Every serious investor, local or foreign, always seeks to enjoy secure land tenure rights, and the goodwill of neighbours. That assures stability of an undertaking and good buy-in from those with whom they have to co-exist.
This alone, apart from the text of law, should form an entry point for Lamu oil refinery investors. But let’s also turn to the implications of those who may have to vacate from the project site to pave way for the initiative.
Eviction is harsh. It’s a total overhaul of lifestyles. Most people only relate with it arbitrarily. Its raw nature involves packing up, with or without notice, and leaving what one has always considered home, and moving on to live in new spaces.
It interrupts social networks, existing means of livelihoods, gets children out of school, forces one to construct dwellings anew, and to have to reinvest in new social acquaintances. Eviction, even with compensation, is never to be celebrated. One, therefore, easily relates with the plight of those that have to leave the Lamu site, compensation notwithstanding.
Perhaps the reason our laws are quite clear where one has to vacate land for projects.
A businessperson who seeks to put their investment on privately owned land must negotiate and purchase it from affected proprietors at market rates. That’s straightforward.
However, when government seeks to have public infrastructure such as roads, airports, dams or railways constructed on or pass over private land, compulsory acquisition, commensurate and prompt compensation in accordance with the Land Act, must be done.
County executive member responsible for land moves the National Land Commission to process the acquisition where the project is county driven.
The Cabinet secretary responsible for lands handles such compulsory acquisition requests where the project belongs to the national government. Then the National Land Commission processes the compulsory acquisition and compensates the affected in accordance with the law.
But what then happens when land belongs to the county or national government? Would compensation arise? Usually no. But things changed quite a lot with the application of the Constitution in 2010.
While parts of Section 40 of the law provide that compensation shall not be due for any unlawfully acquired land, other parts of it provide that it may be made to occupants in good faith.
This complicates circumstances where citizens may hold claims over land that may have been converted to public while they held legitimate ancestral claims, as happened in parts of coast Kenya.
It should not be difficult for government, which one presumes provided entry rights to the Lamu oil refinery investment, to listen to and address the claims to the land earmarked for the new project.
And even if the claims turn out legitimate, compensating for the land affected, and the mundane developments thereon would be good practice, given the magnitude and importance of this project.
That will afford the project affected persons a new lease of life, while leaving the investor to enjoy a peaceable entry to the site, and the goodwill to run the investment into a long-term future.