What the law says about demolitions

The past few weeks many Kenyans have become familiar with the term riparian lands. Reflecting on the developments, it emerges that creating awareness should focus on appropriate strategies. One year ago, if one would have asked an ordinary Kenyan what the term meant, or if they had heard of it, most likely the answer would have been a No. Currently, many have most likely heard of it.

I first heard about the term during my university studies. The unit was Water Law and the concept of riparian reserves and riparian owners was introduced to us. We were told that riparian owners were those who owned land abutting a river. The relationship with the river was a special one. In addition, there was the requirement of not digging within a certain distance from the river. The rationale was two-fold. First the fragility of that ecosystem and the need to conserve it. Secondly, the legal position that considered that space to be public land and thus not within the control of private individuals. The need to conserve this ecosystem was thus clear.

Several years later as part of my PhD studies, I focused on conservation of wetlands. These being areas which are permanently or seasonally inundated with water also required special treatment. I learnt that traditionally, wetlands were viewed as waste lands and invariably converted to more productive uses, oblivious of their ecological characteristics.

Both lands have similar characteristics. They are fragile. The law recognises this reality and requires special treatment. This explains the reasons for regulating activities on such lands. Unfortunately, over the years, we have ignored environmental imperatives and conducted our development processes without regard to the ecological status of riparian lands and wetlands.

If you attempted to raise concerns about the dangers of such approach, you would receive little attention. For example, there are areas which have been flooding every rainy season due to the fact that buildings constructed on riparian reserves negatively impacted on flood control.

Despite this, Kenyans had become accustomed to the reality that nothing could be done.

Fast forward to 2018 and what initially looked as isolated events have slowly gained momentum. Kenyans are all of a sudden aware of what riparian reserves are. This is a good step.

To be able to correct the mistakes of the past is important for the country’s quest to promote sustainable development. It cannot be possible for a country to achieve long-term sustainability if its development patterns ignore or negatively impact on the environment. We may achieve short-term economic gain, but, in the long-term, pay a huge price.

Arguments have been raised to the effect that the action of Government to bring down buildings constructed on riparian reserves ignores property rights of the owners.

In grappling with this question, it is important to underscore that the 2010 Constitution excluded from property rights those property that are illegally acquired. By doing so it settled one of the controversies that limited the implementation of the Ndung’u Land Commission Report on irregularly lands.

Consequently, the question is whether riparian reserves can be part of private land. The Survey Act and laws on water excludes these from private ownership.

Essentially these lands are, pursuant to the Public Trust Doctrine, excluded from ownership by private individuals. They are by their nature reserved for public use.

If one has a title to such land, it can only have been granted illegally. The State has rights to regulate uses of land as part of its authority of development control, otherwise referred to as police powers. This explains the demolitions

If we do not conserve the environment we will not be able to achieve food security under the Big Four Agenda, neither will we realise the constitutional promise of sustainable development.