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Finalise riparian reserve laws to guide land use and development
A construction work at two adjacent buildings along Bagathi Way in Nairobi on May 12, 2016, which were being constructed along a river bank riparian reserve.
Quite often, public writing triggers invaluable information or feedback on matters of public interest. On December 5 last year, this column discussed the matter of riparian reserves, highlighting the discordance in the current legal framework.
A paper I contributed to the latest edition of the Surveyors’ Journal, a technical publication of the Institution of Surveyors of Kenya that focuses on key land sector and real estate issues, digs deep into the matter, complete with considered recommendations.
Immediately after the publication of the December Business Daily piece, I received feedback from some senior practitioner in the building sector, observing that the law regarding riparian reserves is clearly outlined in the Water Act.
He further pointed out that the primary issue lies not with the laws but with the inefficiencies and corruption in Nairobi City County, a concern that should be accorded priority.
Soon after, a land governance expert shared incontrovertible evidence showing that the in the year 2020, the government had indeed embarked on a process to harmonise the divergent laws.
However, going by the evidence shared, this process, which received support at the highest technical and political level, regrettably, remains incomplete.
Finalising it calls for extra work by the executive and parliament. Evidently, the government appreciated that the existing statutory and regulatory frameworks on riparian land and associated reserves in Kenya are divergent and an impediment to their sustainable management.
Subsequently, in June 2020, the government established a committee to review and harmonise the pertinent laws and regulations, among other terms. From its work, the committee was to propose suitable amendments to the existing laws, prepare and initiate the drafting of regulations under the Physical and Land Use Planning Act of 2019.
It was also to provide a clear and rational framework to guide the control of land use and physical development activities within areas identified as riparian land.
What’s most gratifying is that this technical committee, which included experts drawn from the pertinent sectors of land, environment, water, public works, housing, urban development and the Attorney General, completed its work in record time.
The resultant report, complete with proposals for amendments to the existing sectoral laws, proceeded to inform high level interventions by the executive and parliament. This led to the enactment of the Physical and Land Use Planning (Development Permission and Control) (General) Regulations of 2021.
These regulations contain an inclusive definition of riparian reserves, and elaborate details of the standards applicable to the measurement of riparian reserves for rivers, lakes, the Indian Ocean, swamps, dams and springs in Kenya, in keeping with the recommendations of the harmonisation committee.
However, action to effect commensurate amendments to the Water, Survey, Environmental Management and Coordination, and the Agriculture, Fisheries and Food Authority Acts as had been recommended, has not yet been taken.
The laws hence remain discordant. Let the government therefore whip the line ministries involved to effect the proposed amendments in order to close this vexing matter.
The writer is a consultant on land governance. Email: [email protected]
