If you own land bordering a river or through which a river flows, how far from the banks should you build or farm? What guides your decision? The national law on river, or riparian reserves, is unclear; it confuses professionals, developers and landowners alike. It is, therefore, not surprising that in practice, we have so much breach. I suspect, however, that most of the breaches are unintended.
Compliance with the laws on riparian land is largely dependent on the legal framework one was schooled in. But we have a situation where developers, professionals, landowners and regulators read from different scripts. A number of laws dwell on the issue, some explicitly, others implicitly. Let me highlight some.
The 1969 Survey Act governs the conduct and standards of survey. It provides that for surveys of government land, what we now call public land, a reservation of not less than 30 metres above the high-water mark shall be reserved for government purposes on all tidal rivers. Note that the emphasis is on government land and tidal rivers. So what is the position for surveys on community and private land? Who determines the high-water mark for the many tidal rivers around the country; indeed, is this ever systematically done? Moreover, some plans prepared under this law introduce a direct contradiction. The annotation along some of the rivers reflected on survey plans is silent on river reserve widths, instead providing that the legal boundary is the centre line of such rivers.
Anyone with property bound by a river with such annotation could easily misconstrue the annotation to imply that the river enjoys no riparian reserve. This is open to legal interpretation.
The Agriculture Act, an old statute which governs agricultural land, requires that unless one has permission from an authorised officer, no cultivation should be done on land lying within two metres of a watercourse. It, however, gets more complex when it states that where the watercourse itself is wider than two metres, the land to be left uncultivated should be equal to the width of the watercourse but up to a maximum of 30 metres. This presupposes that landowners will keep measuring river widths and adjusting cultivation lines; quite an expectation.
The regulations of the 1996 Physical Planning Act introduce yet more haze. Without reference to the Survey and Agriculture Acts, they provide that during the submission of sub-division plans for consideration for approval, reserves provided along any river, stream or watercourse shall not be less than 10 metres wide, on each bank. This applies except in areas where there is established flooding. But how will a developer or farmer, or even a professional, interpret this against the above laws?
Further, the Environmental Management and Coordination Act 2015, which amends the 1999 version, gives the line minister broad powers to protect and conserve the environment. The minister may also issue regulations or standards for the management of river banks. The 2006 regulations provide that no person shall cultivate or undertake any development activity within a minimum of six and a maximum of 30 metres from the highest ever recorded flood level, on either side of a river or stream, and as may be determined by the authority from time to time. This law further provides that the minister may declare a river bank to be a protected area and impose any desirable restrictions to protect it. Immense powers on the one hand but on the other this statute does not repeal the others.
Finally, the 2016 Water Act establishes a Water Resources Authority, which is an organ of the national government. This fairly active organ, which was known as the Water Resources Management Authority under the 2002 Water Act, is responsible for regulating the management and use of water resources in Kenya. The various rules formulated under this law, however, appear to give no guidance on widths of riparian reserves, which, I presume, imply that the other prescriptive statutes apply.
Clearly, we have a legal conundrum on the matter. Yet legal clarity is fundamental for the effective management and preservation of riparian reserves. It is likely that there was insufficient inter-sectoral collaboration during the enactment of the laws. The government may, therefore, need to make proactive efforts to harmonise them and draw clear guidelines. These guidelines should inform all land categories and uses.
For the relevant State enforcement agencies to cope with the task of educating the public and policing rivers countrywide, the government will need to ensure that they have adequate financial and technical capacity. Similar attention should be given to lake and seashore reserves.
Mr Mwathane is a surveyor. [email protected]