Kenya policy tracker

This policy and legislation tracker provides summaries, status, and concerns for critical policies of concern to dryland areas of Kenya, and recommended action. For comments, questions or updates on these legislation contact DLCI at info@dlci-hoa.org.

 Legislation Content Status Concern/Recommendation Documents
LAND

Land Value (Amendment) Act, 2019. The Land Value (Amendment) Act provides key provisions on the assessment of the value of land acquired compulsorily and the forms of compensation given. The Act also establishes a land acquisition Tribunal to hear and determine issues arising from the land acquisition process. Land Value (Amendment) Act no.15, 2019

 

Date of Assent: 2nd of August 2019

 

Date of Commencement:

19th of August 2019

  • Section 3(c) of the Act fails to provide the format in which information should be provided in the notice of intention to acquire land.
  • Section 107A: raises several concerns: Community land, like freehold land being valued based on the provisions of section 107A and the Land Value Index
  • The National Land Commission has not been included in the development of the Land Value Index
  • Under Section 107A (6) the degree of urgency, the inconvenience caused to affected persons and the damage likely to be caused to the land after the gazettement of the notice of intention to acquire land shall not be considered when valuing land
  • Requirement to be in actual occupation of land for an uninterrupted period of six (6) years does not take into consideration pastoralists way of life.
  • Provision for different forms of compensation without imposing an obligation on the Commission to sensitize the affected individuals
  • The provision allowing NLC to take possession of acquired land after an award is made, but before the payment of compensation
  • Recommended Action: to test the constitutionality of the provisions of this Act in a court of law or to appeal to parliament to make further amendments to the Act.
Land Value Index Laws (Amendment) Bill, August 2019.
Land (Amendment) Bill, August 2019 The Land (Amendment) Bill is an Act of Parliament to amend the Land Act no. 6 of 2012, the bill seeks to provide for the registration of Public land and stopping Public land grabbing by the private sector Passed and signed into law by the President, July 2019
  • The Bill seeks to amend the Land Act so as to provide for the registration of public land and land set aside for public purposes.
  • The Bill does not concern County Governments in terms of Article 110(1)(a) of the Constitution as it does not affect the functions and powers of County Governments recognized in the Fourth Schedule to the Constitution
Land (Amendment) Bill, August 2019
Community Land Act, 2016 Community Land Act was created to give effect to Article 63(5) of the Constitution. It provides for the recognition, protection, and registration of community land rights, the management, and administration of community land, and the role of county government in relation to unregistered community land. High Court Petition no. 32 of 2017 filed by

Kelly Malenya to have section 2 of the Community Land Act 2016 unconstitutional because of the word ‘include’ in definition was granted by Judge EC Mwita on 7th June 2019.

  • Firstly, roll out strategy needs to promote the collective protection of community land and reciprocal resource agreement, not just registration. So ADR and roll-out strategy need to be developed.
  • There needs to be increased synergy between CSOs which would also help increase awareness of the CLA among the communities in Dryland areas.
  • There are a number of clauses within the act that need to be addressed, particularly in clause 6 (1-4) where it states that the County Government should hold compensation on behalf of communities until the land is registered. However, there is a general mistrust by both the communities themselves and even the National Land Commission.

 

Community Land Act, 2016
Community Land Regulations, 2017 The Regulations of the Cabinet Secretary for Land and Physical Planning implement provisions of the Community Land Act, 2016 with respect to, among other things, recognition, protection and registration of community land rights, community land management committees, registration of communities, conversion of community land, settlement of disputes relating to community land, conversion of group representatives, a national programme for public education and awareness on provisions. Draft reviewed by the committee for delegated legislation and Passed in April 2018, Articles 23 and 24 have been annulled. Amendment gazetted on 31st August 2018, this date is the official effective date of the Community Land Act commencement.
  • Perceived to have been done secretly and confusion over the commencement date means that County Governments were not informed and several counties submitted inventories of unregistered community lands in April 2019. The official due date for the inventories is the 23rd of February 2020.
  • National Newspapers are the proposed public notice platforms used, this form of awareness takes away obligations from duty bearers to ensure all interested parties such as community members living in rural communities to be adequately informed.
  • From the 11th of September 2019, national public awareness has been rolled out, Community Land Registrars appointed for 24 Counties and Community land registrations unit established and will be gazetted.

