THE KENYA LEGAL & GENERAL PLATFORM: LAW OF CONVEYANCING/PROPRIETARY RIGHTS AND TRANSAC...

THE KENYA LEGAL & GENERAL PLATFORM: LAW OF CONVEYANCING/PROPRIETARY RIGHTS AND TRANSAC...: FLB 310 MUSOL Lecture 1:  2015 ACRONYMS RLA - REGISTERED LAND ACT LRA - LAND REGISTRATION ACT RTA - REGISTERED TITLES ACT GL...

EXCERPT ON THE LEGAL REGIME OF THE EXTRACTIVE INDUSTRY IN KENYA

Legal Regime of the Extractive Industry in Kenya

Kenya has several laws which regulate the extractive industry in the country, paramount among them being:
a) the Constitution of Kenya2010;
b) the Petroleum (Exploration and Production) Act;
c) the Income Tax Act;
d) the Mining Act;
e) the Environmental Management and Coordination Act;
f) the Public Finance Management Act; and
g) the Land Act.
In addition to the above mentioned legislations, there are also ongoing legislative processes to reform laws for the sector with proposed laws including:
a) the Petroleum Exploration and Production Bill 2014
b) the Mining Bill 2014;
c) the Energy Bill 2014; and
d) the Sovereign Wealth Fund Bill 2014.
These are the main instruments that regulate the sector, although there are other laws that directly affect it.

1.1 The Constitution of Kenya 2010

The Constitution of Kenya is now just about 5 years in operation since its promulgation. The period since August of 2010 has been a transitional period in which the country has been undertaking several systematic, structural and legal transformations to be in line with the provisions of the Constitution.
The Constitution has far reaching provisions on land rights, utilisation, management and conservation. Some of these provisions include:

 Article 60 requires that land be held, used and managed in a manner that is equitable, efficient, productive and sustainable, and in accordance with a set of principles including:

o security of land rights;
o sustainable and productive management of land resources;
o sound conservation and protection of ecologically sensitive areas; and
o the elimination of gender discrimination in law, customs and practices related to land and property in land.

 Article 62 (1(f) includes all minerals and mineral oils to the definition of public land.
 Article 69 (1) (a) of the Constitution bestows on the State the responsibility to ensure sustainable exploitation, utilization, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits.
 The State is required to utilize the environment and natural resources for the benefit of the people of Kenya.
 The Constitution further requires equitable sharing of revenues raised nationally among national and county governments, as well as equitable sharing of the burdens and benefits of the use of resources between present and future generations.
 Article 42 further provides that all people have the right to benefit equally from the use of natural resources as well as an equal entitlement to a clean and healthy environment.
 Transactions entailing the grant of a right or concession by or on behalf of any person, including the national government, to another person for the exploitation of any natural resource of Kenya are subject to ratification by Parliament under Article 71 of the Constitution.
 The Constitution also entrenches a devolved system of governance under Article 174 by outlining its salient principles to include, providing for
participatory decision making, and also providing for the equitable sharing of both national and local resources.
 The national government, with regard to the extractives sector, is allocated roles including international trade, national economic policy and planning, energy policy, transportation including pipelines, as well as protection of the environment and natural resources with a view to establishing a durable and sustainable system of development. These roles are buttressed by Article 69 of the Constitution on the responsibility of the state with regard to environment and natural resources.
 The county governments, on the other hand, deal with county planning and development which includes electricity and gas reticulation and energy regulation.

1.2 The Mining Act Chapter 306 Laws of Kenya

This is the operative law in relation to mining and therefore sand harvesting in Kenya. It provides for among other things:
 Any authorization for the exploitation of minerals is granted through the Commissioner of Mines and Geology or an officer duly authorized by him.
 Prospecting licenses are issued for one year and may be renewed at the discretion of the Commissioner for a further period of one year each up to a maximum of five years each.
 Prospecting rights confer a number of privileges to the holder to:

o prospect for all minerals except diamonds;
o erect any buildings or machinery;
o make excavations, sink shafts or wells, drive adicts or levels or dig trenches;
o take for the purposes of prospecting, take water from any lake, river or stream;
o create a protection area and apply for an exclusive prospecting license among other privileges.

