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The Unjust Valuation of Pastoralists’ Land in Kenya

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The government has passed laws that routinely undervalue pastoralists’ land and undermine pastoralism as a system of production and main source of livelihood in the drylands.

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The Unjust Valuation of Pastoralists’ Land in Kenya
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Kenya’s constitution classifies all land in Kenya as either public, community-owned or private. More than 65 per cent of Kenya’s landmass is estimated to be community land. Such land is occupied and used mainly by the pastoralist communities in the northern drylands of Kenya. This area produces roughly 89 per cent of the beef produced in the country; mutton and chevron are not included in the government statistics. Beef is by far the most popular meat consumed in Kenya. It represents more than 70 per cent of all the meat consumed by volume due to urbanisation and a growing demand from the middle class in Kenyan cities.

Pastoralism, as practiced on the unregistered community lands by the indigenous people in Kenya, is of significant economic worth. The annual national pastoralist livestock offtake was valued at US$0.189 billion, while the yearly meat offtake was estimated at 154,968 tonnes and valued at US$0.389 billion. There is consensus that pastoralism contributes about 13 per cent of Kenya’s Gross Domestic Product (GDP), with approximately 13 million people directly benefiting from the livestock value chain. Over 75 per cent of cattle herds in Kenya are kept by pastoralists, who supply the bulk of the meat consumed.

But the economic contributions of pastoralists are hardly reflected in the government’s strategies or national development plans. As a result, pastoralism continues to face setbacks that hinder the realisation of its full potential. Further, the absence of accurate or, in some cases, the use of outdated data and inappropriate valuation methods, leads to an underestimation of the contribution of pastoralists to the economy.

The constitution protects a person’s right to own property individually or in association with others without any form of discrimination. Further, the state cannot deprive any person of their property or interest in a property unless it is in accordance with the constitution and the established statutory law.  In the case where land, whether registered or not, is compulsorily acquired by the state for a public purpose or in the public interest, the constitution requires that it be done on the principles of just compensation and prompt payment of its total value.

Pastoralists rarely obtain just compensation for land acquired compulsorily by the state because the system of community land valuation is unjust towards the people.

Community land governance

The Land Act 2012 is the primary framework that governs public and private land administration and management while community land governance is addressed under the Community Land Act 2016.  The Community Land Act repealed the Land (Group Representatives) Act (Cap 287) and the Trust Lands Act (Cap 288), which previously provided for the administration and management of community lands in Kenya.

The Community Land Act defines a community as a consciously distinct and organised group of users of the community land who are citizens of Kenya and share common attributes. These attributes are common ancestry, similar culture or unique mode of livelihood, socio-economic or other similar common interests, geographical space, ecological space, or ethnicity.

Pastoralists rarely obtain just compensation for land acquired compulsorily by the state because the system of community land valuation is unjust towards the people.

The Community Land Act 2016 provides for the recognition, protection, and registration of community land rights. Community land in Kenya is owned and vests the power to appropriate in the community. The Act further stipulates that the communities shall hold the communal land as family or clan land, reserve land, or any other category of land recognised under the Act or other written law. In addition, community land can be held in land tenure systems such as customary, freehold, leasehold or any other tenure system recognised by law. Community land includes all land owned by the former group ranches, community forests, grazing areas, shrines, land traditionally held by hunter-gatherer communities, land lawfully held as trust land by the county governments, and any other land legally declared to be community land by law.

Any parcel of community land that is not registered under the Community Land Act remains unregistered community land to be held in trust by the county governments on behalf of the communities. The county is prohibited by the Community Land Act from selling, transferring or disposing of any parcel of unregistered community land or even converting it into private Land.

Compulsory land acquisition

The statutory provisions under the Land Act 2012 guide the determination of compensation for compulsorily acquired community land rights. In addition, subsidiary legislation in the form of rules to guide assessment for just compensation has been developed by the National Land Commission (NLC) and approved by the national parliament.

The Kenyan government introduced an unfair adjustment to the Land Value Index Laws Amendment Bill 2019 that was hurriedly passed by both houses (the National Assembly and the Senate) and assented to by the president. The Land Value Amendment Bill aimed to amend various sections of the Land Act 2012, the Land Registration Act 2012, the Prevention, Protection and Assistance of Internally Displaced Persons and Affected Communities Act, and provide for the assessment of Land Value Index with regard to compulsory land acquisition. Pastoralist communities raised concerns through the Kenya ASAL Advocacy Group (KAAG) regarding the amendment’s serious implications for the just and fair compensation for pastoralist rangelands.

The amendment effectively entrenched unfair government policies and practices that include zero-rating the value of pastureland and legitimised unjust compensation practices of acquiring community land by keeping secret the full appreciation of the rangeland value. 

Moreover, parliament passed the Land Value Index amendment law without the usual scrutiny by the members of the Pastoralist Parliamentary Group (PPG). The PPG is the largest parliamentary caucus representing the pastoralist communities of 15 counties in Kenya. The members of the national parliament founded the PPG to provide political leadership and protect and safeguard the interests of the pastoralist people at the national level.

By the passing such laws and policies, the government routinely undervalues and undermines pastoralism as a system of production and main source of livelihood in the drylands. Government statistics undervalue land used by the pastoralists, contributing to higher poverty indices and environmental degradation in the pastoralist region. Government-generated indices and valuation models do not capture the total value of rangelands and their uses, violating the constitutional protection of the pastoralist communities’ right to its common property.

Valuation practice in Kenya

The valuation practice in Kenya is governed by the Valuers Act Cap 532, which provides a Valuers Registration Board that regulates registered valuers’ activities and conduct. Any person registered by the board must be a full member of the Institution of Surveyors of Kenya (ISK).

Being members of the ISK, valuers in Kenya are required to subscribe to the International Valuation Standards (IVS) set by the International Valuation Standards Council. These standards specify the concepts, approaches, and bases for undertaking valuation in Kenya. The standards, guidelines, principles, and ideas are expected to promote consistency and transparency in valuation practice in Kenya. The standards prescribe three approaches that underpin these valuation methods: the market approach, the income approach and the cost approach.

