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NRT PARADOX IN ISIOLO COUNTY: CONTEXTUAL ANALYSIS OF VARIOUS ACTORS (STATE & NON STATE) AND THE EXISTING GREY AREAS IN LAW

By Salad Malicha 
 
1. Constitutional rights of the affected communities
 
 
 
Article 35(1)(a) of the Constitution of Kenya 2010 entitles every citizen to access information held by the state and state organs. Additionally, Article 35(3) obliges the state to publish and publicise important information affecting the nation. Lewa Wildlife Conservancy and Northern Rangelands Trust operate in Isiolo County presumably with the regulatory approval of either or both the national and county governments. Their activities are conducted on land located within communities in Isiolo County and these operations substantially affect these communities.
 
As such, the above provisions of the Constitution not only oblige the government to provide to the public information on the activities of Lewa Wildlife Conservancy and Northern Rangelands Trust in Isiolo County, but also entitles the residents of Isiolo county to demand this information from the national and county governments.
 
 
 
 
Hundreds of isiolo residents protest against Northern Rangeland Trust Photo || Courtesy.
 
Further to the above, Article 35(1)(b) of the Constitution of Kenya 2010 entitles every citizen to access information held by any other person if that information is necessary for the exercise or protection of any right or fundamental freedom. Information held by Lewa Wildlife Conservancy and Northern Rangelands Trust on the nature of their operations in Isiolo County, including any agreements/arrangements entered into by them, substantially affect the communities within which they operate and as such, Lewa Wildlife Conservancy and Northern Rangelands Trust have a constitutional obligation to publicly avail this information.
 
 
 
Demonstrators from eight conservancies in Isiolo County demand a meeting with the local leaders to chat out the controversy surrounding conservancies. They also want a stop to politicizing the conservancies’ matters.
 
 
As per Article 20(1) of the Constitution of Kenya, the rights enshrined in the Bill of Rights are binding on all persons. As such, any actors in the instant case, that is, Lewa Wildlife Conservancy and Northern Rangelands Trust, the national government and the County Government of Isiolo must respect the rights of the members of the community within which they operate.
 
 
 
Pastoralists community in Charri
 
 
2. Specific provisions on conservation in community land
 
 
Charri grazing land
 
 
 
Sections 13 of the Community Land Act 2016 empowers the community to reserve community land for special purposes such as conservation, in which case the land shall be used for this specific purpose. In this event, Sections 15 and 36 of the Act require a democratic process for such allocation, being a decision by at least 2/3 of the community assembly composed of all adult members of the community, with the quorum being at least 2/3 of the adult community members.
 
 
 
 
 
Section 36 of the Community Land Act2016 requires an open consultative process for entering such an agreement.
 
 
 
The agreement must feature the following:
 
 
(a) an environmental, social, cultural and economic impact assessment;
 
(b) stakeholder consultations and involvement of the community;
 
(c) continuous monitoring and evaluation of the impact of the investment to the community;
 
(d) payment of compensation and royalties;
 
(e) requirement to rehabilitate the land upon completion or abandonment of the project;
 
(f) measures to be put in place to mitigate any negative effects of the investment;
 
(g) capacity building of the community and transfer technology to the community; and
 
(h) any other matters necessary for determining how local communities will benefit from investments in their land.
 
 
 
 
 
It is therefore imperative to confirm if the setting aside of land for conservation in Isiolo County, particularly the conservation spearheaded by Lewa Wildlife Conservancy and Northern Rangelands Trust, complied with the provisions of the Community Land Act 2016 as highlighted above.
 
 
 
3. Obligations of the various actors
 
 
 
 
 
3.1 Relevant constitutional obligations of the national and county governments
 
 
Protection of interests of (marginalised) communities
 
 
Article 21(3) of the Constitution of Kenya 2010 mandates all government organs to address the needs of vulnerable groups in society including members of minority or marginalised communities. Therefore, considering the historically marginalised position of communities in the affected area in this instant case, and considering the fact that the communities’ bargaining power is weak vis-à-vis institutional actors like Lewa Wildlife Conservancy and Northern Rangelands Trust, it is the responsibility of the government (national and county governments) to step in and protect the interests of these communities in the exploitation of their natural resources by Lewa Wildlife Conservancy and Northern Rangelands Trust.
 
 
Exploitation of natural resources
 
 
Article 69(1) imposes an obligation upon the state to ensure that natural resources, in this case the land and wildlife therein, are exploited, utilised, managed and conserved sustainably and in a manner that ensures equitable sharing of the benefits accruing therefrom. The provision further emphasises that such sustainability and equitable benefit can only be achieved by encouraging a management, protection and conservation system that entails effective public participation.
 
 
In the spirit of the above provisions, Article 71 of the Constitution of Kenya provides that Parliament must ratify any agreement that involves the grant of a right or concession for the exploitation of any natural resource.
 
 
Going by the above provisions, it is imperative that that the legal basis of the operations of Lewa Wildlife Conservancy and Northern Rangelands Trust in Isiolo County be disclosed in order to determine whether the above constitutional requirements were indeed met.
 
