Skip to main content
SpringerLink
Log in

Who Owns Soil Carbon in Communal Lands? An Assessment of a Unique Property Right in Kenya

  • Chapter
  • First Online:
International Yearbook of Soil Law and Policy 2017

Part of the book series: International Yearbook of Soil Law and Policy ((IYSLP,volume 2017))

Abstract

This paper considers soil carbon property rights as they relate to community land tenure. This discussion is critical for Kenya and many other African States, which are taking steps towards establishing climate-change-related laws and policies. The paper also observes the special place of Kenya, being the first African State to enact a statute dedicated to climate change (Climate change Act, 2016, Laws of Kenya). As far as considerations of soil carbon are concerned, Kenya’s initiative on manure-based projects, (Ringius, UNEP Collaborating Centre on Energy and Environment (UCCEE) (1999) Soil carbon sequestration and the CDM Opportunities and challenges for Africa, p. 4.) and having been the first to obtain carbon credits issued under sustainable agricultural land-use management (SALM), has a unique position to lead the way in exploring the important issue of how to expose and clarify the law in order to maximise the potential for soil carbon sequestration. Importantly, the discussion herein echoes the concerns of other countries that are also grappling with the issue of how to assign which rights to carbon, generally in the course of engaging in climate change mitigation activities. This paper further considers the special case of communal land rights, as a factor that will inevitably affect the assignment of rights and distribution of any carbon-related benefits for the reason that this kind of tenure is the most predominant, not just in Kenya but in Africa.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution

Institutional subscriptions

Notes

  1. 1.

    Green House Gas (GHG) gases are those which absorb and emit radiations. They include: Water vapor (H. 2O); Carbon dioxide (CO) Methane (CH), Nitrous oxide (N. 2O), Ozone (O), Chlorofluorocarbons (CFCs), Hydro fluorocarbons (incl. HCFCs and HFCs).

  2. 2.

    UNFCCC Art.2.

  3. 3.

    See generally the Kyoto Protocol (1995).

  4. 4.

    Article 3(4) Kyoto Protocol.

  5. 5.

    This relates to soil carbon capture from the atmosphere and its long term storage.

  6. 6.

    CDM mechanisms are one of the market based climate change approaches that were introduced under the Kyoto Protocol. The mechanism functions like a form of Foreign Direct Investment (FDI) for emission reduction projects that are situated in Africa and whose payment and establishment comes from developed countries.

  7. 7.

    The term carbon sink relates to a situation where the amount of carbon that is emitted is lesser than the one that is absorbed. It also relates to a situation of acting as a carbon reservoir.

  8. 8.

    ibid.

  9. 9.

    Foucherot and Bellassen (2011), p. 2.

  10. 10.

    Ibid.

  11. 11.

    GOK (2014).

  12. 12.

    Ringius (1999), p. 5.

  13. 13.

    With regard to this discussion, one can consider private rights for Kenya to include all rights that are not public, including communal land rights.

  14. 14.

    Article 61, Classification of land: (1) All land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals. (2) Land in Kenya is classified as public, community or private.

  15. 15.

    Kameri Mbote (2005), p. 4.

  16. 16.

    Medium Term Plans (MTP), refers to the periodical progressive time plans aimed at achieving Kenya’s vision 2030(a policy based blue print for economic realisation).

  17. 17.

    This is a task force that was launched pursuant to Section 4(e) of the Community Land to prepare specific laws under the Act that will among others, guide the registration process.

  18. 18.

    World Bank (2013).

  19. 19.

    Barnes and Quail (2009).

  20. 20.

    Charles (1990), p. 225.

  21. 21.

    Kyoto Protocol.

  22. 22.

    Allan and Baylis (2006), p. 104.

  23. 23.

    Carbon is listed as a gaseous Mineral under the Mining Act, Laws of Kenya.

  24. 24.

    See for instance Allan and Baylis (2006).

  25. 25.

