A country’s coastline is arguably its most important and strategic piece of real estate.
It is the gateway to the sea and the opportunities therein. It is also the entry into a country.
Guarding and managing it well should, therefore, be a top priority. For Kenya, whose tourism sector contributes significantly to the gross domestic product, the coastline belt, which is home to pristine touristic properties, is priceless.
The policy on its management must, therefore, be predictable and progressive. But is it?
When ocean water level drops, more land is created along the shoreline. So whose land is this and can it be allocated?
Conversely, when ocean water levels rise, as has been happening due to global warming, sea water begins to encroach on the front row beach properties.
So if it encroaches beyond the registered property boundaries, does this mean that those affected lose part of their land?
Does it mean that a public institution like the Kenya Wildlife Service, which manages national marine parks along the shoreline, can extend jurisdiction into the encroached sections of private land where marine life will have migrated?
Where there is destruction of property by invading sea water, does the State have a mitigation policy? How do the property owners on the front row protect their property? Ultimately, what is Kenya's policy and legal position on these issues?
I had reason to do some quick study on the policy and law relating to shoreline properties around the world.
HIGH WATER MARK
The high water mark of the ocean shifts in and out with the drop or rise of water levels in the ocean.
The high water mark provides the basis for fixing property boundaries in most countries.
And this is what is used here in Kenya too. Old civilisations have established ways of dealing with the gain and loss of land associated with the drop or rise of sea water.
Some have used common law and jurisdictional case law to provide precedents on how to deal with this.
Other nations are trying to formulate policy and law based on their unique experiences.
But in Africa, where property survey and property law are fairly recent, and where perhaps governments have had other priorities, this rather unique challenge is yet to receive serious attention.
SUBMERGED REAL ESTATE
Yet in a coastal city like St Louis, which used to be the capital of the French colony of Senegal and French West Africa earlier in history, I witnessed first-hand large belts of submerged real estate late last year. This happened gradually as the water level rose.
Here in Kenya, the situation at the Coast provides land development, conservation, planning and tourism professionals a rude challenge. As I sized it up, I witnessed how rising sea water and the raging seasonal tides pose a threat to some of the tourist developments along the shore.
The property owners struggle to avert losses, trying to erect protective gabions and sea walls at great cost.
But the heavy tides easily pluck away the gabions and destroy any weak sea walls. The sea continuously threatens to destroy some of the expensive tourist developments.
Indeed, local narratives provided credible evidence that the water level has been rising. Some pointed out that in earlier years, big forests stood next to the sea but are now no more after sea water encroached. This rise is likely to continue with further global warming.
This should be reason for concern. Our land policy needs to go far enough in providing direction on this threat.
Moreover, the substantive law in the Land Act needs to provide clarity on the fate of land encroached upon by sea water.
Other pertinent legislation such as the Wildlife, Environmental Management, Physical Planning and Survey Acts need to be merged and made to respond more specifically to this emerging challenge. Similar clarity is needed for lake and riparian reserves.
Mwathane is a surveyor. [email protected].co.ke