 

Community Land Regulations,2017
Physical Planning Bill, 2017 The Act provides the principles, procedures, and standards for the preparation and implementation of physical development plans at the national, regional, county, urban, rural and cities level and provision of the procedures and standards for development control and the regulation of physical planning and land use. Passed
  • Physical planning is too technocratic and preference is for National Land Use Bill.
Physical Planning Bill 2017
Land Use Planning Policy A policy that guides Kenya towards an environmentally and socially responsible use of land and land-based resources for the socio-economic transformation of the people of Kenya. Its mission is to promote the best land-use practices for optimal utilization of the land resources in a sustainable manner. Finalized and gazetted as a legal document and published
  • Land use planning policy is done in consultation with communities and considers ASAL issues (see DLCI land use planning brief).
Land Use Planning Policy

     Legislation Content status Concern/ Recommendation Documents
    PEACE AND SECURITY LEGISLATION

    The Kenya Parliamentary Session Paper No. 5 2014 on National Policy for Peace Building
    and Conflict Management
    This policy is designed to bring Kenya back to stability and create sustainable solutions to conflict. It seeks to enhance the prevention, mitigation, and management of conflict. Session Paper No. 5 (2014) was passed by the Parliament on 27th August 2015. •It is vital that this policy is passed urgently and becomes an Act of Parliament
    •Resources need to be allocated in order to have an effective implementation that controls peace and conflict and does not affect development.
    National Policy on Small Arms and Light Weapons (SALW) The aim of the policy is to control and manage the proliferation of small arms and light weapons across Kenya and to reduce the demand for illicit SALW Finalized and passed by the cabinet. However, it has not been presented to Parliament. Parts of the policy have been adopted administratively and implemented as such. • ASAL areas have vast areas that can not be policed, regional instability and long porous borders which have contributed to SALW proliferation in Kenya.
    • The National policy needs to be urgently passed as current legislation has only 2000KSh fine for possession of an illegal firearm
    Section 41 of the National Police Service Act (2011) establishes the County Policing Authority (CPA) The County Policing Authority (CPA) is a body that incorporates members of the County Government, security bodies and the citizens in security management at the county level. Passed by Parliament and gazetted in January 2015 • Under the CPA 47, Counties should establish their own CPA, but establishing the CPA in each of the 47 Counties has been a challenge.
    • This lack of implementation stems from the fact that security is a national government function and hence there is opposition for counties to take part in its management.
    • The increased instability in ASAL Counties, there is an urgency to implement this Act and allow counties to establish their own CPA.
    Section 14 of the National Police Service Act (2011) establishes the county policing Authority (CPA)
    The National Police Reserve (NPR) Policy The core function of the National Police Reserve policy is to provide protection for life and property, intelligence gathering, maintenance of law and order in ASAL areas and to participate in police operations. Finalized and passed by the Cabinet. • The National Police Reserve (NPR) Policy has not been presented to Parliament.
    • Sections of the policy have been adopted administratively and implemented as such.
    Firearms Act, 2012 The Act regulating, licensing and controlling the manufacture, importation, exportation, transportation, sale, repair, storage, possession, and use of firearms, ammunition, air guns and destructive devices and for connected purposes. Finalized and passed. • There was an amendment of the firearms Act in 2014 but the amendments were annulled by the high court as it was found to be non-constitutional. Firearms Act, 2012
    National Cohesion and integration(amendment) bill 2019 The principal object of this bill is to amend the national cohesion and integration act of 2008 to amend the procedure for appointing the commissioner under the act.
    This follows a judgment by the high court to the effect that section 17 of the act is unconstitutional
    Waiting for presidential assent •It is vital for the bill to be assented to by the president so that the commission is fully operational in the appointment of the commissioners. This has affected the work of the commission National Cohesion and Integration (amendment) bill 2019

      Legislation Content Status Concerns/Recommendation Documents
      MARGINALISED GROUP, GENDER AND EDUCATION BILLS

