons would pose as brokers and sell land that was not available for sale to
persons seeking to buy land in the area for speculative purposes.
Water rights, and the cross cutting implications of environmental safeguards, including
environmental assessment are equally critical and further analysis will be undertaken in the third
and final year of the research.
5
Conclusion
In Lamu County (along northern Indian ocean coast neighbouring Somalia) for instance, field
research by the authors of this paper established that a gap exists in the knowledge on land rights.
Equally, the land administration system that should secure land rights through registration is
dysfunctional, giving way to a thriving informal land market system that opens room for abuse of
government procedures, insecure tenure for residents, as well as difficulties in ascertaining land
rights during processes for land acquisitions. Nonetheless, a robust relationship was found to
exist between local community leaders and the government officials. Still, not much knowledge
was found to exist, amongst local leaders, on the exact breadth and scope of the LAPSSET
project that will undoubtedly affect much of the lifestyle in Lamu County. The situation was
found to be same in the other LAPSSET affected County of Isiolo. Yet, the residents will not
only be directly affected by the investments, but may likely be displaced by the activities that
derive from the land use based investments. Where compensation has been made for large scale
land acquisition, e.g for Lamu Port, there was no apparent sign of the money being reinvested
locally, with research indicating the funds were either moved to other parts of Kenya, or abroad.
This situation obtains despite Kenya having in place a recent (2010) Constitution that redefines
and protects community and individual land rights, as well as a new land administration system.
16
In reality, the challenge arises because of historical problems in adjudication and registration of
land rights in places like Isiolo and Lamu County, where now land rights are central due to
LAPSSET investments. This research, undertaken with financial support for the International
Development Research Centre (IDRC), Canada) has found that the country requires focusing on
revisiting the land rights adjudication and registration process. This is because it is now clear that
Kenya is banking a lot of economic advancement on large scale land acquisition, especially to
open up previously marginalized parts of the country and promote its economy. Therefore, for
there to be success and sustainability, these projects should be preceded by adequate field
surveys to identify site suitability, community sensitization and discussions on anticipated
benefits and compromises. This particular outcome is informed by feedback from communities,
who according to project documents are affected, but who in reality have never been directly
consulted about the project(s). Indeed consulting communities is critical considering that the
projects are being undertaken against a background of weakly enforced, failing or failed land
administration mechanisms – which foster land tenure insecurity? Going forward therefore, there
is need to explore how to create a hybrid mechanism of safeguards between
contemporary/customary society structures with formal legal structures to allow for tenure
security even as the trouble in the formal legal system takes time to sort out. For instance, it does
not achieve much when legal mechanisms provide for communities to be consulted, but fails to
secure access to, or provision of relevant information to the various affected parties. People have
indicated interest in partnering with these undertakings, for instance by identifying business
activities they can be involved in. Such an approach will help address the dearth of knowledge
that exists among local communities across the research sites on land rights. Indeed, the paper
argues for, and proposes the need to develop a training programme that is community based in
design, content, delivery, and that allows a feedback system with the government for learning –
and to pinpoint present or potentials areas of trouble. Such training is consistent with the tenets
of developing public participation through enhancement of awareness to ensure the public can
make a meaningful contribution whenever they are consulted.
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