Stanley Kimaren

Kenya’s stance towards liberalization of land markets and foreign investment.

Kenya’s vision 2030 and the economic recovery strategy for wealth and employment creation (2003–2007) sets development benchmarks for the country with a focus on investment in infrastructure and improving access to education and health service. The country’s vision 2030 envisages a massive upgrading and extension of the country’s infrastructure through Public Private Partnership (PPP).

The government of Kenya has made the attraction of Foreign Direct Investment (FDI) a clear policy priority and to this end established the Kenya Investment Authority (Keninvest) in 2004 to promote and facilitate FDI. Since then, FDI in-flows to Kenya have seen a steady increase, reaching US$ 133 million in 2010. FDI in-flows to the country have traditionally been from Europe, with China (in infrastructure development), India (in ICT) and the Middle East (in hotel and property development) increasingly emerging as new markets/sources [1].

The focus of the country’s infrastructural development agenda has mainly been targeted at telecommunications, energy and the transport sectors. With respect to the energy sector, the goal is to move away from over reliance on hydro-electric power generation (which is highly vulnerable to climatic conditions) towards investment in renewable energies and geothermal energy. Overall electrification in Kenya remains at 20 percent (51 percent in urban areas and 4 percent in rural areas)

The country’s transport infrastructure including rail, road and airports have remained in deplorable state after many years of neglect, disrepair and minimal investment. Within the last decade, the government has embarked on a large-scale programme to upgrade the road network and revive the railway system in the country. Part of the ambitious infrastructure development in the transport sector entails plans to build a standard gauge rail line to replace the current Kenya-Uganda railway and a new highway linking the port of Lamu to South Sudan and Ethiopia, taking in Garissa, Isiolo, Mararal, Lodwar and Lokichogio.

Land acquisition is at the heart of most of the large infrastructural development projects in the country. Land in Kenya is classified by the constitution into three categories: public land, private land and community land. Of the three, community land occupies the largest surface and has often been the primary target for large scale infrastructural development. The freedom to own and deal with property is guaranteed by the Constitution.

In terms of ownership of property, there are no general restrictions on the percentage of equity that foreign nationals may hold in a locally incorporated company. Similarly, there are no regulations restricting joint-venture arrangements between Kenyans and foreigners, or prohibiting the acquisition of Kenyan firms by foreign-owned firms. These are matters subject to mutual agreement between partners. The Constitutions restricts foreign ownership of private land to leasehold for a maximum of 99 years.

Land grab dynamics associated with large infrastructural development projects

The focus of the land grabbing discourse on ‘mega’ land deals has often obscured the multi-layered processes underway and yet defies the associations of that term with illegality, large-scale acquisitions, and the displacement of local people. Besides land grab dynamics that are associated with large infrastructural development projects, trends of land grabs “from below” are emerging, where local community elites take advantage of their privileged knowledge and resource positions, and weak enforcement of local tenure rights by the state to dispossess members of their own communities. Powerful stakeholders use natural resources as instruments of coercion to exert control over others, such as upstream farmers controlling access to irrigation water for downstream communities. Natural resources are a source of illicit revenues that have built a powerful war economy and are sustaining serious corruption across scales.

The land grab is driven by a number of narratives and discourses associated with land tenure arrangement and its link to the market economy. The common market narrative presents the idea that if land deals are properly regulated the transfer of land rights from less to more efficient producers could be facilitated, inherent to the logic underlying Kenya’s market-based land and agricultural reforms over the past two decades. Mounting evidence shows that leases or concessions have been granted on communal land that is already claimed, occupied and used by local people. Even though land laws to secure such rights are in place in the country, these deals potentially threaten the livelihoods of farming and agro-pastoral households and the prospects for poverty eradication. They may also precipitate new, or aggravate existing, contestations over land and related natural resources.

The Link between Infrastructural Development and land grabs in Kenya: Case Highlights

  1. Energy Sector related

Lake Turkana Wind Power: Green energy is touted to be a significant part of the solution to Africa’s energy problems and African governments (including Kenya) are eager to access the energy and financing. The Lake Turkana Wind Power Project is one such green energy projects. The project is said to represent a revolution for renewable energy in Kenya – with an investment value of approximately 620 million Euros and 150,000 acres of lands committed (leased) to the project. The project is the single largest private investment in the history of Kenya, and lenders from Europe, the United States and Africa have collectively raised millions of Euros [2].