      Representation of Special Interest Groups Bill, 2019 The Bill gives effect to Article 100 of the Constitution, to promote the representation of women, persons with disabilities, youth, ethnic and other minorities, and marginalized communities and for connected purposes. Went through the National assembly 4th of July 2019 •The bill will ensure that Article 27 is achieved
      •If enacted into law the bill will require for Parliament to meet the two-third gender rule and candidates from political parties that do not meet the gender rule will not be accepted.
      •Also, to ensure that women, youth and persons with disability also are represented, the bill proposes that 20% of the political parties’ cash be distributed according to the number of special interest groups elected
      Representation of Special Interest Groups Bill, 2019
      Second Policy and Criteria for sharing Revenue Among (CRA) Marginalised Areas The aim of the policy is to identify marginalized areas and determine the criteria for sharing revenue from the Equalisation Fund among the marginalized areas.
      It addressing extreme forms of marginalization arising from barriers in relation to access to public services such as water, education, road, electricity and health facilities. It focuses on 34 counties as new beneficiaries of the fund.
      CRA has developed the second marginalization Policy (2018-2022) •Concern that Equalization Fund is small, the fund is aimed at targeting 1421 sub-locations in 100 constituencies.
      •County Government and PPG members are not in agreement on the new policy focus.
      Second policy and criteria for sharing revenue among(CRA) margianlized Areas
      Preservation of Human Dignity and Enforcement of Economic and Social Rights Bill, 2018 The aim of the bill is to establish a framework for the preservation of human dignity, for the promotion, monitoring and enforcement of economic and social rights, to establish mechanisms to monitor and promote adherence by county governments to Article 43 of the Constitution. Introduced in the Senate and undergoing Second Reading in November 2018 •The national and county government have to formulate policies and legislation that will promote realization of socio-economic rights, and ensure availability, accessibility, adaptability and acceptability of services that would facilitate realization of socio-economic rights.
      •The main body mandated with responsibility for the enforcement of the Act is the Kenya National Commission on Human Rights.
      •It would be interesting to see how the two bodies of government work and how the Kenya National Commission on Human Rights mandates this bill when it becomes an Act of Parliament.
      Preservation of Human Dignity and Enforcement of Economic and Social Rights Bill,2018
      Persons with Disability Bill, 2015 The Bill seeks to repeal and replace the Persons with Disability Act 2003. The review is essential in order to take into account the provisions of the Constitution of Kenya 2010 and the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). The Bill is being drafted
      • Needs to be relevant for ASAL areas
      • Provided for the recognition of the role of the counties with regards to PLWD
      • Expansion of affirmative action measures.
      • The right to legal capacity, punitive measures for crimes against PLWD.
      • People with albinism to be recognized as PLWD.
      • Incentives to manufacturers to provide for devices used by PLWD.
      Persons with Disability Bill, 2015
      The Kenya Uwezo Fund Bill, 2019. The Bill aims to provide for the establishment of the empowerment fund for youth, women and persons with disabilities, to consolidate the Uwezo Fund, the Women Enterprise Fund and the Youth Enterprise Development Fund into one Fund. The Bill was introduced by the National Assembly on the 17th of June, 2019. • Plans are in place to set up one fund, instead of the Women Enterprise Development Fund, The Uwezo Fund and the Youth Enterprise Development Fund, the national government wants to create a single fund named Biashara Kenya Fund. The Kenya Uwezo Fund Bill,2019
      Prohibition of Female Genital Mutilation (FGM) Act, 2011 The Act aims to prohibit the practice of female genital mutilation, to safeguard against violation of a person’s mental or physical integrity through the practice of female genital mutilation. Assented into law, 30th of September 2011.
      • Push to have more active people in the Anti-FGM technical working committee
      • The Anti-FGM technical working committee has not been formulated.
      Prohibition of Female Genital Mutilation (FGM) Act, 2011
      Sexual Offences Act 2006, Children’s Act 2012 also gender Bills awaiting enactment by Parliament, the Domestic Violence Bill These legislations are key developments geared at gender equality and protection Passed