 Any minerals obtained during prospecting are the property of the government and may not be disposed.
 The exploitation of minerals requires the issuance of a mining lease.

o An applicant for a mining lease must carry out a feasibility study and an approved cadastral survey of the deposits of the mineral in question.
o The applicant must then prepare an Environmental Impact Assessment (EIA) study in accordance with the requirements of the Environmental Management and Coordination Act (EMCA) No. 8 of 1999.
o This study has to be approved by the National Environmental Management Authority (NEMA). The EIA report is submitted to public for commentary before final approval.

 An applicant then submits a formal application for a mining lease which must include all information established in the first two steps above as well as any compensation agreements payable to landowners. This must be published in the Kenya Gazette and a local newspaper inviting any objections.
 The process then moves to registration of the mining lease under the Mining Act and the Registration of Documents Act. The applicable stamp duty must be paid at this point.
 The Constitution then requires Parliament to ratify any right or concession for the exploitation of natural resources.
 The Act does not make provision for local content requirements or obligations for consultation with local communities before the commencement of exploration and mining operations.
 There is no express requirement that mining companies engage in public consultation with regard to exploration rights, mineral rights and environmental impacts.
 Acquisition of land under the Act is done through compulsory acquisition by the government, payment of compensation is required.

1.2.1 Areas for Reform

a) The lack of appropriate mechanisms for community engagement before commencement of exploration and mining activities;
b) Inadequate provisions relating to compensation mechanisms, community engagement and participation in EIAs;
c) The lack of a single fiscal regime to regulate the sector. Taxes are usually paid in the form of corporate income tax as well as royalties payable depending on the mineral in question;

1.3 Environmental Management and Coordination Act

The law establishes the National Environment Council to be responsible for policy formulation. It also establishes a National Environmental Management Authority (NEMA) to exercise general supervision and coordination over all matters relating to the environment. It is buttressed by the Environmental (Impact Assessment and Audit) Regulations of 2003.
It further establishes the Standards Enforcement and Review Committee whose principal function is to set standards for water quality, air quality, and classification of waste for purposes of proper handling, pesticide residues in raw agricultural commodities, noise emissions, noxious smells, and ionizing radiation.
The law lays down the procedure for conducting Environmental Impact Assessments (EIA) and states that all new projects that are likely to affect the environment in any way must undertake an EIA after which the EIA report should be submitted to NEMA for review and approval.
The second Schedule of the Act lists the nature of projects that require an EIA. These include:

o mining;
o mineral processing;
o reduction of ores and minerals;
o smelting and refining of ores and minerals; as well as
o the exploitation of the production of petroleum in any form.
A number of regulations are gazetted by NEMA as authorized under EMCA. These include:
o Environmental (Impact Assessment and Audit) Regulations, 2003, Legal Notice No. 101.
o The Environmental (Prevention of Pollution in the Coastal Zone and Other Segments of the Environment) Regulation, 2003.
o The Environmental Management and Coordination (Wetlands, River Banks, Lake Shores and Sea Shore Management) Regulations, 2009 Legal Notice No. 19.
o The Environmental (Impact Assessment and Audit) (Amendment) Regulations, 2009.

1.3.1 Areas for Reform

Some of the fundamental weaknesses in this Act have been identified as to include:

a) the lack of rules on the decommissioning of sites;
b) the fact that environmental licenses are not a precondition for the obtaining of a mining license. This situation has seen the abandonment of sites without proper sealing and the carrying out of mining activities without conservation or rehabilitation/reclamation.
c) the requirement that the proponent of a project hire an EIA expert limits the operational independence of such an audit given the pecuniary relationship
between a proponent and the person tasked with conducting the audit. It also limits the public participation element in the carrying out of ESIAs.

