Why communities likely to be exploited in land acquisitions

Siaya Governor Cornell Rasanga is on the warpath. Last week, Rasanga was quoted as saying Dominion Farms, an American company carrying out commercial farming in Siaya County’s Yala Swamp, should prepare to leave on expiry of its lease agreement.

According to Rasanga, Dominion Farms has failed to uplift the lives of local residents despite being allocated thousands of acres of land formerly held in trust by the defunct county council of Siaya and Bondo.

“This is the only major investor in the county and despite promising the community goodies, he has instead subjected them to poverty and intimidation. We are worse off than before,” Rasanga was quoted as saying. Dominion Farm’s 25-year-old contract was signed 13 years ago.

Interestingly, Rasanga’s remarks came hot on the heels of a report released by the Land Development and Governance Institute (LDGI) that looked at the legal basis behind the multi-billion-shilling investment in Yala Swamp.

Titled, Large scale Land Acquisitions for Investments in Kenya: Is the Participation and Benefits of Affected Local Communities Meaningful and Equitable?, the report looked at the compulsory land acquisitions being undertaken by the government for laying out major infrastructure projects such as roads, railways, resort cities and power plants.

Apart from Siaya County, the report also looked at the mega projects being planned for Lamu and Isiolo.

Lamu County will host the Lamu Port Southern Sudan-Ethiopia Transport (Lapsset) corridor project that will see the development of a new transport corridor from the new port at Lamu, with a road, railway line and pipeline passing through Garissa, Isiolo, Mararal, Lodwar, and Lokichoggio, branching at Isiolo to Ethiopia and Southern Sudan. Included in the project will be an oil refinery at Lamu and a pipeline.

A new resort city is planned for Isiolo County at Kipsing Gap and will require large tracts of land to be hived off from a largely pastoralist community.

The second phase of the Standard Gauge Railway between Nairobi and Naivasha has just been commissioned by President Uhuru Kenyatta.

However, communities in areas where such projects are envisaged have cried foul over the manner in which the acquisitions and resultant compensation is handled.

According to the LDGI report, some of the affected residents know little about the projects and thus unable to make informed decisions on how such final payments are made.

The report also delved into the laws governing such acquisitions. The Land Act 2012 provides for the national or county government to submit a request to the National Land Commission to acquire land on its behalf. Through its valuers, the commission determines the value of the land in question and puts in motion the process of compensation.

The NLC is also supposed to come up with regulations on how to assess a just compensation for such land. However, these are yet to be finalised.

Majority of people in rural areas whose land is taken away for development projects may know little about what the newly enacted land laws say about the matter.

For example, a community in Ngare Mara in Isiolo said they had “heard on radio that Kenya had new land laws in place” but hardly knew the contents. Some said, perhaps jokingly, that they would not “recognise a title deed, even if they saw one lying on the ground”.

Still, their knowledge of such regulations that define land tenure can make or break a community’s resolve to surrender their resources to the state or foreign business entities such as in the case of Dominion Farms.

“Entitlement to compensation or resettlement depends a lot on existence of legal, and possibly other legitimate rights to land, although in certain cases, loss of livelihoods is also compensated for. Clear land rights that are well-defined, properly allocated, and clearly protected through formal or informal systems can enhance the voice of the affected community in the entire process of land acquisition, including the role of that community in the investments that are being introduced,” says the report.

According to the report, the current legal regime in Kenya concerning compulsory acquisition lacks enough safeguards governing proper relations with the host community or legal protection in the event of displacement by such land acquisition.

Ibrahim Mwathane, the LDGI chairman, said the issue of compulsory land acquisition can be a thorny one if not handled properly. He says the process is not just about the transfer of land from one entity, either private or community, to another.

“The people are not just interested in moving and building a new house elsewhere. It is also about empowering the affected people economically. Remember that you are uprooting an individual or an entire community from a way of life they have been used to. In what ways are they going to gain socially and economically from the process? Are the new projects bare blessing to them?” Mwathane, a land surveyor with vast experience in community land legislation, asked.

According to Mwathane, the situation becomes complicated where individuals to be displaced by the mega projects lack proper land ownership documents and thus prone to exploitation by those in the know.

Stephen Ambani, the chairman of the Institution of Surveyors of Kenya (ISK), said any apparent loopholes in the acquisition process is prone to be exploited by “shrewd investors” who may hold onto such land for speculative purposes.

In other cases, sly individuals may take advantage of a lacuna in the legislative process to deny bona fide individuals or communities their right to proper compensation.

“Ideally, there should no reason for delaying such big projects due to compensation issues, especially where the government has committed to compulsorily acquire a parcel of land. Land for public use overrides any other vested interests. You can only argue about the amount compensated in which case a court or an independent arbiter steps in to solve the matter,” said Ambani.

Fortunately, said Ambani, the government seems to take note of this by applying Article 40 of the Constitution that provides for “compensation to be paid to occupants in good faith” for land on which no legal document has been issued.

With the government planning more development projects in the country, observers will be keenly watching how it handles the compulsory acquisition issue.