Electricity from the turbines, it is said, will increase Kenya’s energy output by between 15-20%, bringing electricity to 2.5 million additional Kenyans into the project. In 2014, the project was awarded both the African Renewables Deal of the Year and the African Power Deal of the Year by the media firm Thomson Reuters.

The land on which the project is developed was formerly trust land, held in trust by the local county council of Marsabit (Northern part of Kenya) on behalf of the local communities. Rendilles, Samburus, Turkanas and El Molo pastoralist communities have lived in the region for centuries, using the land for their livelihoods, cultural, ceremonial and spiritual purposes. The land in question was leased to a group of Dutch entrepreneurs by 1st of March 2009, who later established The Lake Turkana Wind Power Ltd. (LTWP) consortium founded as a company of Wassenaar’s renewable energy investment firm, KP&P.

The project soon became a subject of a legal suit, brought forward by representatives of the Rendille community who also claim to represent all communities in the region – Rendilles, Samburus, Turkanas and El Molo. The lawsuit is against the Lake Turkana Wind Power project, Marsabit County Council and the government of Kenya.

According to the Dan Watch report [3], the plaintiff asserted that the land in question was illegally acquired, that they were never consulted, no provisions is made for community resettlement and no compensation is availed for the land and use losses incurred by the communities. These claims, the community held, are in total violation of the national Constitution and Community Land Acts. In addition to land rights claims by local residents, allegations of illegal land acquisition have renewed and fuelled inter-tribal tensions between local pastoralists. The project consortium does not recognize Turkana, Samburu, Rendilleand El Molo community groups present in the project area as indigenous communities entitled to project associated benefits, despite their recognition as such under the national constitution and regionally by The African Commission on Human and Peoples Rights (ACHPRs).

The social challenges of prostitution, violence and alcoholism, arising out of unfulfilled project promises such as jobs and general immigration in search of jobs are other emerging concerns associated to the project.

The arguments in favour of harnessing natural resources for energy generation to contribute to meeting national energy demand appear to have given way to a reality of corporate refining for external markets.

Geothermal Power

According to Kenya Electricity Generating Company (KenGen), geothermal energy remains Kenya’s most effective resource for competitive electricity production [4]. Geothermal power potential to be exploited is situated in an area around Mt Longonot and within the Hells Gate National Park along Nakuru, Narok and Kajiado boundaries in Kenya. The area is named after “Oldoinyio loo Lkarian”, Maasai for the hill of limestone/chalk. The Olkaria Area is a region located immediately to the south of Lake Naivasha in the Great Rift Valley of Kenya. It is geo-thermally active and is being used to generate growing quantities of clean electrical power.

The area is a subject of a longstanding contest over land rights claims between the resident pastoral Maasai communities and other Kenyan ethnic groups, who acquired the land from the colonial settlers upon independence, though have never physically settled within the land in question.

Narasha is home to and ancestral land for the Maasai who have suffered massive land dispossession dating back to the 1900 when the colonial government forced the Maasai out of 75 % of their ancestral land and subsequent post-independence government driven initiatives that have continued to alienate land from the Maasai. The tussle for ownership is as a result of ownership of the over 15,000 acre land that the Maasai claim ancestral ownership but the Kikuyu claim ownership resulting from an allocation by the first post-independence president of Kenya [5].

KenGen has embarked on expansion plans to produce an additional 560 megawatts of power to Kenya’s national grid. The target for the expansion is the said Maasai land at Enarasha locality in Narok County. In 2013, hirelings under alleged police supervision raided Enarasha village and razed it to the ground. According to media reports, at least 2,300 people were rendered homeless, 20 calves were burnt to death and 247 houses were destroyed. It is reported that 300 bullets were fired by the police to disperse and scare away the Maasai villagers in order to pave way for exploration and harnessing of geothermal power [6].

Kenya Electricity Expansion Project (2010 – 2016), whose development objectives were to increase the capacity, efficiency, and quality of electricity supply, and to expand access to electricity in urban, peri-urban, and rural areas, had received World Bank funding support amounting to the equivalent of US$330 Million [7]. The geothermal project has attracted both multi-national and bilateral donors with the World Bank being the main financier of the project.

The request to address concerns associated with the Olkaria IV geothermal power project was submitted by members and representatives of a Maasai community resettled due to geothermal developments in the Greater Olkaria geothermal area in Nakuru County, Kenya. The complaints from the community were submitted to both the World Bank inspection panel and the complaints mechanism of the European Investment Bank (EIB-CM), and the two, entered into a Memorandum of Understanding (MoU) to jointly consider and address the complaints submitted.

