Multiplicity of Inconsistent Laws Hindering Effective Protection of Wetlands and Riparian Land
Water is at the core of sustainable development and is critical for socio-economic development, energy and food production, healthy ecosystems and for human survival itself. Water is also at the heart of adaptation to climate change, serving as the crucial link between the society and the environment (United Nations)
In August 2018, the National Environmental Management Authority (NEMA) and the Nairobi Regeneration Team embarked on demolition of buildings illegally constructed on riparian reserves. They also alluded to irregular issuance of title deeds, approvals, licences and permits to owners of buildings constructed on riparian land. Key among the buildings demolished include the Ukay Centre, South End Mall, Shell Petrol Station in Kileleshwa, and some residential apartments, kiosks and billboards in Kileleshwa. Certain areas in Oshwal Centre were also found to be encroaching on riparian land, but the owners promptly undertook corrective restitutive measures along the encroaching areas.
Land in Kenya is classified as public, community or private. Article 62 (1) of the Constitution defines Public land to include all rivers, lakes and other water bodies as defined by an Act of Parliament. Generally, riparian areas are commonly thought of as those lands bordering water bodies such as streams, rivers, and lakes. Such land acts as a buffer zone to conserve and protect ecologically sensitive areas and ensures that an appropriate distance is maintained between a river bank/stream and any nearby physical development or human activities. Therefore, while rivers, lakes and other water bodies are public land, they may border private land, prompting regulation of the use of land abutting the water body.
Currently, there are several laws bearing on the definition, use or management of riparian land. They include the Environmental Management and Coordination Act 1999, the Environmental Management and Coordination (Amendment) Act 2015, Environmental Management and Coordination (Water Quality) Regulations 2006, the Water Act 2016 (which repealed the Water Act of 2002), the Water Resources Management Rules 2007, the Agriculture Act Cap. 318, the Forest Act 2005, the Land Act 2012, the Physical Planning Act Cap. 286, the Survey Act Cap. 299 and the National Land Commission Act 2012. Kenya is also a signatory to the Convention on Wetlands of International Importance especially as Waterfowl Habitat (or simply the Ramsar Convention). The Convention lists what it terms as Ramsar Sites, which are wetlands deemed to be of significant international ecological importance. Article 3 (1) of the Convention provides as follows: “The Contracting Parties shall formulate and implement their planning so as to promote the conservation of the Wetlands included in the List, and as far as possible the wise use of wetlands in their territory”.
Despite the plethora of laws, there are challenges impacting on enforcement of the law on preservation and protection of riparian zones.
Unclear understanding on definition of riparian land under various laws. As mentioned above, there are multiple laws which define riparian land and which provide protection over riparian zones. However, the definitions are dispersed across various laws which use different terminologies and may lead to misunderstanding.
The Water Act 2016 defines “riparian habitat” as the dynamic complex of plant, animal and micro-organism communities and their non-living environment adjacent to and associated with a watercourse. The Land Act 2012 defines “riparian reserve” as the land adjacent to the ocean, lake, sea, rivers, dams and water courses as provided under the Survey Act Cap. 299 or any other written law. The Water Resources Management Rules 2007 define “riparian land” as land which by virtue of the proximity of the land to a water body, management obligations shall be imposed on the owner of the land. The Environmental Management and Coordination (Wetlands, River Banks, Lake Shores and Sea Shore Management) Regulations 2009 define “wetlands” as areas permanently or seasonally flooded by water where plants and animals have become adapted; and include swamps, areas of marsh, peat land, mountain bogs, bank of rivers, vegetation, areas of impeded drainage or brackish, salt or alkaline; including areas of marine water the depth of which at low tide does not exceed 6 maters. This definition also incorporates riparian and coastal zones adjacent to the wetlands.
These regulations include riparian zones in the definition of wetlands which are categorized according to the frequency of flooding (permanent or seasonal). This attaches the element of flooding to riparian zones. This may lead to misunderstanding and incorrect interpretation of riparian land where parties may incorrectly consider riparian land only on the basis of the frequency of flooding of the waterbody it adjoins. It should be clarified that whereas riparian zones that experience or are affected by permanent or seasonal flooding are considered as “wetlands”, they are not necessarily characterized by their predisposition to flooding.