    Ringius (1999), FAO (1996), FAO (1996).

  26. 26.

    Sophie et al. (2014), p. 110.

  27. 27.

    Section 6, Mining Act, (2016).

  28. 28.

    Article 260, Constitution of Kenya.

  29. 29.

    See Constitution definition of Property under Art. 260.

  30. 30.

    Section 260 of the Constitution of Kenya, the interpretations section, states the following: “land” includes:

    1. (a)

      the surface of the earth and the subsurface rock;

    2. (b)

      any body of water on or under the surface;

    3. (c)

      marine waters in the territorial sea and exclusive economic zone;

    4. (d)

      natural resources completely contained on or under the surface; and the air space above the surface.

  31. 31.

    Article 62(2), Constitution of Kenya.

  32. 32.

    Petroleum (Exploration and Production) Act, Cap 308, Laws of Kenya, which states that all petroleum that lies in the earth’s strata belongs to the government.

  33. 33.

    Mining Act; Trading in Unwrought Precious Metals Act, Cap.309; Diamond Industry Protection Act, Cap.310.

  34. 34.

    Article 6(c) Mining Act.

  35. 35.

    Oil Turkana Limited (Previously Known As Turkana Drilling Consortium Limited) & 3 Others V National Oil Corporation Of Kenya & 4 Others [2013] eKLR.

  36. 36.

    S.3 Judicature Act, Laws of Kenya.

  37. 37.

    ‘cuius est solum, eius est usque ad coelum et ad inferos’.

  38. 38.

    This reference is normally identified in Latin as’ quicquid plantatur solo, solo cedit.

  39. 39.

    Cite the law and property rights forest/in Ongoing publications….

  40. 40.

    GOK (2009).

  41. 41.

    http://www.wildlifeworks.com/saveforests/forests_kasigau.php (last accessed on 19th June 2017).

  42. 42.

    The use of the term ‘group ranch’ pertains to the formalisation of community land in the now repealed Land (Group) representatives Act. The lands that are registered here, are required by law to transition into the Community Land Act of 2016.

  43. 43.

    S.2 of the Land Act defines customary land rights as rights conferred by or derived from Kenyan customary law whether formally recognised by legislation or not; s.2 of the CLA defines customary land rights as those rights that are conferred by or derived from African Customary law, customs or practices provided that they are consistent with the constitution.

  44. 44.

    Okoth-Ogendo (1979).

  45. 45.

    Kenyatta (1938), p. 25.

  46. 46.

    GOK (1954).

  47. 47.

    GOK, Ministry of Lands (2011), 4.

  48. 48.

    Article 61(2) Constitution of Kenya.

  49. 49.

    Section 63 Community Land Act.

  50. 50.

    Tenure and REDD+ Developing enabling tenure conditions for REDD+ Authors: Ann-Kristin Rothe & Paul Munro-Faur, available at http://theredddesk.org/sites/default/files/resources/pdf/UN-REDD%20Programme%20Policy%20Brief%20Tenure%20and%20REDD%2B.pdf, (last accessed on 22nd July 2016); “Voluntary Guidelines” on tenure (Committee on World Food Security, May 2012).

  51. 51.

    Section 11, Community Land Act.

  52. 52.

    The Land (Group Representatives) Act and the Trust Land Act.

  53. 53.

    Schedule 5, Constitution of Kenya, specifying that among other legislation to be drafted by the Kenyan Parliament was the Community Land Act.

  54. 54.

    Section 14, Community Land Act.

  55. 55.

    Transition from the old communal land tenure regime is provided for under Sections 47, CLA and the Transitional Provisions.

  56. 56.

    National Climate Change Strategy, National Climate Change Action Plan, National Climate Change Response Strategy, National Climate Change policy.

  57. 57.

    See Generally the German Soil Protection Act.

  58. 58.

    see US soil Conservation Act of 1935.

  59. 59.

    Convention on Biological Diversity, UNFCCC, etc….

  60. 60.

