If you own land bordering a river or through which one passes, how far from the river should you construct or farm? What guides you? Our national law on river, or riparian reserves, is unclear. It confuses professionals, developers and landowners! It’s therefore unsurprising that in practice, we have so much breach. I suspect most of it is unintended.

Unfortunately, the laws relating to riparian reserves have been with us for a while now, leading to a situation where compliance and practice is largely dependent on the legal framework one was schooled on. We therefore have a situation where developers, professional practitioners, landowners and state regulators read from different scripts. A number of laws dwell on the issue, some explicitly, others implicitly! Let me highlight some.

Survey Act

The 1969 Survey Act governs the conduct and standards of survey. It provides that for surveys of government land, nowadays public land, a reservation of not less than thirty metres wide above the high-water mark shall be reserved for government purposes on all tidal rivers. Note that the emphasis is on government land and tidal rivers. So what is the position for surveys on community and private land? Who determines the high-water mark for the many tidal rivers around the country; indeed, is this ever systematically done? Moreover, some plans prepared under this law introduce direct contradiction. The annotation along some of the rivers reflected on survey plans is silent on river reserve widths, instead providing that the legal boundary is the center line of such rivers. Anyone with property bound by a river with such annotation could easily misconstrue the annotation to imply that the river enjoys no riparian reserve. This is open to legal interpretation.

Agriculture Act

The Agriculture Act, an old statute which governs agricultural land, provides rules on land use. It requires that unless one has the permission of an authorized officer, no cultivation should be done on land lying within two metres of a watercourse. It however gets more complex when it states that where the watercourse itself is wider than two metres, the land to be left uncultivated should be equal to the width of the watercourse but up to a maximum of thirty metres. This presupposes that landowners will keep measuring river widths and adjusting cultivation lines; quite an expectation.

Physical Planning Act, 1996

The regulations to the 1996 Physical Planning Act introduce further haze. Without reference to the Survey and Agriculture Acts, they provide that during the submission of subdivision plans for consideration for approval, reserves provided along any river, stream or watercourse shall not be less than ten metres wide, on each bank, except in areas where there is established flooding. But how will a developer or farmer, and even practicing professionals interpret this against the above laws?

EMCA, 2015

Further, the Environmental Management and Coordination Act 2015, which amends the 1999 version, gives the line Minister broad powers to protect and conserve the environment. The Minister may also issue regulations or standards for the management of river banks. The 2006 regulations provide that no person shall cultivate or undertake any development activity within a minimum of six meters and a maximum of thirty meters from the highest ever recorded flood level, on either side of a river or stream, and as may be determined by the Authority from time to time.

This law further provides that the Minister may declare a river bank to be a protected area and impose any desirable restrictions to protect it. Immense powers but this statute doesn’t repeal the others.

The 2016 Water Act establishes a Water Resources Authority, which is an organ of the national government. This fairly active organ, which was known as the Water Resources Management Authority under the 2002 Water Act, is responsible for regulating the management and use of water resources in Kenya. The various rules formulated under this law however appear to give no guidance on widths of riparian reserves, which, I presume, imply that the other prescriptive statutes apply.

Harmonise

Even in the event that there are other laws or regulations that inform the widths or management of riparian reserves in Kenya, the above suffice for illustration. Clearly, we have a legal conundrum on the matter. Yet legal clarity is fundamental for the effective management and preservation of riparian reserves. It’s likely that there was insufficient inter-sectoral collaboration during the enactment of the various laws. The government may therefore need to make proactive efforts to harmonise them and draw clear guidelines for public circulation therefrom. The guidelines should inform all land categories and uses. To promote compliance, the government may consider giving suitable incentives. This could for instance include reducing land rates for affected landowners in urban areas who lose the productive use of riparian land, which ordinarily will have been included in their purchase prices. And for the relevant state enforcement agency to cope with the mammoth task of sensitization and policing rivers countrywide, the government will need to ensure that they have adequate financial and technical capacity. Similar attention should be given to lake and seashore reserves.

Dated: 7^th July, 2018