THE HISTORY & POLITICS OF LAND, RESETTLEMENT & COMPENSATION IN KENYA
April 2015 Report produced for the Rift Valley Institute
MSc Development Management Consultancy Project Candidates: 62526 / 59546 / 53787 / 73969 International Development Department London School of Economics & Political Science
THE HISTORY & POLITICS OF LAND, RESETTLEMENT & COMPENSATION IN KENYA
TABLE OF CONTENTS
PART TITLE PAGE
EXECUTIVE SUMMARY 3 I: CONCEPTUALISING RESETTLEMENT 6 II: HISTORICISING THE KENYAN RESETTLEMENT EXPERIENCE 12 III: CASE STUDIES 14 IV: DFDR & THE OLD CONSTITUTION, NEW CONSTITUTION & COMMUNITY LAND BILL 21 V: LAPSSET – CURRENT ISSUES & FUTURE IMPACTS 27 VI: CONCLUSION AND RECOMMENDATIONS FOR FURTHER RESEARCH 34
ANNEXURES
PART TITLE PAGE
1 . FINAL TERMS OF REFERENCE 35 2 . ANNOTATED BIBLIOGRAPHY 38 3 . ADDITIONAL CASE STUDY MATERIALS 51 4 . COMMUNITY LAND BILL LEGAL ANALYSIS 57 5 . RECOMMENDATIONS FOR FURTHER RESEARCH 61
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Executive Summary
1 . OBJECTIVES Development forced displacement and resettlement (DFDR) has been a prominent and divisive feature of Kenya’s colonial and post-colonial history. This report has been compiled in response to two significant events relating to DFDR; the initiation of Kenya’s largest ever development project, Lamu Port-South Sudan-Ethiopia Transport Corridor (LAPSSET), and the promulgation of a new Constitution in 2010. The new Constitution has been heralded as a landmark event, strengthening community land rights and paving the way for those rights to be formally managed under the Community Land Bill (CLB). The primarily objective of this report is to understand what risks communities face from LAPSSET DFDR and whether they can benefit from this new legal framework.
1.2 OTHER OUTCOMES & METHODOLOGY Achieving the primary objectives entails a number of complementary outputs. Historical DFDR is reviewed, highlighting salient social impacts and causes, allowing us to examine the extent to which new legislation may mitigate those impacts. The report then reviews literature relating to the resettlement aspects of LAPSSET. Lamu County’s LAPSSET experience provides a lens to view how DFDR has been handled under the new Constitution and to identify key trends. Isiolo and Turkana, key upcoming LAPSSET areas, are then investigated and pressing potential issues are highlighted. An annotated bibliography provides access to sources with additional commentary, and key literature gaps are highlighted throughout the report. Finally, analysis from each section informs recommendations for further investigation that the RVI may wish to pursue.
2 KEY FINDINGS 2.1 RESETTLEMENT BACKGROUND Systematic studies on worldwide DFDR reveal that social impacts are similar across space and time. For many project-affected persons (PAPs) these impacts are totalising, impacting on every aspect of their lives. The most pressing negative impacts are landlessness and broken livelihoods, themselves catalysts of many other deleterious impacts. Poor outcomes are largely caused by narrow conceptions of resettlement by governments and projects. This leads to inadequate and inappropriate compensation, and non- recognition of many people and impacts, institutionalised by weak legal protections. Resulting destitution
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is shouldered most heavily by vulnerable groups, and often spill over to host communities. Both internationally and government financed projects have failed. Relative success is historically predicated on participation of affected communities, treating these groups as project partners, and focusing on livelihood restoration.
2.2 KENYAN RESETTLEMENT HISTORY AND CASE STUDIES Resettlement in Kenya evolved from nationalist aspirations to reengineer colonial land injustices, to environmental conservation concerns, and finally project-development for economic growth and modernisation. Our case studies reveal that DFDR outcomes were suboptimal irrespective of who funded projects. Key impacts included loss of livelihoods (particularly Kiambere), conflict (Kwale and Chebyuk), and landlessness in all cases. Prominent causes of failure were lack of PAP participation, inadequate compensation, inappropriate resettlement sites, local and national corruption leading to land misallocation, and legal vacuums meaning only legal titles-holders received compensation. Recurring themes include the absence of DFDR-monitoring, lack of accessible formal grievance mechanisms, and the impact of the wider political contexts on how governments undertake DFDR. Kwale demonstrates how an increasingly globalised era witnessed the emergence of NGO and legal activism to pressurise authorities into implementing better safeguards.
2.3 LEGISLATIVE REVIEW Assessing the CLB reveals that it is unlikely to benefit LAPSSET PAPs. Key provisions allowing compulsory acquisition are ambiguous and are open to abuse, and marginalised communities (pastoralists and fisher- folk) are inadequately protected. Furthermore, the courts appear unwilling to uphold the general community land protections under the new Constitution until the CLB is enacted. The development of the draft Bill has been marked by delay and a lack of meaningful consultation, meaning its deficiencies are likely to go uncorrected. The Internally Displaced Persons (IDP) Act provides for comprehensive protection for those displaced by development projects, but it has not been implemented to date, perhaps due to a lack of government capacity, or political will, or a combination of both. Thus we find that prospective legislation is inadequate to resolve negative DFDR impacts, and the safeguards that are currently legally available are not being implemented.
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2.4 LAPSSET ANALYSIS
The exact path of the LAPSSET corridor is unknown, so it is impossible to pinpoint the precise communities affected. What is known is that Lamu, Turkana and Isiolo counties will be ‘hubs’ for the pipeline, hosting a number of major developments. Lamu reveals two broad concerns relating to project implementation and political issues. The former includes a lack of consultation, massive influx and speculation driving up prices, inadequate compensation, and insecure property rights. The latter relates to local political corruption, weak institutions and growing geopolitical tensions. However, the active engagement of NGOs and legal activism indicate that DFDR concerns are increasingly being heard. LAPSSET construction is yet to commence in Turkana, but recent operations by Tullow Oil indicate that locals are effectively highlighting concerns over benefit-sharing through protest activities. Turkana residents have been urged by the President to consider equity shares in the LAPSSET pipeline as a form of compensation, a novel proposal requiring greater consideration. Isiolo has already experienced speculation and soaring land prices, and political and community conflict on a number of levels, illustrating the multi-layered nature of possible impacts.
3 . RECOMMENDATIONS The report reveals that many unresolved issues may impact how DFDR manifests in relation to LAPSSET. Recommendations on future research to address evidence gaps are detailed in the annex and identified at relevant points throughout the report. Recommendations include further research to:
• Investigate barriers to implementing and enacting post-2010 land reforms. • Understand how PAPs and local NGOs can organise, channel grievances, know their rights and monitor DFDR implementation within the current legal framework. • Obtain key documents such as resettlement action plans for Lamu and Isiolo. • Identify how Tullow Oil is managing compensation and community engagement in Turkana. • Examine the capacity and political willingness of county governments to effectively manage unregistered community land on behalf of communities. • Consider the circumstances under which in-kind compensation is being offered, the nature of such compensation and what can be done to increase appropriate instances of in-kind compensation, including the use of equity shares.
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Part I: Conceptualising resettlement
1.1 JUSTIFICATIONS AND HOPES FOR PROJECTS DFDR is a highly contentious issue with over 15 million people displaced annually, purportedly in the public interest. Development projects assume many forms, including dams, irrigation schemes, agribusiness, mining, and urban rejuvenation initiatives. Such projects claim a vital role in a country’s economic development, often citing benefits to local populations and describing PAPs as ‘beneficiaries’. Local residents often articulate hopes for jobs, trade and increased public service investment (e.g. Praxides, 2014), yet studies show a majority of projects result in destitution for PAPs. Indeed DFDR is considered to be a ‘totalising’ phenomenon, impacting every aspect of PAPs’ lives (Oliver-Smith, 2009a). Given that PAPs and their communities experience remarkably similar impacts across space and time (Scudder, 2009), it is vital to draw lessons on the nature and impacts of DFDR from global experiences.
1.2 POWER AND POWERLESSNESS DFDR is above all about power (Button, 2009). For PAPs, displacement is the ultimate expression of powerlessness, whilst for the state, it is an assertion of its monopoly on violence and ability to define ‘public interest’. States may have various motives for undertaking large-scale projects; for example to visually showcase a political party’s achievements, or extend state control over territory, populations, resources and markets (Clark, 2009). Superstition, cultural heterogeneity, subsistence farming and informal economic activity generate government anxieties about populations and territory remaining beyond state control, and posing a threat to the state itself (Herbst, 2000). Development projects are one tool to assimilate regions and populations into the nation state, and many bureaucrats see ‘uprooting ancient communities as a process of modernising’ (Appa & Patel, 1996). In this sense, DFDR is emblematic of broader historical ‘enlightenment’ campaigns to nation-build, making it as much a political as an economic event.
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1.3 IMPLICATIONS OF DFDR CONCEPTUALISATION ACRONYMS USED IN THIS REPORT Understanding governmental anxieties, ambitions and notions of power broadens our comprehension of the nature of DFDR. It CLB: Community Land Bill reveals how states often narrowly conceptualise DFDR and view DFDR: Development forced local communities as obstacles to be overcome (Oliver-Smith, displacement & resettlement 2009b). Through this prism, resettlement is often seen as a one off-event, and socio-cultural impacts are either ignored or EIA: Environmental impact deemed necessary for assimilating marginal groups. When DFDR assessment is viewed this way, the framework for compensation is severely GoK: Government of Kenya limited. Furthermore, states and agents often shun local community participation and decision-making through institutionalised GRM: Grievance redress discrimination (Clark, 2009). Local rights are subsumed by mechanism national prerogatives, revealing a clear conflict of interest: IDP: Internally displaced governments are responsible for both DFDR and the protection of person PAPs. DFDR usually induces deprivation and conflict where appropriate grievance redress mechanisms (GRMs) do not exist. IFI: International Financial In most cases impacted communities go unnoticed, unable to rely Institution on national or international legal frameworks, nor successfully KANU: Kenya African mount collective actions of resistance. National Union
LAPSSET: Lamu Port-South 1.4 SOCIAL IMPACTS OF RESETTLEMENT Sudan Transport Corridor 1.4.1 Traditional analysis LCDA: LAPSSET Corridor DFDR has potential for material and social enhancement, offering Development Agency opportunities to reshape social order, enhance safety nets and NLC: National Land make communities more resistant to uncertainty (Button, 2009). Yet Commission this is rarely the case. It is out of the scope of this study to list all DFDR impacts but it is worth noting two dominant complementary PAPs: Project-affected analytical frameworks that elucidate on their variety. Cernea’s peoples Impoverishment Risks and Reconstruction model provides an eight- RAP: Resettlement action point categorisation in which landlessness, joblessness, plan homelessness, marginalisation, increased morbidity, food insecurity, loss of access to common property and social WB: World Bank disarticulation are interlinking forms of impoverishment (Cernea, 2009). Anthropologists Scudder and Olson use a four-stage model of the evolving physiological, psychological, and
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sociocultural stresses and responses experienced by PAPs (Scudder, 2009). In both models, modes of rehabilitation are similar to those in conflict and natural disaster displacement, with PAPs as development ‘refugees’ (McDowell, 1996). 1.4.2 Failure to identify full impacts The primary problem of DFDR is the failure to recognise the full breadth of who is impacted. In most cases PAPs are considered to be only those physically resettled and often only those with legal tenure. Populations such as migratory pastoralists and long-term ‘squatters’ are often precluded from compensation and summarily evicted (Koenig, 2009). This narrow recognition also ignores those indirectly yet significantly impacted (Appa & Patel, 1996). Surrounding communities often form intricate economic and social links with residents living on expropriated land, and displacement can sever these links, destroying crucial support networks. The acquisition of communal natural resources can also be devastating as medicinal plants, animals and timber form key components of indigenous health, food and livelihoods (IFC, 2012). For host communities, the arrival of PAPs results in competition for limited resources and services, causing conflict particularly amongst different ethnicities (Scudder, 1996). 1.4.3 Inadequate compensation Compensation takes many forms including land-for-land, in-kind, or monetary – all usually inadequate or inappropriate. Insufficient monetary compensation means comparable land cannot be bought and the cash is often consumed to meet immediate needs (Thangaraj, 1996). Plots provided under land-for-land are usually too small to accommodate natural growth or provide natural resources needed for livelihoods such as fishing or grazing, or are unfertile or unsuitable to local productive practices, leading to soil degradation (Lassailly-Jacob, 1996). Thus PAPs often become indebted tenants to host communities and are unable to grow sufficient food or re-establish old land-based livelihoods. DFDR can destroy traditional markets and disrupt access to transport routes (Johnston, 2009). Overcrowding, loss of income, and malnutrition result in deteriorating wellbeing, whilst psychological traumas arise from grieving for lost land and anxieties over uncertain futures (Kedia, 2009). 1.4.4 Vulnerable groups & influx Vulnerable people often shoulder most DFDR impacts. Social disarticulation not only dissipates traditional authority structures and sense of identity, but also destroys mutual support networks that the vulnerable depend on. For pastoralists, an inability to secure compensation or alternative land often causes increased conflict with farmers over land and water. Forced contact with other peoples in the context of instability can lead to detrimental coping mechanisms such as alcoholism, domestic abuse and suicide (Scudder, 2009). Compensation is often paid only to men, leaving women particularly vulnerable. Skilled or educated economic migrants enticed by work often out-compete locals for jobs and trading opportunities, and influx can also cause fiscal inflation further impoverishing locals. Young male migrants can increase crime, and introduce sexually transmitted diseases and other new pathogens. Where
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migrants are of a different ethnicity and resources and job opportunities are limited, conflict can quickly arise (Lassailly-Jacob, 1996).
1.5 CAUSES OF DFDR PROBLEMS 1.5.1 Inadequate legal systems As this section has shown, DFDR failure is primarily a conceptual failure, often upheld and mirrored by inadequate legal systems that fail to protect PAPs. Many PAPs are unrecognised, and weak or non- existent requirements for environmental, social and health impact assessments mean that many impacts are overlooked, particularly livelihood impacts. Compensation is typically determined according to the practices of individual government agencies, with scant legislative guidance, often only the requirement of ‘fair and prompt compensation’. Valuation teams regularly value assets based on market prices less depreciation, preventing effective replacement; furthermore, assets such tree yields, fallow land, and natural resources are often ignored (Tamondong- Helin, 1996). Typically there is no legal provision for in-kind compensation and livelihood support. Legal GRMs that do exist are often inaccessible, cumbersome, and costly particularly for illiterate PAPs. In sum, DFDR regularly operates within a legal and policy vacuum (Rew, 1996). 1.5.2 Poor planning Partly as a consequence of legal voids, DFDR planning is regularly inadequate. The ability to identify who and how people are impacted is limited by a lack of baseline and socioeconomic studies (Oliver- Smith, 2009a). A limited understanding of impacts and narrow conceptualisation of DFDR generally results in inadequate financing for even basic resettlement costs (Cernea, 2009), and influx management plans and social planning are often absent. In cases where land-compensation is offered, lack of resettlement site scoping has resulted in PAPs being moved to inhospitable locations unconducive to farming, grazing, fishing or other livelihoods. Lack of scoping can also strain limited resources used by other communities, leading to conflict. In many cases, poor project planning and the erroneous belief that land is unused has often led to over-acquisition (Appa & Patel, 1996) or ‘land-grabbing’. 1.5.3 Poor implementation Even in rare cases where legal frameworks are robust, DFDR often fails due to lack of government capacity and commitment, as well as corruption. National machinations over development projects, divergent political affiliations to local populations and national patrons, and media coverage make DFDR politically risky (Rew, 1996). Unsurprisingly, government agents often shun responsibility for resettlement, leading to lack of coordination. In most cases, local administrations are simply under-resourced and under-trained (particularly in conflict-management and participatory skills) to carry out resettlement effectively (ibid). Furthermore, large disbursements for compensation can lead to loss of funds, corruption,
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or speculation by local officials whereby land earmarked for resettlement is instead sold for to outsiders for profit (Scudder, 1996). Devolution may not necessarily alleviate problems given that local administrations are often part of the problem, and central government oversight is often insufficient. 1.5.4 Lack of participation Administrators regularly avoid incorporating PAPs into decision-making processes, meaning that grievances, challenges and solutions are not properly articulated, and even the most well-intentioned resettlement plans fail to mitigate negative impacts. This is particularly so in in countries with poor human rights records. Even when legislation or norms require consultation, participation is often tokenistic and used to rubber-stamp predesigned agendas (De Wett, 2009). PAPs are regularly disadvantaged by a lack of capacity and thus bargaining power. Often illiterate, lacking project information and an understanding of their legal rights as well as being marginalised or dispersed can reinforce administrators’ ability to evade PAPs’ participation or use it as ‘a new form of tyranny’ (Hickey & Mohan, 2004). Lack of capacity and genuine participation undermines PAPs’ ability to use GRMs and engage in local resistance and bargaining, both of which are necessary tools to mitigate DFDR impacts.
1.6 ‘SUCCESSFUL’ RESETTLEMENTS AND KEY LESSONS Although DFDR impacts worldwide tend to be overwhelmingly negative, there are instances of DFDR that have generated positive outcomes for PAPs. 1.6.1 China Despite widespread condemnation of Chinese government-led resettlement, China is now regularly referenced as one of the most innovative actors in ‘developmental resettlement’ (Cernea, 2009). Chinese land valuations incorporate labour costs (e.g. of tending trees and crops grown on the land) and inputs (e.g. fertiliser) as well as market value, increasing compensation levels. Procedures have been tightened to limit unnecessary land acquisition. A countrywide post-resettlement fund has been created to ensure local investment to help increase living standards and strengthen livelihoods. Each individual resettled is eligible to annual payments for up to 20 years following resettlement. The key principles underscoring these improvements are conceptualising PAPs as project partners, viewing resettlement as an on-going process, and focusing on livelihood restoration. 1.6.2 Zambia The initial phase of the World Bank (WB)-sponsored Kariba Project is cited as a rare success, resettling over 57,000 people in the 1950s. A 1974 field study showed that DFDR had helped improve living standards of PAPs (Scudder, 2009). Resettlement sites were carefully chosen to allow a continuation of traditional agricultural and foraging practices. Conflict was avoided since host populations were ethnically similar to PAPs and natural resources were sufficient. Community participation in resettlement
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planning led to government initiatives to remove the tsetse fly from resettlement areas, allowing oxen to be used to increase agricultural productivity. PAPs were given priority access to inshore fisheries and supported to establish small-scale irrigation, and credit facilities, schools and health clinics were provided (Scudder, 2009). Political willingness to engage with PAPs and provide livelihood rehabilitation opportunities was crucial to adequately mitigate DFDR impacts.