The government’s statistics undervalue land used by the pastoralists, contributing to higher poverty indices and environmental degradation in the pastoralist region.

The market approach derives the value of an asset by comparing the asset with comparable (similar) assets for which sale price information is available. It assumes all assets are sold and bought in an open market. The income approach establishes value by converting future cash flow from an asset to a single present value, taking account of time value for money. It assumes assets are held for investment purposes.

The cost approach seeks to determine the value of an asset using the economic principle that a buyer will pay no more for an asset than the cost to obtain an asset of equal utility, whether by purchase or by construction in normal circumstances. Based on the foundations of these approaches, the following valuation methods have been variably applied in the valuation of assets in Kenya: Direct Sales Comparison (Comparable); Income Capitalization (Investment); Profits (Accounts); Replacement Cost; Reproduction Cost; summation (Contractors).

Valuation in community rangelands in Kenya

What is to be valued?

Valuation of community lands can be located from the constitution’s definition, which, as stated earlier, holds that community land include land registered in the name of group representatives (group ranches); land lawfully transferred to a specific community or declared to be community land by an Act of Parliament; land lawfully held, managed or used by specific communities as community forests, grazing areas or shrines; ancestral lands and lands traditionally occupied by hunter-gatherer communities; and land lawfully held as trust land by the county governments. On the face of it, the issue seems straightforward enough, but the practical disaggregation of attributes and interests in context is complex and displays excellent heterogeneity.

Turkana community system

The topography of Turkana County is varied, comprising of lowlands, plains, and mountains. The soils are sandy, volcanic, clay, alluvial and mixed types. There is fertile farming land (both irrigated and non-irrigated) on the lower Turkwel river basin, grazing pasture lands, forests, wildlife areas, caves and historical sites, mining and petroleum production areas, fishing sites, and beekeeping sites. Land use outside the urban areas varies depending on the ecological and geological characteristics, cultural and traditional practices, and government and non-governmental influences.

Significant land use practices include livestock keeping, fishing, subsistence farming, beekeeping, hunting and gathering, mining, cultural ceremonies and social gatherings, worship, tourism, and forestry. These uses may change depending on the seasons and climatic conditions.

Farming land is, for instance, converted to grazing land during the dry season and after crops have been harvested. The physical extent of community land is not defined by conventional administrative or cadastral boundaries but on cultural, use and control bases. Cultural definitions of boundaries vary depending on the rights under consideration. For instance, the more significant territorial boundary includes the areas occupied by the nineteen (19) Turkana subgroups (the outer boundary). Each of the subgroups also has its boundaries within the area that is covered by the external boundary. Families also have their boundaries defined by trees under the Ekwar system.  Individuals also have control areas known as Eree. 

The Turkana cultural property rights over this land are a continuum that includes territorial control, and ownership is collective. All subgroup use and control, family use and control, Individual use and control, individual ownership and control in irrigation schemes, access for members across and within subgroup-controlled areas, access and use by neighbours and friends of families for some resources such as water from wells (Akare) and use by neighbouring communities outside the territorial boundary, migratory rights, all these rights are exercised within customary rules and regulations that are not in writing but are well known and respected by all community members.

Community land ownership and management in Marsabit County

The land within Marsabit County comprises diverse landscapes, including high altitude mountains with rain forests, other forests, farmlands, grasslands, deserts, lakeshores and desert oases. The landscapes are characterised by volcanic, loamy, sandy and clay soils, and rock outcrops. Significant land uses vary across these landscapes and include livestock keeping, fishing, subsistence farming, hunting and gathering, social and cultural activities including traditional religious practices, extraction of traditional medicines and herbs, forestry, tourism and wildlife.

Some areas have mixed uses, like agro-pastoralism, while others have a specific use such as pastoralism. The land outside the municipal territory is traditionally owned by four specific ethnic communities: Borana, Rendille, Gabra and El Molo. Each of these communities has different territorial zones that they have historically controlled and used. The boundaries of the territorial zones are identified by geographical features that are historically acknowledged and known and respected by all. The land is not under a formal cadastral and land administration system.

Each of the communities has a different cultural background and clear customary rules governing land use and occupation.

Despite the various communities having distinct land control and ownership rights, they have developed reciprocal use rights for pastureland and water resources. The elders of the respective communities administer the customary practices. The clans, families and individuals in these communities have collective ownership rights, occupation rights, and user rights for pasture and other natural resources in the rangelands.

Families also have their boundaries defined by trees under the Ekwar system.

The community exercises control over any settlements even though it practices pastoralism that is characterised by temporary settlements. As a rule, communities may not graze in one area for more than three months continuously to avoid degradation. Permanent settlements are mainly found in the urban areas and market centres.

Neighbouring communities have mobile access and use rights subject to the customary rules and regulations of the host communities that are often overseen by individual elders appointed by the community’s traditional council. The various landscapes have different uses at different times. For instance, the desert is used for grazing during the rainy season, whereas the highlands are used for grazing during the dry season. All communities share the oases through appointed community regulators. At times cultural events affect land use. For instance, the circumcision period among the Rendille community may dictate where the animals, especially the camels, will be allowed to graze. The land is viewed as a symbol of community identity and the physical features of historical and cultural events.

The Dheda system of the Borana of Isiolo County

The Merti rangeland comprises the areas outside Isiolo central, which are largely dry season grazing areas. There are also wet season grazing areas, small subsistence farming areas, several small pastoralist towns with markets, and one growing urban settlement. The Borana people classify areas using the term Dheda.

The landscape is primarily savannah grassland with some hills and plateaus and varying vegetation cover. The soils are mainly sandy and mixed soils. The dominant land use is livestock keeping, complemented by small-scale subsistence farming along the Ewaso Nyiro riverbank, social amenities, and cultural and traditional shrines. In addition to these uses, the land is the central defining feature for community identity and the foundation of the traditional livestock production system (pastoralism).