Conflicting approach to defining the recommended riparian distance for different water bodies under various laws. There are contradictions in determination of riparian land distance and boundaries across various laws regulating the protection and use of riparian reserves.
The Survey Act under Section 111 sets the reservation on all tidal rivers to be not less than 30 metres in width above high-water mark for government purposes except for special conditions where the Minister allows for less. Part IX Rule 116 of the Water Resources Management Rules 2007 regulates Conservation of Riparian and Catchment Areas and provides that riparian land on each side of a watercourse is defined as a minimum of 6 meters or equal to the full width of the watercourse up to a maximum of 30 meters on either side of the bank and the width of the watercourse shall be equal to the distance between the top edges of its banks. Further, the riparian land is measured from the top edge of the bank of the watercourse and this will apply to seasonal and perennial watercourses. The riparian land adjacent to a lake, reservoir or stagnant body of water is defined as a minimum of 2 meters vertical height or 30 meters horizontal distance, whichever is less, from the highest recorded water level. Riparian land adjacent to the eye of a spring should be a minimum radius of 3 meters to a maximum radius of 15 meters, measured from around the edge of the spring whereas riparian land adjacent to the ocean is defined as a minimum of 2 meters vertical height or 30 meters horizontal distance from the high-water mark, whichever is less. The Agriculture Act stipulates that it is an offence to cultivate or destroy the soil, or cut down any vegetation or depastures any livestock, on any land lying within 2 meters of a watercourse unless one obtains written permission from an authorized officer. Further, if the watercourse is more than 2 meters wide, the land to remain uncultivated should be within a distance equal to the width of that watercourse up to a maximum of 30 meters. This places an unreasonably high expectation on landowners to continuously measure the width of the watercourse and the cultivation points. The Physical Planning (Subdivision) Regulations, 1998 under the Physical Planning Act Cap 286 provide under Regulation 15 that upon the submission of subdivision schemes, wayleaves or reserves along any river, stream or water course shall not be less than 10 meters in width on each bank, except in areas where there is an established flooding.
The above inconsistencies risk adoption of incorrect or conflicting interpretation by landowners, surveyors, planners and enforcing authorities. The laws and regulations are open to wide interpretation whereby parties may misconstrue the requirements or may be unclear as to which requirements and recommended distances are applicable in their case. Landowners are likely to adopt different measurements across their land to assess the appropriate distance from the water course.
Laws not updated or harmonized across the board. The Environmental Management and Coordination Act 2015, which amends the 1999 version, defines a wetland to mean areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed 6 meters. This definition does not include riparian zones whereas the Environmental Management and Coordination (Wetlands, River Banks, Lake Shores and Sea Shore Management) Regulations 2009 define “wetlands” to incorporate riparian and coastal zones adjacent to the wetlands. The regulations are yet to be aligned with legislative amendments.
Lack of up-to-date and harmonized legislations is likely to impact the understanding and classification of riparian zones, where it may be argued that any requirements under the Environmental Management and Coordination Act 2015 or any other law which relate to wetlands do not apply to riparian zones.
Unclear classification of riparian land. Riparian reserves, riverine wetlands and other fragile ecosystems are protected by law. However, they may fall adjacent to or border private property. Therefore, there may be landowners whose land abuts on a water course.
Rule 119 of the Water Resources Management Rules 2007 provides that riparian land does not imply a change of ownership but imposes management controls on land use for water resource quality. Confusion arises when riparian land forms part of privately-owned property, as landowners resist government interference claiming they have private land ownership rights, despite there a distinction between rights of ownership and rights of use. The rights to land use are not absolute and are subject to regulation. Land use management and planning are key in ensuring land use is sustainable and in conformity with the obligation to protect the environment as provided in the Constitution and laws. Further, some Acts stipulate a distance between the land and a water course without referring to the reserved area as “riparian”. For example, the Agriculture Act prohibits cultivation or destruction of the soil, or cutting down any vegetation or depastures any livestock, on any land lying within 2 meters of a watercourse without permission. However, it does not refer to land within the 2 meters as being “riparian” or having status of a riparian land, reserve or area.