1.7 CONCLUSION DFDR causes a multitude of impacts stemming from landlessness and loss of livelihoods. Influx, eligibility, lost natural resources and integration issues are recurring themes, and conflict and destitution are typical outcomes. Key causal factors include insufficient planning, limited government capacity and corruption. An adequate legal system is a necessary safeguard but it must be reinforced by active participation of PAPs in the DFDR process so as to ensure its implementation. This requires PAPs’ capacity to effectively organise themselves through adequate knowledge of their rights and access to the legal system. Finally, given the frequency of conflict due to failed integration, understanding local ethnic, demographic and historical conflicts, natural resource use and land capacity is crucial to predict and mitigate potential conflict arising from DFDR.
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Part II: Historicising the Kenyan resettlement experience
2.1 DRIVERS AND CHALLENGES OF EARLY RESETTLEMENT This section situates DFDR within the Kenyan experience, historicising 2.1.1 Early independence: political drivers resettlement practices since The first resettlement projects of early Kenyan independence the 1960s. Since were driven by the political imperative of providing ‘land to the independence, the landless’. Kenya African National Union (KANU), the major party Government of Kenya at independence, successfully mobilised the population on the (GoK) has been involved promise of readdressing the injustices of colonialism, especially in resettlement projects of the extensive displacement of indigenous populations from fertile different nature across the lands into ‘native reserves,’ particularly in the Rift Valley country. There are at least (Harbeson, 1971). The ‘White Highlands’ (1960) and the ‘Million three broad drivers of Acres’ (1961) schemes were the first major settlement Kenyan resettlement: programmes initiated by the colonial administration with full political, developmental participation of the KANU. Both projects aimed to transfer land and environmental. from European settlers to as many landless Kenyan families as possible, irrespective of ethnicity, and to utilise agriculturally underdeveloped land. Under British pressure, the transfer occurred through the purchase of ‘white’ land by Kenyan peasants, supported by government loans. It was argued that individual land ownership would provide security of tenure and foster agricultural productivity (Musembi & Kameri-Mbote, 2013). 2.1.2 Early independence: resettlement outcomes In both schemes, political corruption, ethnic favouritism and the introduction of individual land titles were serious obstacles. High levels of discretion over land allocations meant beneficiaries were mainly individuals from the political elite or members of the Mau Mau insurgency linked to the KANU party. The ideological split within the KANU party, which led to the establishment of the opposition Kenya People’s Union encouraged clientelism in the form of ethnic favouritism. Indeed the Mau Mau, mainly of Kikuyu ethnicity, was given 45% of the land under the Million Acre Scheme. The introduction of a land market heavily disrupted pre-colonial systems of communal land tenure. The establishment of individual titles was conditional on the full and immediate repayment of the government loan used to purchase the land. These
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strict conditions enabled the GoK to summarily dismiss new settlers from their holdings without court proceedings, and contributed to continued land insecurity (Harbeson, 1971). 2.1.3 Post-1960s: development & environmental drivers By the 1970s settlement schemes were increasingly replaced by DFDR through a growing emphasis on economic development and nation building. This led to a proliferation of infrastructure developments such as roads and hydropower dams, natural resource exploitation, coastal touristic infrastructure and environmental conservation projects such as the establishment of national parks on Mt. Elgon and in the Rift Valley (IDMC, 2014b). These projects have usually involved high levels of state expenditure and have often been supported by external funding, including foreign governments as well as financial institutions such as the WB and the Commonwealth Development Corporation. This shift in rationale also led to resettlement schemes increasingly occurring outside the Rift Valley such as in Maasai areas (south of Nairobi), in the coastal region and in Kwale, Lamu and Tana River Districts (Hornsby, 2012). 2.1.4 Post-1960s: resettlement outcomes – ethnic tensions Despite the apparent shift in rationale for resettlement, many of the challenges confronted in the earlier period resurfaced. Lack of transparency in land allocation (IDMC, 2014b) meant that land redistribution of high value areas was determined by political connections with the President and political elites (Hornsby, 2012). Ethnic favouritism characterised many resettlement projects leading to the emergence of ethnic-dominated ‘islands’ where the influx of individuals of different ethnicities caused unintended tensions and conflict at the community level. Other such projects include Magarini Complex, Lake Kenyatta Settlement, and projects south of Nairobi (in Maasai areas) as well as the case studies analysed below, in particular in Chebyuk. Lack of adequate resettlement planning, characterised by weak or non- existent resettlement action plans (RAPs), has also led to many other negative social and environmental impacts that have been denounced in recent reports, including the Njonjo Commission Report, the Ndung’u Commission Report and the Waki Report (Manji, 2014). 2.2 Summary of early Kenyan resettlement experience It is clear that early resettlement suffered from lack of adequate checks and balances to safeguard against arbitrary land allocations based on clientelism. Combined with lack of planning, particularly in the form of scoping new sites and identifying communities already in resettlement areas, DFDR has left a legacy of conflict and local tensions. Furthermore, poorly implemented changes to land tenure in the form of private ownership led to indebtedness and landlessness. These experiences highlight the need for a legislative framework to adequately protect rights, and ensure that due process is followed and well- planned. The old Constitution and relevant land laws were clearly wanting in this respect, the specifics of which are reviewed in later sections of this report.
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Part III: Case studies
This section examines the CASE STUDY 1: CHEBYUK (OR CHEPYUK) issues outlined above SETTLEMENT SCHEME through the lens of three case studies – Chebyuk settlement scheme, This government-initiated settlement scheme was intended to Kiambere hydroelectric restore land ownership to historically disenfranchised groups; dam and Kwale District instead it was stalled by ethno-political favouritism and titanium mining. For a brief corruption and the intended beneficiaries remain excluded synthesis of the key issues from secure land tenure. relevant to each case, a short explanation of the literature limitations, and a timeline of events and key actors in relation to the Kwale case study, see annexure 3.
IMAGE 1: TRADING CENTRE AT CHEBYUK SETTLEMENT SCHEME, PHASE THREE IN MT ELGON DISTRICT 3.1 BACKGROUND This settlement scheme consists of three phases: 1971 to 1979; 1979 to 1993 and 1993 to the present day. The project developed in Chebyuk, Western Kenya, and expanded to Chepkurkur and Korng’otuny. It was designed to resettle 460 household (3,800 people) over 9,200 acres (TJRC, 2013). By the third phase, the government enlarged the scheme to resettle 1,732 households over 8,556 additional acres.
The GoK initiated this scheme to compensate the local indigenous population, the Mosop, for colonial displacement from the fertile slopes of Mt. Elgon to an inhospitable reserve in the highlands. This makes Chebyuk different from typical resettlement schemes, as it involved moving people onto land rather than displacing them from it. However, as the project proceeded, subsequent phases developed additional objectives including establishing a national park on Mt. Elgon in 2000, addressing increased demand for land, and compensating for inefficiencies of Phase I (Médard, 2008b).
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The stakeholders involved in the project are the central government, local administrators, chiefs and members of the parliament. PAPs have changed over time beyond the Mosop, as demands for land shifted between regional ethnic subgroups (Mosop, Soy, Bok). The majority of the population living in the area belongs to the Saboat, a Kalenjin sub-group (HRW, 2008) consisting of two major factions relevant to the analysis: the Mosop from Chepkitale, and the Soy from the lowlands (Lynch, 2011). There is evidence that ethnic ‘fluidity’ was employed to access land entitlements. The scheme started in the context of early independence, an era was marked by strong state commitment to development and compensation for colonial injustices, especially in access to land. 3.2 RESETTLEMENT PROCESS All three phases lack adequate preparatory work by the government including the failure to clearly identify PAPs and to change the area status from protected national park into available settlement land (TJRC, 2013; Lynch, 2011). Preparation for phase one was characterised by influx of landless people from neighbouring areas in search of land, by a lack of consideration of pre-existing illegal settlements in Chebyuk (HRW, 2008), and by the inclusion of people other than the Mosop as PAPs by the local administration. Phase two preparation consisted of the annulment of phase one land allocations and the further inclusion of non- Mosop, both as PAPs and in exercising responsibility over land allocation. In phase three, previous allocations were again annulled and the area covered by the scheme was expanded. Implementation of the scheme was marked by frequent reversals, legal ambiguity concerning the allocation of governmental land, corruption, political favouritism and sometimes conflict. After phase one, the government adopted a supposedly neutral balloting system for allocating land, yet it was employed inconsistently and with limited benefits for Mosop families. Recurrent problems throughout the scheme indicate the absence of effective monitoring and GRMs. Each new phase was a result of direct appeals from the intended beneficiaries to the President –the response was intended to correct the problems of the previous phase, but instead launched a cycle of repetitions.
3.3 PROJECT IMPACTS The mismanagement of the Chebyuk settlement scheme had several adverse impacts for PAPs. The most striking was the eruption of inter-communal violence related to land ownership which occurred in phase three in Chepkurkur between the Bok and the Mosop (TJRC, 2013, Médard, 2008a) as the enlargement of the scheme did not take existing settlements into consideration. Furthermore the lack of legalisation and secure land tenure, combined with an increase in population contributed to food insecurity and
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instability of livelihoods. Lastly, persistent influx of landless people further exacerbated conflict over entitlement and land access. 3.4 ANALYSIS 3.4.1 Eligibility Failure to adequately identify beneficiaries led to the paradox that some Mosop families are still waiting to receive land while non-intended beneficiaries have received land. 3.4.2 Insecure tenure Government failure to establish a legal framework for land ownership, particularly on government- owned land, and its frequent annulment of previous allocations has been a constant feature of the scheme. As a result, many PAPs still remain effectively landless. 3.4.3 Local corruption Central government failed to prevent the use of discretionary powers by local political actors throughout the scheme, due in part to personal connections between the President and local MPs. These relations allowed favouritism in land redistribution resulting in intra-communal conflict, disenfranchisement from the central government and increased inequality. 3.4.4. Lack of a grievance redress mechanism All three phases have been characterised by the lack of GRMs. As a result, the intended beneficiaries appealed directly to the President. The recourse to presidential appeals, and the response of scrapping allotments without community consultation indicate that the communities’ grievances were not adequately addressed. C ASE STUDY 2: KIAMBERE HYDROELECTRIC DAM
This WB-funded hydroelectric dam project significantly damaged the livelihoods of thousands after DFDR occurred in violation of the Bank’s resettlement policies.
3.5 BACKGROUND Construction for the hydroelectric dam commenced in 1985, displacing an estimated 737 households of 6,500 people. The dam was situated in a valley of fertile farming land, where livelihoods centred on agriculture and livestock. Some PAPs
IMAGE 2: KIAMBERE DAM TODAY
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were also traders, charcoal burners, and wage employees. No information exists as to whether pastoralists were directly displaced, however it is likely that pastoralists downstream of the dam would have been affected by changes to freshwater flows and flood patterns (IUCN, 2003). WB policy-based lending and structural adjustment programmes restricted project financing, leading to GoK desire to reduce its heavy reliance on oil imports by securing alternative energy sources. Some claim that in its fervour to commence the project, the GoK misled the Bank by minimising DFDR issues until after the loan documents had been signed (Horta, 1994). 3.6 RESETTLEMENT PROCESS The WB claims to have been unaware of the project DFDR issues until after resettlement had commenced (WB, 1993). According to a former WB employee, “there was no resettlement plan, no timetables and no evaluation of the adequacy of compensation.” (Horta, 1994). This was particularly negligent given that previous WB hydroelectric projects in the Tana River’s upper and lower basins had involved population displacement (Mburugu, 1994). In accordance with GoK policy, self-identified PAPs were offered cash to purchase replacement land (Mburugu, 1994). Cash-only compensation violated existing WB guidelines (WB, 1993). 3.7 PROJECT IMPACTS PAP livelihoods were severely impacted. A survey of resettlement impacts was undertaken post resettlement, comparing living standards of PAPs with living standards of host residents in relocation areas. It showed that PAPs averaged a loss of half their land, more than a third of their livestock and had reduced access to pasture, wood and water. Cash compensation was inadequate for buying land in the more densely populated resettlement area where land was scarce. (WB, 1993). A 1994 WB DFDR report concludes that families displaced by the dam lost 82% of their money-equivalent income (including crops grown for household consumption). A priest from the area said that, "people here were just told that they had to leave; no alternatives were given to them. They continue to suffer" (Horta, 1994). 3.8 ANALYSIS The most salient issues in Kiambere were the failure to identify and profile the affected population, inadequacy of cash-only compensation, and failure to consider integration and resource strain issues on host communities. This case emphasises that the involvement of IFIs in DFDR does not guarantee that PAPs will be adequately protected, nor will rigorous resettlement policies if the capacity and will for implementation of those policies are absent. 3.8.1 Failure to identify PAPs The planning phase failed to properly identify affected populations. The original project appraisal estimated that the project would impact only 1,000 people, of which an unspecified number of people
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might have to be resettled. This fundamental error of measurement had enormous implications for the rest of the resettlement process. 3.8.2 Cash compensation As DFDR is a totalising phenomenon, it follows that cash-only compensation will be inadequate to redress the multidimensional impacts of DFDR. The fact that only 14% of PAPs used their compensation to purchase replacement land illustrates the fact that replacement land was not available at an affordable price and compensation instead went to consumption to meet immediate needs (Mburugu, 1994). 3.8.3 Integration Unlike in Chebyuk, there is no evidence of inter-communal violence between PAPs and resettlement area residents. Nonetheless, the fact that PAPs were on average older, less educated and had a higher child dependency burden than residents in resettlement areas put them at a distinct disadvantage in accessing wage employment and reactivating their livelihoods. This case shows that violence is not the only integration-related issue in DFDR that can cause severe disruption and dislocation to project affected communities. CASE STUDY 3: KWALE DISTRICT TITANIUM MINING
This was the first large-scale social displacement from an extractive project in Kenya. It resulted in a long and contested battle between PAPs, civil society and the mining company.
3.9 BACKGROUND The discovery of titanium deposits in the IMAGE 3: MINING ACTIVITY IN KWALE mid-1990s by international mining company Tiomin Resources culminated in DFDR occurring in the late 2000s. 450 households of 3,000 individuals were displaced from 1,661 hectares of land in Mauma and Nguluku villages. PAPs were officially resettled to Mrima-Bwiti but many were excluded and independently relocated to other areas (Nw’eno, 1997). PAPs were predominantly agriculturalists relying heavily on coconut palm trees (Abuya, 2013). A district resettlement and compensation committee, chaired by the Kwale District Commissioner, was established to propose compensation amounts to be paid by Tiomin. The project aimed to extract and
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export titanium from Kwale until deposits were depleted, then return land to the original owners. However, critics argued that strip-mining would significantly degrade land leaving it unsuitable to sustain livelihoods. 3.10 POLITICAL AND SOCIO- ECONOMIC CONTEXT When inhabitants originally settled in Kwale, some land was legally owned by a defunct sugar factory but no clear demarcations existed. This rendered many residents without, or with faulty, land titles. The legal framework at the time ascribed all mineral rights to the GoK and individuals without land titles were considered squatters (Ayuba, 2013). Economic constraints following post-structural adjustment programme reforms generated governmental anxieties to generate new income, and a strong desire to ensure the project went ahead. The titanium mine was expected to provide $225 million to the GoK in the form of royalties and direct taxation (Base Titanium Ltd, 2015a). 3.11 RESETTLEMENT PROCESS Although Tiomin did commission an environmental impact assessment (EIA), it was heavily criticised for omitting or downplaying negative project impacts (Ojiambo, 2002). A RAP was only developed following pressure from civil society, publication of a parallel EIA revealing the shortcomings of the original assessment, initiation of legal proceedings, and appealing directly to Tiomin’s financial backers (Ibid). Tiomin and the GoK differentiated between PAPs who had legal land title and those who did not, despite ancestral claims to land (Ojiambo 2002). These ‘squatters’ were offered less for their land, which ultimately created internal division between PAPs. Consequently a united front was short-lived in their legal opposition to Tiomin after the company offered an out-of-court settlement to title-holders. When Base Titanium purchased Tiomin Resources’ mining rights in 2010, Base included ‘squatters’ in its compensation scheme (Kayumba 2014). Compensation offered to recognised PAPs included lease of their original land, resettlement in Mrima- Bwiti, cash compensation as well as building schools and dispensaries (Kayumba, 2014). These concessions were achieved after consistent civil society action. However many PAPs expressed dissatisfaction with the compensation process, citing that their assets and land were undervalued (Abuya, 2013). In 2011, Base Titanium carried out post-resettlement and monitoring audit report. There is no evidence that Tiomin carried out any monitoring activities. 3.12 PROJECT IMPACTS Independent reports from academia and civil society organisations reveal widespread dissatisfaction, inadequate economic compensation, social and economic damage, and heightened vulnerability of PAPs (Abuya, 2013; Kayumba, 2014). New social service construction was inadequate to service the needs of
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PAPs (Kayumba, 2014). Some of those who did not agree to resettlement were reportedly violently evicted and their houses razed (MiningWatch Canada, 2007). 3.13 ANALYSIS 3.13.1 Lack of local consultation The resettlement process was characterised by a consistent exclusion of affected communities. The original EIA was carried out without meaningful consultation and there was no attempt to incorporate PAPs’ values or input into proposed compensation. Eviction and razing of homes is indicative of a serious failure to engage the community and disregard of PAPs’ rights. 3.13.2 ‘Squatters’ Prioritising PAPs with titles to land created serious tensions in the community. This decision shows the inadequacy of the legal framework that allowed customary rights to land to be ignored. Although PAPs without titles were offered compensation, demonstrating that resistance can generate results, many felt that their offers were lower as a result of their status as ‘squatters.’ 3.13.3 Grievance redress mechanisms Although they were largely excluded from the consultative planning stages of the project, local residents and networks of NGOs pursued litigation, negotiation, and advocacy in the absence of an accessible GRM. In this way they were able to negotiate an expansion of the compensation package, and bring their issues to a worldwide audience.
