Delivering Public-Private Partnership infrastructure projects in Kenya; the quest for efficient compulsory land acquisition processes
Munga, Nathaniel Chisenga
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Bringing about economic development in a country like Kenya requires opening up of the vast semi-rural areas. This calls for the provision of land for public infrastructure development, the backbone for building the economy. This study sought to investigate the legal framework of compulsory acquisition and whether the current legislative framework is sufficient to favour Public Private Partnerships investments in the country. The study examined primary as well as secondary sources of literature and delved into the historical development of land rights in Kenya. The study then evaluated the gaps in the existing legislative framework that governs PPP infrastructure projects and compulsory land acquisition processes and provisions involved in the implementation of a PPP Project. It also evaluated the financial considerations and the negative impact on investor confidence that this legislative framework has had on the development of infrastructure trough the PPP model. The study then focused on a case study of the Standard Gauge Railway Project as a sample past experience, albeit a hybrid PPP and thereafter, carried out a comparative study on different jurisdictions which are considered as strong or weak eminent domain jurisdictions. The findings made were that first, there is a need to attain a position where the government holds superior rights over land in Kenya. This will facilitate land acquisition. The second finding that was made was that the rights of individual land owners ought to be protected by the state and that there needs to be a balance between the state’s superior power to compulsorily acquire private land and the protection of rights of individual land owners and persons with any interest in land. The third finding made was that the legislative framework in Kenya for compulsory acquisition would greatly facilitate PPPs if the opposing interests implemented the recommendations of this study to achieve the balance required in the protection of land rights. The main recommendations proposed by the study were amendments to various law to establish a clear-cut path to effective compulsory land acquisition legislative framework that PPP investors can deem predictable, efficient and enhances viability of PPP projects. The study proposes these measures based on the realization that the Kenyan Government has called for different innovative ways of financing public infrastructure projects which situation has been necessitated the ballooning public debt and lack of sufficient funds for development. The Kenyan Government therefore is pushing for the injection of focus on the Public- Private Partnerships sector where land acquisition continues to play an essential role in the successful and timely delivery of a successful infrastructure project.