      Domestic Violence Bill still awaiting enactment

      • The 2010 Constitution of Kenya places significant emphasis on human rights, equality and justice, and has established independent commissions to oversee the protection of particular rights and freedoms. Such as the National Gender and Equality Commission (NGEC)
      • Still, only a few legislations have been enacted which is aimed at addressing issues that affect women and girls.
      • This is due to long legislation processes and a lack of commitment to ensure that legislation that gives women equal opportunities in society is given parliamentary priority.
      The National Council for Nomadic Education in Kenya (NACONEK) Bill NACONEK is a semi-autonomous government agency established under section 94(1) of the Basic Education Act, 2013 A Draft Bill was developed by NACONEK in 2018 and a member of PPG members agreed to sponsor the Bill •NACONEK to finalize the Bill and hand it over to the Sponsoring Member of Parliament, MP Wajir East. Hon. Rashid Kassim.
      •There is a lot of concerns about the new policy of lowering entry grades for Diploma courses and PI teachers Training. Teacher management by TSC in dryland areas. TSC removed all union teachers from NEP siting insecurity and all public schools in three Counties of NEP remained closed for one term due to lack of teachers
      Basic Education Act Amendment, 2017 The object of this Bill is to amend the Basic Education Act, No. 14 of 2013 to provide for the establishment of Public-Private Partnership schools, as a category of schools in Kenya apart from the public and private schools. Passed by the National Assembly 30th of May 2017 •The Bills aims to improve the quality of education service delivery in Kenya since Public-Private Partnership sponsored schools to bring together the reach of the Government system with the innovation of the private sector so as to improve the quality of the education system as a whole.
      •The concern is that NACONEK has not got the resources or power to make an impact on education in ASAL areas
      •no funding for distance education
      •the limited reach of adult literacy
      The Public Finance Management (National Drought Emergency Fund) Regulations, 2018 The National Drought Emergency Fund was developed for the purpose of improving the effectiveness and efficiency of drought risk management systems in Kenya as well as to provide a common basket of emergency funds for drought risk management. Drought Emergency Fund was established through the Senate bill that was sponsored by a member of PPG and passed. •National Drought Emergency Fund reflects a shift in Government policy whereby the focus is on drought risk management.
      •Creating a fund for drought shows that the Government has taken the action early to protect the lives and livelihoods of its population and avoid the high cost of emergency response.
      •Regulation for operation and management of the Fund has been developed.
      •There are issues of mandate overlap of institutions that are required to oversee the fund, the Attorney General has provided a legal opinion on the way forward.
      The Public finance Management Regulation, 2018
      National Disaster Management Authority Bill, 2019 The objective of the Bill is to establish a centralized system of responding to and managing disasters in the country. Kenya has experienced many disasters over the years and the response to disasters has been uncoordinated, resulting in some victims having more aid than others due to the uncoordinated approach of responding to disasters. Introduced to the National Assembly on the 29th of March 2019.
      • The solution to managing a disaster in Kenya is through the establishment of the National Disaster Management Authority which is the main body dealing with disaster management in the country.
      National Disaster Management Authority Bill, 2019
      LAPSSET
      Lamu Port-South Sudan-Ethiopia Transport Corridor Projects
      LAPSSET is a transport and infrastructure project in Kenya, when completed it will be Kenya’s second transport corridor. The construction of any of LAPSSET’s main components is yet to begin. There is an assumption that land is unoccupied and therefore not eligible for compensation.

      •Although a recent announcement stating that compensation will be given for registered community land.
      •However, conflict in some areas e.g. Meru have already begun, needs much more community consultation and awareness-raising.
      •Activities by CSOs not coordinated.
      •Look at the inter-generational benefits, how can future generations benefit and transit fees for communities that own the land.

      Isiolo Mega Dam (Crocodile Jaw Dam) The Crocodile Jaw Dam will be built on Ewaso Ng’iro River at Oldonyiro in Isiolo County. the dam was intended to regulate the flow of the Ewaso Ng’iro river to provide a continuous water supply to Isiolo resort city as the counties downstream. It is one of the projects under the LAPSSET projects. Plans to redo
      • Lack of public consultation led to protests at ESIA
      • Ewaso Ng’iro River is the lifeline for pastoralist and there is a concern from the communities and civil society that the dam will be depleted, affecting residents downstream which will impact their livestock.
      • Water in the region is already scarce and many other counties and livestock depend on the river if the water supply is reduced it may lead to more conflict in the region.