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This section briefly outlines Part IV: DFDR & the the deficiencies of the old Constitution and legal framework for mitigating old Constitution, New the negative impacts of DFDR in Kenya as highlighted in the above Constitution & case studies. It then goes on to consider whether the Community Land Bill new Constitution and Community Land Bill (CLB) 4.1 LAND TENURE AND COMMUNAL can and will offer RIGHTS UNDER THE OLD CONSTITUTION enhanced legal protection to PAPs in the context of To understand the significance of the new Constitution for LAPSSET. For a more LAPSSET, it is necessary to provide a brief account of land tenure detailed legal commentary and communal land rights under the old Constitution. The transition on the key provisions of from colonialism to independence emphasised individual the CLB, see annexure 4. ownership rights over land with high agricultural potential, intended to increase productivity. ‘Low potential’ land was left under customary tenure (Boye & Kaarhus, 2011). Communities were to manage their land under the Trust Land Act (1938), which enabled occupation, use and inheritance of what was referred to as ‘trust land’ (Otieno, 2013). The Act did not provide communities with legal property rights; title in the land instead vested in local authorities and county councils. Despite a rigorous legal process on paper designed to protect communities against uncompensated expropriation, in many cases this was disregarded and trust land was disposed of illegally by government officials (Odote, 2013). The coexistence of competing systems of tenure and government policy privileging individual land rights over communal tenure led to ‘defensive subdivision’ – individual titling of community land in order to prevent encroachment (ibid). This erosion of group rights significantly reduced communities’ control over their historical lands, subjecting livelihoods, particularly of pastoralist groups, to increasing insecurity.
4.2 THE 2010 CONSTITUTION Chapter 1 of the 2010 Constitution was intended to address the issues outlined above. The 2010 Constitution sets out general principles of equitable, sustainable, productive and efficient use of land. It
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establishes ‘community land’ as a new form of land tenure alongside private and public land, and in contrast to the Trust Land Act, community land vests directly in and is held by communities. 4.3 THE COMMUNITY LAND BILL Drafting of the CLB commenced in 2011 but it is yet to be enacted, although it is constitutionally required to be enacted by 27 August 2015. Once enacted it will repeal the Trust Land Act. The CLB is intended to operationalize the general constitutional protections of community land rights, by providing the legal framework for the use, registration, transfer and management of community land. Under the CLB, all community land in Kenya is owned directly by communities. The CLB sets out the process for the demarcation and registration of parcels of community land, and the management of those parcels by community land committees selected by the community. Unregistered community land is held by the county government in trust for the community. The CLB does not stipulate how a community substantiates its claim over a parcel of land (for instance, there is no requirement of a minimum period of residence), but a claim for registration can be challenged by someone disputing a community’s entitlement to certain land. The CLB touches on key issues relevant to LAPSSET: the compulsory acquisition of community land and the rights of pastoralists and fisher-folk. These issues do not appear to be adequately addressed to mitigate the harms of DFDR. The broad concerns with the CLB are outlined below. 4.3.1 Compulsory acquisition Two sections in the CLB relate to compulsory acquisition of community land. Section 7(2) relates to the acquisition of rights over community land (e.g. rights of occupation, or a right of way), and section 34(e) relates to acquisition of community land itself. As noted above, a section to similar effect in the Trust Land Act (section 13) has been historically used by government as a tool for dispossession of communities (Musembi & Kameri-Mbote 2013). As such these acquisition provisions warrant close examination.
Section 7(2) provides: No right on community land may be expropriated or confiscated save by law in the public interest and consideration of payment in full, of just compensation to the person or persons. Section 34(e) of provides: Where community land is compulsorily acquired, it shall only be in the interest of defence, public safety, public order, public morality, public health or land use planning and subject to prompt payment in full of just compensation to the community.
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4.3.2 Key concerns
! The nature of compensation is unspecified. The use of the word ‘payment’ implies that cash compensation would be sufficient. As seen from the case studies, cash alone is inadequate for PAPs to re-establish their lives elsewhere. ! There is no obligation to provide relocation assistance in identifying replacement land or other services to PAPs.
! There is no procedure for community notification, consultation, or appeal of the acquisition decision, nor is there a process for determining or appealing compensation (the Trust Land Act was in fact more rigorous in this regard, see sections 7 – 13).
! Both provisions fail to stipulate who is obliged to provide compensation, specifically which level of government is responsible and whether there are obligations on corporate actors. This could result in a lack of accountability and delays in the provision of compensation. ! ‘Land use planning’ as grounds for compulsory acquisition (the most relevant ground for LAPSSET) is unclear, undefined, and not required to be in the public interest.
! Under section 34(e) compensation is to be paid to ‘the community’. It is unclear whether compensation should be paid to individual PAPs, households, or the community land committee (if there is one), or how a committee should distribute compensation amongst PAPs. 4.3.3 Compulsory acquisition and LAPSSET In summary, sections 7(2) and 34(e) raise a number of concerns relating to the nature of compensation, in particular who pays, on what grounds, who receives compensation, how they are identified, following what procedure, and how decisions about acquisition and compensation can be challenged. This is troubling in the light of on-going LAPSSET land acquisitions and the fact that unregistered community land is to be held in trust by county governments on behalf of communities (section 14(4)). The equivalent provision under the Trust Land Act was subject to widespread abuse in the past. Devolution to the counties does not necessarily provide protection against corruption and abuse of process, which can and does occur at any level of government. 4.3.4 Rights of pastoralists The community land management framework under the CLB requires demarcation and registration of specific, identified parcels of land. This imposes ‘territorial fixity’ that impedes mobility, a crucial aspect of pastoralist livelihoods and sustainable livestock production in arid and semi-arid areas (Musembi & Kameri-Mbote, 2013).
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There are various provisions in the CLB allowing for pastoralists to be granted rights of way across community land and access to water on community land (sections 34, 44 and 45(1)) but in all cases these rights are at the discretion of community land owners, or able to be overridden by the CLB or any other Act. Overall, the Bill does not adequately protect the land rights of pastoralists or recognise the importance of mobility to their livelihoods. 4.3.5 Rights of fisher-folk Community land in the CLB is defined as including ‘fish landing sites’, but it provides no protection in relation to fishing waters. Mangroves, wetlands, public lakes, rivers, streams, reservoirs, lakes, beaches and fisheries are all excluded from the definition of community land. This means that traditional fishing waters are not entitled to the same rights and protections as community land, cannot be managed by community land committees, nor compensated-for if compulsorily acquired. 4.4 PROBLEMS WITH THE LEGISLATIVE PROCESS In addition to the content of the draft CLB, the process and procedure surrounding it has been problematic. Despite drafting commencing nearly five years ago, the CLB was not tabled in the Senate until late 2013, and without any public consultation despite a Constitutional obligation to facilitate public participation and involvement in the legislative process (Article 118). A senate committee was established to seek public and stakeholder views on the CLB, and to re-table it after incorporating those views. The recent experience of other land reform laws does not give cause for optimism that the CLB will be subjected to genuine consultation, rigorous review and debate. In 2012 Parliament enacted The Land Act, The Land Registration Act, and The National Land Commission (NLC) Act, which it was required to do within 18 months of the promulgation of the Constitution (Schedule 5). In order to meet this deadline, there was almost no parliamentary debate or discussion of the draft laws, at best tokenistic public consultation and almost no adjustment made to the original drafts (Manji, 2012). Although there has been a much more generous timeframe (five years) within which to enact the CLB, the fact that it still has not been resubmitted to Cabinet ahead of the deadline in August suggests that the process of finalising the CLB will again be rushed. The recent consultative process also appears to be inadequate, the only public hearing that appears to have been held was publicised at such short notice that no representatives of LAPSSET-affected communities were able to travel to Nairobi to attend (Natural Justice, 2014). Some attribute the delays in the passage of the CLB to in-fighting between the Land, Housing & Urban Development Cabinet and the NLC on jurisdictional issues. Others suggest the delay by the Lands Minister to submit the Bill for Cabinet approval is part of a deliberate effort to frustrate land reforms (Ayodo, 2014).
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4.5 IMPLEMENTATION ISSUES Once the CLB is enacted, recent experience of other land reforming legislation suggests that it is unlikely to be meaningfully implemented. The Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act 2012 (the IDP Act) came into force on 18 January 2013. It provides for a comprehensive rights-based response to internal displacement, setting out principles of prevention, protection and assistance that impose broad positive obligations on the government and others, including corporate actors, in relation to internally displaced persons (IDPs). The IDP Act requires that where people are to be displaced by development projects their full and informed consent must first be sought, and public hearings on the project planning held (section 22). The IDP Act was positively received by international civil society, being described as a ‘significant milestone’ (Article 19, 2013 and Brookings Institution, 2013), however there have been no steps towards the implementation of the IDP Act since its enactment (Brookings Institution, 2013). The Internal Displacement Monitoring Centre 2014 report on Kenya’s pastoralist communities noted that ‘the legal and policy framework to protect internally displaced pastoralists is in place, but in practice ignorance and disregard for displaced pastoralists’ rights continues unabated’ (2014b, p.15). Implementation of land laws is a broader issue identified by the Kenya Human Rights Commission, which found there is ‘…a lack of awareness of the existing frameworks on sustainable development by key stakeholders as well as the host community and a failure by the government to domesticate, harmonise, enact and implement some of these frameworks’ (2014, p.20). Finally, it appears as though the courts are unwilling to uphold community land rights under the Constitution until the CLB is enacted, with the Environment & Land Court noting in Joseph Letuya & 21 others v Attorney General & 5 others (ELC Civil Suit No. 821 of 2012) that ‘whether the Ogiek have property rights to the land under Article 63 of the Constitution is yet to be determined, because the Community Land Act has not yet been enacted by Parliament. Until then, the issue of property rights is a determination for the NLC to make.’
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4.6 CONCLUSION It appears unlikely that the CLB will benefit LAPSSET PAPs. The compulsory acquisition provisions are ambiguous, provide inadequate protection and are open to abuse, and rights of pastoralists and fisher-folk are not properly addressed.
The reasons for the delay in passing the Bill are unclear, and a pessimistic interpretation could suggest political motivations to hold off enactment in light of potential complications to LAPSSET. Further, the courts appear unwilling to uphold communities’ constitutional land rights until the CLB is enacted.
The IDP Act on paper would provide comprehensive protection for those displaced by development projects, but it has not to date been implemented. This may be due to a lack of government capacity, or a political unwillingness to interfere with on-going development projects such as LAPSSET, or a combination of both.
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This section examines PART V: LAPSSET – recent developments in three regions as a lens through which to CURRENT ISSUES & highlight some issues likely to arise in those FUTURE IMPACTS and other regions in response to LAPSSET, 5 . INTRODUCTION TO LAPS S ET upon which RVI may LAPSSET will link Kenya, Ethiopia and South Sudan, costing wish to focus its future approximately US$24.5 billion establishing an oil refinery, pipeline, research. This section road, standard gauge railway, airports, resort cities, and 32-berth port does not purport to in Lamu. The exact path of the corridor is unknown, so it is impossible to survey all issues in these pinpoint the precise communities affected. What is known is that Lamu, regions but rather Turkana and Isiolo will be ‘hubs’ for the pipeline, hosting a number of selectively focuses on a major developments. limited number of critical issues as an It must be emphasised that LAPSSET’s DFDR impacts in these regions will analytical reference not necessarily be identical to impacts elsewhere. Impacts will broadly point. As works for be of two types depending on the nature of the infrastructure. Linear LAPSSET in Isiolo and components like the railway, road and pipeline can segment property, Turkana are at an early disrupt market access, stage, there may be and displace nomadic opportunity to influence pastoralists by cutting developments for the off access to water and benefit of the local pasture. Nodal communities. components like the port, resorts, refinery and airports have different effects including displacement, influx, and speculation. Furthermore, LAPSSET will cut across a variety of communities with different relationships to the land, the state and each other. This must be borne in mind when considering the broader applicability of the types of issues outlined below.
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5.1 LAMU PORT The port is essential for importing material for the other LAPSSET components, so it is high priority for policymakers and construction is underway. The port provides a useful lens; construction is on-going so information is available on impacts and political dynamics, and unlike other components which may not be completed given the aspirational nature of this mega- project, the port is a reality. The issues outlined below in relation to Lamu are of two broad types: concerns surrounding the project implementation – a lack of consultation, influx, speculation, compensation, and property rights – and broader political issues – local politics and devolution, the geopolitical status of Lamu County and weakness of newly established institutions. 5.1.1 Implementation concerns Mitigation of the port’s impacts on local livelihoods and environment are at the heart of local campaigns in Lamu. Civil society and residents are concerned that they will be excluded, displaced and inadequately compensated for their land (Save Lamu, 2013; Sena, 2012; KHRC, 2014; Machuhi, 2014). Many also fear they will not benefit from the economic advantages that the project is expected to bring (KHRC, 2014). The manner in which the project has been implemented to date justifies these fears. The President approved construction of the port before community consultation or impact assessment was carried out. Consultation that did occur was exclusionary and characterised by significant information asymmetries, for example with meetings closed to the public, held at short notice with limited information provided, and key reports were provided in English only. The 2011 impact assessment failed to recognise all affected communities including pastoralists and hunter-gatherers. It also did not recognise communal land, only individual land title-holders, in violation of these groups’ constitutional rights (Save Lamu, 2013). The rise in speculation and soaring land prices (Marete, 2015), the anticipated influx of outsiders (according to the feasibility study, Lamu’s population is expected to expand from 101,000 to 1.25 million), and the privileging of individual landholders have culminated in a dynamic of exclusion and disenfranchisement at the expense of the most marginalised communities in Lamu.
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5.1.2 Compensation and titling Government and media discourse surrounding mitigation has largely revolved around cash compensation to individual title deed-holders. Relatively little attention has been paid to communities and community land. Despite the fact that many PAPs do not hold title to their land and instead have ancestral claims (Sena, 2012), the nature of compensation at this stage has centred on the holding of legal title (Japan Port Consultants, 2011). Although this situation may change with the passage of the CLB, problems with the Bill’s contents and likely implementation as outlined in paragraph 4.3 above mean that compensation issues are likely to remain a concern. Compensation has at times resulted from direct negotiation between landowners and government, for instance farmers in Kililana agreed to compensation and resettlement assistance through negotiations after instituting court proceedings (Save Lamu, 2013). It is notable that those who were most able to voice their dissatisfaction (through organising and obtaining legal advice) were able to have their claims heard and addressed; it is unlikely that marginalised communities will have recourse to similar measures. 5.1.3 Local politics and devolution Other key issues likely to impact outcomes for PAPs are local politics, the geopolitical status of Lamu County, and the weakness of new institutions. Accusations of corruption in compensation proceedings have resulted in calls for the resignation of Lamu’s Governor Timamy (Sanga, 2015). Allegations state that key land plots and disproportionate compensation is accruing to politically well-connected individuals and absentee landowners. In the context of on-going devolutionary processes, LAPSSET raises the stakes and the likelihood of conflict between interests of local political actors, central political actors and local communities. 5.1.4 Geopolitics The coastal region has been historically marginalised in Kenya, and Lamu County continues to receive comparatively low national budget allocations (Praxides, 2015), sustaining a historical mistrust of central government (Laher, 2011). In addition, Lamu’s recent experiences as a middle-ground in the fight between Kenyan Defence Forces and Al-Shabaab will impact development of the port which is seen by some observers as a potential prize for both parties, reflecting dynamics similar to those in the Niger Delta, where a resource-rich region was exploited for revenue but did not receive significant benefits (Meagher, 2013; Weru, 2013). This can impact the project by creating a division that pits multinational companies and national government against communities. 5.1.5 Institutional weaknesses The compensation process has revealed weaknesses in the working relationship between the newly established NLC and central ministries, exacerbated by the fact that tasks and jurisdictions are not clearly demarcated. For instance, the LAPSSET Corridor Development Agency (LCDA) is under the office
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of the President (LCDA Profile, 2015). The LCDA is tasked with coordinating LAPSSET’s many components, which cross county lines and international borders. Its location within the President’s office protects it from political pressures and goes against the grain of devolution – sacrificing participatory measures and local consultation for a top-down, centralised approach. In other instances, tensions between NLC Commissioner Muhamad Swazuri and Land Cabinet Secretary Charity Ngilu over their respective mandates are well- documented, resulting in intervention by the President to have the two bodies actively resolve their inability to coordinate (Chai, 2014; Oruko, 2015; Muraya, 2015). Such jurisdictional disputes are likely to further complicate the compensation and resettlement process for PAPs.
5.2 TURKANA LAPSSET construction is yet to commence in Turkana, but current developments in oil extraction provide a relevant frame of analysis for the types of issues likely to remain in play upon commencement of LAPSSET activities. Turkana is Kenya’s second largest county, bordering Uganda, South Sudan and Ethiopia. The majority of its population are pastoralists who are widely dispersed and seasonally mobile according to the availability of grazing grounds and water sources. Turkana has been marginalised by colonial and postcolonial governments, and the poverty rate is 94.3% (Mkutu Agade, 2014). It is marked by high insecurity, stemming from violent conflicts between pastoral groups over water, pasture and livestock. One in three men are estimated to possess small arms, proliferated from recent conflict in South Sudan, Uganda and Somalia (ibid). Turkana’s challenges include cross-border security, inter-ethnic resource-based conflict, small arms proliferation and low state penetration (Fong, 2015); salient concerns not only in Turkana but in many parts of the corridor. A recent transformative event in Turkana has been the discovery of commercially exploitable quantities of oil by the Tullow Oil Company, which has justified the extension of the LAPSSET pipeline into Northeast Kenya despite war in South Sudan. The analysis below considers the effectiveness of community engagement with Tullow and prospects for effective benefit sharing of oil revenues – both of which have relevance for LAPSSET.
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5.2.1 Tullow Oil and DFDR Tullow announced Kenya’s first oil discovery in March 2012, and has since struck vast oil reserves estimated at US$25 billion. Displacement to make way for exploration and drilling is reported to have already occurred, although no information is available about how this has taken place. There are reports of resettlement with no or inadequate compensation by Tullow, and concerns over the question of who is to be compensated given that most of Turkana is community land (Johannes et al 2014). Tullow emphasises that its drilling activities are not likely to cause significant displacement as the drilling rig is ‘the size of a plate deeply sunk into the ground’ (Ng'asike, 2013), although online searches return results of Tullow job advertisements for ‘land access and resettlement’ roles based in Turkana (e.g. Kenyan Jobs Blogspot, 2014). Aside from these advertisements there is no information about resettlement plans available publicly on Tullow’s website. On the ground research into the nature and extent of resettlement by or on behalf of Tullow would be valuable as it could foreshadow some of the likely LAPSSET DFDR issues in Turkana. 5.2.2 Community protest Rather than focusing on issues of displacement and compensation as in Lamu, most media coverage of community dissatisfaction with Tullow centres on the perceived lack of direct community benefit, particularly jobs, from Tullow’s operations (see e.g. Akumu, 2014; Kavanagh, 2014; Hatcher 2014). Tullow has shown some willingness to respond to community concerns. In October 2014 it suspended operations after local MPs organised residents to protest discrimination against locals in employment and tender awards. In response, Tullow committed in a memorandum of understanding to immediately double its social investments to Ksh340 million annually and offer more training scholarships to enable locals take up high-skilled jobs (Omondi, 2013). This outcome can be viewed as a positive one for the influence of community protest and the responsiveness of Tullow. However it must also be viewed in the context of a fraught security situation with high arms proliferation, accusations of violence on the part of protesters and investor skittishness at the then recent attacks on the WestGate Mall in Nairobi (Reuters, 2013). Whether Tullow was acting out of responsiveness to community voice or reflexivity to the threat of violence is uncertain. What is certain is that benefit-sharing of oil exploration and infrastructure construction is a contentious and volatile issue in Turkana and is likely to remain so as LAPSSET approaches. 5.2.3 Benefit sharing through equity stakes In mid-2014, President Kenyatta urged Turkana residents to consider converting their land into equity stakes in the LAPSSET pipeline, rather than receiving an upfront payment of compensation in exchange for relinquishing their land. This was the first time that the GoK had openly promoted the use of equity shares in the pipeline as compensation for PAPs. The idea is unprecedented in Kenya and there is currently no legal framework to guide such a proposal.
