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Creating an Enabling Legal Framework for Redd+ Investments in Kenya

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Creating an Enabling Legal Framework for Redd+ Investments in Kenya CREATING AN ENABLING LEGAL FRAMEWORK FOR REDD+ INVESTMENTS IN KENYA Version 1.0/June 2014 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. The Kenyan REDD+ Law Project has been generously sponsored by the Swedish Ministry of the Environment. For more information, please contact: Martijn Wilder AM Dr Sophie May Chapman + 61 2 8922 5276 | M +61 414 863 313 + 44 (0)1223 764212 [email protected] [email protected] CONTENTS OF THIS REPORT FULL TABLE OF CONTENTS ABOUT THIS REPORT PART A: KEY ISSUES AND RECOMMENDATIONS FOR CREATING AN ENABLING LEGAL FRAMEWORK FOR REDD+ INVESTMENTS IN KENYA PART B: BACKGROUND REPORTS List of Acronyms Report 1: Overview of Kenyan law applicable to REDD+ implementation Report 2: Managing public REDD+ investments in Kenya Report 3: Engaging the private sector in REDD+ implementation in Kenya Report 4: Climate-smart agriculture and REDD+ implementation in Kenya Annexes Selected references i FULL TABLE OF CONTENTS ABOUT THIS REPORT 1. THE KENYAN REDD+ LAW PROJECT 1.1 About the REDD+ Law Project 1.2 Contributions from Kenyan advisors and institutions 1.3 Sponsor of this output of the Kenyan REDD+ Law Project 2. LIST OF AUTHORS 3. ACKNOWLEDGEMENTS 4. A NOTE ON REFERENCING 5 DISCLAIMER PART A: KEY ISSUES AND RECOMMENDATIONS FOR CREATING AN ENABLING LEGAL FRAMEWORK FOR REDD+ INVESTMENTS IN KENYA EXECUTIVE SUMMARY 1. OVERVIEW OF REDD+ LAW AND GOVERNANCE ISSUES 1.1 An international climate policy that relies upon national implementation 1.2 Elements of national REDD+ policy 1.2.1 Specific issues that need to be addressed in national REDD+ policy 1.2.2 Policy questions for designing a national REDD+ policy 1.3 Legal aspects of national REDD+ implementation 1.3.1 The ‘form’ and ‘content’ of REDD+ legal frameworks 1.3.2 Specific UNFCCC requirements 1.3.2.1 Phased implementation 1.3.2.2 National institutional framework 1.3.2.3 The Cancun safeguards 1.3.2.4 Measurement, reporting and verification (MRV) 1.3.2.5 Conditions for REDD+ finance 1.3.3 ‘Carbon rights’ and ‘benefit sharing’ in the context of REDD+ 1.3.3.1 Carbon rights 1.3.3.2 Benefit sharing 2. ISSUES AND RECOMMENDATIONS FOR DEVELOPING AN ENABLING FRAMEWORK FOR REDD+ INVESTMENTS IN KENYA 2.1 Kenya’s REDD+ policy framework and objectives 2.2 Existing Kenyan legal frameworks as a foundation for REDD+ implementation 2.2.1 Content of the law 2.2.2 Form of the law 2.3 Some specific legal issues to clarify 2.3.1 Carbon rights 2.3.1.1 Ownership/use rights of physical forest carbon 2.3.2.2 Ownership of the emissions reductions 2.3.2 Benefit sharing 2.3.2.1 Determining the basis for benefit claims 2.3.2.2 Benefit distribution 2.3.3 Managing different sources of REDD+ finance 2.3.3.1 Issues related to public investments ii 2.3.3.2 Issues related to private investments 2.4 Recommendations for developing an enabling legal framework for REDD+ investments PART B: BACKGROUND REPORTS BACKGROUND REPORT 1: OVERVIEW OF KENYAN LAW APPLICABLE TO REDD+ IMPLEMENTATION 1. INTRODUCTION 2. OVERVIEW OF REDD+ IN KENYA 2.1 Background 2.2 REDD+ developments in Kenya 2.2.1 Readiness phase 2.2.2 Demonstration activities and REDD+ projects 2.2.3 Key stakeholders in REDD+ in Kenya 2.2.4 Emerging framework for REDD+ governance 2.2.4.1 Climate change governance 2.2.4.2 REDD+ institutions 2.2.4.2a The National REDD+ Steering Committee (RSC) 2.2.4.2b REDD Technical Working Group (TWG) 2.2.4.2c The National REDD+ Coordination Office (NRCO) 2.2.4.2d REDD+ Component Task Forces 2.3 Regulatory framework for REDD+ investment 2.3.1 Policy framework for development, climate change and REDD+ 2.3.2 Legal frameworks relevant to different aspects of REDD+ investments 3 BACKGROUND TO KENYA’S LEGAL SYSTEM 3.1 Difference between government policy and law 3.2 Constitutional law 3.2.1 Constitutional history of Kenya: From 1964 to 2010 3.2.2 Overview of the Constitution of Kenya 2010 3.2.3 Devolution of authority 3.2.3.1 Introduction 3.2.3.2 Constitutional provisions on devolution 3.2.3.2a Objectives of devolution 3.2.3.2b Levels of Government in Kenya 3.2.3.2c