Policy, constitutional and legal frameworks are new

While many oil companies may be familiar with global conventions governing the exploration and exploitation of gas and oil, as they venture into the Kenyan market, they will do well to familiarize with the new policy, constitutional and legal frameworks on the exploitation of land and land based natural resources.

Unfortunately, most experts from the past may only have been familiar with Kenya's old constitution and laws. But the country now has a new national land policy, a new constitution with a very comprehensive chapter on land and environment and some new land laws (see earlier postings on this blog). The new land laws repeal many of the old land laws governing land and property in Kenya but more importantly, also repealed the former Land Acquisition Act under which private land was compulsorily acquired for mineral exploitation. The country is also in the process of developing a Geology, Mining and Minerals law.

New Laws strongly protect community and private land

The chapter on land of the new constitution embeds the key principles of the national land policy. The new laws have been derived from the policy and the constitution. Any experts advising oil prospecting companies in Kenya today would therefore do well to equip themselves with the primary provisions of the land policy and the constitution, failing which they may find themselves 'trapped' in protracted legal challenges to new investments on land.

The land policy provides for the protection of public, community and private land. It further provides that the government shall devise and implement participatory mechanisms for compensation of loss of land rights and related non-renewable natural resources and will put in place legislative and administrative mechanisms for determining and sharing benefits.

These policy principles have been embedded in the constitution. Article 40 (2) of the constitution for instance provides that 'parliament shall not enact a law that permits the State or any person to arbitrarily deprive a person of any property of any description or of any interest in, or right over, any property of any description'. Section 66(2) of the constitution further provides that Parliament shall enact legislation ensuring that any investments in property benefit local communities. Section 71 (1) provides that all agreements on natural resources must be ratified by Parliament.

The new land laws.....the Land Act, the National Land Commission Act, the Land Registration Act and the pending Geology, Mining and Minerals Bill have incorporated these provisions. It is expected that the Community Land Bill also under development will incorporate provisions of the land policy and the constitution relating to community land holdings and hence complete the raft of laws governing the various categories of land which oil exploration and exploitation companies will need to navigate in Kenya.

Local Frameworks consistent with regional and global land rights frameworks

Local frameworks governing land rights align well with the Framework and Guidelines on Land Policy in Africa which calls for African governments to put in place land administration systems that foster good governance of land and natural resources.

The FAO Voluntary Guidelines on the Responsible Land Tenure of Land, Fisheries and Forests require States to recognize and safeguard legitimate tenure rights, whether recorded or not, against arbitrary loss and evictions, among others requirements.

Kenya's requirements have largely incorporated these requirements hence providing owners of private and community land wide latitude within which to mitigate any acquisition or violation of their land rights. Investors must as a minimum familiarize with these during their feasibility studies.