Land and environmental governance related to REDD+ implementation in Kenya REDD+ Law Project - Briefing Paper July 2014 Research coordinator: Dr Sophie Chapman Research Associate, Cambridge Centre for Climate Change Mitigation Research Contributing authors: Mona Doshi Partner, Anjarwalla & Khanna (Africa Legal Network), Mombasa office. Caroline Wanjiku Kago Chairperson, Department of Private Law, Kenyatta University School of Law (KUSOL) Nelly Kamunde-Aquino Lecturer, Department of Public Law, Kenyatta University School of Law (KUSOL) Leah Kiguatha Lecturer, Department of Public Law, Kenyatta University School of Law (KUSOL) Dr Yvonne Nana Afua Idun Chairperson, Department of Public Law, Kenyatta University School of Law (KUSOL) The REDD+ Law Project is led by Baker & McKenzie and the Cambridge Centre for Climate Change Mitigation Research (University of Cambridge), working with international and local advisers/institutions to assist countries in the development and implementation of their national REDD+ legal frameworks. More information regarding this initiative is available at http://www.4cmr.group.cam.ac.uk/research/projects/reddpluslawproject 1 CONTENTS __________________________________________________________________________________ ABOUT THIS BRIEF 1 BACKGROUND TO KENYA’S LEGAL SYSTEM 1.1 Difference between government policy and law 1.2 Constitutional law 1.2.1 Constitutional history of Kenya: From 1964 to 2010 1.2.2 Overview of the Constitution of Kenya 2010 1.2.3 Devolution of authority 1.2.3.1 Introduction 1.2.3.2 Constitutional provisions on devolution 1.2.3.2a Objectives of devolution 1.2.3.2b Levels of Government in Kenya 1.2.3.2c Cooperation between National and County Governments 1.2.3.2d The Role of the National Assembly and the Senate 1.2.3.2e National Executive 1.2.3.2f County Government 1.2.3.2g County Assembly 1.2.3.2h County Executive Committee 1.2.3.2i Functions of the County Executive Committee 1.2.3.2j Functions of County Assemblies 1.2.3.2k Functions of the National Government 1.2.3.2l Functions of County Government 1.2.3.2m Transfer of functions or powers between the two levels of government 1.2.3.2n Conflict of laws 1.2.3.2o Powers of County Government 1.2.3.2p Transition to a devolved system of government 1.2.3.2q Transition period 1.2.3.2r Effect of Devolution on The Kenyan Legal System 1.2.3.2s Challenges of decentralisation and devolution 1.3 The Law-making process in Kenya 1.3.1 Sources of Kenyan law 1.3.2 Primary legislation 1.3.3 Subordinate Legislation (including Regulations) 1.4 Relationship between customary law and statute law 1.5 Organisation of government 1.5.1 Executive 1.5.2 Legislature 1.5.3 Judiciary 1.5.4 Devolved structure of government 2 OVERVIEW OF LAWS, POLICIES AND INSTITUTIONS RELEVANT TO REDD+ IN KENYA 2.1 Land law and policy 2 2.1.1 Recent changes to Kenya’s land law regime 2.1.2 Key laws governing land 2.1.2.1 The Constitution 2.1.2.2 Land Act 2012 2.1.2.3 Land Registration Act 2012 2.1.2.4 National Land Commission Act 2012 2.1.2.5 Trust Lands Act 1970/Revised 2009 2.1.2.6 Land Control Act 1967/revised 2010 2.1.2.7 Land (Group Representatives) Act 1970/revised 2012 2.1.2.8 Land Adjudication Act 1977/revised 2010 2.1.2.9 Land Consolidation Act 1977/revised 2012 2.1.2.10 Environmental Management and Coordination Act 1999/Revised 2012 2.1.2.11 Forests Act No. 7 2005/Revised 2012 2.1.3 Land classifications 2.1.3.1 Overview 2.1.3.2 Public land 2.1.3.3 Community land 2.1.3.4 Private land 2.1.3.5 Procedure to acquire private land 2.1.3.6 Compulsory acquisition 2.1.3.7 Forest land 2.1.3.7a Forest regime 2.1.3.7b Forest definition 2.1.3.7c Forest ownership and use 2.1.3.7d Tree tenure 2.1.3.7e Soil tenure 2.1.4 Legal Treatment of Women in Kenyan land law 2.1.5 Land administration 2.1.5.1 National Land Commission 2.1.5.2 Environment and Land Court 2.1.5.3 Land Control Board 2.1.5.4 Group representatives 2.1.5.5 Corrupt transactions 2.1.6 Future challenges for Kenyan land law and governance 2.2 Environment laws and regulations 2.2.1 Environmental law and policy in Kenya 2.2.1.1 Introduction to environmental law in Kenya 2.2.1.2 Overview of environmental policies in Kenya 2.2.2 Constitutional provisions relating to the environment 2.2.3 Statutory law with respect to the environment 2.2.3.1 Environmental Management and Coordination Act 1999/Revised 2012 2.2.3.2 Environment and Land Court Act 2011 2.2.3.3 Forests Act 2005 2.2.3.3a General 2.2.3.3b Establishing a forest conservancy or nature reserve under the Forests Act 2.2.3.3c Forest Conservation