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Kenya has previously faced local oppositions and tense relations over transmission lines, pipeline infrastructure, and access roads have led to project delays, cost overruns, and even project cancellations. Proactive engagement and commitment to partnering with tribal groups at the initial stages of project development. Early engagement with affected communities helps utilities deliver low-cost power projects by reducing delays caused by community objections and litigation.
The Kenya-New Zealand exchange facilitated by Power Africa and the U.S. Energy Association, proves that community engagement is actually good for a utility’s bottom line — it is not a charitable practice, or just an exercise in corporate social responsibility (https://medium.com/power-africa/the-sacred-nature-of-geothermal-energy-9f5f9f0de532)
The following standard performance indicators are derived from the case studies above and which are useful in ensuring smooth land acquisition, resettlement programme and ultimate realization of energy project development:
In the case studies (Turkey, Uganda, Kinangop Wind Park) failures in LSLAs and involuntary resettlement programmes alongside energy projects are attributed to among others:-
Local opposition is an indicator Land tenure problem associated with resettlement and compensation for restoration. The failed RAP implementation will always result to the community dissatisfaction, foreign stakeholders and financier’s withdrawal from support. There is a need for reforms in the governance and legal frameworks to ensure successful development of land based energy project without compromising livelihoods of land owners. Therefore, analysis of risks and impacts of resettlement should be carried out in light of tenure rights, environment, cultural and economic aspects.
The Kenya Transmission Company Limited (KETRACO) is a wholly owned Kenya Government entity incorporated in 2008 in accordance with Electricity Power Act 1997 with a mandate to build the high voltage electricity transmission infrastructure linking generation stations owned by KenGen and Independent Power Producers (PPs) and the supplier sub-stations owned by Kenya Power. All these participants at some point engage with land owners with regard to land. This calls for some regulation framework and safeguards to protect the parties and stakeholders.
The present land related legislations (Kenya Constitution 2010 and Land (Amendment) Act of 2016 only provide for compensation of losses without a clear framework for relocation or resettlement and related support mechanisms. There is also no uniform Resettlement Policy Framework that sets guiding principles for managing the impacts of resettlements while recognizing the livelihoods of the PAPs. In particular, the Kenyan Constitution of 2010 requires “prompt payment in full, of just compensation” to the affected person. The Land Act 2012 provides that “just compensation shall be paid promptly in full” to affected persons while Land Registration Act 2012 registers transactions/interests in land. These legislations also provide for acquisition or purchase of private land for a public purpose or in public interest. However, they do not provide for resettlement of displaced persons as a result of such compulsory acquisition beyond monetary compensation. This is notwithstanding the fact that affected persons may incur much more than they are paid in compensation in order to restore their livelihoods to the previous status.
Presently, where the project is funded externally, there is the tendency to conform to the guidelines on involuntary resettlement required by the lender mostly influenced by World Bank guidelines (OP 4.12). There is evidently gaps that require some evaluation strategy to: identify impacts and principles lacking but necessary for equitable and best practice in involuntary resettlement.
In line with World Bank guidelines (OP 4.12), many international agencies recognize that involuntary resettlement is associated with impacts that require avoidance or minimization. The guidelines require that an entity whose work involves involuntary resettlement should in the first instance prepare a resettlement policy framework (RPF) to guide its activities, and secondly prepare a resettlement action plan (RAP) for each project undertaken. It is on these instruments and principles that the implementation can be audited and reviewed against minimum safeguards. An examination of various international agencies (World Bank, African Development Bank, Asian Development Bank, Inter-American Development Bank, JAICA (Japan) and Commission on Dams) yield common principles that are internationally recognized to undertake projects involving involuntary resettlement:-
In practice, however, implementation vary from one country to another, depending on national legislation on involuntary resettlement. For instance, while the Asian Development Bank (ADB) Involuntary Resettlement (IR) Policy stipulated that compensation of PAPs would be at the replacement value of the asset lost, the laws of India, under the Land Acquisition Act 1984, allowed compensation at market value based on asset registration value and not cost. In some instances in the case of China, there was a difference between the compensation standards stipulated in the RAP and the actual compensation provided to PAPs, where the actual compensation was evaluated as being too generous.
According to World Bank (2004) and International Finance Corporation (2002), involuntary resettlement should avoid or minimize involuntary resettlement. Where this cannot be avoided, the project team should have a monitoring and evaluation plan to restore and better livelihoods of the affected persons. RAP Report specifies the procedures that project team follow and the actions to be taken to mitigate adverse effects, compensate losses, and provide PAPs with opportunities to restore or improve their living standards and income earning capacity.
The project under study is in Category A usually associated with adverse impacts on livelihoods and ecosystems by the World Bank classification with regard to impact analysis. The socio-economic and environmental impacts of the project were, assessed (besides the RAP) through Environment and Social Impact Assessment (ESIA) studies under Environmental Management and Co-ordination Act (EMCA, 1999) and related legislations. The ESIA and RAP Reports both detailed how various resultant activities would affect human land-based livelihood and the diverse biodiversity, due to general impacts of resettlement program. The executive summary in the Disclosure Report on Resettlement Action Plan on the Eastern Africa Interconnector identified the following impacts:-
The analysis of impacts of LSLAs elsewhere by Richards (2013) uses Poverty Analytical Framework (OECD, 2007) and Land Governance Classification system of International Land Coalition (ILC). According to ILC (2012), the impacts of LSLAs are directly experienced by the poor (smallholder farmers, pastoralists, indigenous people and vulnerable groups). The highest incidents of poverty in Africa exist among citizens living in customary tenure regimes and that the poorest and landless are most dependent on the ‘commons’. (http://www.fao.org/docrep/ARTICLE/WFC/XII/0138-B1.HTM)
This study adopted a hybrid approach from the two frameworks to classify the impacts of LSLAs. Although these frameworks were based in Agri-based LSLAs, they relate broadly to land based power transmission line projects in Kenya. The similar impacts have also been witnessed in oil based LSLAs in Uganda, Nigeria, Ecuador and Northern Kenya where in each case:-
The hybrid framework classifies the impacts into four major categories: Tenure, land governance, livelihood and poverty, and environmental impacts having far reaching impacts at the macro- level.