    See Kamunde, Unpublished, Tenure in the Context of REDD+ in Kenya (unpublished) draft of 30th Aug 2016. Paper in file with the Author.

  61. 61.

    Hepburn (2008), p. 245.

  62. 62.

    Ibid. 246.

  63. 63.

    Kamunde (2016), p. 29.

References

Articles/Books

  • Allan T, Baylis K (2006) Who owns Carbon? Property Rights Issues in a Market for Green House Gases

    Google Scholar 

  • Barnes G, Quail S (2009) Property rights to carbon in the context of climate change. University of Florida, March, 2009

    Google Scholar 

  • Charles R (1990) The new property after 25 years. Univ San Francisco Law Rev 24:223

    Google Scholar 

  • Foucherot C, Bellassen V (2011) Carbon Offset Projects in the Agricultural Sector. CDC Climate Research, Climate Report, Research on the economics of climate Change

    Google Scholar 

  • Hepburn S (2008) This article is based on a seminar given by the author. Carbon rights as property interests: categorization, creation and emissions trading. Australian National University College of Law Seminar, Canberra

    Google Scholar 

  • Kameri-Mbote P. Land tenure, land use and sustainability in Kenya: Towards innovative use of property rights in wildlife management IELRC Working Paper 2005

    Google Scholar 

  • Kamunde N, An Assessment Of The PLR Framework Governing Tenure In The Context of REDD+ In Kenya, (23rd August 2016) (Unpublished, In File With the Author)

    Google Scholar 

  • Kenyatta J (1938) Facing Mount Kenya: the traditional life of the Gikuyu. Kenya Publications, Nairobi

    Google Scholar 

  • Okoth-Ogendo HW (1979) Land tenure and its implication for the development of Kenya Semi-Arid Areas. Institute of Development Studies, University of Nairobi, Nairobi

    Google Scholar 

  • Ringius L, UNEP Collaborating Centre on Energy and Environment (UCCEE) (1999) Soil carbon sequestration and the CDM Opportunities and challenges for Africa

    Google Scholar 

  • Sophie MC, Kamunde-Aquino N, Kago C, Kiguatha L, Idun Y, Creating an Enabling Legal Framework for REDD+ investments in Kenya, June 2014

    Google Scholar 

  • Tenure and REDD+ Developing enabling tenure conditions for REDD+ Authors: Ann-Kristin Rothe & Paul Munro-Faur

    Google Scholar 

Cases

  • Oil Turkana Limited (Previously Known As Turkana Drilling Consortium Limited) & 3 Others V National Oil Corporation Of Kenya & 4 Others [2013] eKLR.

    Google Scholar 

  • LLC v U.S. Fish & Wildlife Serv., 2006 U.S. Dist. LEXIS 29334, 9-10 (W.D. La. 2006).

    Google Scholar 

Government Documents

  • Annex C: Government of Kenya Climate Change Activities, Adam Smith International Community land rights recognition (CLRR) model: for the recognition, protection and registration of community rights to land and land based resources, Ministry of Lands, September 2011, Land Reform Transformation Unit.

    Google Scholar 

  • GOK, Agricultural Land Act.

    Google Scholar 

  • GOK, National Climate Change Action Plan

    Google Scholar 

  • GOK, National Climate Change Policy

    Google Scholar 

  • GOK, National Climate Change Response Strategy

    Google Scholar 

  • Kenya Vision 2030, (2007).

    Google Scholar 

  • Mining Act, Cap 306, Laws of Kenya, Published by the National Council for Law Reporting (NCLR) and Government Printers.

    Google Scholar 

Reports

  • Food and Agriculture Organization of the United Nations (1996) The State of Food and Agriculture, 1996. FAO, Rome

    Google Scholar 

  • FAO (2012) Voluntary Guidelines” on tenure (Committee on World Food Security)

    Google Scholar 

  • Africa, Vivid economics, KIPPRA (Kenya Institute for Public Policy Research and Analysis).