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Kenyatta’s statement was reported in the local media at the time (Business Daily Africa, 2014; Omondi, 2014), but we could locate no subsequent information on whether such a scheme is being seriously developed. As Land Development & Governance Institute chairman noted (Business Daily Africa, 2014), this is an innovative proposal deserving serious thought, and further research on the feasibility of such a scheme, including a comparative assessment of similar schemes in other countries (see Cernea, 2009) would be warranted. One immediate concern is that equity stakes should be complementary measures and not a substitute for upfront compensation.
5.3 ISIOLO Isiolo is the node of the LAPSSET corridor where all the branches of the project will meet, due to its central location vis-à-vis Lamu, Nairobi and neighbouring countries (Ethiopia, South Sudan and Uganda). Envisaged infrastructure includes a railway, roads, oil pipelines, a resort city and enlargement of the existing airport. This is intended to transform the isolated county into a trade artery and tourist destination (Kenya Vision 2030, Versi & Kubakuru, 2014). Given its geographic centrality to LAPSSET, Isiolo is likely to be one of the areas most impacted by the establishment of the corridor. Previously marking the border of the Northern District with Somalia, Isiolo County belongs to the former Eastern Province of Kenya. Like Turkana it is semi-arid and characterised by high numbers of nomadic pastoralists and intra-communal conflict caused by competition for natural resources and cattle raiding. Violence, military occupation, drought and underdevelopment have been prominent features of Isiolo, contributing to the erosion of state legitimacy in the county (Hornsby, 2012). An examination of recent events in Isiolo draws out issues of political and communal conflict and tension at various levels, concerns about land-grabbing and influx, and the status of community land and its management by county government. 5.3.1 Political and community conflict Isiolo has witnessed several episodes of conflict usually involving pastoralist communities clashing over natural resources. LAPSSET has fostered the emergence of new dimensions of conflict at different levels: among counties, between local and central government in Nairobi, among communities and between locals against ‘foreigners’.
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Tensions between counties have emerged over the economic benefits stemming from infrastructural development, intensified by the new constitutional power of counties to raise territorial revenues. Isiolo and Nyambene County have competed over airport development and associated revenues (Kiarie, 2012), and disputes have emerged between Isiolo and Meru County over the determination of county boundaries and location of the resort city and abattoir (Abdi & Kwama, 2014). These disputes have been aggravated by the appointment of Meru native Francis Muthaura as LAPSSET Project Authority Chairman and fears that he will use his role to deviate local development to his county. Local mistrust in central government has been exacerbated by Isiolo’s Governor Doyo, who publicly argues that indigenous communities are likely to suffer negative LAPSSET impacts given the historical socio-economic and political marginalisation of the county (Salesa, 2015). Intra-communal violence has also erupted at the local level, with allegations that politicians and private businesses are fostering intra-communal tensions to restrict communities’ access to grazing lands relevant to LAPSSET developments (TV Kiss, 2012). 5.3.2 Land-grabbing and land prices The incorporation of Isiolo into LAPSSET has witnessed a striking rise in land prices. Price per acre has jumped from less than USD$2500 to more than $1 million (Versi & Kabukuru, 2014), associated with land-grabbing. Former ministers, secretaries and diplomats under the Kibaki government have been accused of speculation and land-grabbing in Isiolo and Meru (Abdi & Kwama, 2014). These events are particularly concerning as inflows of ‘strangers’ (Versi & Kabukuru, 2014), land-grabbing and landlessness are likely to further exacerbate violence and resource conflict among local communities (Kiarie, 2012) and turn the resettlement process into a political tool. 5.3.3 Status of land 70% of land in Isiolo County was trust land (Boye & Khaarus, 2011) that was converted into community land under the new Constitution (Article 63(2)(d)(iii)). Under the CLB, unregistered community land is to be held in trust by the county government, and until the CLB is passed, community land is not to be ‘disposed of or otherwise used’ (Article 63(4)). As such, the licencing of land and compensation of PAPs is to occur at the newly established county level, but as yet is unguided by any legal framework and technically not lawfully allowed to occur. RVI might wish to investigate the current process and measures being developed at county level for the management of unregistered community land, the capacity of county level governments, and the extent to which Article 63(2)(d)(iii) is actually being complied with in Isiolo and elsewhere.
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Part VI: Conclusion and recommendations for further research Recommendations for further research provided in annexure 5.
A failure to conceptualise, plan for and mitigate the totalising impacts of DFDR, combined with mismanagement, corruption and political disregard for community land rights have marked DFDR in Kenya up to the present day. Yet the comprehensive IDP Act and instances of community collective action represent latent seeds of change in the Kenyan DFDR story, and warrant closer examination to determine the full extent of their transformative potential in the face of LAPSSET. The high profile nature of LAPSSET sheds light on DFDR issues. LAPSSET’s sluggish rollout provides breathing space for NGOs, civil society organisations and communities to influence the impact of this transformative project.
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ANNEXURE 1 FINAL TERMS OF REFERENCE DELIVERABLES • 8000-10,000 word report completed by 27th April 2015 • 1 hour presentation and Q & A • Review of general resettlement impacts on local communities (project affected peoples) • 3 Kenyan resettlement case studies assessed in the context of the old Constitution • Assessment of the potential and limitations of the new Kenyan Constitution as an instrument to mitigate identified resettlement impacts in the 3 case studies • Assessment of current and potential resettlement impacts of LAPSSET (including literary review) • Analysis of how the new Constitution can effectively mitigate these impacts • Determining remaining challenges to LAPSSET resettlements not addressed by the Constitution • Identification of evidence gaps: areas to investigate to help inform on potential hazards and opportunities of resettlement 1.0 PRELIMINARY REPORT FRAMEWORK 1.1 Resettlement Overview • General impacts of resettlement (socio-economic-environmental-political impacts) and general causal explanations • Identification of international best practices as mitigation measures 1.2 Kenyan Resettlement Process Overview • Overview of resettlements in Kenya (industry types, locations, size, investors, implementers, purpose) • Historicize resettlement in Kenya (previous resettlement schemes, impact of colonial legacy and ethnic groups’ aspirations) • Review land tenure and communal rights under old Constitution and assess their implications for project affected persons (PAPs), their rights, and compensation 2.0 CASE STUDIES 2.1 Project Reviews • Project aims, size, location, stakeholders involved, funding, political climate, and socio- economic local context
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• Preparatory work that was undertaken for resettlement including ESIA, resettlement action plan, baseline studies, consultations (with who, by whom, how, etc) • How resettlement schemes were implemented and monitored? • How projects have been monitored (pre-resettlement and post resettlement): • By whom, how often, where has it been reported, how have people reacted? • What avenue/barriers have there been for local populations to get their voices heard • What were the project impacts on the local communities: which changes in local dynamics? New losers/winners? Or increasing power of certain communities? 2.2 Resettlement Impact Assessment • Explain why problems / successes arose (especially relating to land tenure, government capacity, politics, conflict, etc) • Identify factors that determine different types of impacts to create an interpretative framework to be used in assessing LAPSSET. 2.3 The New Constitution: theoretical impacts on case studies • Review the new Constitution and Community Land Bill: assess how they could have mitigated the problems identified in the case studies 3.0 LAPSSET 3.1 Background Review • Project description: size, location, stakeholders, likely resettlements, PAP description, etc) • Plans and measures to Date: preparatory resettlement work • Politics, conflict, challenges and controversies surrounding project • Literary review of problems/ successes relating to resettlement to date 3.2 Resettlement Impact Assessment • Determine the extent to which current identified resettlement negative impacts are a consequence of the limitations of the new Constitution, and how much are a consequence of failures of it being adhered to/enforced? • Identify limitations of the new Constitution regarding land resettlement: resettlement problems in the case studies that would not have been resolved despite new safeguards • Identify other potential problems or opportunities that may arise in the future: using the analytical framework constructed in section two (case studies) juxtaposed on the proposed LAPSSET plans and realities on the ground • Identify evidence gaps - between our asserted problems/opportunities and what has been reported/assessed – than need further on-the-ground investigation
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4.0 LAPSSET RESETTLEMENT CHALLENGES AND EVIDENCE GAPS • Summary of likely problems / opportunities that will arise from LAPSSET • Grey areas that need further investigation (include as general thread throughout report, include in case studies)
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ANNEXURE 2 – ANNOTATED BIBLIOGRAPHY Bibliography
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Annotated Bibliography: (Part 1) Conceptualising Resettlement In-text Full reference Description reference Article investigates resettlement case studies in India to highlight that in Appa, G. & Patel, G. 1996. Unrecognized, Unnecessary many resettlements those economically impacted by projects are not and Unjust Displacement – Case Studies from Gujarat, recognised. It asserts that projects and governments misconceive much Appa & Patel, India. In: McDowell, C. (Ed.). Understanding land to be vacant leading to over-acquisition, and view resettlement as 1996 Impoverishment: The Consequences of Development- purely a financial loss ignoring livelihood impacts. The article ultimately Induced Displacement. Oxford: Berghahn Books, pp. 139- calls for improved legislation that considers natural resource losses and 150. institutionalises the need for PAP participation.
Compares DFDR to displacement caused by natural disasters (Hurricane Katrina). Draws parallels in PAP responses and rehabilitation Button, G. 2009. Family Resemblances between Disasters experiences. Stresses displacement can be a development opportunity and Development-Forced Displacement: Hurricane but the political nature of DFDR often prevents this from happening. Katrina as a Comparative Case Study. In: Oliver-Smith, Button, 2009 Human rights abuses are construed as central problems with DFDR A. (Ed.). Development & Dispossession: The Crisis of Forced (housing, food security, and so forth). The challenge is to get international Displacement and Resettlement. New Mexico: School for accords, safeguards and covenants recognised and enforced. Sets out Advanced Research Press, pp. 255-274. key requirements for success (participation, planning, institutional capacity, financing, political will, respect and a host of other factors).
Stresses that salient reason for DFDR failure is insufficient Financing. Cernea, M. 2009. Financing for Development: Benefit- Explores alternative ex ante and ex post compensation models that look Sharing Mechanisms in Population Resettlement. In: incorporate long-term support for PAP livelihood restoration. Looks at Cernea, 2009 Oliver-Smith, A. (Ed.). Development & Dispossession: The various case studies to demonstrate various options of equity sharing Crisis of Forced Displacement and Resettlement. New including China, Norway, and Canada. Argues financing for DFDR should Mexico: School for Advanced Research, pp. 49-76. be inbuilt as project costs and recurrent support for PAPs should be provided.
The chapter argues that despite increasing international norms and conventions, there is no international law governing DFDR. DFDR leads to Clark, D. 2009. Power to the People: Moving towards a destitution because administrators operate with institutional impunity Rights-Respecting Resettlement Framework. In: Oliver- (given lack of legal safeguards and discrimination). Institutions lack Clark, 2009 Smith, A. (Ed.). Development & Dispossession: The Crisis of capacity and adequate implementation bodies and political will is often Forced Displacement and Resettlement. New Mexico: missing (given preference to ensure projects go ahead and regular School for Advanced Research Press, pp. 181-200. disdain for local peoples). Calls for independent monitoring of DFDR and the institutionalisation of the principle of free and informed prior consent. THE HISTORY & POLITICS OF LAND, RESETTLEMENT & COMPENSATION IN KENYA
Explores the ethics of DFDR. Conceptualises DFDR as stemming from power asymmetries, with PAPs being victims, and it being a process of accelerated socioeconomic change and conflict. Highlights a few ‘success’ De Wett, C. 2009. Does Development Displace Ethics? stories but stresses external circumstances created this outcome and The Challenge of Forced Resettlement. In: Oliver-Smith, De Wett, usually DFDR fails local people. Stresses laws as important safeguards A. (Ed.). Development & Dispossession: The Crisis of Forced 2009 but warns that bureaucratic incompetence or corruption often prevents Displacement and Resettlement. New Mexico: School for implementation. Cautions that participation can be manipulated. Advanced Research Press, pp. 77-96. Stipulates that projects regulated by international best practice are better and that effective resistance capability of PAPs is important. However, warns that successful outcomes are not guaranteed.
Herbst, 2000 Herbst, J. 2000. States and power in Africa: Comparative Book reviewing the process and challenges of nation building in Africa lessons in authority and control. Princeton University Press. since independence.
Book analyses participation and how it can be used to manipulate local Hickey et al., Hickey, S. and Mohan, G. 2004. Participation: from populations and gain appearance of local buy-n or ownership, or how it 2004 tyranny to transformation. New York: Zed Book Ltd. can be used as a genuine tool of collaborative decision making.
International Finance Corporation (IFC). 2012. Performance standard 5: land acquisition and involuntary These are the safeguards required by the International Finance resettlement. Accessed: 1 April 2015. Available at: IFC, 2012 Corporation, the World Bank’s private sector development arm, on http://www.ifc.org/wps/wcm/connect/3d82c70049a79 conducting resettlements. 073b82cfaa8c6a8312a/PS5_English_2012.pdf?MOD= AJPERES
Johnston, B. 2009. Development Disaster, Reparations, Article warns that resettlements often do not even meet minimum and the Right to Remedy: The Case of the Chixoy Dam, requirements, even when they are IFI sponsored. Rights can be abused at Johnston, 2009 Guatemala. In: Oliver-Smith, A. (Ed.). Development & every stage (planning or project construction and operation). Looks at Dispossession: The Crisis of Forced Displacement and constraints on mounting effective resistance to gain better provisions. Resettlement. New Mexico: School for Advanced Research Constraints include poor PAP capacity, language barriers, illiteracy,
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Press, pp. 201-224. limited external support, and so forth. Resistance also confronts vested political interests who have developed rents from projects. Resistors are categorised by governments as criminals or rebels. Lists various DFDR impacts on PAPs such as loss of natural resources, disruption of transport routes and loss of livelihoods.
Explores physical and mental health impacts of DFDR. Key health Kedia, S. 2009. Health Consequences of Dam problems are caused by overcrowding, influx of migrants, project Construction and Involuntary Resettlement. In: Oliver- construction waste deposits, food insecurity, loss of traditional lifestyle Kedia, 2009 Smith, A. (Ed.). Development & Dispossession: The Crisis of and land, inability to adapt to new environments, loss of natural Forced Displacement and Resettlement. New Mexico: resources, soil infertility on new lands, waterborne diseases in School for Advanced Research Press, pp. 97 – 118. resettlement sites of different temperature, contact with hosts, and so on. Calls for DFDR to be accompanied by adequate ESHIAs.
Highlights that many PAPs are often not recognised for compensation. Koenig, D. 2009. Urban Relocation & Resettlement: This is the case for those without formal land tenure (often classified as Distinctive Problems, Distinctive Opportunities. In: Oliver- illegal squatters or pastoralists) and those not physically but economically Koenig, 2009 Smith, A. (Ed.). Development & Dispossession: The Crisis of displaced. These groups are especially vulnerable as are usually less Forced Displacement and Resettlement. New Mexico: able to form effective resistance to DFDR given lack of legal backing and School for Advanced Research Press, pp. 119 - 140. given that they are often dispersed geographically.
Reviews Dam resettlement in Africa and issues relating to land. Stresses land is usually owned and not empty as assumed by many administrators, Lassailly-Jacob, V. (1996). Land-Based Strategies in leading to tensions with host communities when PAPs are displaced. Shows Dam-Related Resettlement Programmes in Africa. In: Lassailly- how administrators typically do not recognise PAP lands, particularly McDowell, C (Ed.). Understanding Impoverishment: The Jocob, 1996 fallow land or natural resources used for many day-to-day requirements Consequences of Development-Induced Displacement. including medicine, food, and livelihoods. Thus even land replacement is Oxford: Berghahn Books, pp. 187-200. often too small. Describes tensions with host communities due to increased competition for scarce resources and lack of compensation.
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Draws parallels between development and conflict induced resettlement McDowell, C. 1996. Introduction. In McDowell, C (Ed.). asserting PAPs are ‘development refugees’. Provides overview of McDowell, Understanding Impoverishment: The Consequences of multifaceted impacts on livelihoods (e.s.p. because replacement land 1996 Development-Induced Displacement. Oxford: Berghahn being unsuitable for PAP traditional agricultural practices) and social Books, pp. 1-12. breakdown. Government commitment and competence are seen as causal factors.
Praxides, C. 2014. ‘Kenya: Port Project Stirs Hopes for Praxides, LAMU Growth.’ All Africa. August 4. Accessed 2 April Newspaper article reporting on local hopes that LAPSSET will bring jobs 2014 2015. Available at: and other benefits. http://allafrica.com/stories/201408042470.html
Asserts DFDR is totalising and outlines various conventional models to Oliver-Smith, A. 2009a. Introduction: Development- conceptualise impacts of resettlement. Reviews the conflict inherent in Forced Displacement and Resettlement: A Global Human DFDR between the state and communities. Looks at resistance movements Oliver-Smith, Rights Crisis. In: Oliver-Smith, A. (Ed.). Development & and the increasing role of NGOs in bringing DFDR to international 2009a Dispossession: The Crisis of Forced Displacement and attention and applying pressure for projects to mitigate negative Resettlement. New Mexico: School for Advanced Research impacts. Frames causal factors as inadequate inputs; legal frameworks, Press, pp. 3-24. will, funding, research, planning, competent and willing administrators, and monitoring and evaluation.
Oliver-Smith, A. 2009b. Evicted from Eden: Conservation Identifies alternative reasons driving governments to undertake projects and the Displacement of Indigenous and Traditional and DFDR such as population control, land acquisition or assimilationist Oliver-Smith, Peoples. In: Oliver-Smith, A. (Ed.). Development & pretentions. Looks specifically at conservation induced displacement of 2009b Dispossession: The Crisis of Forced Displacement and indigenous peoples. Shows that global norms of environmental protection Resettlement. New Mexico: School for Advanced Research are often at odds with human right needs, or at least abused and used as Press, pp. 141-162. pretext by governments to displace indigenous communities.