The boundaries for the rangelands are determined by geographical features that are historically recognised by the communities, such as hills, seasonal rivers, rangeland water points and other types of rangeland resources related to pasture within each Dheda.

The clans, families and individuals in these communities have collective ownership rights, occupation rights, and user rights for pasture and other natural resources in the rangelands.

The rangeland is mainly occupied and controlled by the Borana community. The clans, families and individuals do not have direct control over the rangelands. Elders govern it on the basis of customary rules and regulations. Families and individual members have user and access rights.  Community members cannot dispose of land by sale or exchange since the land is considered an intergenerational community asset. Neighbouring communities from Marsabit, Wajir, Garissa and Samburu have migratory use and access rights that are defined by the Borana community’s rules and regulations. These rights are seasonal, and the neighbouring communities cannot establish permanent settlements in the grazing areas.

There are community boreholes situated in different locations to provide water for both livestock and people. They are controlled by elders to avoid use during unauthorised seasons or as a disincentive to permanent settlement. This ensures that the grazing patterns are maintained to prevent land degradation or depletion of pasture before the onset of the rainy seasons.

From the case studies of these three communities, it is clear that the subject of valuation should vary across these different communities taking into account their specific customs and practices, the physical attributes of the land, and the region’s economic activities. The valuation should have legal, economic, social, cultural and environmental dimensions that will vary depending on the purpose, the community’s context, and timing. Community land valuation variables are not only influenced by the host community but also by the interests of neighbouring communities, including access, user rights and their social-economic activities. Some of these variables, such as those related to culture and spiritual practices, may not be directly quantifiable in the national valuation framework.

Neighbouring communities from Marsabit, Wajir, Garissa and Samburu have migratory use and access rights that are defined to the Borana community’s rules and regulations.

Besides state interests and frameworks, the rights and tenure arrangements that comprise the subject of valuation also contain several bundles that include individual, family, clan, ethnic subgroup, ethnic group and neighbouring ethnic groups. In the process of valuation, the physical scope should be ascertained by social mapping that considers cultural and social dynamics. However, the government’s current cadastral system does not allow for this. 

In light of the foregoing, it is necessary to review how community land valuation for the purposes of compulsory land acquisition is done in Kenya. Whether relying on real estate background, livelihood safeguards or ecological management, the statutes that guide valuation in the case of compulsory community land acquisition by the state must adopt new guidelines that comply with constitutional requirements and legal and policy changes.

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Jarso Mokku is the Chief Executive Officer (CEO) of the Drylands Learning and Capacity Building Initiatives (DLCI). A Kenyan NGO Promoting the Resilience of the Drylands Communities through Policy and Practice Change in the Horn of Africa and East Africa.

Politics

The Myth That Is Plastic Waste Recycling in Kenya

The quantities of recycled plastic in Kenya remain insignificant, but the long-term ecological cost of disposing plastic waste in the environment will be immeasurable.

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The Myth That Is Plastic Waste Recycling in Kenya
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One aspect of modern Kenyan urban living that takes getting used to are the regular, well-timed garbage collection days. Miss your day and you will have to keep the trash a week longer awaiting the next collection date when the beaten-up lorries full of garbage labour through city estates in mid-morning collecting the waste produced by city dwellers.

Should you find yourself in the central business district at around midnight, you may run into these rickety trucks collecting food waste from city restaurants, discarded cartons from offices, and empty drink cans from the city’s clubs that they ferry to the few landfills scattered around the city.

The barely roadworthy trucks are part of the more than 205 lorries working at the city’s many collection points in a hectic bid to keep Nairobi County hygienic. So profitable is the waste collection business that private contractors and cartels have infiltrated the trade.

In Nairobi alone, the county’s garbage collection service is complemented by nearly 150 private sector waste operators who also serve this city of over 4 million residents. Private investments have done a lot but not nearly enough to address the garbage crisis that plagues Kenya’s towns and cities.

Kenya’s urban households produce the bulk of the country’s solid waste, including a major share of the estimated 24 million plastic bags that are used and discarded every month. A significant portion of the plastic waste ends up in dumpsites alongside scrap metal, paper materials, glassware, and medical and toxic waste. Plastic waste constitutes a significant portion of this trash, and poses the biggest challenge to solid waste management in Kenya.

According to the International Union for Conservation of Nature (IUCN), 73 per cent of all plastic waste generated in Kenya goes uncollected. The National Environment Management Authority (NEMA) reports that between 2 and 8 per cent of the plastic waste is recycled while the rest is disposed of at dumpsites such as Dandora and Ruai in Nairobi, Kachok in Kisumu, and Kibarani at the coast. In Mombasa alone, some 3.7 kilogrammes of per capita plastic waste end up in the ocean, contributing to the 1,300 billion pieces of plastic that find their way into the Indian Ocean every year. Experts estimate that there will be more plastic than fish species in all the oceans globally by 2025.

Kenya banned plastic carrier bags in 2017, at the same time that the United Nations Environment Programme was launching the Clean Seas campaign to reduce marine litter. From June 2020, visitors entering game reserves, forests, beaches, protected areas and conservancies are no longer allowed to carry plastic water bottles, cups, cutlery, plates, drinking straws, and packaging within the protected areas.

On the production end, there are industry-led plastics initiatives such as the Kenya Plastic Action Plan and the creation of the Kenya Extended Producer Responsibility Organization (KEPRO), whose mandate is to ensure that plastics are mapped, ferried, sorted, and where possible, put back into circulation. Given the low garbage collection rates, and the even lower sorting rates, recycling has been misleadingly touted as the key to managing plastic waste.

For context, the cumulative global plastic waste produced since 1950 is estimated at 8.3 billion tonnes — half of which was produced in the last 13 years alone — at an average of 300 million tonnes annually.

In Kenya recycling doesn’t work    

Recycling has its limitations. Despite being cited as a major solution to the problem of plastic waste, a solution that has been taken up by 34 of the 54 African states,  numerous reports have proven that it costs more to recycle than to dispose of the waste. That of course begs the question: costlier for whom?

