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In August 2019, Parliament passed the Land Value (Amendment) Act, 2019. Among the laws impacted by this enactment is the Land Act, 2012, which has been amended by inserting new provisions in relation to timelines for compulsory acquisition of land. That amendment responds to the Constitutional requirement that persons deprived of property through compulsory acquisition should receive “ prompt payment in full.” The impact of this provision is clear. First, that property can be acquired before compensation is made and second, that it can take up to 1 year for persons compulsorily deprived of property to be compensated.

This article critically looks at the meaning assigned to the word “prompt” by the Land Value Amendment Act and its consequences, visa-a’-viz the fundamental right to property as enunciated in the Constitution of Kenya, 2010. It argues that delays and deferrals in the compensation spectrum are a dereliction of government obligations and a violation of the right to property and human dignity. It calls for adherence to higher global resettlement practices by investors in public-private partnerships. 

Payment must be prompt, full and just

The statutory framework for compulsory acquisition is outlined in the Land Act, 2012. Under this Statute, compulsory acquisition is defined to mean “the power of the State to deprive or acquire any title or other interest in land for a public purpose subject to prompt payment of compensation” Section 111 (1) thereof states that “If land is acquired compulsorily under this Act, just compensation shall be paid promptly in full to all persons whose interests in the land have been determined”. It further states under section 111 (1A) that “the acquiring authority shall deposit with the Commission the compensation funds in addition to survey fees, registration fees, and any other costs before the acquisition is undertaken.”

Previously, there was no attempt in the Land Act, 2012, or indeed in any of the other relevant law, to explain the explicit meaning of the term prompt as used in land acquisition procedures. As such, the exact timing of compensation remained ambiguous. But even under such circumstances, courts often favoured an interpretation that hastened the process of compensation rather than delaying it. The case of Fish Processors (Two Thousand) Limited v National Lands Commission [2017] eKLR is instructive in this respect. In that matter, upon finding that the national land commission had failed to pay compensation promptly, the court ordered that compensation be made within 45 days.

A new law has now come into force, establishing the exact timelines for compensation and offering a definition of the word “prompt”.  Under Section 2 of the Land Act, 2012, “prompt” is defined to mean within a reasonable time of, and in any case not more than one year after, the taking of possession of the land by the Commission”. 

The impact of this provision is clear. First, that property can be acquired before compensation is made. Second, that it can take up to 1 year for persons compulsorily deprived of property to be compensated. The question that arises therefore is; what does this mean for persons who lose primary dwelling houses as a result of an acquisition? Does the law contemplate a situation where families will be driven away from their homesteads and rendered homeless for up-to 12 months; not taking into account the amount of time they will need to rebuild a new dwelling house after compensation? Is such an outcome in accord with the spirit and the letter of the law? And what, in essence, is the meaning of the word “prompt”?

In simple terms, prompt means expeditious. It is so defined using this, or similar words in English dictionaries from all over the world. The Oxford dictionary defines promptly to mean “ without delay”. Macmillan Dictionary defines prompt as “immediate or quick” Longman Dictionary of Contemporary English says the word prompt means “done quickly, immediately, or at the right time” and according to the Cambridge English Dictionary, it means “(of an action) done quickly and without delay”.

Suffice to say; therefore, that by requiring compensation to be made promptly, the Constitution meant that this action was to be taken expeditiously. Promptly could not have been used merely to denote “within a reasonable time”. It was used to mean quickly. This is particularly evident if one takes into account this countries’ history on matters of eminent domain and in light of that retrospection, the letter and spirit of the 2010 Constitution.

Government Obligations and the Enjoyment of Socio-Economic Rights

With the promulgation of the 2010 Constitution, Kenyans undertook to build a society that is based on certain national values and principles of governance. These include; human dignity, social justice, human rights, protection of the marginalised; good governance and sustainable development.

To breath life into these values and principles, the Constitution stipulates that state organs, state officers, public officers and all persons are bound by these ideals whenever they apply or interpret the Constitution; enact, apply or interpret any law; or make or implement public policy decisions.

