An Analysis of the legal framework in entrenching the concept of social licence on compensation for compulsory acquisition of community land in Kenya
Njoroge, Mercylene Wanjiru
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This thesis offers a logical approach to the question of community land and the attendant indigenous land rights. More particularly, it addresses the recognition and protection of non-market values to community land as a means to entrenching social licence among the communities that are affected by extractive excursions, mainly in arid and semi-arid areas. It thus seeks to uncover the failures in legislation in providing for the concept of proportionality and mapping out of unique community and indigenous land rights bordering on the livelihood of indigenous communities in cases of compulsory acquisition and how they relate to social licence. To achieve this, the research seeks to answer the question on the extent to which the Kenyan legal regime has addressed and mapped out the non-market values in community land as a means of endearing the concept of social licence. Such an inquiry is done to further objectively establish the relationship between such ideal recognition and the seeding of social licences against the global best industry practices in order to distil out the ideal recommendations for the Kenyan framework. Though the lenses of the above research questions and objectives, the research takes an analytical approach on the legal framework contained in legislation. To further espouse the emerging best industry practices, the research employs a comparative approach looking at the decisions of the major regional judicial organs and tribunals the have taken a counter-majoritarian approach in developing jurisprudence in this area. At the tail end, the research comes to the conclusion that the recognition of non-market values and consideration in community land, more particularly in cases of compulsory acquisition is lacking. This lacuna validates the hypothesis that the lack of an ideal framework translates to a weak or non-existent social licence framework which eventually leads to aggression of local communities. To that end therefore, coupling the findings and conclusion that can be distilled from the juxtaposition of the legislative analysis against the comparative jurisprudence, is that Kenya is in need of law reform to map out with specificity the non-market values in community land and provide a matrix for the implementation as a way of seeding and entrenching social licence in Kenya’s compulsory acquisition framework in relation to community land.