While disposing plastic is cheaper than recycling, the long-term ecological cost to Kenyans living close to landfills and downstream is provably much higher. Kenyan plastic manufacturers are in the business for profit and, for the most part, recycling does not offer them value for money.

According to Kenya’s PET plastic industry’s joint self-regulation effort, once plastic waste enters the recycling conveyer, it is assembled and packed into bales that are sold as industrial goods and sent to the dozens of recycling plants around the country to be sorted by quality, industrial variety, texture and colour. The waste is then shredded, sanitized, melted down, and moulded into smaller, smoother plastic pellets.

These pellets, known as nurdles, are bought and once again melted down and fashioned into other plastic products, ready for re-use by industries. This form of recycling is the optimal pathway for plastic waste, but it rarely is feasible. Recycling plastic waste is a lengthy and costly process that is avoided by many plastic producers.

To put it in context, less than 45 per cent of Nairobi’s overall waste is recycled, most of it undergoing what is referred to as down-cycling, open recycling, or cascaded recycling.

Cascaded recycling refers to the process of using recycled plastic waste to make an item of a lower quality than the original product. These items typically have reduced recycling potential, which destines them for the landfill after use. Models of cascaded recycling in Kenya’s informal settlements therefore turn the triangular recycling loop into a one-way direction to an incinerator or landfill.

Recycling plastic waste is a lengthy and costly process that is avoided by many plastic producers.

Global research led by plastics expert Dr Roland Geyer claims that only 9 per cent of all the plastic waste ever produced has been recycled. Kenya’s cascaded recycling rates are harder to quantify but an authoritative plastics report states that only 14 per cent of global plastic packaging waste was collected for recycling in 2013. Only 8 per cent of that amount was down-cycled, of which 4 per cent atrophied during the process while only 2 per cent was recycled into a product of equal or higher value.

Even locally, recycling plastic is a costly process and sorting it, many experts assert, is unfeasible, which means that there is no way out when dealing with plastic waste other than banning the production and use of plastics.

Kenya and the global dumping of plastic waste 

The non-feasibility of recycling plastic waste has been an open secret among plastics industry insiders since as far back as the 1970s. As early as 1973, senior executives of plastics multinationals had already ruled out plastic waste recycling on a large scale. Instead, these multinationals paid for misleading big-budget advertisements extolling the virtues of plastic products, and lying about the ease with which plastics could be recycled for other uses, while also placing the responsibility of recycling or disposing plastic waste on the end-user. However, the mounds of plastic waste that are now an eyesore in many urban areas belie the claim that recycling is the solution.

Old industry memos and library archives show that as far back as the mid-1980s Kenyan scholars like Kamau Hezron Mwangi had begun to call for a serious look into the efficacy of recycling  while, in the mid-1990s, researcher Dr J.N. Muthotho and his team demanded for greater research across specific plastic products supply chains. The growing concerns linked to plastic products, their quality, disposability and the economics of the industry paint an image of an industry that has always been well aware of the problems caused by plastic waste but has lacked the motivation to address the issue. In an increasingly consumerist society, plastic has continued to be affordable, readily available, cheap, convenient, and yet very difficult to dispose of.

Ending Kenya’s relationship with plastic

A radical behavioural shift by producers, packaging firms and end-users is required in order to rid the Kenyan environment of plastic pollution. The ban on plastic carrier bags has had an estimated 80 per cent efficacy rate. Industry insiders including manufacturers and distributors now say that the ban should be extended to disposable tableware, plastic straws, plates and cutlery.

The mounds of plastic waste that are now an eyesore in many urban areas belie the claim that recycling is the solution.

This, the stakeholders say, will reduce the amount of single-use plastic in landfills, reduce waste, minimize animal deaths, improve human safety, and save our water systems. However, a concerted effort is needed to ban single-use plastic bottles, plastic straws, and plastic packaging and replace them with organic, biodegradable plastic (BDP) alternatives.

Most BDP products in the Kenyan market are made of thermoplastic starch that uses a polyester similar in material strength to plastic. Currently there is only one manufacturer in the country. However, researchers are coming closer to finding organic alternatives to plastics.

Reimagining a post-plastic country

In Kenya, the stakeholders have to begin to reimagine new models of ridding the country of plastic waste in the everyday life and habits of Kenyan citizens. Nairobi and its environs alone is estimated to produce between 2,400 and 3,000 tonnes of general waste every single day, an estimated 20 per cent of which is plastic waste.

“People don’t want to stop using plastic. It is cheap and easy to use so I understand why people like [it]”, says Kinuthia, an unlicensed collector in Uthiru.

A consumer culture that creates an ever-increasing demand and use of plastic products ought to be overhauled, reimagined, and refashioned.

Even within economic circles, the focus on GDP as a measure of economic progress while ignoring the social, ecological and cultural impacts is increasingly frowned upon. As far back as the late 1980s, the World Bank President Barber Conable recognised that the ecological cost of economic production has to be accounted for. “Current calculations ignore the degradation of the natural-resource base and view the sales of nonrenewable resources entirely as income . . . A better way must be found.” he wrote.

Kenya’s plastic producers and importers have to begin to consider how to shift the society away from plastic products and integrate the alternatives in the marketplace. Kenyans have the opportunity to have a national conversation around local plastic producers and importers, if we are to work effectively towards phasing out all plastic products sold in the market.

With imports valued at an estimated US$883 million, Kenya’s plastics sector has a critical duty to phase out plastic products so as to, at the very least, ensure that the end-user does not have to choose between affordability, disposability, and sustainability of the packaging when making a purchasing decision.

The plastic waste crisis calls for Kenyans to design products with their life cycle and their end in mind at the outset. Therefore, designing products with their utility and disposal in mind is critical. For example, utilizing snap-together parts in appliances minimizes the use of screws, making the end product easier to disassemble, recover, and recycle at the end. This evolution in design proactively shapes the journey of a product in order to ensure that as much material as possible is recycled back into the production conveyer.