Rew, 1996 Rew, A. 1996. Policy Implications of the Involuntary Stresses that poor resettlement implementation is caused by a lack of Ownership of Resettlement Negotiations: Examples from government agency commitment leading to inadequate compensation
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Asia of Resettlement Practice. In: McDowell, C (Ed.). packages (e.g. PAPs unable to replace land lost). Lack of responsibility Understanding Impoverishment: The Consequences of stems from the highly politicised nature of projects (national and local Development-Induced Displacement. Oxford: Berghahn vested interests) and the limited amount of rents that can be extracted Books, pp. 201-222. from DFDR. Calls for DFDR process to be outsourced to an independent and professional body that is skilled in community conflict resolution and ethnographic studies.
Looks at the causes (e.g. search for jobs and speculation) & impacts of Scudder, T. 1996. Development-Induced Impoverishment, influx of migrants (e,g, on health, crime and livelihoods) where they Resistance & River-Basin Development. In: McDowell, C become the main beneficiaries of projects. Asserts that projects will Scudder, 1996 (Ed.). Understanding Impoverishment: The Consequences of usually only handle DFDR well if local populations can mount organised Development-Induced Displacement. Oxford: Berghahn and strong resistance, the government is receptive and an impartial Books, pp. 49-76. judiciary system is accessible.
Reviews the differences and similarities between the Impoverishment Risks and Reconstruction model, and the four-staged model. Uses the four- Scudder, T. 2009. Resettlement Theory and the Kariba staged model to assess the changing impacts on and responses of PAPs Case: An Anthropology of Resettlement. In: Oliver-Smith, over the evolution of the Kariba dam. Heralded as a rare success story Scudder, 2009 A. (Ed.). Development & Dispossession: The Crisis of Forced (demonstrates positive outcomes and actions), it shows that negative Displacement and Resettlement. New Mexico: School for impacts (including negative behavioural coping mechanisms) occurred Advanced Research Press, pp. 25-48. much latter in stage four partly due to external realities of warfare and lack of foresight of factoring in natural population growth.
Tamondong-Helin, S. 1996. State Power as a Medium of Highlights problems of DFDR in authoritarian regimes (arbitrary powers Impoverishment: The Case of Pantabangan Dam and muted voices of PAPs; sometimes using martial law to stop Tamondong- Resettlement in the Philippines. In: McDowell, C (Ed.). resistance). Stresses typical failure to plan resettlement sites (e.g. ensuring Helin, 1996 Understanding Impoverishment: The Consequences of suitable soil types). Describes valuation processes often ignoring some Development-Induced Displacement. Oxford: Berghahn crops. Calls for relevant professionals (sociologists) to handle DFDR Books, pp. 169-186. administration as opposed to engineers (typically responsible for DFDR in privately funded projects).
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Thangaraj, S. 1996. ‘Impoverishment Risks’ Analysis: A Methodological Tool for Participatory Resettlement Focuses particularly on DFDR impacts on women & vulnerable groups. Thangaraj, Planning. In: McDowell, C (Ed.). Understanding Highlights problems of social disarticulation, food insecurity, morbidity 1996 Impoverishment: The Consequences of Development- and the loss of livelihood and social support mechanisms. Induced Displacement. Oxford: Berghahn Books, pp. 169- 186.
(Part 2) Kenya Resettlement Overview In-text Full reference Description reference Article pinpoints at the political meaning of land reforms occurring in Kenya from the ‘50s to the early ‘70s by analysing the implementation of Harbeson, J.W. 1971. Land Reforms and Politics in two land reforms: multiracialism under colonialism and the White Harbeson, Kenya, 1954-70. The Journal of Modern African Studies, Highlands Settlement Schemes. Heberson argues that Kenya independent 1971 9(2):231-251. government has failed to integrate economic and political development because land reforms have been pursued as a mere “exercise in rural development” (p.246).
One of the most comprehensive analysis of the Kenyan history since Hornsby, C. 2012. Kenya: A History Since Independence. independence, covering nearly 50 years (1963-2011) in 1000 pages. Offers a great insight on a series of crucial issues in Kenya such as politics Hornsby, 2012 London: IB Tauris. (clientelism, corruption, transition to democracy), ethnicity, land, the debate between centralisation and decentralisation as well as the use of violence by the state recurring to a wide range of literature.
IDMC, 2014 Internal Displacement Monitoring Centre. 2014. ‘Kenya: Short report on internal displacement in Kenya, covering various forms of Too early to turn the page on IDPs, more work is displacement (e.g. caused by conflict, natural disaster, development
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needed.’ 3 June. Accessed 20 February 2015. Available projects), particular impacts on pastoralists, displacement patterns and at: http://www.internal-displacement.org/sub-saharan- figures in Kenya. Notes Kenya’s recent steps to put in place a legal africa/kenya/2014/kenya-too-early-to-turn-the-page- framework to protect IDPs but more steps need to be taken to implement on-idps-more-work-is-needed- that framework.
Article critiquing the post-2010 Constitution land reform process in Kenya resulting in the enactment of the Land Act, Land Registration Act and National Land Commission Act. Argues that the constitutional and political Manji, A. 2014. The Politics of Land Reform in Kenya gravity of this legislation was undermined by undue rush, a lack of Manji, 2014 2012. African studies review, 57(01): 115-130. genuine legislator engagement and a severe deficiency in citizen engagement/community consultation. As such the resulting laws are considered by the author to be a ‘deeply disappointing outcome of a decade’s struggle over land policy.’
Article focussing on the potential for the New Constitution to substantiate communal tenure through the case study of the Ogiek community. The authors argue that the long neglect for community land rights dates back Nyamu Musembi, C. & Kameri-Mbote, P. 2013. Mobility, Musembi & to the legal system adopted at independence and focussed on private Marginality and Tenure Transformation in Kenya: Kameri-Mbote, ownership and agricultural interests. Further, they show how community Explorations of Community Property Rights in Law and 2013 entitlement and access to land will not necessarily be easy to obtain as Practice. Nomadic Peoples, 17(1):5-32. the new constitution fails to provide a clear definition of community as well as specific community structures for the management of communal land.
(Part 3) Chebyuk Case Study In-text Full reference Description reference HRW, 2008 Human Rights Watch (HRW). 2008. “All the Men Have Report denouncing the violation of human rights by both the SLDF and the Gone”: War Crimes in Kenya’s Mt. Elgon Conflict. New Kenyan security forces on Mt. Elgon’s conflict (2006-2008). HRW makes
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York: Human Rights Watch. Accessed 21 February 2015. recommendations to both fronts and to foreign governments (UK and the Available at: US) asking for an open enquire on the responsibilities of gross violations http://www.hrw.org/reports/2008/07/27/all-men- of human rights of the local populations. A following vital investigation of have-gone-0 these events will be later conducted by the Truth and Justice Reconciliation Commission. The report is based on interviews to an extensive array of people involved in the conflict.
the paper delves into the “politics of belonging” on the Mt. Elgon to Lynch, G. 2011. The Wars of Who Belongs Where: The analyse how ethnic affiliation becomes a qualification to entitlement to Unstable Politics of Autochthony on Kenya’s Mt Elgon. land. Drawing from interviews, she shows that ethnic violence on the Mt. Lynch, 2011 Ethnopolitics: Formerly Global Review of Ethnopolitics, Elgon has been caused by the language of politicians who have 10(3-4):391-410. increasingly exploited the feelings of belonging to oppose communities for their own gain. This has been an especially salient aspect of Kenyan
politics since the reintroduction of multi-party elections (1991).
The chapter provides an insight on the process of land allocation in Chebyuk and the role played by the Kenyan government in these events. Médard takes a significant focus on the ethnic dimension underpinning Médard, C. 2008a. ‘Indigenous’ land claims in Kenya: A local communities’ claims over land on the Mt. Elgon. Her argument is that Médard, case study of Chebyuk, Mount Elgon District. In: Anseeuw, President Kenyatta first and President Moi then have been directly 2008a W. & Alden, C. (eds.) 2010. Land in Africa: Conflicts, controlling the process of land transfer in favour of their ethnic Politics and Change. HSRC Press: Cape Town, pp. 19-36. communities in order to secure themselves a strong constituency. However, the involvement of local officials supported of discretionary powers has increased the population vulnerability vis-à-vis secure land tenure.
Based on her sound research on Kenya, Médard attempts to explain the Médard, C. 2008b. Elected leaders, militias and connection between SLDF militia in Mount Elgon and the political Médard, prophets: Violence in Mount Elgon (2006-2008). In: landscape of the 2007 elections, in which a member of the SLDF was 2008b Institut Francais de Rechèrche en Afrique (IFRA) (ed.) nominated MP for the Orange Democratic Movement (ODM). She argues 2008. The General Elections in Kenya, 2007. Les Chaiers that the government mismanagement of land allocation in Cheybuk has
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d’Afrique de l’Est: Nairobi, pp. 373-395. decreased state legitimacy on the Mt. Elgon, thus making local actors increasingly powerful. The new connection between SLDF and the ODM would thus be the result of the State’s attempt to retain some legitimacy in the area.
The TJRC Report is probably the most meaningful work done on Kenya. Truth, Justice and Reconciliation Commission (TJRC). 2013. Commissioned in 2008 following the outbreaks of PEV in 2007/2008, it Report of the Truth, Justice and Reconciliation Commission. investigates the “gross violation of human rights and [the] historical injustices” (p. vii) in Kenya from independence to 2008 as a pre-requisite Kenya: TJRC. Accessed 19 February 2015. Available at: TJRC, 2013 for national reconciliation. Volumes IIb and IIc might be particular useful http://www.scribd.com/doc/142790252/10/Ethnic- to RVI, the first covering the relationship between land and conflict, the Tension-Land-and-Politics-A-Case-Study-of-the-Mount- second looking at vulnerable people, among which indigenous Elgon-Confict communities. Weaknesses of the source: political pressures suffered by the Commission. (Part 3) Kiambere Case Study In-text Full reference Description reference The World Conservation Union (IUCN). 2003. Case Studies in Wetland Valuation. Accessed 2 April 2015. Available at: Brief case study publication on the Tana River, Kenya, describing a IUCN, 2003 valuation exercise carried out as part of a pre-project environmental http://cmsdata.iucn.org/downloads/casestudy06tana.pd assessment of the likely impacts of hydropower dam construction on f downstream ecosystems and communities.
Horta, 1994 Horta, K. 1994. Troubled Waters: World Bank Disasters Article critiquing the World Bank’s involvement in the Kiambere dam project. Bura irrigation project and Tana River Primate Reserve, each on Along Kenya's Tana River. Multinational Monitor. the Tana River and with negative DFDR and environmental consequences.
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Contains candid quotes from Bank officials including head sociologist M. Cernea.
World Bank internal project completion report for the Kiambere Dam project, covering a range of issues including project implementation, World Bank, The World Bank. 1993. Project Completion Report – sustainability, financial performance, borrower and bank performance 1993 Kenya – Kiambere Hydroelectric Power Project. and lessons learned. Notes resettlement and environmental issues not Washington DC, United States. adequately dealt with, resettlement occurred without Bank knowledge and contrary to Bank policy.
Paper by Kenyan sociologist who conducted the post-resettlement survey Mburugu, Mburugu, E. K. 1994. Dislocation of settled communities in of the Kiambere dam project on behalf of the World Bank. Outlines the 1994 the development process: The case of Kiambere findings of that survey on the highly detrimental impacts of the project on hydroelectric project. World Bank Technical Paper. PAP livelihoods. Main source for the Kiambere Dam case study.
World Bank World Bank. 1996. Resettlement and Development; the In-depth review of the Bank's entire resettlement portfolio, encompassing DFDR report, Bankwide review of projects involving involuntary all projects entailing resettlement active between 1986 and 1993 in all 1994 resettlement 1986-1993. Social Development papers; sectors, including Kiambere Dam Project. no.SDP13. Washington, DC: World Bank.
(Part 3) Kwale Case Study In-text Full reference Description reference Abuya, 2013 Abuya, W. O. 2013. “What Is in a Coconut? An This article explains the way in which resettlement took place in Kwale Ethnoecological Analysis of Mining, Social Displacement, District for the Kwale Mineral Sands Project. The author places particular Vulnerability, and Development in Rural Kenya.” African emphasis on how communities attach meaning to their environment and Studies Quarterly. 14(1 & 2):1–21. how this impacts communities’ perception of compensation.
Base Titanium Ltd. 2015a. “Kwale Project Economic Base Titanium A summary of the expected economic contribution of the Kwale Mineral Contribution.” Base Titanium. Accessed 13 March 2015.
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Ltd, 2015a Available at: http://basetitanium.com/kwale- Sands Project from the Base Titanium website. project/project-economic-contribution
Base Titanium Ltd. 2015b. “Kwale Project Overview.” Base Titanium An overview of the Kwale Mineral Sands Project from the Base Titanium Base Titanium. Accessed 13 March 2015. Available at: Ltd, 2015b website. http://basetitanium.com/kwale-project/project-overview
Kayumba, A. 2014. “Challenges and Prospects of This dissertation offers an in-depth analysis of resettlement impacts as a Equitable Benefit Sharing in Mining Sector: A Case Study Kayumba, result of titanium mining in Kwalethen proceeds to analyse the possibility of Titanium Mining in Kwale County, Kenya.” Thesis, 2014 of benefit sharing mechanisms for the Kenyan mining sector in general. University of Nairobi Centre for Advanced Studies in The paper relies on in-person interview of PAPs. Environmental Law and Policy.
A field-dispatch about Tiomin’s activities in Kenya detailing Tiomin’s acquisition of land in Kwale. MiningWatch Canada is a civil society MiningWatch Canada. 2007. “Kwale Dispatch: organisation based in Canada where Tiomin is headquartered. According Investigating Tiomin Resources’ Criminal Activities in to their website, “MiningWatch Canada is a direct response to industry MiningWatch Kenya.” MiningWatch Canada. August 7. Accessed 16 and government failures to protect the public and the environment from Canada, 2007 April 2015. Available at: destructive mining practices and to deliver on their sustainability rhetoric. http://www.miningwatch.ca/kwale-dispatch- With technical and strategic expertise from across Canada, MiningWatch investigating-tiomin-resources-criminal-activities-kenya Canada carries out and/or supports the monitoring, analysis and advocacy necessary to affect the behaviour of industry and public decision-makers.”
Ng’weno, B. 1997. “Inheriting Desputes: The Digo This article seeks to contextualise disputes over Digo property in Kwale Ng’weno, Negotiation of Meaning and Power through Land.” District, noting that disputes tended to erupt over inheritance rather than 1997 African Economic History, no. 25: 59–77. boundaries and settlements. The author concludes that inheritance as a social practice was a result of Digo resistance to and ambivalence
towards various forms of power; furthermore, inheritance disputes
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questioned “what it meant to be Digo” (74) at a given point in time.
This is a paper presented at the Institute of Development Studies, Ojiambo, E. V. 2002. “Battling for Corporate University of Sussex. The author was active in the struggle against Tiomin Accountability: Experiences from Titanium Mining in Kwale as an employee of ActionAid Kenya. He includes a background Ojiambo, Campaign in Kwale, Kenya.” University of Sussex: of the Kenyan economy, Tiomin, and how the campaign began. The 2002 University of Sussex. report then examines in detail the various strategies used by the anti- Tiomin campaign and concludes with lessons learned. The paper pre- dates many important outcomes of the deal, including the resettlement of farmers and the entrance of Base Titanium.
(Part 4) Constitutional section In-text Full reference Description reference Article investigating competing claims over land rights in Isiolo District and explaining clashes occurred in the district in 2011. Through focus groups, the researchers find that the 5 main ethnic groups (Somali, Turkana, Boye & Boye, S. R. & Kaarhus, R. 2011. Competing Claims and Borana, Sambaru and Meru) hold different claims on land (from Kaarhus, 2011 Contested Boundaries: Legitimising Land Rights in Isiolo ownership to its use). They argue that these claims, risen from the inability District, Northern Kenya. Africa Spectrum, 46(2):99-124. of the old constitution to appropriately regulate for the use of Trust Land, could potentially be addressed by the New constitution. In order to do so, local institutions must be strengthened as to provide a viable tool to address competing claims.
Constitution of Constitution of Kenya, 1963 First Constitution of independent Kenya, promulgated in 1963. See Kenya, 1963 Chapter IX for provisions on Trust Land.
Odote, 2013 Odote, C. 2013. The Legal Policy Framework Regulating Comprehensive analysis of the historical, political and policy foundations Community Land in Kenya: An Appraisal. Friedrich-Ebert- of community land rights in Kenya, the current laws relevant to community
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Stiftung, Kenya. land, key issues necessary for a Community Land Bill to encompass, and a comparative analysis of community land governance in selected jurisdictions.
Paper investigating community land rights in Kenya with reference to the Otieno, S. 2013. Community Land Rights in Kenya. Social impact of the New Constitution marginalised ethnic communities (the Science Research Network. Accessed 14 March 2015. Ogiek and the Endorois). Useful cross-case comparison with South Africa Otieno, 2013 Available at: and Brazil. His argument states that the New Constitution, substantiated http://papers.ssrn.com/sol3/papers.cfm?abstract_id=24 by the support of the Kenyan Judiciary system can protect communities 24136 land rights, as in the case of the Ogiek community.
Commenced 2 May 2012. Long title: ‘An Act of Parliament to give effect to Article 68 of the Constitution, to revise, consolidate and rationalise TheLand Act The Land Act. 2012. Chapter 280. land laws; to provide for the sustainable administration and management of land and land based resources, and for connected purposes.’
The Land Commenced 2 May 2012. Long title: ‘An Act of Parliament to revise, consolidate and rationalise the registration of titles to land, to give effect Registration Act The Land Registration Act. 2012. Chapter 300. to the principles and objects of devolved government in land registration, and for connected purposes’.
Commenced 2 May 2012. Long title: An Act of Parliament to make The National further provision as to the functions and powers of the National Land Land Commission, qualifications and procedures for appointments to the The National Land Commission Act. 2012. Chapter 5D. Commission Act Commission; to give effect to the objects and principles of devolved government in land management and administration, and for connected purposes.
The Old The Constitution of Kenya (1969). Constitution of Kenya promulgated in 1969, replacing the Constitution of
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Constitution 1963.
The New Constitution of Kenya promulgated in 2010, replacing the Constitution of The Constitution of Kenya (2010). Constitution 1969.
Not yet commenced.
The Community Long title: An Act of Parliament to give effect to Article 63 (5) of the Land Bill Constitution; to provide for the recognition, protection, management and The Community Land Bill (CLB). 2013. administration of community land; to establish and define the powers of Community Land Boards and management committees, to provide for the powers of county governments in relation to unregistered community land and for connected matters.