2 References

 www.kenyalaw.org
 (Institute of Economic Affairs, 2014)

Public Participation

#TORTUREOFINNOCENCE

WHEN PROTECTOR BECOMES TORMENTOR  

CASE PROFILE

Victim/Complainant: xxx xxx (Minor) c/o Civic Enlightenment Network

DoB/Age: 12 years

Sex: Female

Residence: Makueni County/ Kibwezi East Constituency/ Ivingoni-Nzambani Ward/ Nzambani Location/ Kwa Mbotela Village

School: Standard Five pupil at Nguluni Primary School

Complaint: Victim tortured by KWS Officers on 11th October 2014 at Chyullu Game Reserve.

Action taken:

• Medical attention at Makindu Sub-County Hospital
• Report made to the Mtito Andei Police Station on and recorded as OB. No.13
• Report made to the Independent Medico-legal Unit (IMLU)
• Letter by the Makueni County Senator addressed to the Director of Kenya Wildlife Services dated 17th October, 2014
• Media Reports on the incident by local stations including Mbaitu F.M. and Mwatu F.M.

BACKGROUND OF THE CASE

xxx xxx who is a 12 year old minor gives a shocking account of how on the 11th October 2014 three armed Kenya Wildlife Service officers apprehended her and went on to abuse and physically torture her.

She was collecting fire wood at Chyullu Reserve within Nzambani Location when the three KWS officers accosted and started interrogating her over some suspected logger who they were pursuing. She was obviously the wrong person to be interrogating as she had no knowledge of whatever the officers required of her.

In her moment of bewilderment and shock, she endured a period of horrifying acts of abuse and physical torture in the hands of security officers in the form of the KWS officers. She remembers one of the officers thrusting her between his legs and hitting

her with his gun. The officers went on to physically torture her by beating her up and causing grievous bodily harm to her hands and legs by throwing her into a burning charcoal kiln. These unwarranted acts were deliberate and caused the little xxx xxx both physical and psychological torture in the hands of security officers meant to protect her and ensure the respect for the rule of law.

The extent of injuries as per the medical report from Makindu Hospital includes:

1. Head and neck - first degree burns;
2. Thorax and abdomen – multiple bruises;
3. Upper limbs Left hand – second degree burns (palm, wrist, joint and all fingers;
• Right hand – Second degree burns (palm, wrist, joint and all fingers);
4. Lower limbs right leg – two degree burns involving the knee and injuries;

The alleged actions by the said officers from the KWS are not only illegal but are an affront to Constitutional safeguards under the Bill of Rights. Article 25 (a) of the Constitution 2010 specifically provides for, “freedom from torture and cruel, inhuman or degrading treatment or punishment…”The Constitution goes further to provide for the rights of every child (Article 53) including the right of every child, “…to be protected from abuse, neglect, harmful cultural practises, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour.”

Sadly though, even in view of the above occurrences and illegalities including breach of Constitutional safeguards, no decisive action has yet been taken as against the alleged perpetrators. The pace of the investigations and prosecution of the matter creates an impression of a cover-up strategy by the concerned authorities. This is supported by the lack of interest from the relevant authorities in prosecuting the matter.

It is view of the above circumstances that Civic Enlightenment Network (C-Net) seeks to pursue the matter with the assistance and partnership of other human rights organizations to see justice for little xxx xxx. This is important in view of the parties involved including security officers and the vulnerability of the victim who is a minor coming from a very humble background.