Cooperation between National and County Governments 3.2.3.2d The Role of the National Assembly and the Senate 3.2.3.2e National Executive 3.2.3.2f County Government 3.2.3.2g County Assembly 3.2.3.2h County Executive Committee 3.2.3.2i Functions of the County Executive Committee 3.2.3.2j Functions of County Assemblies 3.2.3.2k Functions of the National Government 3.2.3.2l Functions of County Government 3.2.3.2m Transfer of functions or powers between the two levels of government 3.2.3.2n Conflict of laws 3.2.3.2o Powers of County Government 3.2.3.2p Transition to a devolved system of government 3.2.3.2q Transition period 3.2.3.2r Effect of Devolution on the Kenyan Legal System iii 3.2.3.2s Challenges of decentralisation and devolution 3.3 The Law-making process in Kenya 3.3.1 Sources of Kenyan law 3.3.2 Primary legislation 3.3.3 Subordinate Legislation (including Regulations) 3.4 Relationship between customary law and statute law 3.5 Organisation of government 3.5.1 Executive 3.5.2 Legislature 3.5.3 Judiciary 3.5.4 Devolved structure of annex government 4 OVERVIEW OF LAWS, POLICIES AND INSTITUTIONS RELEVANT TO REDD+ IN KENYA 4.1 Land law and policy 4.1.1 Recent changes to Kenya’s land law regime 4.1.2 Key laws governing land 4.1.2.1 The Constitution 4.1.2.2 Land Act 2012 4.1.2.3 Land Registration Act 2012 4.1.2.4 National Land Commission Act 2012 4.1.2.5 Trust Lands Act 1970/Revised 2009 4.1.2.6 Land Control Act 1967/revised 2010 4.1.2.7 Land (Group Representatives) Act 1970/revised 2012 4.1.2.8 Land Adjudication Act 1977/revised 2010 4.1.2.9 Land Consolidation Act 1977/revised 2012 4.1.2.10 Environmental Management and Coordination Act 1999/Revised 2012 4.1.2.11 Forests Act No. 7 2005/Revised 2012 4.1.3 Land classifications 4.1.3.1 Overview 4.1.3.2 Public land 4.1.3.3 Community land 4.1.3.4 Private land 4.1.3.5 Procedure to acquire private land 4.1.3.6 Compulsory acquisition 4.1.3.7 Forest land 4.1.3.7a Forest regime 4.1.3.7b Forest definition 4.1.3.7c Forest ownership and use 4.1.3.7d Tree tenure 4.1.3.7e Soil tenure 4.1.4 Legal Treatment of Women in Kenyan land law 4.1.5 Land administration 4.1.5.1 National Land Commission 4.1.5.2 Environment and Land Court 4.1.5.3 Land Control Board 4.1.5.4 Group representatives 4.1.5.5 Corrupt transactions 4.1.6 Future challenges for Kenyan land law and governance 4.2 Environment laws and regulations 4.2.1 Environmental law and policy in Kenya 4.2.1.1 Introduction to environmental law in Kenya 4.2.1.2 Overview of environmental policies in Kenya 4.2.2 Constitutional provisions relating to the environment iv 4.2.3 Statutory law with respect to the environment 4.2.3.1 Environmental Management and Coordination Act 1999/Revised 2012 4.2.3.2 Environment and Land Court Act 2011 4.2.3.3 Forests Act 2005 4.2.3.3a General 4.2.3.3b Establishing a forest conservancy or nature reserve under the Forests Act 4.2.3.3c Forest Conservation and Management Bill 2014 4.2.2.4 Forest (Charcoal) Regulations 2009 4.2.2.5 Timber Act 1972/Revised 2012 4.2.2.6 Wildlife (Conservation and Management) Act 2013 4.2.2.7 Protected Areas Act 1980/Revised 2012 4.2.2.8 Water Act 2003 4.2.2.9 Mining Act 1987/revised 2012 4.2.2.10 Agriculture laws 4.2.2.10a Agriculture, Fisheries and Food Authority Act 2013 4.2.2.10b The Crops Act 2013 4.2.2.10c Kenya Agricultural and Livestock Research Act 2013 4.2.2.11 National Museums and Heritage Act 2006 4.2.2.12 Energy Act 2006 and subsidiary legislation 4.2.2.12a Energy Act 2006 4.2.2.12b The Energy (Energy Management) Regulations 2012 4.2.2.12c The Energy (Solar Photovoltaic Systems) Regulations 2012 4.2.2.12d The Energy (Solar water heating) regulations 2012 4.2.2.12e Draft Energy (Improved Biomass Cook stoves) Regulations 2013 4.3 Key environmental governance institutions 4.3.1 Ministry of Environment, Water and Natural Resources 4.3.2 Kenya Wildlife Service (KWS) 4.3.3 Kenya Forest Service (KFS) 4.3.4 Kenya Forestry Research Institute (KEFRI) 4.3.5 National Museums of Kenya 4.3.6 Institutions under the National Environmental Management and Coordination Act 4.3.6.1 The National Environmental Council (NEC) 4.3.6.2 The National Environment Management Authority (NEMA) 4.3.6.3 Provincial and District Environment Management Committees.
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