The Trust Land Commenced March 1939, now largely repealed and will be fully Act The Trust Land Act. Consolidated version of 2012 of Act repealed by the Community Land Bill. Provides for the management No. 28 of 1938, Chapter 288. (including expropriation) of ‘trust land’, now known as community land per the 2010 Constitution.
Commenced 31 December 2012. Long title: ‘AN ACT of Parliament to make provision for the prevention, protection and provision of assistance (the IDP Act), The Prevention, Protection and Assistance to Internally to internally displaced persons and affected communities and give effect 2012 Displaced Persons and Affected Communities Act. 2012. to the Great Lakes Protocol on the Protection and Assistance to Internally Displaced Persons, and the United Nations Guiding Principles on Internal Displacement and for connected purposes’
Article critiquing the post-2010 Constitution land reform process in Kenya Manji, A. 2014. The Politics of Land Reform in Kenya resulting in the enactment of the Land Act, Land Registration Act and Manji, 2012 2012. African studies review, 57(01), 115-130. National Land Commission Act. Argues that the constitutional and political gravity of this legislation was undermined by undue rush, a lack of genuine legislator engagement and a severe deficiency in citizen
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engagement/community consultation. As such the resulting laws are considered by the author to be a ‘deeply disappointing outcome of a decade’s struggle over land policy.’
Natural Justice. 2014. Public Hearing on Kenya’s Short blog post from legal NGO Natural Justice on public consultations Community Land Bill. 2 December 2014. Accessed 1 Natural Justice conducted in Nairobi on the Community Land Bill, briefly outlining February 2015. Available ay: http://natural- concerns of it and other NGOs on the contents of the Bill including Kenya justice.blogspot.co.uk/2014/12/public-hearing-on- Land Alliance, RECONCILE, Ujamaa Kenya, and ACT! Kenya. kenyas-community-land.html
Ayodo, H. 2014. ‘Eviction agony as two key land Bills Newspaper article describing the Community Land Bill and Evictions & delayed.’ The Standard 10 April. Accessed 17 December Resettlement Bill as ‘gathering dust on government shelves even as the Ayodo, 2014 2014. Available at: people they were supposed to help live in fear of possible illegal http://www.standardmedia.co.ke/lifestyle/article/2000 evictions,’ speculating on possible reasons for the delays and noting the 109033/eviction-agony-as-two-keys-land-bills-delayed possible LAPSSET implications.
Article 19. 2013. ‘Kenya: Law to protect internally displaced people enacted ahead of election’. 25 Blog post in which not-for-profit Article 19 welcomes the enactment of Article 19, February. Accessed 12 December 2014. Available at: Kenya’s IDP Act as a comprehensive law that includes vital provisions to 2013 http://www.article19.org/resources.php/resource/3625 secure the rights of IDPs. /en/kenya:-law-to-protect-internally-displaced-people- enacted-ahead-of-election
Brookings Brookings Institution. 2013. ‘“Kenya Must Avoid a New Press release issued one week before 2013 Kenyan elections, in which Institution, Internal Displacement Crisis” UN Expert Warns in Run Up Chaloka Beyani, UN Special Rapporteur on human rights of IDPs calls on
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2013 to Elections’. 26 February. Accessed 12 December 2014. the Kenyan Government and the international community to significantly Available at: scale up efforts to prevent internal displacement in preparation for the http://www.brookings.edu/about/projects/idp/sr-press- elections. Refers to IDP Act as a ‘significant milestone’ and calls for its releases/20130225-kenya implementation.
TheInternal Study focusing on northern Kenyan pastoralists, arguing that their internal Displacement Internal Displacement Monitoring Centre. 2014a. ‘On the displacement is a reality that has to be understood within a broader Monitoring margins: Kenya’s pastoralists’. March. Accessed 16 discourse about mobility and its multi-causality. Discusses processes and Centre, 2014a February 2015. Available at: http://www.internal- options for improving protection and assistance for those affected. displacement.org/publications/2014/on-the-margin- Pastoralists’ internal displacement is presented as a process of
kenyas-pastoralists impoverishment and decreasing resilience, which leads to the disenfranchisement of rights, marginalisation and neglect. Argues it is as much a human rights as a humanitarian and development concern that requires a holistic approach.
TheInternal Internal Displacement Monitoring Centre. 2014b. ‘Kenya: Short report on internal displacement in Kenya, covering various forms of Displacement Too early to turn the page on IDPs, more work is displacement (e.g. caused by conflict, natural disaster, development Monitoring needed.’ 3 June. Accessed 20 February 2015. Available projects), particular impacts on pastoralists, displacement patterns and Centre,2014b at: http://www.internal-displacement.org/sub-saharan- figures in Kenya. Notes Kenya’s recent steps to put in place a legal africa/kenya/2014/kenya-too-early-to-turn-the-page- framework to protect IDPs but more steps need to be taken to implement on-idps-more-work-is-needed- that framework.
KHRC position paper on the impact of LAPSSET developments in Lamu on Kenyan Human Rights Commission. 2014. ‘Forgotten in Kenyan Human the Aweer and fisher-folk, following a series of fact-finding missions the scramble for Lamu’. 18 June. Accessed 9 March Rights between March 2011 and April 2014. Raises concerns that the manner in 2014. Available at: http://www.khrc.or.ke/media- Commission, which LAPSSET is being administered will relegate host communities centre/news/230-forgotten-in-the-scramble-for- (2014) further into poverty and invisibility, and offers recommendations on how lamu.html to urgently mitigate against this outcome.
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(Part 5) LAPSSET Background and Lamu In-text Full reference Description reference Chai, K. 2014. “Swazuri and Ngilu Sign Agreement to Work Together.” Text. The Presidency, Republic of Kenya. Published on President’s website; this brief entry outlines the agreement Chai, 2014 November 10. Accessed 16 April 2015. Available at: reached between Swazuri and Ngilu. http://www.president.go.ke/swazuri-and-ngilu-sign- agreement-to-work-together/
This is the original feasibility study commissioned for the construction of Japan Port Japan Port Consultants. 2011. LAPSSET Corridor and Lamu Port. Referred to throughout discussion of the preparatory work for Consultants, New Lamu Port Feasibility Study and Master Plans Report. Lamu Port, it is indicative of the early-planning stages’ treatment of 2011 resettlement and compensation as secondary.
“This position paper therefore seeks to establish international legal and policy framework for best standards and practice in the implementation of the LAPSSET Project. It raises concerns on the Project being Kenya Human Kenya Human Rights Commission. 2014. Forgotten in the administered in a manner that will relegate host communities further into Rights Scramble for Lamu: A Position Paper Onthe LAPPSET [sic] the periphery of poverty and invisibility and offers recommendations on Commission, Project in the Case of the Aweer and the Fisherfolk. how to urgently mitigate against this adverse yet imminent outcome. This 2014 publication offers recommendations on how the various stakeholders may engage towards achieving the state of respect for human rights and environmental justice in implementing colossal development projects.” Pp.1-2.
Laher, R. 2011. “Lamu District at the Crossroads: A This article analyses the development of Lamu Port in the context of the Laher, 2011a Narrative of Chronic Trauma and Community Resistance.” district’s experience of being the subject of state power in the language Africa Insight. 40 (4): 81–92. of trauma. “The chronic trauma is characterised by grounded feelings of displacement, dispossession, and alienation. These feelings are conjured
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at present by the prospect of a port and its perceived disruption.”
LCDA. 2015. “LAPSSET Corridor Development Authority (LCDA).” Accessed 25 March 2015. Available at: This is the official website of the LAPSSET Corridor Development Authority LCDA, 2015 http://www.lapsset.go.ke and contains official announcements and background information for the project.
Machuhi, E. 2014. “Residents Seek Lapsset Suspension.” Business Daily, November 26. Accessed 25 March 2015. Machuhi, 2014 Available at: http://www.businessdailyafrica.com/Lamu- Article on Lamu residents that seek to suspend LAPSSET. residents-seek-Lapsset-suspension/- /539546/2536240/-/5f6nk4/-/index.html
Marete, G. 2015. “Inflated Land Prices Stall Flagship Projects.” Daily Nation, March 1. Accessed 16 April 2015. Available at: Marete, 2015 Article on rising land prices in Lamu and their implications for LAPSSET. http://www.nation.co.ke/news/Inflated-land-prices-stall- flagship-projects-/-/1056/2639788/-/wu99vnz/- /index.html
This article explains the unrest in northern Nigeria, including the rise of Boko Haram, in the context of how the regional states were treated by Meagher, Meagher, K. 2013. “The Jobs Crisis behind Nigeria’s the state both in terms of revenue allocation and the treatment of 2013 Unrest.” Current History 112 (754): 169-174. informal sector activities. The author then examines the dynamics of oil discovery, extraction and minimal benefit sharing contributed to the crises in the Niger Delta.
Muraya, J. 2015. “Kenya: CIC Wants Ngilu, Swazuri Out Article highlighting the tensions between Ngilu and Swazuri and the CIC’s Muraya,2015 Over Endless Row.” Capital FM (Nairobi), February 4. reaction in requesting that they both step down. Accessed 16 April 2015. Available at:
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http://allafrica.com/stories/201502050221.html?aa_so urce=nwsltr-land-en
Oruko, I. 2015. “Kenya: NLC Member Writes to Chair Swazuri to Quit.” The Star (Nairobi), January 28. Oruko, 2015 Accessed 16 April 2015. Available at: Article on request from an NLC member for Swazuri to step down. http://allafrica.com/stories/201501280456.html?aa_so urce=nwsltr-kenya-en
Praxides, C. 2015. “Lamu Rejects Sh150 Million Pay Praxides, Ceiling,” February 12. Accessed 16 April 20115. Article detailing the disbursements made to counties and Lamu’s 2015 Available at: http://www.the-star.co.ke/article/lamu- comparatively low allocation. rejects-sh150-million-pay-ceiling
Sanga, B. 2015. “Locals Collect Signatures to Send Lamu Governor IssaTimamy Packing.” Standard Digital News, 2 March. Accessed 16 April 2015. Available at: Sanga, 2015 Article detailing some locals’ dissatisfaction with Lamu governor http://www.standardmedia.co.ke/thecounties/article/20 IssaTimamy. 00153370/locals-collect-signatures-to-send-lamu- governor-issa-timamy-packing?pageNo=1
This document is a detailed response to the ESIA from the Ministry of Transport (above). Among the issues raised are: lack of genuine and Save Lamu. 2013. RE: Environmental Impact Assessment balanced pubic consultation in the writing of the report, weak description Save Lamu, Study Report for Construction of the First Three Berths of of socioeconomic impacts and lack of meaningful mitigation measures. 2013 the Proposed Lamu Port and Associated Infrastructure. The document opens up a number of avenues that are overlooked by the ESIA. For instance, the report points out that the mitigation discussion lists
possible (not concrete) measures and these are not included in the total cost of the project. This has implications for who is to bear the cost of these measures and their relative priority in the context of the project.
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The document also points out that the ESIA does not detail a resettlement action plan for affected communities, the amount of compensation or the land to be allocated to them.
The paper identifies the following problems concerning LAPSSET in Lamu: lack of environmental impact assessment; lack of consultation and participation of the local community; lack of access to information; Sena, K. 2012. Lamu Port-South Sudan-Ethiopia Transport potential social impacts including threats to traditional livelihoods; threat Corridor (LAPSSET) and Indigenous Peoples in Kenya. 24. to World Heritage site; lack of clear benefit-sharing mechanisms; and the International Working Group on Indigenous Affairs. interests of area political leaders. The paper also notes the following Sena, 2012 Accessed 24 March 2015. Available at: government responses to the problems: addressing land tenure as a http://www.iwgia.org/publicaciones/buscar- priority; environmental impact assessment; benefit sharing and poverty publicaciones?publication_id=599 reduction; constitutional rights awareness program; and establishment of various focus group committees. In conclusion, the paper makes eight recommendations specific to Lamu county that call for coordination, representation, civic education to protect the rights of Indigenous People along the LAPSSET corridor.
Weru, A. 2013. “Livelihood Concerns as Kenya Kicks off Regional Infrastructure Project.” IRIN news, October 9. Accessed 16 April 2015. Available at: Article covering broad concerns around livelihoods, sustainability and Weru, 2013 http://www.irinnews.org/report/98908/livelihood- land allocations in early stages of LAPSSET. concerns-as-kenya-kicks-off-regional-infrastructure- project
(Part 5) Turkana In-text Full reference Description reference Mkutu Agade, Mkutu Agade, K. 2014. ‘Ungoverned Space’ and the Oil Article considering recent oil discoveries by Tullow Oil in Turkana and
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2014 Find in Turkana, Kenya. The Round Table: the resultant conflicts over land rights, job opportunities and tenders, in the Commonwealth Journal of International Affairs, 103(5), context of significant existing security challenges in the County. Argues 497-515. that in this ‘ungoverned’ context there is high risk for protracted social conflict focused around oil, and for regional instability is high, such as has been seen elsewhere in the continent’s recent history.
Johannes, E. M., Zulu, L. C., & Kalipeni, E. 2014. Oil Article examining major drivers, impacts, and local perceptions of Johannes et discovery in Turkana County, Kenya: a source of conflict resource-based conflicts generally, and impacts of added vulnerabilities, al., 2014 or development? African Geographical Review, (ahead- risks, and opportunities introduced by the recent discovery and of-print), 1-23. development of oil in Turkana County.
Fong, C. 2015. Water, Land, and Oil: Drivers of major Fact sheet describing some of the changes happening in the Lower Omo upheaval in the Lower Omo Valley and Lake Turkana. Valley and the Turkana region in relation to natural resource International Rivers Fact sheet. Accessed 12 March 2015. management and developmental projects, and their implications for Fong, 2015 Available at: people and the environment. Frames developments within their broader http://www.internationalrivers.org/files/attached- context, and identified many of the major companies working in the files/lower_omo_factsheet.pdf region.
Ng’asike, L. 2013. ‘Turkana pastoralists oppose Tullow Newspaper article reporting Turkana pastoralists rejecting a proposal by Oil proposal’. The Standard, 29 July. Accessed 1 Tullow Oil to move to a new exploration site in Lokichar basin in Turkana Ng'asike, February 2015. Available at: South; local elders citing that the ‘that the ongoing oil exploration in the 2013 http://www.standardmedia.co.ke/business/article/2000 region has interfered with pasture land and that pasture for their animals 089602/pastoralists-oppose-tullow-oil-proposal will be decimated.’
Kenyan Jobs Blogspot ‘Tullow Oil Land Access and Website advertising Land Access and Resettlement Supervisor position Kenyan Jobs Resettlement Supervisor, Lokichar, Kerio, North Turkana, for Tullow Oil in Turkana, with description of responsibilities including Blogspot, Kisumu and Baringo Career Kenya Vacancy 16 April securing community consent for land access, stakeholder engagement and 2014 2014. Accessed 1 March 2015. Available at: community consultation, timely resolution of stakeholder and community http://kenyanjobs.blogspot.co.uk/2014/04/tullow-oil- grievances and valuation and payment of compensation.
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land-access-and-resettlement_5312.html Similar job listings can be found on many other websites.
Article reporting Tullow Oil’s suspension of operations in Turkana East Akumu, W. 2013. ‘Tullow Oil’s woes in Turkana expose and Turkana South sub-counties after hundreds of locals held protests the soft underbelly of EA.’ The East African. November 9. demanding jobs. Reports industry analysts saying the incident exemplifies Accessed 1 February 2015. Available at: Akumu, 2013 growing economic activism in East Africa, highlighting the need for clear http://www.theeastafrican.co.ke/business/Tullow-Oil- rules of engagement between investors and hosts, the likely risk to woes-in-Turkana-expose-the-soft-underbelly-of-EA/- existing investments, and the region’s reputation as a destination for /2560/2066904/-/4jyjr9z/-/index.html extractives investment.
Kavanagh, M. 2014. ‘Tullow struggles to please locals at its oil discoveries in Kenya’. Financial Times, 16 July. Article explaining Tullow Oil’s challenges in engaging effectively with Kavanagh, Accessed 1 February 2015. Available at: local residents in Turkana, particularly in relation to local unskilled job 2014 http://www.ft.com/cms/s/0/10cd976a-07ba-11e4- creation in a highly technical and mechanised industry. 8e62-00144feab7de.html#axzz3WnwqpVze
Hatcher, J. 2014. ‘The Oil Race is on in the Cradle of Humanity.’ Newsweek, 26 November. Accessed 16 In-depth feature article exploring the range of life-changing impacts for Hatcher, 2014 January 2015. Available at: locals of Turkana County from the recent discovery of oil. http://www.newsweek.com/2014/12/05/oil-race- cradle-humanity-287236.html
Reuters. 2013. ‘Kenya MP accused of inciting protests Article reporting accusations against federal Turkana MP James Lomenen Reuters, 2013 against oil firm Tullow’. Reuters UK Edition, 31 October. of inciting his community to protest against Tullow Oil, leading to Tullow’s Accessed 2 February 2015. Available at: suspension of operations. Reports conflicting allegations of violence and http://uk.reuters.com/article/2013/10/31/uk-kenya- property damage by protestors, and MP’s assertion that protests were tullow-idUKBRE99U11N20131031 peaceful.
Omondi, 2013 Omondi, G. 2013. ‘Tullow Oil strikes deal to resume Article reporting a deal brokered by government officials with Tullow Oil work in Turkana’. Business Daily Africa, 7 November. to enable it resume its suspended operations in Turkana, in which Tullow
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Accessed 1 February 2015. Available at: agreed to double its social investments to Sh340 million annually and http://www.businessdailyafrica.com/Tullow-Oil-strikes- offer training scholarships to enable locals take up high skilled jobs. deal--to-resume-work-in-Turkana--/- /539546/2064608/-/9l7egaz/-/index.html
Omondi, G. 2014. ‘Uhuru offers Turkana land owners oil pipeline shares in wayleaves deal.’ Business Daily Africa, Article reporting President Uhuru Kenyatta yesterday asking Turkana 23 June. Accessed 6 February 2015. Available at: Omondi, 2014 residents to consider converting their land into equity stakes in the http://www.businessdailyafrica.com/Uhuru-offers- LAPSSET pipeline. Turkana-land-owners-oil-pipeline-shares-in-deal/- /539552/2359210/-/o6qtrkz/-/index.html
Turkana Times. 2014. ‘Uhuru: Convert land to shares to Article reporting President Uhuru Kenyatta yesterday asking Turkana Turkana Times, benefit from oil pipeline’. Turkana Times, 8 July. Accessed residents to consider converting their land into equity stakes in the 2014 6 February 2015. Available at: LAPSSET pipeline. http://www.turkanatimes.co.ke/?p=411
(Part 5) Isiolo In-text Full reference Description reference The newspaper article highlights attempts from the Meru county to Abdi, A. & Kwama, K. 2014. ‘Disquiet as Meru, Isiolo deviate the passage of the LAPSSET transport corridor into its jurisdictions leaders squabble over Lapsset route’. Standard Digital, 2 based on a dispute over county borders. Boundaries and infrastructures Abdi & March. Accessed 2 April 2015. Available at: competition concerns especially Isiolo and Meru, the latter being Kwama, 2014 http://www.standardmedia.co.ke/business/article/2000 supported by the role of Francis Muthaura (native Meru) as LAPSSET 105831/disquiet-as-meru-isiolo-leaders-squabble-over- project authority chairman. The National Land Commission and the lapsset-route?pageNo=1 Independent Electoral and Boundary Commission were meant to settle the dispute by June 2014.