Even within economic circles, the focus on GDP as a measure of economic progress while ignoring the social, ecological and cultural impacts is increasingly frowned upon.

On 24 March 2021, Kenya’s Centre for Environment Justice and Development (CEJD) held a consultative forum with 24 grassroots Civil Society Organisations in the waste management sector with support from Break Free From Plastic. The members used the existing legislative framework that bans single-use plastic carrier bags in the country to launch the CSOs for Zero Plastics in Kenya network that integrates the input of stakeholders in the affected sectors. Still, this push by CSOs towards a wider ban seems to have created a policy tension between the National Environment Management Authority (NEMA) and multi-nationals that rely on plastic products for packaging.

In 2018, NEMA tried to extend the ban on plastic carrier bags to single-use plastic containers such as bottles made of PET. However, the companies involved in the production of PET products instead proposed a self-regulated, industry-led solution under PETCO.

Despite NEMA’s pledge in 2018 to make PETCO membership mandatory for all plastic industry players, its membership remains voluntary. This lapse has slowed the acceptance of membership by stakeholders and by industry players and minimized compliance. Kenya currently has eight PET converters, but only one of them is a PETCO member. Moreover, an estimated 900 bottling plants use PET containers but only eight (1 per cent) are members of PETCO.

The future of a post-plastic Kenya requires consolidation of existing industry efforts, ramping up scientific research on alternatives, a shift in consumer behaviour and robust incremental policies in enforcing the bans and restrictions. Only then can Kenya secure its ecology, manage the diverse interests of the stakeholders involved and still manage its ecological health with posterity in mind.

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Politics

Microplastics: the Destruction of Marine Life and the Blue Economy

Even as Kenya’s land-based resources continue to shrink because of a rapidly growing population, microplastic pollution of Kenya’s Indian Ocean is putting in jeopardy the country’s maritime resources.

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Microplastics: the Destruction of Marine Life and the Blue Economy
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Five scientists, Joyce Kerubo, John M. Onyari and Agnes Muthumbi from the University of Nairobi, Deborah Robertson-Andersson from the University of Kwa Zulu Natal, and Edward Ndirui Kimani from the Kenya Marine and Fisheries Research Institute (KMFRI), undertook a research study last year that returned a harsh verdict of a high presence of microplastics (MPs) in Kenya’s Indian Ocean.

MPs are plastic pellets, fragments, and fibres that enter the environment and are less than 5mm in dimension. The primary sources of MPs are vehicle tyres, synthetic textiles, paints, personal care products, and plastic products that have disintegrated into tiny particles because of environmental turbulence.

The study by the five scientists, Microplastic Polymers in Surface Waters and Sediments in the Creeks along the Kenya Coast, Western Indian Ocean (WIO), identified four polymer types in Kenya’s Indian Ocean. High-density polythene is the most abundant at 38.3 per cent, followed by polypropylene (34.6 per cent), low-density polythene (27.1 per cent), and medium density polythene (17.1 per cent). The research findings were published in the European Journal of Sustainable Development Research on 18 October 2021.

The concentration of MPs in the surface waters along the Kenyan coastline was higher compared to other parts of the world, the study warned. The findings of the study also confirmed those of previous studies on the presence of MPs in Kenya’s Indian Ocean.

The scientists also cautioned that the documented information on the specific polymeric composition of these particles in seawater and in the sediments along the Kenyan coast was insufficient. The findings, the study offered, demonstrated the extent of exposure to MPs in Kenya’s ocean ecosystems, therefore justifying policy intervention in the management and disposal of plastic waste, and the protection of the ocean’s rich biodiversity for sustainable development.

It drew testing samples from three creeks: Tudor and Port Reitz in Mombasa County and Mida in Kilifi County. Tudor Creek covers an area of approximately 20 square kilometres and is fed by two seasonal rivers—Kombeni and Tsalu—that originate around Mariakani, about 32 kilometres northwest of Mombasa. The two seasonal rivers collect runoff containing plastic and other waste from the mainland and discharge it into the creek.

Surrounding Tudor creek are several densely populated informal settlements that include Mishomoroni and Mikindani that may add MPs to the ocean. According to the study findings, the majority of the MPs were fibrous materials from textiles and ropes, probably from wastewater from washing clothes and from fishing activities.

Other key facilities that could contribute to the pollution include shipping activities at the Port of Mombasa, meat processing at Kenya Meat Commission (KMC), Coast General Hospital, Container Freight Stations (CFSs) and Kipevu Power Station. Before it was rehabilitated, Mombasa County Government dumped a lot of waste at Kibarani, near the two creeks and just next to the ocean.

Tudor Creek recorded the highest pollution, also as a result of rain runoff from Kongowea market and Muoroto slums, and Mikindani sewage effluent. Moreover, according to the study, which could, however, not determine the proportions, many industries on Mombasa Island release their effluent into the sea, increasing MPs in sediments.

Mida Creek was used as a control in the study as it does not have river inflows. In addition, the creek is in a marine reserve that forms part of the Watamu Marine National Park and Reserve. However, MPs from different polymers were found in sediment and surface water samples from all the sites—including Mida Creek which is within Watamu National Marine Reserve—which the researchers had thought to be safe from pollution by industrial effluent, sewage disposal, and fishing activities.

Many industries on Mombasa Island release their effluent into the sea, increasing MPs in sediments.

The study attributed the pollution at Mida Creek to high tourism activities, boat and dhow fishing activities, densely populated villages such as Dabaso, Ngala, and Kirepwe and the mangrove vegetation cover of tall trees that binds soil particles thus favouring the accumulation of MPs.

According to a United Nations Environment Programme (UNEP) report released in March 2019, plastic—which makes up a sizable proportion of marine pollution—can now be found in all the world’s oceans, but concentrations are thought to be highest in coastal areas and reef environments where the vast majority of this litter originates from land-based sources.