      More public participation is needed.

      Mui Basin coal plant project in Kitui County The Mui basin has coal deposits with an estimated value of Sh3.4 trillion, this discovery aims to make Kenya an industrial center. The coal mining project in Kitui County is currently stalled after residents have petitioned against the project to the National Assembly Energy Committee •The project will have major implications in ASALs as many of the 40 mines that are linked are there e.g. Garissa and Tana River.
      •Resident in the area have petitioned against the project stating that it will have irrevocable effects on their health and the environment
      •They also argue that there was no public participation or civic education on what to expect from the project.
      •The government entered a mining contract with the Chinese mining company, Fenxi Industry before conducting an Environmental Impact Assessment.
      The National Integrated Identity Management System (NIIMS) also known as Huduma Namba was established through changes made in the Registration of Persons Act, 2014 via a Miscellaneous Amendments Bill NIIMS is intended to create and operate a national population register as a single source of information about citizens. Came into force on the 18th of January, 2019
      • The government will collect data such as biometric data, GPS location, DNA, land registration numbers. The system also merges several registers including the National Transport Safety Authority register that captures individual’s vehicles and driving history, civil registry (births and deaths), registration of person register that has ID details, and immigration register that has passport details.
      • The government stated that no one will access government services without a Huduma Namba. This is a violation of fundamental rights under the bill of rights, risking communities from ASAL areas to face further discrimination.
      • No clarity in the law of who is in charge of the data, what data can be accessed and by whom, and whether citizens give their consent if the data is shared.
      • Lack of data protection will leave people at risk of data breaches.

      This is unconstitutional and needs to be amended, more pressure needs to be placed on parliament.

        Legislation Content Status Concerns/ Recommendation Documents
        LIVESTOCK

          Legislation Content Status Concerns/Recommendation Documents
          NATURAL RESOURCE BILLS

          Natural Resources (Classes of Transactions subject to Ratification) Act, 2016 Passed and assented to in September 2016. The limits have been set too high - -
          Mining Act, 2016 Passed and assented to (13 of the proposed Mining Regulations were gazetted in 2017). The Royalty Regulations still pending. Gvt should not be borrowing against future revenues. - -
          National Sovereign Wealth Fund Bill, 2014 Being drafted Should not allow borrowing against revenues, and should ensure communities receive adequate benefit - -
          Natural Resources (Benefit Sharing) Bill, 2014 Passed by the two assemblies but the President returned.
          Bill passed with amendments and referred to the National Assembly (in June 2015).
          Concerns around % share for communities and counties, suggestions that community land management committees may administer it once established - -
          Wildlife Conservation and Management (Amendment) Bill 2017 First sponsored by the national assembly committee on Environment and Natural resources in 2016;

          Currently, Bill being moved by Ministry of Tourism and Wildlife, following recess by parliament for elections; Ministry has proposed Miscellaneous amendments, pending other amendments through the Wildlife (Amendment) Bill;

          A Statute Law (Miscellaneous Amendment Bill) No. 12 of 2018

          Removal of communities from the KWS board and the proposed governing body of the Wildlife conservation trust fund thus de-linking them from national wildlife governance;

          The re-structure of County Wildlife Conservation and Compensation Fund from 47 to 8 is likely to affect devolution of wildlife governance;

          Communities through conservancies to have representation in KWS board and the governing body of the proposed Wildlife Conservation Trust Fund;

          Other recommendations is clarity of terms related to community conservation;

          Finalization and gazetting of regulations to enable implementation of the Wildlife Act

          -
          Education A Draft Bill was developed by NACONEK and a member of PPG agreed to sponsor the Bill There is a lot of concerns about the new policy of lowering entry grades for Diploma Course and PI teachers Training. Teacher management by TSC in Dryland areas. TSC removed all union teachers from NEP siting insecurity and all public schools in three Counties of NEP remained closed for one term due to lack of teachers. NACONEK to finalize the Bill and hand it over to the Sponsoring Member of Parliament, MP Wajir East. Hon. Rashid Kassim. -
          Basic Education Act Amendment, 2015 Passed, but NACONEK has not got the resources or power to make impact on nomadic education, still no funding for distance education, limited reach of adult literacy - PPG to sponsor bill to make NACONEK -SAGA -