Overall the inspection panel agrees with community concerns in a number of counts; i) failure to apply the bank’s indigenous peoples policy to protect the Maasai Project Affected Persons (PAPs). In this context and looking ahead the panel notes the importance of: (i) redressing harms to PAPs through livelihood restoration measures with a focus on the most vulnerable segments and (ii) incorporating lessons in the project and future resettlements.

Specifically, on the issue of land, “The panel notes the long history of land tenure insecurity for the Maasai warranted special attention to guarantee the community received communal land-title” [8].

  1. Mega Infrastructural Development projects

The Standard Gauge Railway(SGR):

Kenya is developing a new Standard Gauge Railway (SGR) line for passengers and cargo transportation in collaboration with Uganda and Rwanda. In 2013 a tripartite agreement was signed by the governments of Kenya, Uganda and Rwanda to construct SGR within their respective boundaries. Kenya Railways Corporation (KRC) is responsible for the construction of the 1,300 km-long track inside Kenya from Mombasa, the largest port in East Africa to Malaba boarding Uganda through Nairobi, the capital city. The SGR is one of the flagship projects in Kenya’s economic blueprint ‘Vision 2030’, which aims to transform the economic, political and social state of the country by 2030. This project stands as one of the biggest and most expensive infrastructure project in Kenya since independence with an estimated cost of Ksh 1.023 trillion. China Exim Bank will provide 90% of the financing while the remaining 10% will be contributed by the Kenyan Government.

The first phase of SGR Mombasa-Nairobi covering 472 km has been completed and the second phase, Nairobi to Naivasha with another branch through Narok to Kisumu is currently under construction.

The SGR will undoubtedly contribute to Kenya’s economic and social development; however the future anticipated benefits are likely to be outweighed if what happened for the first and second phase (continuing) is a mirror of the whole project. Apart from the fears whether Kenya will get value for money due to inflated cost of the project, there are other important elements of development that the project failed to consider including sustainable development and citizens’ participation. The prevailing perception amongst a section of the citizenry in the country is that the SGR project turned-out to be expensive, building up the national debt with minimal indications of a feasible return on the mega investments in the short run.

In addition, the SGR has turned out to be a new form of land dispossession and grabbing. Suswa and DukaMoja in Narok County, where the second phase has begun depicts a classical example of land dispossession. The precedent is that community members sadly learn that their land has been earmarked as route for the SGR without their consultation; further complicating is land buyers who have prior information on the routes and move head to buy land in preparation to sell it to KRC at a huge price. This signals a serious violation of social-economic rights going forward. The indigenous peoples are in the receiving end bearing in mind the SGR runs through most of their ancestral lands.

Despite citizens’ outcry and court order, the SGR was forcefully passed through Nairobi national park with tremendous impact on its flora and fauna.

Land grabs from ”below”

Land tenure arrangements within most pastoral areas in Kenya are under Group Ranches (GR) historically regulated under the land (Group Representatives) Act Cap 287 of the laws of Kenya, and now the Community Land Act 2016. All adult males within the group are registered as members with equal rights and privileges on the group ranch land and resources. The land is collectively held and managed. The registered members elect a group of 10 representatives (Land Committee officials) with delegated responsibility to implement the members’ decisions, and day-to-day dealings of the ranch.

The group ranch land tenure arrangement in the country has often been under intense pressure from the state, market forces and elite actors to move from communal and collective land management to individual and private – ostensibly to enhance efficiency in production associated with individual agency. The conversion of collective and customary land rights into formal, individual rights and the creation of free land markets were expected to lead to greater efficiency and more investment (De Soto 2000, cited in Zoomers A, 2010). Individual smallholders would be able to use their land as collateral and thus gain access to credit, enabling them to enter into joint ventures. Security of tenure would stimulate long-term investment, which would lead to greater efficiency.

Since the inception of the demarcation process of Maji Moto GR in Narok County, many controversies have arisen with regard to the demarcation and subdivision processes with respect to equity in the distribution of land parcels, collective benefits sharing arrangements and the emerging competing land use patterns following sub-division and now sales of private parcels.