In Kenya, daily plastic consumption is estimated at 0.3 Kilograms per person. In 2018, Kenya imported between 45,000 and 57,000 metric tonnes of plastic.

Earlier in 2020, KMFRI had carried out its own study—Microplastics Pollution in Coastal Nearshore Surface Waters in Vanga, Mombasa, Malindi and Lamu, Kenya—that painted an even gloomier picture of MP pollution.

The four sampling locations represented the South coast, Mombasa and the North coast of Kenya’s coastal nearshore waters, and looked into considering fishing, recreation, and industrial activities, as well as the municipal effluent that finds its way into these target areas.

The objective of the study was to assess the abundance MPs and their composition in Kenya’s coastal near-shore waters during the two rainy seasons at the Kenyan coast: the north-east monsoon which runs between November and March, and the south-east monsoon which runs from April to October.

The results showed a widely varied distribution of MPs between the two seasons, with the overall highest concentrations occurring during the south-east monsoon when surface runoff from rainwater and from effluent from the major towns is high.

As confirmed in other research studies, the concentrations recorded by KMFRI, were quite high compared to other parts of the world. This provided baseline data for MPs, showing that population, anthropogenic activities and seasonal variations a play key role in influencing pollution by MPs.

Total MP concentrations in all the study areas during the north-east and the south-east monsoon seasons ranged between 83 MPs/m³ and 8266 MPs/m³ and between 126 MPs/m³ and 12,256 MPs/m³ respectively, with a mean of 3228 MPs/m³. The highest microplastic levels were found in Mombasa at 12,256 MPs/m³ during the south-east monsoon season, where runoff and effluent due to heavy rains are thought to be the primary source. The next highest levels were found in Malindi, occurring during the south-east monsoon season, because of inflows from River Sabaki.

Boat activities and tourism during the north-east monsoon season and runoff from the town during the south-east monsoon season mostly affected Lamu, while fishing activities, as well and runoff from the town, could be responsible for the abundance of MPs recorded in Vanga.

Solid waste management remains an enormous challenge in coastal towns, with Mombasa County facing the biggest challenge due to a burgeoning population. Although most of the solid waste generated in the county is organic—largely from households, hotels, restaurants and agricultural produce markets, the largest being Kongowea and Marikiti—plastic takes up a significant share.

In its County Sessional Paper No 01 of 2019, Mombasa County estimated daily waste production at 2,200 tons, 68 per cent of which is organic. Approximately 18 per cent of this waste is plastics, cardboard, paper and metals.

Other inorganic waste such as e-waste, construction waste and junk makes up an estimated 14 per cent of the waste generated. Public and private health facilities generate an estimated 2 to 3 tonnes of biomedical waste daily.

Solid waste management remains an enormous challenge in coastal towns, with Mombasa County facing the biggest challenge due to a burgeoning population.

Most of the solid waste generated is disposed in undesignated open grounds—in VOK, Kwa Karama, Kadongo, Junda, Saratoga, and Mcheleni. It is disposed in the same form as it is generated without being recycled or reused. Disposal of solid waste in the open has continuously had a negative environmental health impact through the contamination of water sources.

Moreover, with the limited investment in solid waste recycling and recovery systems, disposal methods in the county have been a contributor to public nuisance.

There are two designated dumpsites, namely Mwakirunge in Kisauni and Shonda in Likoni. However, these dumpsites are poorly managed and do not respect the prescribed environmental health standards while Mombasa County government’s budgetary allocation for solid waste management is not sufficient to meet the desired results.

MPs are harmful to human health, experts say. The ingestion of MPs by species at the base of the food web causes human food safety concerns, as little is known about their effects on the food that finally lands on our menu.

The minuscule size of MPs renders them invisible to filter-feeding fauna, leading to unintentional ingestion. In a study published in December 2020 in the Africa Journal of Marine Science, W. Awuor, Agnes Muthumbi and Deborah Robertson-Andersson confirmed the presence of MPs in marine life. The study investigated MPs in oysters and in three species of brachyuran crabs.

They did sampling in eight stations distributed between three sites—Tudor, Port Reitz and Mida Creek—in January and February 2018, during low spring tide. The sample comprised 206 crabs and 70 oysters.

The study identified MP fibres of different colours—red, yellow, black, pink, orange, purple, green, blue—as well as colourless ones. Colourless fibres were the most prevalent, comprising at least 60 per cent of the total MPs. The mean lengths of the MP fibres were between 0.1 and 4.2 mm.

The study exposes MP pollution along the Kenyan coast and its uptake by marine fauna, and thus strengthens the case for better control of plastic waste in the ocean. “Marine plastic litter pollution is already affecting over 800 marine species through ingestion, entanglement and habitat change,” said the head of UN Environment’s coral reef unit, Jerker Tamelander, in 2019.

“Waste continues to leak from land, and coral reefs are on the receiving end. They also trap a lot of fishing gear and plastic lost from aquaculture. With the effects of climate change on coral reef ecosystems already significant, the additional threat of plastics must be taken seriously.”

According to UNEP, there remains a significant lack of knowledge on the true impact of plastics on the reef environment, including the level of concentrations of MPs across coral reef eco-regions in order to understand the scale of the issue in a standardised manner.

“Marine plastic litter pollution is already affecting over 800 marine species through ingestion, entanglement and habitat change.”

Concerns about ocean pollution have been raised at a time when the country is looking at the Blue Economy as the country’s next economic growth frontier. In effect, Kenya’s land-based resources have been shrinking because of a rapidly growing population and it is therefore prudent for the government to shift the focus to the country’s ocean resources spread over an area of 245,000 km², or 42 per cent of the country’s total land mass.

Kenya has from the outset not been keen on growing the maritime sector. Even Kenya’s first independence economic blueprint, African Socialism and its Application to Planning in Kenya, published in 1965, failed to anchor the Blue Economy in the country’s economic growth agenda, despite its significant role in transporting 95 per cent of the country’s global transactions.