 
Overlapping obligations of national government and county government 
 
 
As ambitiously stated in Article 174 of the Constitution of Kenya, devolution was conceived to, among others: promote democratic and accountable exercise of power; give power of self-governance to the people; enhance the participation of the people in the exercise of state power an decision-making; recognise the right of communities to manage their own affairs and development; protect and promote the interests and rights of minorities and marginalised communities; ensure equitable sharing of national and local resources; and enhance checks and balances.
 
 
 
 
 
In this regard, Articles 186 and 187 and the Fourth Schedule of the Constitution of Kenya 2010 distributed functions between the national and the county governments. Of relevance to the instant case are: development of general principles of land planning, tourism policy and development and protection of natural resources such as animals and wildlife and water resources in order to ensure sustainable development, being functions of the national government; and implementation of specific national government policies on natural resources and environmental conservation, development of local tourism, and ensuring and coordinating community participation in governance, being county government functions.
 
 
 
For operational efficiency, Article 189 of the Constitution of Kenya demands that the national and county governments cooperate, coordinate, support and consult each other in the exercise of these functions seeing as they overlap.
 
 
 
3.2 Obligations of the National Land Commission
 
 
 
 
The National Land Commission (NLC) has the mandate under Article 67 of the Constitution of Kenya and Section 19 of the Land Act, 2012 to, among others: conduct research related to land and the use of natural resources; investigate present or historical land injustices; monitor and exercise oversight over land use planning; make rules and regulations for the sustainable conservation of land-based natural resources. Crucially, these rules and regulations must provide for;
 
 
(1) income-generating activities by communities and individuals,
 
(2) access, use and co-management by the relevant communities, and 
 
(3) measures to ensure benefit-sharing by affected communities.
 
 
As such, any engagement by Lewa Wildlife Conservancy and Northern Kenyan Rangelands Trust in conservation activities in Isiolo County must have explicit provisions for sustainability, economic benefit for the communities and the involvement of the communities in management.
 
 
 
3.3 Obligations of Lewa Wildlife Conservancy and Northern Rangelands Trust
 
 
Notably, Lewa Wildlife Conservancy is situated on community land which, according to Article 63 of the Constitution of Kenya, is vested in and held by communities in Isiolo County. Any use of such community land must uphold the interests and rights of members of the relevant communities, in line with the Article 63(4) of the Constitution of Kenya 2010 and Section 35 of the Community Land Act 2016.  Such use must also, according to Article 60 of the Constitution of Kenya 2010 and 35 of the Community Land Act, respect the following principles: equitable access; efficiency; productivity; sustainability; security of land rights; transparency and accountability; cost effectiveness; sound conservation; protection of sensitive ecological areas; anti-discrimination; and amicable dispute resolution.
 
 
4. Recommendations
 
 
 
4.1 Intervention by the County Government of Isiolo 
 
 
 
 
Section 36(4) of the Community Land Act, 2016 enables the community to seek the assistance of the county government in assessing an investment offer for community land use. As such, it would be prudent for the community to formally request the County Government of Isiolo to assist in assessing the viability of the community’s agreement with Lewa Wildlife Conservancy and Northern Rangelands Trust, particularly on sustainability and benefit to the community.
 
In any case, the national and county governments still have an obligation to the communities in Isiolo even absent a formal request, as evident from the constitutional and statutory provisions highlighted above. Therefore, as demanded by Section 38 of the Community Land Act, the national and county governments must ensure that any community land use including for conservation purposes conform to relevant government policies. As such, the national and county government should audit the conservation activities of Lewa Wildlife Conservancy and Northern Rangelands Trust in Isiolo County to determine their compliance with national and county government policy and regulatory requirements.
 
 
 
4.2 Alternative dispute resolution
 
 
community elders during Alternative dispute resolution resolution/arbitration
 
 
In line with Sections 39 – 41, any disputes arising out of the use of community land should, at first instance, be subjected to alternative dispute resolution mechanisms including traditional dispute and conflict resolution mechanisms, mediation or arbitration. As such, it is recommended that the community mobilises local and county leadership in order to seek an amicable solution through constructive dialogue on the impasse surrounding the activities of Lewa Wildlife Conservancy and Northern Rangelands Trust in Isiolo County.
 
 
 
4.3 Intervention by the National Land Commission 
 
 
 
 
As highlighted above, the NLC is mandated to investigate current and historical land injustices and to monitor and exercise oversight over community land use. Therefore, if transparency and accountability is not forthcoming from Lewa Wildlife Conservancy, Northern Rangelands Trust and the national and county governments, the residents of Isiolo County can approach the National Land Commission to investigate these activities and recommend solutions.
 
 
 
4.4 Judicial intervention
 
 
 
 
 
Section 42 of the Community Land Act empowers the affected communities to seek judicial intervention in the event that an amicable solution cannot be reached. This is in line with Articles 22 and 23 of the Constitution of Kenya 2010 which emphasise the right of the communities to approach the High Court to ensure that their rights in respect to their natural resources are upheld in the event that the national and county governments fail to do so.
 
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About Whispers from the North

Whispers from the North is an online platform that appreciates the ecological, cultural and socio-economic diversities of Northern Kenya. We also acknowledge that the lives of the communities of northern Kenya has been shaped by a number of intrinsic and extrinsic factors which have led to complex challenge that calls for a multifaceted approach.

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