PICTORIAL NARRATIVE

PICTURE 1: XXX XXX IN HOSPITAL AFTER TREATMENT

PICTURE 2: GRIEVOUS INJURIES TO THE HANDS

PICTURE 2: GRIEVOUS INJURIES TO THE LEGS

PICTURE 4: JUDAH KIOKO WITH LITTLE XXX XXX AT MAKINDU HOSPITAL

IMPROVING ACCESS TO JUSTICE FOR THE POOR IN KENYA

Background

Access to justice is a concept that is not only limited to the existence, availability and accessibility of redress mechanisms but also encompasses a wide range of factors that contribute to people’s self realization with regard to their social, economic and cultural aspirations. These other factors include but are not limited to, the awareness of people of their rights and obligations under law; and, their capacity to demand for and use justice mechanisms available to them. Justice was described as ‘truth in action’ by one Benjamin Disraeli[1], once the British Prime Minister. In this context, ‘truth’ can only be the law or what is legally acceptable in a democratic society governed by the rule of law. It therefore follows that access to justice must be regarded as a concept where people have what is legally entitled to them whether in solving disputes or in their daily interactions.

Access to justice for the poor is an emotive issue that requires one to identify what is legally entitled to the economically challenged members of society and thereafter their capacity to gain access to such entitlements. The discussion contained herein highlights, the legal safeguards on access to justice available; state of access to justice for the poor; and, suggestions on improving access to justice for the poor.

Legal Safeguards on Access to Justice

Access to justice as a tenet for democratic societies and the rule of law has received international recognition as espoused in some international instruments. For example, the Universal Declaration of Human Rights[2] and the African Charter on Human and People’s Rights[3] provide for the right to legal representation as a minimum core right under the due process of Law. More importantly, the Constitution of Kenya (2010) brings to fore a wider scope of responsibility not only to individuals but also the government and non-governmental institutions with regard to access to justice. The biggest exposition of this endeavor can be drawn from the Bill of Rights[4] which not only provides specifically for the right of access to justice[5] but generally makes provision for the protection of these rights and aspirations by Kenyans.[6] Access to justice being a basic principle to the rule of law is also provided for as a principle of governance.[7]

Additionally, the Constitution provides that judicial authority is derived from the people and exercised by the judiciary on their behalf.[8] This illustrates that all people are essentially equal before the law and should thus benefit from equal protection by the law. Independence of the judiciary as protected under the Constitution (2010) is also vital for the impartial execution of its mandate. The Constitution in particular provides that:

“In the exercise of judicial authority, the Judiciary, as constituted by Article 161, shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority.”[9]

The concept of devolution as espoused under the Constitution (2010) also promotes access to justice in its most practical form. This is achieved through making government services available and also making provision for public participation on matters of governance. All these efforts are aimed at empowering the people to access their fair share of government resources and services. [10]

State of Access to Justice for the Poor

Access to justice for the poor in Kenya has been elusive since the colonial period. The poor and marginalized in society have had no recourse to justice due a myriad of reasons. One of the reasons for the deficiency in accessing justice for the poor is the lack of accessibility of judicial systems. Due to the imbalance in infrastructure development in the country, many marginalized areas have not benefited from government institutions and services. Successive governments have over the years neglected developing judicial systems in marginalized areas and especially those inhabited by economically challenged individuals. This problem is further propounded by the lack of facilitation of the Judiciary by the Government to undertake its mandate. For example, as at March of 2012, Kenya’s population of 40 million was served by 300 magistrates, 60 high court judges, 15 courts of appeal judges and 7 Supreme Court judges[11].

Many of the economically challenged individuals are also not educated and therefore cannot comprehend the laws of the land effectively. Lack of education also leads to exploitation of individuals on various fronts one of which is accessing justice. They are not able to comprehend the judicial processes and as a result cannot benefit from the same.

The justice system is also regarded to be relatively expensive especially when it comes to litigation. Majority of Kenyans find it difficult to afford the services of advocates and avoid going to court altogether. The Kenya justice systems continues to consistently suffer from very lengthy delays in criminal and civil trials, limited entitlements to bail or a limited ability to meet bail conditions. In contrast, others who have access to family and financial support can readily meet bail conditions or, in some cases, bribe their way to freedom, both which reinforces the already deep divide between rich and poor. The poor are not able to sustain their defenses or claims in court as resources run out in the process.