Boye & Boye, S. R. & Kaarhus, R. 2011. Competing Claims and Article investigating competing claims over land rights in Isiolo District and
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Khaarus, 2011 Contested Boundaries: Legitimising Land Rights in Isiolo explaining clashes occurred in the district in 2011. Through focus groups, District, Northern Kenya. Africa Spectrum, 46(2):99-124. the researchers find that the 5 main ethnic groups (Somali, Turkana, Borana, Sambaru and Meru) hold different claims on land (from ownership to its use). They argue that these claims, risen from the inability of the old constitution to appropriately regulate for the use of Trust Land, could potentially be addressed by the New constitution. In order to do so, local institutions must be strengthened as to provide a viable tool to address competing claims.
Not yet commenced. Long title: An Act of Parliament to give effect to Article 63 (5) of the Constitution; to provide for the recognition, protection, management and administration of community land; to Community The Community Land Bill (2013). establish and define the powers of Community Land Boards and Land Bill, 2013 management committees, to provide for the powers of county governments in relation to unregistered community land and for connected matters.
One of the most comprehensive analysis of the Kenyan history since Hornsby, C. 2012. Kenya: A History Since Independence. independence, covering nearly 50 years (1963-2011) in 1000 pages. Offers a great insight on a series of crucial issues in Kenya such as politics Hornsby, 2012 London: IB Tauris. (clientelism, corruption, transition to democracy), ethnicity, land, the debate between centralisation and decentralisation as well as the use of violence by the state recurring to a wide range of literature.
Government-issued development strategy plan to transform Kenya into a Government of Kenya. 2007. Kenya Vision 2030: A “newly –industrialising, middle income country” by 2030. The Vision relies Kenya Vision Globally Competitive and Prosperous Kenya. Accessed 16 on three pillars: economic, social and political. The completion of the 2030, 2007 December 2014. Available at: LAPSSET is instrumental for the achievement of the economic pillar – 10% https://www.opendata.go.ke/download/jih3- GDP growth per annum since 2012.
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amby/application/pdf
Kiarie, G. 2012. “Kenya: Isiolo Resort City Plans Trigger Article presenting insights on the LAPSSET developments, with particular Violence?. Ratio Magazine, 26 January 2012. Accessed 2 attention to Isiolo and to the Public Private Partnership (PPP). Author April 2015. Available at: argues that land grabbing and conflict are arising as in Lamu. The Kiarie, 2012 article touches significantly on the PPP model envisaged by the Kenyan http://www.ratio- Government to found the LAPSSET. RVI might wish to further investigate magazine.com/201201264054/Kenya/-Kenya-Isiolo- the actual role of PPP and its impact on population displacement and Resort-City-Plans-Trigger-Violence.html resettlement (especially in relation to Turkana).
Published on the Isiolo County website, the article provides with a good Salesa, H. 2015. “Communities in Northern Kenya urged overview of local perceptions on the benefits related to the construction to take up opportunities that comes with LAPSSET project of LAPSSET. It is remarkable that Isiolo Governor, Mr. Doyo, believes that Salesa, 2015 – Isiolo Governor”. Isiolo County Government. Accessed 3 the LAPSSET will further marginalise local communities, especially April 2015. Available at: pastoralist ones. Mr. Doyo calls for community collective action and http://www.isiolo.go.ke/?_p=news/isiolo_lapset_project. support from NGOs. These are good signals of “resistance” in Isiolo. The more.php RVI might wish to conduct more research on its potential.
TV news explaining the nature of the conflict in Isiolo in 2012. Conflict TV Kiss. 2012. Isiolo Report on Violence. Accessed 2 April outbreaks seem linked to the creation of a resort city in Isiolo, where TV Kiss, 2012 2015. Available at: politicians and business are increasingly grabbing land, thus excluding https://www.youtube.com/watch?v=lucYCJ7CmSA&featu local communities from grazing areas. The report specifies 5 hot spots: re=related Wamba, Merti, Laisamis, Isiolo Garbatulla and Tigania East. The RVI might wish to further research on the nature of conflict in these areas.
Versi & Versi, A. & Kubakuru, W. 2014. “Isiolo shakes off dust Newspaper article focussing on the economic inputs LAPSSET could bring Kabukuru, and cobwebs”. African Business, October 2014. to Isiolo. The main argument is that the inclusion of Isiolo has the potential Accessed: 3 April 2015. Available at: to lift up the economic situation of the city. This is already emerging in 2014. http://search.proquest.com/docview/1619365295?acco increased business investments and inflation in land prices. Authors warn
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untid=9630 on the foreign identity of investors and the rise of inequality.
Additional resources according to section Conceptualising Resettlement Full Reference Description Article reviews Cernea’s Impoverishment Risks and Reconstruction model and situates inadequate financing as a fundamental cause of Cernea, M. 1996. Understanding & Preventing resettlement failure. Part of the problem for limited financing are Impoverishment from Displacement – Reflections on the vested interests that resist formation of better policy enactments and Cernea, 1996 State of Knowledge. In: McDowell, C. (Ed.). Understanding fair resettlement implementation. Another consequence of these Impoverishment: The Consequences of Development- interests is that valuation processes are often shrouded in secrecy. Induced Displacement. Oxford: Berghahn Books, pp.13-32 This has led to limited channels for grievance redress and regular local resistance.
Downing, T. 1996. Mitigating Social Impoverishment when Various forms of social disarticulation are reviewed and the various People are Involuntarily Displaced. In: McDowell, C. (Ed.). consequential impacts are highlighted including meaninglessness, Downing, 1996 Understanding Impoverishment: The Consequences of disorder, ‘ethnocide’, destruction of support mechanisms and Development-Induced Displacement. Oxford: Berghahn authority systems needed to manage change. Article calls for all Books, pp. 33-48 resettlements to have ethnographic studies.
Downing, T. & Downing, C. 2009. Routine and Dissonant Distinguishes between hard (national) and soft law (IFI safeguards). Cultures: A Theory about the Psycho-socio-cultural The latter is more comprehensive but is not enforceable, the former is Disruptions of Involuntary Displacement and Ways to potentially enforceable but less comprehensive. Looks at psycho- Downing, 2009 Mitigate Them without Inflicting Even More Damage. In: socio-cultural implications of this narrow conceptualization of DFDR Oliver-Smith, A. (Ed.). Development & Dispossession: The impacts. DFDR narrow conceptualization is often caused by Crisis of Forced Displacement and Resettlement. New commonly believed fallacies (e.s.p. that compensation is enough and Mexico: School for Advanced Research Press, pp. 225- that DFDR is a single event). Looks at necessary IFI safeguards that
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254 should be incorporated into national laws.
Reflects on the increasing role of NGOs in helping to mitigate the worst impacts of DFDR. Points to their ability to increase PAP voice mechanisms and build organizational and awareness capacities so that effective resistance can be mounted. Thus a key challenge is Fisher, W. 2009. Local Displacement, Global Activism: building the capabilities of local NGOs and linking them to DFDR and Transnational Advocacy. In: Oliver-Smith, A. international groups so that Projects can be monitored and Fisher, 2009 (Ed.). Development & Dispossession: The Crisis of Forced pressurized when they cause harm, introducing new accountability Displacement and Resettlement. New Mexico: School for mechanisms. NGOs also help influence policies. Conceptualises Advanced Research Press, pp. 163-180 projects as political instruments to project modernity, and so NGOs are crucial to help overcome power imbalances. Shows when NGOs have been effective in influencing DFDR, including the World Commission on Dams’ role in instigating new IFI safeguards.
Reviews particular losses of indigenous peoples who are may not be compensated for lost land. Explains the profound cultural attachment to land. Postulates that resistance is at the heart of mitigating Gray, A. (1996). Indigenous Resistance to Involuntary negative DFDR impacts, but its success is dependent on a number of Relocation. In: McDowell, C (Ed.). Understanding factors including organizational capability, government Gray, 1996 Impoverishment: The Consequences of Development- responsiveness and international actors. Stresses biggest challenge is Induced Displacement. Oxford: Berghahn Books, pp. 99- the refusal for government bodies to take responsibility for DFDR 122 process and their lack of resources. Calls for greater PAP participation, transparency, and full and informed prior consent of PAPs.
Oliver-Smith, A. (1996). Fighting for a Place: The Policy Conceptualises DFDR as an expression of state power over the Oliver-Smith, Implications of Resistance to Development-Induced powerlessness of local populations in a utilitarian conflict. It views 1996 Resettlement. In: McDowell, C (Ed.). Understanding DFDR as a transformative process often used to reconfigure and Impoverishment: The Consequences of Development-
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Induced Displacement. Oxford: Berghahn Books, pp. 77- integrate local populations into wider society. 98
Kenya Resettlement Overview Full Reference Description The chapter provides a particular insight in the land issue in relation Nyangira, N. 1987. Ethnicity, class, and politics in Kenya. to politics and class formation in the ‘60s. Hence, Nyangira’s account In: Schatzber, M.G. 1987. ed. The Political Economy of settles well the rationale behind the White Highland Resettlement
Kenya. London: Praeger, pp. 15-31. Scheme and the further resettlement policies occurring in the late ‘60s. The chapter highlights also how ethnicity and land access have
been increasingly politicised since independence.
Chebyuk Case Study Full Reference Description This is a report consulting the World Agroforestry Centre on the type of land tenure and its exploitation on the Mt. Elgon. The final Soini, E. 2007. Land tenure and land management in the purpose of the review was the understanding of limitations in districts around Mount Elgon: An assessment presented to implementing forest resource management. The piece is very Mount Elgon Regional Ecosystem Conservation Programme focussed on environmental aspects of land tenure. Yet, it highlights (MERECP). ICRAF Working Paper no. 49. Nairobi, Kenya: some of the problems which emerge in the report such as World Agroforestry Centre. landlessness, and failure to convert customary land into freehold tenure.
Mushtaq, N. 2008. “POLITICS-KENYA: An Intractable The article deals with the 2008 counterinsurgency campaign led by Land Dispute Grinds On”. Inter Press Service,19 March. the Kenyan government against the SLDF militias on the Mt. Elgon. Accessed 10 February 2015. Available at: After a chronicle of governmental operations, Mushtaq attempts to http://www.ipsnews.net/2008/03/politics-kenya-an- explain the roots of the conflict which he believes to be in the
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intractable-land-dispute-grinds-on/ subsequent mismanagements of land allocation occurring in the Mount since independence.
Kwale Case Study Full Reference Description This article contextualizes the resettlement problems in Kenya with Allen, K. 2008. “Kenya Faces Resettlement Problem.” BBC particular attention to post-election violence. It ties problems with News, 24 April. Accessed 16 April 2015. Available land resettlement to underlying tensions in the Rift Valley. It also from: examines the potential impact of the then pending Truth, Justice and http://news.bbc.co.uk/1/hi/world/africa/7366037.stm Reconciliation Commission and new land policy.
Anon. 2006. “Titanium: Kenya.” Africa Research Bulletin: Economic, Financial and Technical Series. 43: 5. A brief of intended relocation and resistance of PAPs to Tiomin in
Kwale.
Base Titanium Ltd. 2012. Kwale Mineral Sands Project: Environmental and Social Impact Assessment Summary A summary of the Environmental and Social Impact Assessment
Report. commissioned by Base Titanium.
Coastal Rights Forum. 2015. “Background Information About CRF.” Coastal Rights Forum: Land and Natural Basic information on the establishment and mission of Coastal Rights Resources at the Kenyan Coast. Accessed 26 March 2015. Available from: http://coastrightsforum.org Forum.
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Kabiri, N. 2001. The Coast Mining Rights Forum: An Anti- Tiomin or Anti-Titanium Mining Coalition in Kenya? In: An analysis of the dynamics and agenda of the coalition that formed Southeastern Regional Seminar in Africana Studies in resistance to Tiomin’s mining activities in Kenya that asks whether (SERSAS), 31 October 2001, Greenville, North Carolina, the formation of resistance was partisan or united under a common USA. goal. The author far-sightedly questions how the absence of Tiomin will affect the coalition’s ability to remain salient and united.
This paper is an evaluation of land use potential of the selected resettlement site for people displaced by the titanium mine in Kwale. It concludes that the soil in the resettlement site is low in nutrients and requires fertilization; the study also recommends that “social Mzuki, H, et al. 2013. “Resettling Displaced People in a infrastructure” be availed to resettled and host communities. The Coastal Zone Mining Project: Evaluating the Agricultural study as financed by Tiomin and carried out by experts from the Land Use Potential of the Proposed Resettlement Site - A Department of Agricultural Sciences in Pwani University, the Case of Titanium Mining in Kenya.” Journal of Department of Environmental and Health Sciences from the Technical Environment and Earth Science 3 (4): 2013. University of Mombasa, as well as the Kenya Agricultural Research Institute. Although it takes some views expressed by PAPs into account, the study focus is on agriculture and land use from a mostly technical and scientific perspective rather than a social, political or economic perspective.
This is the official Strategic Plan for the National Land Commission. According to the Plan, the NLC’s mandate is to “manage public land on behalf of national and county governments” (8). The Plan is National Land Commission. 2014. Strategic Plan: 2013- intended to represent a road map for the NLC to achieve its 2018. Strategic Plan. medium-term goals by focusing on the following themes:
• Verifying and streamlining records; finalization on digitization of land records.
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• Identification of land for resettlement of squatters • Declaration of adjudication schemes • Hearing and settling of adjudication/settlement disputes • Compensation of land claims • Forming a land information data base • Vetting of staff in the land administration and land adjudication departments Ong’olo, D. O. 2001. International Investment and Environmental Issues: The Case of Kenya’s Kwale Mineral Sands Project. CUTS Investment for Development Project This brief report offers a superficial overview of the events
(IFD): Investment Regimes in Selected Developing surrounding the Kwale Mineral Sands project. Countries. Investment for Development.
BBC. 2000. “Fears over Kenya Mining Plan.” BBC News, Published in 2000, this article highlights the issues of resettlement 17 August. Accessed 16 April 2015. Available from: and environmental impact surrounding Kwale as they were coming to http://news.bbc.co.uk/1/hi/world/africa/884557.stm the fore of national and international attention. It reports the initial compensation figures offered to PAPS as well as Tiomin’s public statements regarding the criticisms lodged against them.
LAPSSET and Lamu Full Reference Description Government of Kenya. 2015. “Vision 2030.” Vision Background information on LAPSSET including objectives, profile, and 2030. Accessed 24 March 2015. Available from: overall project progress. Also contains basic information on some project components such as cost, funding status, implementing http://www.vision2030.go.ke/index.php/projects/detail s/macro_enablers/181 agency, and progress. Much of the information is incomplete and there is little consistency in amount of information available between project components.
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Laher, R. 2011. “Resisting Development in Kenya’s Lamu This policy brief covers the same ground as the “Lamu District at a District: A Postcolonial Reading.” Africa Institute of South Crossroads” article but also incudes local community concerns over Africa, Policy Brief, 48 (April). land adjudication and the status of community or ancestral land.
This report is the principal ESIA carried out for Lamu Port. It identifies Ministry of Transport. 2013. Environmental and Social the following issues related to land: displacement, conflict arising Impact Assessment Study Report for Construction of the from lack of title deeds, increase in land prices due to speculation, First Three Berths of the Proposed Lamu Port and and influx of outsiders leading to overpopulation. While the Associated Infrastructure. identification of these issues demonstrates a wide-ranging analysis, the measures proposed are by comparison weak and poorly articulated.
Isiolo Full Reference Description Africa Monitor. 2015. Economic Analysis – Isiolo: LAPSSET Short piece by the analyst group “BMI Research” on the LAPSSET Offers Significant Opportunities – MAR 2015. Accessed 2 impact on Isiolo. While optimistic for some economic improvements April 2015. Available at: http://www.africamonitor- deriving from the LAPSSET, the authors dismiss the idea that the city newsletter.com/economic-analysis-isiolo-lapsset-offers- will achieve the same development levels such Nairobi ones. – they significant-opportunities-mar-2015 don’t share authorities optimism.
The purpose of the article is to assess adaptation of the Borana Hogg, R. 1980. Pastoralism and Impoverishment: the case pastoralist community in Isiolo District. The piece is mainly an analysis of the Isiolo Boran of Northern Kenya. Disaster. 4(3):299- of threats posed to the Borana’s livelihoods and how the community 310. has developed coping mechanisms. The author argues that the Borana are increasingly seeking economic differentiation - such as trade and wage labour – in order to minimise the impacts of draughts and political instability on cattle herding.
Jiwaji, A. 2014. “China outflanks Western investors”. The newspaper article stresses the high involvement of Chinese African Business, 24 July. Accessed 3 April 2015. contractors in the construction of the LAPSSET. With Chinese
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Available at: companies already controlling the execution of the standard gauge http://africanbusinessmagazine.com/sector- railway, the berth port in Lamu and the Kenyatta airport, Jiwaji reports/infrastructure/china-outflanks-western-investors/ warns for the negative impact of an “all China affair” on technological transfer, local employment and market competition.
Kabukuru, W. 2014. “Rows cast gloom over $15bn East African railway project”. African Business, April 2014. The newspaper article highlights existing concerns on the standard- Accessed 25 March 2015. Available at: gauge railways. The highly expensive, single-sourced tendering has http://search.proquest.com/docview/1528524039?acco been assigned to a Chinese firm (Chinese Railway and Bridge untid=9630 Company). There are allegations that the some politicians have favoured the CRBC.
In this article, the author analyses policy implication of top-down resources management mechanisms in the specific case of the Borana pastoralist community in Isiolo. He argues that where customary Swift, J. 1991. Local Customary Institutions as the Basis institutions exist to regulate the management of natural resources for Natural Resource Management Among Boran (water, grazing lands…), these are more effective than government- Pastoralists in Northern Kenya. IDS Bulletin. 22(4):34-37. inducted policies. This is the case among the Borana. Hence, Swift argues that policy-makers should attempt to conjugate both customary and statutory approaches to enhance the use and management of natural resources.