            Legislation Content Status Concerns/Recommendation Documents
            AGRICULTURE, WATER AND IRRIGATION BILLS

            Food security bill Bill passed by senate assembly in 2nd reading date 29/07/2015. 3rd reading - - -
            Irrigation policy and bill Approved by cabinet in 2017, task force has been set up to finalize and present to Parliament Lack of consultation. Too much control by national government. Provides for massive increase in irrigation in ASALs without learning lessons of the past including water and land consideration, independent social and environmental impact assessments (see DLCI briefs) Block, raise concerns, mobilize county Ag ministers
            See powerpoint and analysis in dropbox
            -
            Revision of the National livestock policy, 2008 (Sessional paper No 2 of 2008) Undergoing review and currently it is in the Ministry being finalized before stakeholder validation to align it with the Constitution Need to included devolved functions
            There is need for broader stakeholder engagement – including the counties and intergovernmental authority
            Engage Dr Wanga – SDL for more in-depth discussion going forward
            Call for a stakeholder forum to discuss the revised Policy
            -
            Livestock Identification and Traceability Policy, Draft 2016 Drafted, needs stakeholder engagement Ensure identification of livestock through market chain to promote marketing
            Ensure there is alignment of the draft policy with industry best practices for LITS through the private sector.
            Needs fast tracking
            Call for a stakeholder forum to discuss the draft Policy -
            Kenya Livestock Products Development and Promotion Board Policy Primary suggestion came from the review of parastatals in Kenya by the Abdikadir led commission. President passed executive order to form this body. Abdinoor made a private members bill. The 3rd reading was adjourned. Even its establishment was budgeted in the last budget, however adjournment of the 11th Parliament halted this process. A new bill has now being drafted and taken over by the MP for Mandera North. Hon. Bashir Abdullahi. It has passed through the Budget committee in 2018 and Treasury. Waiting to be introduced to the House See policy brief by KMT – put link
            Aim to promote export markets in Qattar, Kuwait etc and help promote ISO standards also strengthen the Kenya Livestock Product Export Association.
            Money allocated for the board was spent
            - -
            National Livestock breeding strategy Awaiting ratification by the National Advisory Committee - - -
            Vet policy, drafted 2016 Passed and reviewed but then Poisons and Pharmacy Draft Private sector provision with government focus on diseases surveillance and response,
            Need for counties to fund outreach
            - -
            Drought/emergencies Drought Emergency Fund was established through the Senate bill that was sponsored by member of PPG and passed. Regulation for operation and management of the Fund has being developed. there is issues of mandate overlap of institutions that is required to oversee the fund. AG has provided legal opinion on the way forward. - - -
            NADIMA - National Disaster Management Act Still being pushed through Parliament, consultations carried out by the World Bank in 2016. Still no clarity on relationship with NDMA and threatens to undermine the NDMA - -

              Legislation Content Status Concerns/ Recommendation Documents
              GENERAL

              Draft Equalization Fund Bill sponsored by PPG Draft is ready and sponsored by member of PPG Different opinions about the fund management expressed between Counties and national institutions Mediation to resolve between the competing ideas and interests about the fund. -
              2nd Marginalisation Policy and CRA formula CRA has developed the 2nd marginalization Policy (2018-2022) that now put more emphasis on improving fund implementation and focus target to deprived sub locations in 34 Counties as new beneficiaries of fund. Concern that Equalization Fund is small and is aimed at targeting 1421 sub location in 100 constituencies may be thinly spread. County Government and PPG members not in agreement on the new policy focus PPG is considering a parliamentary action that includes amendment to constitution to protect Equalization Fund Kitty allocation. FCDC is considering a judicial intervention on 2nd policy direction. Stakeholders want to see increase from 0.5 percent to at least 2-3% or get parliament to approve the national audited accounts to achieve desired impact on issues of marginalization in the original 34 beneficiary counties. -