Majimoto Group Ranch members are presently in the centre of a struggle to hold their group ranch leaders accountable on a range of issues including land subdivision and allocation, issuance and security of title deeds, and overall accountability with respect to collective group ranch revenues. Analysis of Majimoto Group Ranch demarcation and financial records indicates serious malpractices and illegalities on the part of a section of group ranch officials. An initial search of the status of a number of formerly public utilities and individual land parcels within Majimoto Group Ranch indicates a rather disturbing trend of dispossession of many by a few in privileged group ranch leadership positions [9].

In this case ranch officials often take advantage of their privileged position in terms of access to information, connection with relevant departments and agencies of the state charged with the responsibilities of enforcing the requisite laws and policies; access to technical experts/expertise such as land surveyors, lawyers and judicial systems and land markets to dispossess and violate the land rights of other members not sharing the same privileged positions.

While group ranch members in the case of Majimoto have put up a spirited fight to claim back their grabbed lands, the struggle is often protracted, expensive and dangerous for land rights defenders – as the local elites put into use their ill-acquired land and financial resources and tap into their corrupt networks to protect and perpetuate their rent-seeking and land grabbing behaviour at the expense of fellow ranch members.

The communities whose land rights are violated often seek partnership with civil society organizations engaged in advancing the respect for human and land rights. Civil society becomes a useful bridge to compensate for the communities’ under-privileged positions and low capacities to engage with the state bureaucracy, policy and legislative processes and market related dynamics. Arising from these partnerships, communities’ and civil society organizations’ ultimately build up a store of knowledge and experiences that can be deployed in the face of contemporary land grabs related challenges to shape local responses today.

Conclusion

While the much sought after foreign investment is increasingly flowing to African states, it is flowing in forms and on terms that are fuelling fractures and divisions among African societies, within communities, and between citizens and states. Globalisation, market liberalisation and the rapid increase in foreign direct investment (FDI) are increasingly accompanied by land grabbing. As demonstrated by the above cases, local people are often forced to either endure enclosure or move to more isolated, marginal locations.

It is evident, that whether the land grabs are outcomes of large scale infrastructural development of partnership between states and private sector actors or from local elites taking advantage of their privileged positions; the result is the same – dispossession of local communities, disenfranchisement and entrenchment of poverty and vulnerability. Media reports and empirical research show that large-scale processes of land grabbing are often at the expense of local populations. A lack of transparency and of checks and balances in contract negotiations creates a breeding ground for corruption. Insecure use rights on state-owned land, inaccessible registration procedures, vaguely defined productive use requirements, legislative gaps, and compensation that is limited to the loss of improvements like crops and trees all undermine the position of local communities, especially the poorer sections therein.

Works Cited:

[1] UNCTAD/DIAE/PCB/2012/2 An Investment Guide to Kenya © United Nations, 2012

[2] African Development Bank (AfDB) – (a loan of EUR 115 million); German Investment Corporation (DEG) – (EUR 20 million); European Investment Bank (EIB) – committed approx. (EUR 225 million); Dutch Development Bank (FMO) – ( EUR 42 million debt) and Dutch Government provided a EUR 10 million grant; French Development Finance Institution (PROPARCO) – (EUR 50 million); Overseas Private Investment Corporation (OPIC) – (EUR 223.89 million); and Eksportkreditfonden (EKF) – investment guarantees of EUR 138 million

[3] Danwatch 2016. https://www.danwatch.dk/wp-content/uploads/2016/05/Danwatch_report_A-PEOPLE-IN-THE-WAY-OF-PROGRESS-2016_web.pdf

[4] http://www.power-technology.com/projects/olkariageothermal/

[5] Koissaba Ben, July 2013, “Forceful Evictions of Maasai a Recipe for Tribal Clashes In Kenya”. Available from: https://intercontinentalcry.org/kenya-forceful-evictions-of-maasai-from-narasha-a-recipe-for-tribal-clashes-19921

[6] International Working Group in Indigenous Affairs (IWGIA) – The Indigenous World – Michael Tiampati 2013 – 2015 http://www.iwgia.org/images/stories/sections/regions/africa/documents/IW2015/Kenya_IW2015_web.pdf

[7] Word Bank Inspection Panel, Investigation Report No. 97705-KE. Kenya Electricity Expansion Project (P103037); July 2, 2015

[8] Ibid, Page vii

[9] Indigenous Livelihoods Enhancement Partners (ILEPA), Majimoto group ranch investigation reports 2017

 Photo credit: Stanley Kimaren

Balancing National Development Aspirations with Indigenous Peoples Local Communities’ Land and Natural Resource Rights – A Case of Large Infrastructural Development Practice in Kenya