Private landowners whose land abuts on a water course may fail to adhere to the requirements on use and regulation of riparian land on grounds that it forms part of their private property and they have right to private ownership of the land. They argue that because they own the land which falls within a riparian area, they should be allowed to use their land as they wish whether or not it falls within a riparian area as was the case in V/D Berg Roses & Project Agro Lease Limited v Attorney General & Minister for Environment and Mineral Resources  eKLR. The nebulous classification of riparian land has led to perceptions of riparian land which falls on private land as available for the landowners’ own unrestricted use or as community land or land which is either idle, available for construction, or for dumping.
A riparian zone is intended to act as a buffer zone to shield the stream or river from encroachment and is subject to controlled use. Further, land use is subject to regulation and one cannot use land in an uncontrolled or uninhibited manner. All land must be used in a manner that does not endanger the environment. Article 69 of the Constitution requires the State to ensure sustainable exploitation, utilization, management and conservation of the environment and natural resources. It inhibits activities that are likely to endanger the environment. Individuals also have a duty to cooperate with the State to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources. Lack of awareness on the status and classification of riparian land, and the ensuing duties and obligations of riparian landowners may propagate breach of laws, dispute, uncontrolled use, encroachment and resistance.
Conflicting public interest vs private, commercial and development interests in land use and water resources. There are cases where a private owner’s land borders a water course. Riparian habitats are part of the wetland ecosystem, which means that they support other lives, plants or organisms and need to be protected. Where developers or landowners seek to implement projects and carry out activities which impact a sensitive ecosystem, competing interests arise. Whereas public interest considerations feature when the community needs protection against potential harm to the environment through contamination or pollution, landowners and developers have private development or commercial interests where they may wish to develop property for commercial gain.
Riparian land is accorded special environmental consideration and is subject to controlled use. However, this approach clashes with interests to further private gain. For example, Section 75 of the Environmental Management and Coordination Act 1999 provides that no Local Authority operating a sewerage system or owner or operator of any trade or industrial undertaking shall discharge any effluents or other pollutants into the environment without an effluent discharge licence. Before issuance of a licence, NEMA considers the water requirements of riparian residents and ecosystems, human settlements, and agricultural schemes which depend on the affected water course. The Agriculture (Farm Forestry) Rules, 2009 under Rule 4 (2) prohibit agricultural landowners/occupiers from growing or maintaining any eucalyptus species in wetlands and riparian areas. This is in addition to other restrictions placed on riparian land to prevent uncontrolled land use. However, there has been encroachment on riparian land by private individuals pursuing private development or commercial interests. Increasing human population has created demand for more cultivation areas and development. As the global population grows, there is an increasing need to balance the competing commercial demands on land and water resources but still preserve the land and water ecosystems.
Disputes arising from retrospective cancellation or demolition of already approved developments. Disputes have arisen where projects are cancelled or developments demolished where the landowner or developer had already applied for and obtained approval from relevant authorities, including NEMA or the relevant County Council. It may be difficult to enforce the law where the owner of such property already holds a valid title and has obtained necessary approvals, licences or permits from enforcing authorities, including NEMA. Without adequate prevention, due diligence and inspection by authorities at the stage of approval, this may lead to litigation against such agencies, which may result in the structures remaining in place.
Lack of a specific sectoral law to deal with riparian zones. Riparian zones have been regulated across a multiplicity of laws, as discussed above. Riparian land is regulated under both the EMCA 2009 and the Water Act 2016 among a plurality of other complementary laws. NEMA has also published regulations on wetlands whereas the Water Resources Authority has published the Water Resources Management Rules 2007. Implementation may be difficult as different approaches and definitions may be used. There is lack of overarching regulations on riparian reserves.
Status of riparian land has yet to be declared as a protected area. Regulation 18 of the Environmental Management and Coordination (Wetlands, River Banks and Sea shore Management) Regulations 2009 provides that within five (5 years) from 2009, NEMA in consultation with the relevant lead agencies was to identify, prepare and maintain an inventory of river banks, lakeshore and the part of the sea shore which are at risk from environmental degradation, and take measures necessary to prevent and reduce degradation of such areas and also to promote soil conservation measures along river banks, lake shores, and the seashore. Regulation 8 of these regulations further provides that within five (5) years, the Minister responsible for environment may exercise discretion to declare an area to be a protected wetland where such area has national and international significance. Upon declaration of an area to be a wetland, the only permitted activities to be carried out in the area are research, eco-tourism, restoration or enhancement of the wetland or any other activities identified in the Management plan. The Minister may declare a wetland as protected either in consultation with the relevant lead agency (which is any government ministry, department, state corporation or local authority in which any law vests functions of control or management of any element of the environment or natural resource) or on the recommendation of NEMA on its own motion or in consultation with the lead agency, a registered civil society organization or an individual person. Regulation 9 thereunder also permits NEMA to initiate the process of declaring an area to be a protected wetland on its own motion. Riparian reserves are yet to be declared as protected wetlands despite this wide discretion and open, accessible procedure.