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ANNEXURE 3 – ADDITIONAL CASE STUDY MATERIALS
LITERATURE LIMITATIONS
Chebyuk The literature on Chebyuk presents some limitations on data and structure of the settlement. With regard to Phase III, the number of PAPs cannot be clearly quantified as many sources refer to PAPs in terms of households rather than presenting the exact number of people concerned. Further limitations concern the organisation of the settlement such as services provision, structure of the villages, a clear definition of the bodies in charge for resettlement.
Kiambere Available literature relies heavily Mburugu’s World Bank-sponsored impact assessment. Despite attempts to contact Mburugu and the University of Nairobi, we have not been able to obtain a copy of the original impact assessment report.
Kwale The literature on titanium mining in Kwale relies on indirect information regarding Tiomin and Base Titanium’s resettlement plans; we have not been able to obtain full-text copies of the RAPs and have relied on excerpts and secondary analyses. In addition, while the Kayumba document has been a useful source of information on the documents mentioned above, some caution should be exercised towards the author’s findings as the document is a dissertation and has not been peer-reviewed.
THE HISTORY & POLITICS OF LAND, RESETTLEMENT & COMPENSATION IN KENYA
KWALE TITANIUM MINE: KEY ACTORS AND TIMELINE OF EVENTS: Key Actors The key actors in the Kwale Titanium Mine resettlement can be grouped into the following broad categories: the private sector, the Kenyan government; local farmers and villagers; and local and national civil society. Private Sector Tiomin Resources, Inc: International mining company, based in Canada; became Vaaldiam Mining, Inc in 2010 Tiomin Kenya, Ltd: Locally registered company, wholly owned by Tiomin Resources Fairlane: Consultants hired by Tiomin to study and propose compensation Coastal Environmental: South African firm commissioned by Tiomin to carry out original EIA study Services Base Iron, Ltd: Purchased Tiomin’s mining rights and is currently carrying out mining in Kwale Base Titanium, Ltd: Locally registered, wholly owned by Base Iron, Ltd Kenyan Government District Resettlement and national committee formed by government to manage compensation Compensation Committee process set prices for the various rates that would be acceptable to the (DRCC): farmers; chaired by Maffat Kangi, District Commissioner of Kwale District National Environmental Kenya government agency in charge of issuing licenses Management Authority (NEMA): Kenyan High Court: To handle grievances reaching litigation Local farmers Nguluku-Maumba Joint Farmers Executive Committee Frank Mutua: Led group of 203 farmers, most of whome did not have title deeds, in taking Tiomin to court
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Civil Society Coastal Mining Forum: Coalition of organizations created with aim to oppose titanium mining in Kwale on environmental and human rights grounds, eventually becomes Coastal Rights Forum CoastWatch: Nairobi-based NGO with links to coast; took Tiomin to court ActionAid Kenya: Involved in commissioning parallel EIA, helped farmers in litigation with 50% of costs Mining Watch Canada: Civil society organization in Canada where Tiomin is based Timeline of events: 1996 Tiomin begins prospecting and discovers deposits of titanium in 1997 1998 Tiomin begins to negotiate land ownership with farmers 1999 Farmers unhappy with proposed compensation and talk to media, NGOs; Tiomin offers to increase initial offer 2000 NGO Coalition commissions Kenyatta University to carry out parallel EIA which exposes major gaps in the Tiomin EIA (such as undisclosed negative environmental impacts) 2000 CoastWatch court case 2000 Project put on hold by government 2001 Coastal Rights Forum takes legal action against Tiomin, asks High Court to restrain Tiomin licensing until compensation is sorted out; case is unsuccessful 2001 Farmers win permanent injunction in court action against Tiomin 2002 Farmers accept out of court settlement with Tiomin (response to division within farmers and delaying tactics by Tiomin), injunction lifted 2004 Farmers challenge proposed compensation in court (sued Ministry of Agriculture or Compensation and Resettlement Committee?) 2005 NEMA approves ESIA and grants TIOMIN EIA License 2007 Tiomin-Kenya begins operations and seizes land 2007 Bulldozers destroy houses and farmers are evicted off lands
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2008 Farmers’ last case, mining project suspended for long time 2010 Tiomin Kenya changes name to Vaaldiam Resources; mining rights briefly owned by Chinese mining company Jinchuan Group before being sold to Base Iron Ltd, which currently operates mine in Kwale
2011 Base Resources launches operations; carries out Post-Resettlement Monitoring and Audit Report
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KEY LESSONS FROM CASE STUDIES
1. Project funding: DFDR outcomes were suboptimal irrespective of who funded the project; either the Government of Kenya acting by itself (Chebyuk) or working with the World Bank (Kiambere) or the government facilitating a private international company (Kwale).
2. Participation: All three case studies failed to include PAPs in planning or implementation of DFDR leading to suboptimal safeguards
3. Compensation: In all case studies compensation initially proposed by agents, whether cash or in-kind, was inadequate to satisfy the needs of people that would be affected by the project and did not consider loss of natural resources. The variety of compensation demonstrates that compensation is often ad hoc and open to influence.
4. PAP identification: For all cases, the initial core problem was the failure to identify who would be impacted and how they would be impacted. Baseline studies and social impact assessments were not carried out or were inadequate. Independently monitoring would have been beneficial.
5. Scoping: In all case studies, scoping of resettlement sites did not occur, meaning existing host communities and the amount of land available was not considered. Loss of livelihoods (Kiambere) or conflict (Chebyuk) was the result.
6. Grievance channels: In all cases, official channels to raise grievances were absent or inadequate. Thus negative impacts of resettlement were permitted to take place and persist.
7. PAP resistance: In cases where authorities or administrators initiated measures to attempt to redress grievances, it was the result of pressure from collective action; petitions in Chebyuk and coalitions with NGOs in Kwale. It appears NGOs have an increasingly important role in helping safeguard PAPs during DFDR.
8. Legislative vacuum: Even when administrators responded to PAP pressures, redress actions failed to address many negative DFDR impacts given that legislation was inadequate in ensuring that all PAPs were recognised (Kwale) or that compensation would allow restoration of livelihoods and security of tenure (Chebyuk). Thus a rigorous legislative framework is important.
9. The wider political context: The wider political context can influence Government’s handling of DFDR. In Chebyuk post-independence and nationalist aspirations resulted in expanding eligibility for compensation. In Kiambere, the Structural Adjustment Programe (SAP) era that witnessed a reversal in
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project lending by IFIs, may have led the Kenyan government to overlook DFDR impacts in their desire to attain funding. In Kwale, the post-SAP and increasingly globalized era saw the emergence of NGO activism and a complementary move towards following due process (appeals through the courts), at least on paper.
OTHER PROMINENT ISSUES
Prominent causes of Poor DFDR outcomes in case studies
Theme Explanation
The number of PAPs either increased due to influx and political Haphazard or narrow developments (Chebyuk), or many PAPs were omitted due to eligibility criteria legislation disqualifying non-title holders (Kwale)
Official monitoring of post resettlement was limited in all case Lack of long-term studies. When monitoring did occur, it was in response to public monitoring pressure
Problems of influx of Influx affected DFDR outcomes in Chebyuk (resulting in conflict and migrants smaller land allocations)
Natural resource use of PAPs or host communities was often not Loss of natural resources considered leading to livelihood breakdown or conflict
Either title deeds not given for new resettlement sites leading to influx (Chebyuk) or an absence of title deeds for occupied land Land tenure insecurity meant ineligibility for compensation (Kwale). Purchasing of new land using loans led to indebtedness (Chebyuk)
National & local Arbitrary land allocations led to limited land availability to PAPs corruption (Chebyuk)
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ANNEXURE 4 – COMMUNITY LAND BILL LEGAL ANALYSIS
The Community Land Bill (the CLB) is intended to protect community land rights, and provide the legal framework for the use, registration, transfer and management of community land. Under the CLB, all community land in Kenya is ‘owned by the communities’, ‘community’ meaning a homogenous and consciously distinct group of users of community land who share ancestry, similar culture or unique mode of livelihood, ethnic language, socio-economic interest, geographical space or ecological space. ‘Community land’ is defined as ‘all land used as community settlement area, farming area, grazing area, rangelands, fish landing sites, common resource area including watering points, salt licks, wildlife habitats, wildlife corridors, livestock passage routes and cattle dips,’ as well as land traditionally or historically used for communal purposes, or land converted by law into community land. The CLB sets out the process for the demarcation and registration of parcels of community land, and the management of those parcels by Community Land Committees which are selected by the community and required to be representative of the diversity of that community. The CLB establishes Community Land Boards which are to oversee management of community land by the committees, in conjunction with county governments. Community land which is not registered is held by the county government in trust for the community until it is demarcated and registered. ASPECTS OF THE CLB PARTICULARLY RELEVANT TO LAPSSET The CLB touches on key issues that have arisen or are likely to arise in relation to LAPSSET, namely the compulsory acquisition of community land or rights in community land, the rights of pastoralist communities and of fisher folk. Generally, these issues do not appear to be addressed adequately so as to mitigate the harms caused by resettlement as identified in the case studies. COMPULSORY ACQUISITION OF COMMUNITY LAND, OR RIGHTS ON CUSTOMARY LAND There are two sections in the CLB which relate to the compulsory acquisition of community land or rights over community land. Rights over community land could include for examples customary rights of occupation of community land, or a right of way, granted to individuals. Section 7(2) relates to the acquisition of particular rights over community land, and section 34(e) relates to acquisition of community land. These sections have concerning elements in common, as well as disparities which could be strategically exploited by governments wishing to acquire community land for projects such as LAPSSET.
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A section to similar effect in the Trust Land Act 1970 (which will be repealed by the Community Law CLB) has been historically used by government as a tool for dispossession of communities inhabiting trust land (what were ‘native reserves’ pre-independence). Wide discretionary powers of acquisition were widely abused by government, resulting in communities being displaced from land ostensibly for public interest, but in fact for the benefit of elite interests (Musembi and Kameri-Mbote 2013).
As such these acquisition provisions in the CLB warrant close examination
Section 7(2) provides as follows:
No right on community land may be expropriated or confiscated save by law in the public interest and consideration of payment in full, of just compensation to the person or persons. Section 34(e) of the CLB provides as follows: (2) Where community land is compulsorily acquired, it shall only be in the interest of defence, public safety, public order, public morality, public health or land use planning and subject to prompt payment in full of just compensation to the community.
COMPENSATION REQUIREMENTS The requirement that ‘consideration of payment in full, of just compensation to the person or persons’ or ‘prompt payment in full of just compensation to the community’ (emphasis added) be made raises significant concerns. The nature of ‘just compensation’ is not further specified, leaving it open to a prima facie interpretation that cash compensation would be sufficient under these provisions of the CLB. The use of the word ‘payment’ lends weight to the interpretation that financial compensation would satisfy this provision. As seen from the case studies, cash alone is a wholly inadequate compensation for displaced communities to re-establish their lives elsewhere. There is also no obligation imposed on the government to provide any relocation assistance, help in identifying replacement land or other services to communities whose land is compulsorily acquired.
Both provisions fail to stipulate who is obliged to provide this compensation. Given the multitude of levels of government and different government agencies involved in land management in Kenya, as well as the involvement of corporate entities and donors in development projects, this could result in confusion, buck- passing and delay in provision of compensation to affected communities.
GROUNDS FOR COMPULSORY ACQUISITION A particular shortcoming of section 34(e) is that the ‘land use planning’ ground for acquisition (under which acquisition for a public transport and infrastructure project such as LAPSSET would be likely to fall) is unclear and does not include a public interest component. ‘Land use planning’ is not a defined term, it is vague and does not elaborate the types of land use for which community land can be acquired. More importantly, it does not requires that the ‘land use planning’ be in the public or national interest, as would typically be required to empower a government to acquire land to use for a public development project.
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Although section 7(2) does include a public interest component for the acquisition of particular rights over community land, it would be open to the government to choose to acquire a parcel or parcels of community land instead under section 34(e) which does not require that the acquisition for land use planning be in the public interest. Further, the government may also opt to acquire land under section 34(e) because it would only need to compensate ‘the community’ as a whole, rather than dealing with individual right holders which would be more time-consuming and complex.
INDIVIDUAL OR COMMUNITY COMPENSATION The language of this section 34(e) also requires that compensation be paid to ‘the community’, leaving it uncertain as to whether the compensation is due to individual community members, households, or the Community Land Committee (if there is one at the time of acquisition). If it is the latter, the lack of any further elaboration on how the Committee should distribute compensation within the community is concerning.
It is difficult to understand how individual compensation under section 7(2) would operate under the CLB. Section 43(1) stipulates that although a Community Land Committee may allocate part of the community land to a member or a group of members of the community for exclusive use and occupation, no separate title can be issued for such a parcel. The lack of individual title has been a significant problem in the past as identified in the case studies, and the indivisibility of community title in this way could cause issues where only part of a community land parcel is acquired. In the absence of individual titles it could be difficult to accurately identify and compensate the members of the community whose rights of exclusive use and/or occupation are being acquired.
In summary, these two short sections about compulsory acquisition of community land raise a number of concerns relating to the nature of compensation (cash alone?), who is required to pay the compensation, the permissible grounds for compulsory acquisition and who is entitled to receive compensation and how they might be identified. These shortcomings are troubling in the light of ongoing land acquisitions as a result of LAPSSET.
RIGHTS OF PASTORALISTS Community land is defined as including grazing areas and livestock passage routes (amongst other things), and a pastoral community would appear fit within the definition of ‘community’ under the CLB. However the community land management framework, requiring demarcation and registration of specified parcels of land and the establishment of a Community Land Management committee comprised of members who ‘live in the land’ does not appear to be in harmony with the traditional nomadic lifestyle of many pastoralist communities. This form of ‘territorial fixity’ impedes mobility, a crucial aspect of sustainable livestock production in arid and semi-arid areas, as was observed in relation to group ranching schemes (Kituyi 1990; Rutten 1992; Galaty 1999 in Musembi and Kameri-Mbote 2013).
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There are various provisions relating indirectly to pastoralists, including section 34 which provides that unless the contrary is expressed in the register, all registered community land shall be subject to rights of way and rights of water subsisting at the time of registration. Section 45(1) enables a Community Land Committee to designate a special purpose area, including for access and rights of way, on their community land. Both of these provisions allow for community land to be subject to the rights of way and access to water for pastoralists groups, however these rights are at the discretion of the community which does not provide any certainty for pastoralists.
Section 44 of the CLB specifically relates to the rights of pastoralists. Section 44(1) provides that:
Customs and practices related to land used by pastoral communities shall be taken into consideration as long as they comply with the provisions of this Act or other applicable law.
Given the customs of practices of pastoralists are subjugated to the provisions of the CLB or any other land law, this section offers a fairly empty form of protection.
RIGHTS OF FISHER FOLK Community land in the CLB is defined as including ‘fish landing sites’, however it is apparent from the combination of provisions below that the CLB provides no protection in relation to fishing waters. The third schedule of the CLB purports to convert all public land in the Mombasa, Kwale, Kilifi, Tana River, Lamu and Taita Taveta counties into community land, except:
j) public lands that fall within mangroves, and wetlands or fall within the buffer zones of such reserves or within environmentally sensitive areas;
(k) public lands along watersheds, river and stream catchments, public water reservoirs, lakes, beaches except fish landing areas;
Further, ‘fisheries’ are defined as within ‘natural resources’ and are thereby excluded from the definition of community land. The result of this combination of provisions means that traditional fishing waters are not entitled to the same rights and protections as community land, cannot be managed by Community Land Committees, nor compensated if they are compulsorily acquired.
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ANNEXURE 5 – RECOMMENDATIONS FOR FURTHER RESEARCH
This section lists evidence gaps for current and potential resettlement impacts of LAPSSET that could be targeted for future research by the RVI
RECOMMENDATION FOR RESEARCH IN SPECIFIC LOCATIONS: • Management plans: RAPs compiled for Lamu and Isiolo LAPSSET related DFDR including the parties responsible for its implementation, the mechanism for community participation grievances redress are important gaps in the literature. (Lamu Port and Isiolo)
• Tullow Oil DFDR: On the ground research into the nature and extent of resettlement by or on behalf of Tullow would be valuable as it could foreshadow some of the likely LAPSSET DFDR issues in Turkana. (Turkana)
• Equity share: Investigate how the equity shares proposal will be designed and implemented. It could be an innovative proposal deserving serious thought, but could have negative consequences if it replaces immediate compensation to facilitate displacement. Comparative assessments of similar schemes in other countries (see Cernea, 2009), would also be warranted. (Turkana)
• Unregistered community land management: The RVI might wish to investigate the current process and measures being developed at county level for the management of unregistered community land, the capacity of county level governments, and the extent to which Article 63(2)(d)(iii) is actually being complied within Isiolo and elsewhere. (Isiolo)
• Inter government conflict monitoring: In the context of devolution, it would be useful to investigate how tensions between and within different levels of government over competition for economic benefits play out. For instance, tensions between counties have emerged over the economic benefits stemming from infrastructural development, intensified the new constitutional power of counties to raise territorial revenues. (Lamu Port, Isiolo)
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RECOMMENDATIONS FOR THEMATIC RESEARCH
• Legal implementation issues: The RVI may wish to conduct further research into implementation issues connected with post 2012 land reform in Kenya, particularly the IDP Act, and identify the barriers to giving effect to what has the potential to be a very progressive and comprehensive land reform programme that could benefit LAPSSET-affected communities.
• PAP participation and resistance: Investigate how community and NGO capacity can be built to allow them to effectively participate in DFDR planning and implementation. This may include knowledge sharing on their rights, what to expect from the valuations process and how to engage with local officials and companies. It may also include investigating how they can build organisational capabilities to monitor DFDR, link with other organisations or media, and better attain access to and successfully use the justice system.
• Compensation improvement: Investigate under what circumstances in-kind compensation is considered, what are its parameters, and what can be done to attain more instances of appropriate in-kind compensation.
• Trends in grievance response: Identifying under what circumstances governments are more responsive to PAP grievances and when they are likely to address these issue. For example trends in types of protests, level of marginalization of PAPs, roles and organizational capabilities of NGOs, time in election cycle, ethnicity of PAPs vis a vis the ruling party could be looked at.
• Corruption: Identify the nature and sources of corrupt land sales that can fuel influx of migrants, increase community conflicts and reduce available land. This may include how erroneous land sales could be mitigated through independent or community monitoring, transparency of information, utilising the new corruption bureau set up under the Constitution (2010) or other measures.
• Conflict: Explore ways to identify potential conflict before it happens by mapping natural resource use (including land carrying capacity), local demography, and historical tensions.
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