Kenya’s 2010 Constitution firmly anchored matters environment in the fifth chapter. This elevated them above policy and law, and should inform the management of riparian reserves countrywide. Ongoing efforts by the Nairobi City County Government to inspect and clean up rivers, and others around the country, should be accordingly guided.
Unfortunately, the laws and regulations on the measurement and management of riparian reserves have remained divergent. It’s reason why the current government initiative to harmonise them is commendable.
Through the Ministry of Lands led initiative, the government invited written and oral comments through a public notice issued in April. The submissions closed in late May. It’s expected that the public, experts and key stakeholders seized the opportunity to provide inputs to help resolve the existing gaps and inconsistencies.
Soon after the public notice, the Institution of Surveyors of Kenya (ISK), a key stakeholder in land administration and management, weighed in. ISK issued a comprehensive statement on the matter in early May, whose contents speak to law and practice.
It underscored the importance of protecting water bodies and the restoration of riparian ecosystems to mitigate flooding, and support sustainable management. ISK highlighted the challenges posed by the multiplicity of statutes and the different interpretations attached to the definition and measurement of riparian reserves, which undermine their protection.
The ISK statement helped to enrich discussion on this elusive matter. Its contents should help stakeholders and the government to improve the management of the reserves.
The statement highlighted that some of the affected properties were legitimately allocated and registered before independence, when the categorisation of riparian reserves was non-existent.
Indeed, quite a number of properties in Nairobi and other parts of the country had their boundaries surveyed and defined to be the centre lines of the bounding rivers.
At the time, the current legal regulatory regime did not exist. This reality therefore informed the development of such properties at the time.
Ongoing efforts to inspect developments along rivers should therefore beware the existence and legitimacy of such developments.
How then should they be handled? ISK advises that such property rights should remain respected, and where there is a good case for demolition of permanent developments in the interest of conservation and water flow, the process of compulsory acquisition and compensation as enshrined under the Constitution should kick-in.
The process ought to proceed as happens where public roads, railways or dams have to be constructed on private land, with each case treated on its merit.
Moreover, ISK reminds that the categorisation of private land to riparian reserve should be understood in the context of access, land use and development control, and not the conversion of such land to public.
Riparian reserves on private land therefore remain under private ownership, but with restrictions imposed on the use and development of such land. This ensures consistency with our Constitution as provided under article 66.
Stakeholders and policy drivers in government ought to take interest in the contents of the ISK statement. It will help to temper the approach to the enforcement of regulations on riparian reserves, and to converge the existing legal framework.