Conflicting institutional mandates over management of riparian land. Currently, NEMA is established as the overarching lead agency in protection of the environment. The Water Resources Authority established under the Water Act 2016 (which replaced the Water Resources Management Authority under the repealed Water Act 2002) is tasked with regulating the management and use of water resources. Similarly, there is currently a Ministry of Environment and Forestry, the Ministry of Water and Sanitation, and the National Land Commission which creates overlaps at the point of enforcement and lack of clarity in determining the institution which should act in relation to protection of water resources. It may also foster inertia or inaction by one agency due to the existence of another institution with the mandate to enforce. The institutional overlap precipitates lack of accountability as responsibility lines are blurred. Also, the fragmentation leads to unclear enforcement coordination between institutions such as NEMA and the newly established Water Resources Authority.
Considering the above challenges, it is important to examine possible interventions that can be made to enhance protection of wetlands and riparian zones.
Firstly, the laws on riparian land/reserves/zones should be harmonized with clear and consistent definitions and with clear demarcations as to the recommended riparian distance. There is need to consolidate the various laws on riparian zones into one single law. Riparian zones ought to have their own sectoral regulations to avoid reference to a multiplicity of statutes and regulations on definitions of riparian land and recommended distances. This would allow parties to read from the same text.
Various parties also ought to exercise enhanced due diligence when purchasing or developing property. This includes seeking advice from conveyancing lawyers who should go beyond undertaking routine official land searches to requiring physical inspections of the property; obtaining advice from surveyors and planners as part of the due diligence process; and obtaining appropriate warranties from landowners when purchasing property.
There is need for agencies such as NEMA, the WRA or the line ministries in charge of water and the environment to create widespread awareness on understanding riparian land. This should incorporate public participation and stakeholder involvement, aimed at educating the public and enforcing authorities who issue approvals at various stages of a development project such as NEMA, the National Land Commission, County Councils, National Construction Authority and planners, surveyors, real estate agents, conveyancing lawyers and judiciary officials.
Although there is currently a Kenya Wetlands Atlas in existence, NEMA should fast-track preparation of a comprehensive inventory of river banks, lakeshore and the part of the sea shore which are at risk from environmental degradation, take strategic measures to prevent and reduce degradation of such areas and measures to promote soil conservation measures along river banks, lake shores, and the seashore. The inventory should go beyond this to identify, survey and delineate riparian reserves. Similarly, riparian reserves should be declared as protected areas. This can be done in consultation with the relevant lead agency (which is any government ministry, department, state corporation or local authority in which any law vests functions of control or management of any element of the environment or natural resource) or on the recommendation of NEMA on its own motion. NEMA is also permitted to initiate the process of declaring an area to be a protected wetland on its own motion.
Creation and separation of the enforcement unit from the approval unit could also be considered to prevent overlaps between the various departments and units. This will allow for division of responsibilities and accountability.
There is need to fast-track completion of the project entitled “Geo-mapping Riparian Zones/Lands for Catalyzing Sustainable Development in the Designated Special Economic Zones in Kenya”, which is commissioned by NEMA in collaboration with the National Land Commission (NLC) and Regional Centre for Mapping of Resources for Development. The objectives of the project are to map riparian zones, geo-code developments within riparian areas, and develop online and interactive public portal for riparian zones verification and environmental crimes reporting. The findings of the project should be publicized and subjected to public participation and widespread stakeholder engagement and validation. If successful, the project will contribute towards informing the status of riparian zones, defining and zoning of riparian areas, and demarcating and mapping riparian areas towards improving governance and integrity in riparian land and water resource administration in Kenya.
Author: Beverly Muthoki Musili – Governance Department