Any law that causes more harm than good to citizens is not law

Every government has the power to acquire private land for public use. This power is known as the eminent domain and is accompanied with an obligation on the government to pay just and prompt compensation for the acquisition of that private land. This is the power that the government exercised to acquire land for construction of the Standard Gauge Railway. This power is derived first from Article 40 (3) and Article 40 (4) of the Constitution. The procedures are then set out in detail in other laws. 

Every government also has the power to regulate how owners utilise and manage their private land. Every government has a duty to exercise this power to secure the interest of the public.

Therefore, a government has no moral or legal obligation to pay compensation when it stops an owner from using land in a manner that may cause present or future harm to the public. This power is aptly named police power.

Police power is granted to the government by Article 40 (4), Article 40 (6), Article 61 (1), Article 62 (1) (i), Article 66 and Article 69 of the Constitution. It is this police power that government agencies are exercising to demolish constructions on riparian land. 

Principles involved

For some, this may seem a bitter pill to swallow. How can an action that was lawful in the past, be unlawful in the present? To understand the complexities and intricacies of the legal principles involved, the ongoing land reform in South Africa is a good starting point.  

South Africa gained independence from apartheid rule in 1994. In the period of transition from apartheid rule to independence, South Africa put in place one of the most progressive Constitutions in the world, rivaled perhaps only by Kenya’s of 2010.

However, despite its progressive Constitution, its large body of independence laws, and a robust independent constitutional court, South Africa is bedeviled by land inequality, poverty, crime, inequality between its multi-racial population, and inequality between the rich and the poor. 

An audit undertaken by the government of South Africa of private land ownership revealed that whites own 72 per cent of farmland and agricultural holdings. Coloreds own 15 per cent.

Indians own 5 per cent. Blacks own 4 per cent. Others own 3 per cent. Only 1 per cent is co-owned. Until the government led by President Cyril Ramaphosa decided to take corrective action, the Constitution and the laws of South Africa proved incapable of resolving these fundamental societal injustices. By confronting a Constitution and laws that sustain an unjust status quo, South Africa is about to experience the birth pangs and side effects of a “peaceful” revolution. 

It is beyond debate that in Kenya water is a scarce resource. With a fast dwindling forest cover, and shriveling water resources, the majority of our land is arid and semi-arid.

Tap water is a preserve of urban areas, cities and towns. In such urban areas, cities and town, only an insignificant percentage of the population has access to regular and clean tap water.

It should be beyond debate that the conservation and protection of forests, rivers and riparian land remains a government policy priority. Any law in Kenya that says otherwise, or protects a contrary situation, is unjust as it sustains a status quo that is and will continue to be harmful to the public. 

Margaret Mead once wrote that “never doubt that a small group of thoughtful committed citizens can change the world. Indeed, it is the only thing that ever has.” Our forests, rivers, wildlife, national parks, public grounds, hospital and school grounds, riparian and other land, and so on, should be reclaimed and preserved for the prosperity of our past, present and future. President Kenyatta and his compatriot President Cyril Ramaphosa today stand on the correct side of history.

-The writer is an advocate of the High Court of Kenya. [email protected]