    Google Scholar 

  • Swynnerton RJM (1955). The Swynnerton Report: A plan to intensify the development of African agriculture in Kenya. Government Printer, Nairobi

    Google Scholar 

Statutes

  • Community Land Act, Laws of Kenya (2016) Published by the National Council for Law Reporting (NCLR) and Government Printers.

    Google Scholar 

  • Constitution of Kenya, Revised Edition 2010, Published by the National Council for Law Reporting (NCLR) and Government Printers.

    Google Scholar 

  • German Soil Protection Act (1998). Long title: Act on Protection against Harmful Changes to Soil and on Rehabilitation of Contaminated Sites, Federal Soil Protection Act (Bodenschutzgesetz, BBodSchG).

    Google Scholar 

  • Judicature Act, Cap 8, Act No. 16 of 1967, Published by the National Council for Law Reporting (NCLR) and Government Printers.

    Google Scholar 

  • Land (Group Representatives Act) Now Repealed, by the Community Land Act, 2016.

    Google Scholar 

  • Petroleum (Exploration and Production) Act, Cap 308, Published by the National Council for Law Reporting (NCLR) and Government Printers, Laws of Kenya.

    Google Scholar 

  • Trust Land Act, Now Repealed by the Community Land Act, 2016, Published by the National Council for Law Reporting (NCLR) and Government Printers.

    Google Scholar 

  • US soil Conservation Act of 1936

    Google Scholar 

Treaties

  • Convention on Biological Diversity (1992), [1993] ATS 32/1760 UNTS 79/31 ILM 818 (1992).

    Google Scholar 

  • United Nations Framework Convention for Climate Change (U.N.FCCC) 1771 UNTS 107/ [1994] ATS 2/31 ILM 849 (1992).

    Google Scholar 

  • UNFCCC (1997) Kyoto Protocol to the United Nations Framework Convention on Climate Change adopted at COP3 in Kyoto, Japan, on 11 December 1997

    Google Scholar 

Download references

Author information

Authors and Affiliations

  1. Department of Private Law, Kenyatta University School of Law, Nairobi, Kenya

    Nelly Kamunde-Aquino

Authors
  1. Nelly Kamunde-Aquino
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Nelly Kamunde-Aquino .

Editor information

Editors and Affiliations

  1. German Environment Agency, Dessau, Germany

    Harald Ginzky

  2. Farmer Center, Iowa State University, Urbandale, Iowa, USA

    Elizabeth Dooley

  3. Sustainable Soils and Desertification, IUCN World Commission on Environmental Law, Kleinmachnow, Germany

    Irene L. Heuser

  4. Kampala, Uganda

    Emmanuel Kasimbazi

  5. Research Centre for European Environmental Law, University of Bremen, Bremen, Germany

    Till Markus

  6. Research Institute of Environmental Law, Wuhan University, Wuhan, China

    Tianbao Qin

Rights and permissions

Reprints and permissions

Copyright information

© 2018 Springer International Publishing AG

About this chapter

Check for updates. Verify currency and authenticity via CrossMark

Cite this chapter

Kamunde-Aquino, N. (2018). Who Owns Soil Carbon in Communal Lands? An Assessment of a Unique Property Right in Kenya. In: Ginzky, H., Dooley, E., Heuser, I., Kasimbazi, E., Markus, T., Qin, T. (eds) International Yearbook of Soil Law and Policy 2017. International Yearbook of Soil Law and Policy, vol 2017. Springer, Cham. https://doi.org/10.1007/978-3-319-68885-5_17

Download citation

  • DOI: https://doi.org/10.1007/978-3-319-68885-5_17

  • Published:

  • Publisher Name: Springer, Cham

  • Print ISBN: 978-3-319-68884-8

  • Online ISBN: 978-3-319-68885-5

  • eBook Packages: Law and CriminologyLaw and Criminology (R0)

Publish with us

Policies and ethics

Search

Navigation