Provision of legal Aid and awareness programmes has largely been left solely to non-governmental organizations. Most of these NGOs are based in the urban areas and do not even have the capacity to expand their programmes as they are funded by international donors. Their services thus become inaccessible to the target audience of their services.

It is also evident that Traditional Justice Systems[12] within communities have either broken down or they are no longer sustainable. These justice systems included clan of elders who would be instrumental in solving family disputes and clan issues. Now all these issues are handled by the courts making it difficult for them to function effectively. Traditional Justice Systems must thus be restored and facilitated as envisaged by the Constitution (2010). This will provide an avenue for ADR where people can solve disputes expeditiously and effectively within the comfort of their localities.

Reforms

The Judiciary reforms that are still ongoing herald a breath of life to the efforts aimed at improving access to justice for the poor. The Judicial Transformation Framework 2012-2016 is cognizant of the fact that the Constitution of Kenya, 2010 mandates a reconstruction of Kenyan society according to the ideals and values expressed in Articles 4 and 10, and in a host of other provisions. The judiciary is thus tasked to undertake its reforms with much more zeal as it is the bedrock for access to justice for the poor and marginalized.

The mechanisms traditionally used to advance the concept of Access to Justice have a tendency to be time consuming and expensive for the planners and participants alike. It therefore follows that the use of innovative technologies should be considered as a viable option for legal aid providers especially in disseminating legal awareness information in a relatively cheap and easily accessible manner as opposed to the traditionally accepted seminars and workshops. In addition it is important for state actors to enhance the capacity of the police force as they play a very important role in provision of justice to the people. It is important to have an educated police workforce that is well versed with human rights provisions and appreciates the intricate nature of their work in disseminating justice.

It is light of the above that the Judiciary should come up with a judicare system that is available in all criminal and civil court locations. In doing this, much emphasis must be given to making the people aware of their rights and obligations under the law and as such appreciate the very function of justice systems.

The Legal aid Bill 2012 is another important phase in advancing the efforts aimed at improving access to justice for the poor. The Bill in particular provides for the participation of law students in the provision of legal aid. This is a great milestone as it gives impetus to the efforts that academic institutions have shown in the provision of legal aid and awareness services to the community and subsequently operates to strengthen co-operation between the stakeholders in provision of legal aid. The Bill also provides processes and structures aimed at improving access to legal services to indigent members of the society especially through among other things: providing for a verification process to access the need basis for an application and the status of such person to require the services; creating a pool for funds and resources and the necessary safeguards to management of such funds; and establishing structures to effectively manage provision of legal aid in Kenya.

In addition it is paramount that the provision of pro-bono services by the advocates should be made more endearing by having a beneficial account on their professional profiles. Provision of access to justice for the poor is not an end in itself but a destination that needs all state actors on board and as such should benefit from concerted efforts from all in the justice and administrative systems.

---

[1]  Benjamin Disraeli was a British Prime Minister (21 December 1804 – 19 April 1881), parliamentarian, Conservative statesman and literary figure. Made the declaration on justice in a state speech he made in 1851.

[2] Article 7.

[3] Article 7.1.

[4] Chapter 4 under the Constitution of Kenya (2010).

[5] Article 48 under the Bill of Rights in the Constitution.

[6] Article 20 of the Constitution (2010) on Application of Bill of Rights.

[7] Article 10 (2) (a) and sixth preambular paragraph to the Constitution. 

[8] Article 159 of the Constitution (2010) on Judicial Authority.

[9] Article 160 (1) on Independence of the Judiciary.

[10] Chapter eleven on Devolved government and in particular Articles 174 and 175 of the Constitution (2010) on Objects and Principles of Devolved Government.

[11] This was witnessed by the Truth Justice and Reconciliation Commission during their Thematic Hearings on Access to Justice.