The Western Indian Ocean has resources worth more than KSh2.2 trillion in annual outputs, with Kenya’s share standing at about 20 per cent of this figure. The marine fishing sub-sector alone had an annual fish potential of 350,000 metric tonnes worth KSh90 billion in 2013. However, the region only yielded a paltry 9,134 metric tonnes worth KSh2.3 billion during that year.

In 2018, the then Agriculture Cabinet Secretary, Mwangi Kiunjuri, said that by failing to fully exploit the Blue Economy, Kenya was losing over Sh440 billion annually. But if the opportunities offered by the Blue Economy are to be exploited, a policy intervention in the management and disposal of plastic waste is urgently required to protect the ocean’s rich biodiversity for sustainable development.

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Politics

Western Sahara: Africa’s Last Colony

Meriem Naïli writes about the continuing struggle for the independence of Western Sahara. Occupied by Morocco since the 1970s, in contravention of the International Court of Justice and the UN. The internationally recognised liberation movement, POLISARIO, has fought and campaigned for independence since the early 1970s. Naïli explains what is going on, and the legal efforts to secure the country’s freedom.

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Western Sahara: Africa’s Last Colony
Photo: Freepik/natanaelginting
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The conflict over Western Sahara can be described as a conflict over self-determination that has been frozen in the past three decades. Western Sahara is a territory in North-West Africa, bordered by Morocco in the north, Algeria and Mauritania in the east and the Atlantic Ocean to the west. A former Spanish colony, it has been listed by the UN since 1963 as one of the 17 remaining non-self-governing territories, but the only such territory without a registered administrating power.

Since becoming independent from France in 1956, Morocco has claimed sovereignty over Western Sahara and has since the late 1970s formally annexed around 80% of its territory, over which it exercises de facto control in contravention of the conclusions reached by the International Court of Justice (ICJ) in its advisory opinion of October 15, 1975, on this matter. The court indeed did not find any “legal ties of such a nature as might affect the application of resolution 1514 (XV) in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory” (Western Sahara (1975), Advisory Opinion, I.C.J. Reports 1975, p.12).

On 14 November 1975, the Madrid Accords – formally the Declaration of Principles on Western Sahara – were signed between Spain, Morocco, and Mauritania setting the conditions under which Spain would withdraw from the territory and divide its administration between the two African states. Its paragraph two reads that “Spain shall immediately proceed to establish a temporary administration in the territory, in which Morocco and Mauritania shall participate in collaboration with the Jemâa [a tribal assembly established by Spain in May 1967 to serve as a local consultative link with the colonial administration], and to which the responsibilities and powers referred to in the preceding paragraph shall be transferred.”

Although it was never published on the Boletin Oficial del Estado [the official State journal where decrees and orders are published on a weekly basis], the accord was executed, and Mauritania and Morocco subsequently partitioned the territory in April 1976. Protocols to the Madrid Accords also allowed for the transfer of the Bou Craa phosphate mine and its infrastructure and for Spain to continue its involvement in the coastal fisheries.

Yet in Paragraph 6 of his 2002 advisory opinion, UN Deputy Secretary General Hans Corell, reaffirmed that the 1975 Madrid Agreement between Spain, Morocco, and Mauritania “did not transfer sovereignty over the Territory, nor did it confer upon any of the signatories the status of an administering Power, a status which Spain alone could not have unilaterally transferred.”

The war

The Popular Front for the Liberation of Saguia el-Hamra and Rio de Oro (POLISARIO) is the internationally recognised national liberation movement representing the indigenous people of Western Sahara. Through the self-proclaimed Sahrawi Arab Democratic Republic (SADR), it has been campaigning since its creation in May 1973 in favour of independence from Spain through a referendum on self-determination to be supervised by the UN. A war broke out shortly after Morocco and Mauritania’s invasion in November 1975. Spain officially withdrew from the territory on 26 February 1976 and the Sahrawi leadership proclaimed the establishment of the SADR the following day.

In 1984, the SADR was admitted as a full member of the Organisation of African Unity (now the African Union), resulting in Morocco’s decision to withdraw the same year in protest. Morocco would only (re)join the African Union (AU) in 2017. The admission of the SADR to the OAU consolidated the movement in favour of its recognition internationally, with 84 UN member states officially recognising the SADR.

In the meantime, to strengthen its colonization of the territory, Morocco had begun building what it later called “le mur de défense” (the defence wall). In August 1980, following the withdrawal of Mauritanian troops the previous year, Morocco sought to “secure” a part of the territory that Mauritania had occupied. Construction of the wall – or “berm” – was completed in 1987 with an eventual overall length of just under 2,500km.

A “coordination mission” was established in 1985 by the UN and the OAU with representatives dispatched to find a solution to the conflict between the two parties. After consultations, the joint OAU-UN mission drew up a proposal for settlement accepted by the two parties on 30 August 1988 and would later be detailed in the United Nations Secretary General’s (UNSG) report of 18 June 1990 and the UN Security Council (UNSC) resolution establishing United Nations Mission for the Referendum in Western Sahara (MINURSO).

Since 1979 and the surrender of Mauritania, around 80% of the territory has remained under Morocco’s military and administrative occupation.

Deployment of MINURSO

The Settlement Plan agreed to in principle between Morocco and POLISARIO in August 1988 was submitted to the UNSC on 12 July 1989 and approved in 1990. On 29 April 1991, the UNSC established MINURSO in resolution 690, the terms of reference for it being set out in the UNSG’s report of 19 April 1991. The plan provided for a cease-fire, followed by the organisation of a referendum of self-determination for which the people of Western Sahara had to choose between two options: integration with Morocco or plain and simple independence.

In this regard, it provided for the creation of an Identification Commission to resolve the issue of the eligibility ofSahrawi voters for the referendum, an issue which has since generated a great deal of tension between the two parties. A Technical Commission was created by mid-1989 to implement the Plan, with a schedule based on several phases and a deployment of UN observers following the proclamation of a ceasefire.