There is a strong correlation between these values and principles of governance and the Bill of Rights. The Bill of Rights is designed to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings. Article 19 of the Constitution stipulates that it is the cornerstone of democracy in Kenya. Its objective is to provide citizens with protection from unwarranted interference from the state and to offer a legal basis upon which to challenge government actions that violate them. A Bill of Rights is particularly important to protect the rights of minorities, whose interests can be easily ignored by the numerical majority and overruled by democratically elected governments.

To promote the total enjoyment of these rights, there are further obligations placed on government by the Constitution, requiring all its organs to observe, respect, protect, promote and fulfill all human rights and fundamental freedoms. Article 21(4) further requires the State to enact and implement legislation to fulfill its international obligations in this respect. Additionally, the Constitution provides various supportive provisions touching on fair administrative action, access to justice and protection of marginalized groups, among others. All these provisions puts the government at the centre of ensuring attainment and enjoyment of all fundamental rights and freedoms by all individuals in Kenya.

Limitation of rights

While providing a strong foundation for the promotion of social justice, the Constitution also recognizes that there are circumstances under which the state may limit certain rights that are otherwise protected. With that, it incorporates limitation clauses on certain fundamental rights. However, the constitution abhors arbitrary government action. It therefore painstakingly provides the standards for justifiable limitations on each right as a necessary safeguard against government excesses. What that means is that for every occasion of limitation, the government must demonstrate that it has taken into consideration all relevant factors and met all the standards prescribed by the Constitution and other laws.

The right to own property is apt in demonstrating this concept. On the one hand, ownership of property is protected by the Constitution under Article 40 which says that “Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property of any description; and in any part of Kenya and that (2) Parliament shall not enact a law that permits the State or any person to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description. But with this protection comes a caveat on the other hand; that property rights are not absolute; a legal owner may be deprived of his property by the state, for instance, when it exercises its powers of compulsory acquisition.

By definition, compulsory acquisition or eminent domain is the authority vested upon the state, enabling it to deprive a private owner of his property, subject to certain conditions. One such condition is found under Article 40 (3) which requires the state to ascertain that “the deprivation- is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that-requires prompt payment in full, of just compensation to the person; and allows any person who has an interest in, or right over, that property a right of access to a court of law.”

This provision is to be looked at together with the standards that are enumerated under Article 24 of the Constitution which apply to all fundamental rights and freedoms equally. The first limb of Article 24 gives a specific criteria that must be met whenever the state intends to limit a fundamental right or freedom by stating that “A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-(a) The nature of the right or fundamental freedom;(b) The importance of the purpose of the limitation;(c) The nature and extent of the limitation;(d) The need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and(e) The relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

The second limb of Article 24(2) says that; Despite clause (1), a provision in legislation limiting a right or fundamental freedom:-(a) in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation;(b) shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and(c) shall not limit the right or fundamental freedom so far as to derogate from its core or essential content. 

It follows, therefore, that the Constitutionality or otherwise of laws limiting rights can only be ascertained by subjecting each of its provisions to the different sets of criteria outlined in these Articles. To answer the question of whether compulsory acquisition of private land is constitutional, two factors must converge. The first line of inquiry must establish whether the law in question infringes a constitutional right or not. If the inquiry determines that it doesn’t, the matter ends there. If the opposite is true, then the inquiry proceeds within the limitation clause to ask whether the infringement is justified. This calls for the “proportionality test”.

Proportionality and the Law of Compulsory Acquisition

It has been established that a key aspect of whether a limitation on a right can be justified is whether the limitation is proportionate to the objective being sought. It has been said authoritatively, that even if the objective of a limitation is of sufficient importance and the measures in question are rationally connected to the objective, the limitation may still not be justified because of the severity of its impact on individuals or groups. In circumstances where the state has been granted the power of compulsory acquisition therefore, one of the questions that need to be determined is whether, in exercising that power, they have put in place measures that are proportionate to the objective of that acquisition. In other words, are the timelines prescribed for compensation justifiable or could the ends of acquisition be pursued through less drastic means?

Two Canadian cases; R v. Oakes and R vs Big M Drug Mart Ltd, are illustrative in this respect. R v. Oakes enunciates 2 sets of criteria that must be satisfied to establish that a limit to a fundamental right is not only reasonable but also justified. Coming from the premise that the first criteria has been met, (in this case, that acquisition of land is for a public purpose) the court says the following concerning the second criteria;“Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves “a form of proportionality test”: R. v. Big M Drug Mart Ltd., supra, at p. 352. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or freedom in question: R. v. Big M Drug Mart Ltd., supra, at p. 352. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”. 