and Management Bill 2014 2.2.2.4 Forest (Charcoal) Regulations 2009 2.2.2.5 Timber Act 1972/Revised 2012 2.2.2.6 Wildlife (Conservation and Management) Act 2013 2.2.2.7 Protected Areas Act 1980/Revised 2012 2.2.2.8 Water Act 2003 2.2.2.9 Mining Act 1987/revised 2012 2.2.2.10 Agriculture laws 3 2.2.2.10a Agriculture, Fisheries and Food Authority Act 2013 2.2.2.10b The Crops Act 2013 2.2.2.10c Kenya Agricultural and Livestock Research Act 2013 2.2.2.11 National Museums and Heritage Act 2006 2.2.2.12 Energy Act 2006 and subsidiary legislation 2.2.2.12a Energy Act 2006 2.2.2.12b The Energy (Energy Management) Regulations 2012 2.2.2.12c The Energy (Solar Photovoltaic Systems) Regulations 2012 2.2.2.12d The Energy (Solar water heating) regulations 2012 2.2.2.12e Draft Energy (Improved Biomass Cook stoves) Regulations 2013 2.3 Key environmental governance institutions 2.3.1 Ministry of Environment, Water and Natural Resources 2.3.2 Kenya Wildlife Service (KWS) 2.3.3 Kenya Forest Service (KFS) 2.3.4 Kenya Forestry Research Institute (KEFRI) 2.3.5 National Museums of Kenya 2.3.6 Institutions under the National Environmental Management and Coordination Act 2.3.6.1 The National Environmental Council (NEC) 2.3.6.2 The National Environment Management Authority (NEMA) 2.3.6.3 Provincial and District Environment Management Committees. 2.3.6.4 Public Complaints Committee (PCC) 2.3.6.5 Standards and Enforcement Review Committee (SERC) 2.3.6.6 National Environmental Tribunal (NET) 2.3.6.7 National Environment Action Plan Committee (NEAP) 2.3.7 Environment and Land Court __________________________________________________________________________________ The Great Rift Valley, taken from the Nairobi-Lake Naivasha road, Kenya. 4 ABOUT THIS BRIEF The UNFCCC framework asks countries to include a national REDD+ institutional framework with certain key elements, many of which will draw on existing legal frameworks. For example, as part of their national strategies and action plans (discussed above), countries are requested to address several issues including: Land tenure issues:1 The importance of land tenure for regulating land use and assigning benefits from REDD+ has been widely noted. Nonetheless, clarifying and then administering land tenure is a complicated issue that presents a challenge for many countries. Tenure systems can contain many different kinds of rights2, and land rights can be a source of conflict and political debate. REDD+ presents a new opportunity to consider this challenge, in addition to creating what could be new resource rights (eg. to carbon); Forest governance issues:3 It is likely that REDD+ policy will build on existing forest governance structures and strategies, which could include efforts to police illegal logging, anti-corruption work, the administration of concessions (if they exist), the establishment of national parks, and so on. REDD+ is seen by some countries as a mechanism to bolster existing national programmes with a new source of revenue; The purpose of this section is to identify the laws, policies institutions relevant to the implementation of a national REDD+ programme in Kenya, with respect to land and environmental governance. 1 Cancun Decisions (Decision 1/CP.16/2010 - "The Cancun Agreements"), paragraph 72. 2 Different kinds of rights can be found within a land tenure system, such as: Right to ownership: the owner is entitled to use, control and dispose of the property. Right to use: - Right to access: for example, an easement confers the right to use the real property of another for a specific purpose (for example, access to another property). - Usufructuary right: Refers to the right of one individual to use and enjoy the property of another, provided its substance is neither impaired nor altered (for example, rights to use water from a stream for household use). - Right to exploit: For example, a profit a prendre is the right of persons to share in the land owned by another, enabling a person to take part of the soil or produce of land that someone else owns (for example, a logging concession). Right to control, ie. entitled to make decisions about how land should be used. Right to transfer, ie. entitled to sell, inherit and/or reallocate property rights. 3 Cancun Decisions (Decision 1/CP.16/2010 - "The Cancun Agreements"), paragraph 72. 5 1 BACKGROUND TO KENYA’S LEGAL SYSTEM The purpose of this section is to provide background context to Kenya's legal system. Any country's legal system is made up of policies, laws, institutions, conventions and historical memory.