[12] One of these systems includes the Njuri Ncheke from the Meru community.

C-NET #simplifiedversion

UNBLURRING THE LINES OF C-NET

Background

Civic Enlightenment Network (C-Net) was founded by zealous university students at Kenyatta University School of Law (KUSOL) under a tree at the famous “frustration roundabout” on a cold day in July of 2012. This initiative by the young legal minds was brought about by their longing to participate in the growing political mood within the country especially in view on the new devolved system of government introduced by the Constitution of Kenya 2010. This new system of governance was at the time novel yet interesting period for any legal mind interested in Constitutional as well as political developments brought about by the new legal regime. It offered a ripe ground on which the young men and women at KUSOL could explore their understanding of Constitutional developments and what it meant for the legal fraternity and all citizens to have the well-known form of governance structure take a different and robust transformation.

This Constitutional and legal transformation however brought with it a myriad of challenges in its conceptualization and implementation. The new Constitution was now a document beholden to its people as the generation that had participated in its conceptualization, enactment and now seeing its implementation. One of the main challenges associated with having a relatively new legal regime was that only the legal minds would be looked-up to for enlightenment as to what the law was, is and ought to be for the lay person. Another fascinating challenge was in the fact that Kenya was at the time headed for elections with three additional elective positions of: the Governor; Senator and Women Representative: on top of the historically three elective positions of: the President, the Member of Parliament and the Councilor now Member of County Assembly. 

These unique challenges offered a great opportunity for the young legal minds at KUSOL to put their expertise to work in providing the much needed civic enlightenment to the eager public. This the students did with much zeal and dedication to their own amazement on how the public appreciated their priceless lectures on the evolving legal and political regimes brought about by the Constitution of Kenya which had been promulgated on the 28^th August 2010.

Civic Enlightenment Network was formally registered as a Non-Governmental Organisation in July 2013, exactly one year after its establishment. C-Net continues to offer the much needed Civic Enlightenment to members of the public through various initiatives and activities undertaken by its membership. The need for civic enlightenment continues to be of paramount importance in Kenya as a result of the legislative and governance processes introduced by the Constitution of Kenya 2010. The implementation process of the Constitution is just in its prime stages with the coming into power of the first crop of leadership under the new system of devolved government. The Constitution in being a self-implementing document, lays down the processes and procedures for its implementation with a schedule on the necessary laws to be put in place and other necessary institutions in achieving the aspirations of all Kenyans. All this processes are underpinned by citizen participation and involvement  for which C-Net exists to have realized.

The operational jurisdiction of C-Net reflects the diversity of its membership and therefore reaches out to quite an extensive coverage of the Country with specific focus on the following counties, including:

·         Eastern part of the Country with specific focus on Machakos and Makueni Counties;

·         The Mt. Kenya region with specific focus in Nyeri and Kiambu Counties;

·         Nairobi County;

·         The Coastal region with specific focus in Taita-Taveta County

·         Nyanza and Western regions covering Kisumu, Kisii and Bungoma Counties; and

·         The North Eastern region with an interest in Garissa County.

C-Net undertakes its activities and initiatives in the areas of operation specifically targeting the urban poor and rural people who suffer from diminished access to information and lack civic enlightenment with regards to political, economic and social developments in the country. This creates a problem as such people are therefore left out of the development agenda of the country and remain marginalized. This sad state of affairs is what the new Constitutional dispensation was meant to address and in doing so, the members and partners of C-Net have set out to play their part in advancing the Constitutional ideals of transparency, inclusion and equality in governance and development matters.

Vision

Vision– A world where every person fully exercises their right to access information and work towards their full potential.

Mission – Helping the Poor and Historically Marginalized Communities Discover and Play their Rightful Role in Society by Promoting Good Governance through Access to Justice, Public Awareness and Public Participation.

Values

Core Values: Integrity, Transparency, Fidelity to the Law, Partnership, Creativity, Efficiency, Communication.