The Supreme Court of Canada in R vs. Big M Drug Mart Ltd also had this to say“Both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realized through the impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation’s object and its ultimate impact, are clearly linked, if not indivisible. Intended and achieved effects have been looked to for guidance in assessing the legislation’s object and thus the validity.” 

Whose Money is it anyway?

With a large number of investment projects being funded by development partners and through public-private partnerships, new dictates have been introduced into the national compensation spectrum. Safeguards requirements mainly Resettlement Policy Frameworks (RFP) and Environmental and Social Management Frameworks (ESMF) by global financial organizations such as the World Bank, International Finance Corporation (IFC), the Africa Development Bank and a number of bilateral aid/grant organizations, now require adherence to a parallel and sometimes conflicting compensation framework. The justification for this fall back plan is that national laws are often not protective enough for the loss of livelihood of the affected persons.

The IFC for instance has been implementing various performance standards (PS). These standards are an international benchmark for identifying and managing environmental and social risks. They have been adopted by many other organizations as a key component of their environmental and social risk management and will always apply whenever these organizations fund any local project. With respect to compensation, PS5 on land acquisition and involuntary resettlement requires that compensation for lost land and assets should be paid prior to the client taking possession of the land. It is also a requirement of IFC that whenever its standards offer more protection to individuals than national laws and policies, its standards will be adhered to as opposed to those of the recipient. Thus, in situations where projects are funded by IFC, compensation will have to be made before resettlement.

In a general sense, there is a growing awareness of human rights issues in development projects. In 2011 the United Nations passed the Guiding Principles on Business and Human Rights. These Guiding Principles provide the first global standard for preventing and addressing the risk of adverse impacts on human rights linked to business activity. The United NationsBasic Principles and Guidelines on DevelopmentBased Evictions and Displacement is another key document that outlines the human rights principles that specifically apply to resettlement. Kenya is not a stranger to these guidelines, indeed the court cited them with approval in the case of KephaOmondiOnjuro& others v Attorney General & 5 others [2015] eKLR where it found in favour of the state; Kenya Railways Cooperation having demonstrated to the court that it adhered to the guidelines in evicting a section of people residing along the railway line in Nairobi.

In the end, the fundamental point is that expectations on resettlement practice from a human rights perspective currently exceed the requirements of national law. In order to enhance the enjoyment of human rights under these circumstances, projects may need to do more than meet the minimum requirements specified in national law. The benefits of taking this cause of action are many, but ultimately, by employing higher standards, companies doing business in Kenya will be able not only to enhance the socio-economic status of local communities, but they also stand to gain social license to operate much more easily. This will, in turn, translate into unimpeded project implementation.

Conclusion

Large footprint projects such as dams, mines and industrial estates by definition, have a considerable need for land. These projects often occur in rural areas where expansive tracks of land are perceived to be available. Because many large projects are either initiated solely by government or through public-private partnerships, the power of eminent domain is frequently invoked to enable the projects to proceed. In Kenya, the acquisition process is fairly elaborate requiring among other things, that the project is in the national interest or for the public good, fair compensation be provided promptly, and generally, that due process be followed.

With the Land Value (Amendment) Act 2019 now setting the timelines for repayment at a maximum of 12 months, concerns arise over the plight of persons displaced by these projects. For most people living in rural areas, “land is life”. As such, any loss of land in and of itself subjects them to considerable difficulties. Delays in the payment of compensation does not only further exacerbate these difficulties, it is, in every sense, a violation of human rights.

An important principle of resettlement recognized the world over is that compensation payments should be made before the land is taken. It is therefore not in doubt that as far as this principle goes the Land Value (Amendment) Act 2019 falls short. In the interest of promoting the enjoyment of those fundamental human rights and freedoms that face the biggest risk of violation during project development, proponents are advised to by-pass the timelines set under local legislation in favour of higher internationally recognized resettlement practices.

Florence Oduk is an Environmental Lawyer, Business advisor and ADR practitioner. You can reach her at info@odukongatilaw.co.ke or florence@odukongatilaw.co.ke

Copyright Florence Oduk (2019) All rights reserved.