Using Eminent Domain Powers to Acquire Private Lands for Protected Area Wildlife Conservation: A Survey under Kenyan Law

Under Kenyan law, the provisioning for eminent domain is in the Constitution, as well as in legislation. Exercising these powers, the State may compulsorily acquire private lands, provided the acquisition is for a public good and compensation is given. Generally, eminent domain is a fairly contentious legal issue: the law on the one part guarantees the sanctity of private property and, on the other, allows the government to expropriate such property even against the will of the landowner. With regard to land, the State has a legal obligation to respect and protect privately owned lands, and a corresponding moral obligation to ensure that land is available to sustain other forms of life as well. While Kenya's wildlife estate is slightly less than eight per cent of the total land area, it is fast shrinking due to an increasing human population and human activities. As such, the wildlife sector has a bleak future unless the trend is reversed. One way of doing this is by using the powers of eminent domain to acquire private lands for purposes of creating and expanding the wildlife protected areas and their support zones. However, for this manner of acquisition to be desirable and advisable, it has to be fair, humane, democratic and honest. This is to ensure that conservation does not violate the rights of people or undermine livelihoods. Incidentally, the process of eminent domain in Kenya is bereft of these attributes and tends to be draconian and militaristic. The paper critically examines the potential of using eminent domain for acquiring lands for protected area conservation and makes recommendations for reforms