Talks quickly began to draw up a voters list amid great differences between the parties. POLISARIO maintained that the Spanish census of 1974 was the only valid basis, with 66,925 eligible adult electors, while Morocco demanded inclusion of all the inhabitants who, as settlers, continued to populate the occupied part of the territory as well as people from southern Morocco. It was decided that the 1974 Spanish census would serve as a basis, and the parties were to propose voters for inclusion on the grounds that they were omitted from the 1974 census.

In 1991, the first list was published with around 86,000 voters. However, the process of identifying voters would be obstructed in later years, mainly by Morocco which attempted to include as many Moroccan settlers as possible. The criteria for eligibility had sometimes been modified to accommodate Morocco’s demands and concerns. Up to 180,000 applications had been filed on the part of the Kingdom, the majority of which had been rejected by the UN Commission as they did not satisfy the criteria for eligibility.

Consequently, the proclamation of “D-Day”, to mark the beginning of a twelve-week transition period following the cease-fire leading to the referendum on self-determination, kept being postponed and eventually was never declared.

The impasse

Following the rejection by Morocco of the Peace Plan for Self-Determination of the People of Western Sahara (known as Baker Plan II) and the complete suspension of UN referendum preparation activities in 2003, Morocco’s proposal for autonomy of the territory under its sovereignty in 2007 crystallised the stalemate [the Peace Plan is contained in Annex II of UNSG report S/2003/565, and available here].

The Baker Plan II had envisioned a four or five-year transitional power-sharing period between an autonomous Western Sahara Authority and the Moroccan state before the organisation of a self-determination referendum during which the entire population of the territory could vote for the status of the territory – including an option for independence. It was ‘supported’ by the UNSC in resolution S/RES/1495 and reluctantly accepted by POLISARIO but rejected by Morocco.

The absence of human rights monitoring prerogatives for MINURSO has emerged as an issue for the people of Western Sahara as a result of the stalemate in the referendum process in the last two decades. MINURSO is the only post-Cold War peacekeeping operation to be deprived of such prerogatives.

Amongst the four operations currently deployed that are totally deprived of human rights monitoring components (UNFICYP in Northern Cyprus, UNIFIL in Lebanon, UNDOF in the Israeli-Syrian sector and MINURSO), MINURSO stands out as not having attained its purpose through the organisation of a referendum. In addition, among the missions that did organise referendums (namely UNTAG in Namibia and UNAMET in East Timor), all had some sort of human rights oversight mechanism stemming from their mandates.

On 8 November 2010, a protest camp established by Sahrawis near Laayoune (capital of Western Sahara) was dismantled by the Moroccan police. The camp had been set up a month earlier in protest at the ongoing discrimination, poverty, and human rights abuses against Sahrawis. When dismantling the camp, gross human rights violations were reported – see reports by Fédération internationale des ligues des droits de l’Homme (2011) and Amnesty International (2010).

This episode revived the international community’s interest in Western Sahara and therefore strengthened the demand by Sahrawi activists to “extend the mandate of MINURSO to monitor human rights” (see Irene Fernández-Molina, “Protests under Occupation: The Spring inside Western Sahara” in Mediterranean Politics, 20:2 (2015): 235–254).

Such an extension was close to being achieved in April 2013, when an UNSC resolution draft penned by the US unprecedentedly incorporated this element, although it was eventually taken out. This failed venture remains to date the most serious attempt to add human rights monitoring mechanisms to MINURSO. Supporters of this amendment to the mandate are facing the opposition by Moroccan officials who hold that it is not the raison d’être of the mission, and it could jeopardize the negotiation process.

What’s going on now?

At the time of writing, the people of Western Sahara are yet to express the country’s right to self-determination through popular consultation or any other means agreed between the parties. The conflict therefore remains unresolved since the ceasefire and has mostly been described as “frozen” by observers.

On the ground, resistance from Sahrawi activists remain very much active. Despite the risks of arbitrary arrest, repression or even torture, the Sahrawi people living under occupation have organised themselves to ensure their voices are heard and violations are reported. Freedom House in 2021 have, yet again, in its yearly report, rated Western Sahara as one of the worst countries in the world with regards to political rights and civil liberties.

Despite a clear deterioration of the peace process over the decades, several factors have signalled a renewed interest in this protracted conflict among key actors and observers from the international community. A Special Envoy of the AU Council Chairperson for Western Sahara (Joaquim Alberto Chissano from Mozambique) was appointed by the Peace and Security Council in June 2014. This was followed by Morocco becoming a member of the AU in January 2017.

More recently, major events have begun to de-crystalise the status quo. The war resumed on 13 November 2020 following almost 30 years of ceasefire. Additionally, for the first time, a UN member state – the US – recognised Morocco’s claim to sovereignty over the territory. Former US President Trump’s declaration on 10 December 2020 to that effect was made less than a month after the resumption of armed conflict. It has not, however, been renounced by the current Biden administration. As this recognition secured Morocco’s support for Israel as per the Abrahamic Accords, reversing Donald Trump’s decision would have wider geopolitical repercussions.

In September 2021, the General Court of the European Union (GCEU) issued decisions invalidating fisheries and trade agreements between Morocco and the EU insofar as they extended to Western Sahara, rejecting Morocco’s sovereignty. This decision is the latest episode of a legal battle taking place before the European courts.

The Court of Justice of the European Union (CJEU), had previously reaffirmed the legal status of Western Sahara as a non-self-governing territory, set by the UN in 1963 following the last report transmitted by Spain – as Administering Power – on Spanish Sahara under Article 73 of the UN Charter. The Court rejected in December 2016 any claims of sovereignty by Morocco by restating the distinct statuses of both territories.

The last colony in Africa remains largely under occupation and the UN mission in place is still deprived of any kind of human rights monitoring. In the meantime, the Kingdom of Morocco has been trading away peace in the form of military accords and trade partnerships. This situation must end – with freedom, and sovereignty finally won by Western Sahara.

This article was first published by ROAPE.

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