the kenya municipal programme –draft resettlement policy...

OFFICE OF THE DEPUTY PRIME MINISTERAND MINISTRY OF LOCAL GOVERNMENT

THE KENYAMUNICIPAL PROGRAM

THE RESETTLEMENT POLICY FRAMEWORK (RPF) [Volume Two to the Environmental and Social Management Framework (ESMF)]

8 March 2010

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RP902

The Kenya Municipal Program –Resettlement Policy Framework 2010

1Abbreviations

CIDA Canadian International Development AgencyDP Displaced PersonEU European UnionESIA Environmental and Social Management FrameworkESMMP Environmental and Social Management and Monitoring PlanFMP Financial Management PolicyGOK Government of KenyaGTZ German Development AgencyGRC Grievance Redress CommitteeJBIC Japan Bank of International CooperationKMP Kenya Municipal ProgramK-SUP Kenya Slum Upgrading ProgramLA Local AuthoritiesM & E Monitoring & EvaluationMoF Ministry of FinanceMOLG Ministry of Local GovernmentMOW Ministry of WorksNEMA National Environment and Management AuthorityNGO Non Governmental OrganizationODPM Office of Deputy Prime MinisterOP Operational PolicyPAP Project Affected PersonPAPC Project Affected Persons CommitteePCU Project Coordinating UnitPIU Project Implementation UnitPMU Project Management UnitPS Permanent SecretaryRAC Resettlement Action Committee RAP Resettlement Action PlanRPF Resettlement Policy FrameworkSIDA Swedish International Development Agency

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2 Executive Summary

This report outlines the Resettlement Policy Framework (RPF) for the Kenya Municipal Program (KMP) - a Government of Kenya (GOK)/ World Bank funded Initiative aimed at spearheading a systematic transformation of the urban and local government sector in the country towards better delivery of services.

The RPF has been prepared in line with the applicable provisions of GoK and the operational policy provisions of the World Bank for Involuntary resettlement and it outlines the compensation and resettlement assistance, principles and organizational arrangements to be applied in addressing any impacts associated with land acquisition and associated displacement occasioned by sub-projects to be implemented under the KMP. The legal instruments that exist in Kenya and the World Bank Operational Policies provide the basis and the legal platform for the conduct of land acquisition, compensation and resettlement; and they have been extensively used to prepare this RPF.

This RPF includes the screening process, methods for valuing assets and procedures for delivery of compensation. The RPF establishes parameters for the conduct of land acquisition and compensation that may be used during the project in terms of determining the landownership, assessing the impacts for identified sites and activities under the program, valuation of the affected proprieties, followed by the preparation and implementation of the mitigation plans through participatory process and disclosures. The nature of compensation and assistance is summarised in an entitlement matrix for different types of likely impacts anticipated in the program. The RPF has also outlined the process for appropriate local and national structures to facilitate smooth and effective implementation and monitoring of resettlement and compensation payment.

These steps will ensure that sub-projects funded by the KMP are satisfactorily and efficiently implemented to effectively address any adverse social, economic and environmental impacts so that PAPs are fairly treated in respect to land acquisition and resettlement.

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Table of contents

Executive Summary...................................................................................................2

Chapter 1: Introduction......................................Error! Bookmark not defined.1.1 Background...................................................................................51.2 Design of the Program...................................................................51.3 Land acquisition and resettlement impacts.....................................61.4 Need for Resettlement Policy Framework (RPF)...............................61.5 Objectives of the RPF.....................................................................71.6 Layout of this RPF..........................................................................7

Chapter 2: The Legal/ Institutional Framework.........................................92.1 GOK Statutory mechanism for Land acquisition...............................9

2.1.1 Provisions for Land Acquisition in Kenya. .Error! Bookmark not defined.2.1.2 Transfer of state owned land....................................................................11

2.2 Requirements of OP 4.12: Involuntary Resettlement......................122.3 Gaps between GoK and World Bank Policies on Land acquisition and Resettlement....................................................................................122.4 Mechanism for resolution of gaps between the GOK and OP 4.12 on Resettlement....................................................................................132.5 Minimization of Displacement:.....................................................142.6 Livelihood Restoration:................................................................142.7 Process of Land Acquisition..........................................................15

Chapter Three: Planning for Resettlement process...................................13.1 The Screening process:..................................................................13.2 Inventory of Project Affected People:..............................................23.3 Computation of final costs and budget:...........................................53.4 Funding implementation of this RPF...............................................6

Chapter Four: Implementation Procedures...............................................74.1 Management of the Resettlement Process......................................74.2: Grievance redresses process.......................................................114.3 Institutional coordination.............................................................114.4 Inter-sectoral involvement coordination:.......................................134.5 Requirements for Monitoring and Evaluation.................................13

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Annexes:.........................................................................Error! Bookmark not defined. 1.1: Definition of Terms 3.1: Outline of Resettlement Action Plans 3.4: Indicative Questionnaire for Baseline census socio-

economic surveys

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3 CHAPTER-1: INTRODUCTON

Background

1.1 The Government of the Republic of Kenya is preparing the Kenya Municipal Program (KMP and hereafter referred to as the Program) as part of a broad strategy1 to address core concerns (inadequate capacity and financing) that constrain the development potential, efficiency, equity and competitiveness of Kenya’s urban areas while simultaneously supporting investments to improve infrastructure and local service delivery.

1.2 The goal of the Program is to improve the effectiveness and efficiency of urban local authorities to develop infrastructure that is sustainably responsive local needs. The specific objectives of the Program are:

a) To support integrated urban planning processes so that town planning and the overall land use is consistent with environmental, economic and social aspects of a sustainable urban ecosystem;

b) To support the development by Local Authorities of built infrastructure that is demand driven and consistent with service delivery in the local government sector and,

c) To institute capacity building and institutional strengthening so that the local authorities are able to sustain the delivery of services through efficient, effective and locally responsive structures.

Design of the Program

1.3 The Program will be implemented in two phases spanning five years from 2010 to 2015 at a total cost of USD 10-132. Program activities will be rolled out in three components namely;- (i) Institutional development through which the Program will support institutional reforms and capacity building at the national and municipal levels to facilitate decentralization and build a capable and accountable local government system; (ii) Strategic and participatory planning for urban development and capital investment to focus on preparation of master plans for each of the Program sectors in the pilot cities; and, (iii) Investment in infrastructure and service delivery improvements where core priorities include;- Motorised and non-motorised transport, Fire safety, Bus-parks, Market Infrastructure, Storm water and Drainage, Solid Waste and Environmental Management. The Program 1 The Strategy comprises of three multi-sectoral Programs namely;- (i) The Kenya Municipal Program, (ii) The Kenya Slum Upgrading Program (K-SUP) and, (iii) the Nairobi Metropolitan Services Project (NMSP) to be financed by the World Bank.

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activities will cover 15 municipalities each of which will benefit from three investments as detailed out in Volume One of this report-the Environment and Social Management Framework (ESMF).

Land acquisition and resettlement impacts

1.4 All the infrastructure activities proposed under component-III are likely to entail limited land acquisition and displacement where people may be required to move to another location or impact on the livelihoods causing the loss of income or access to income earning opportunities. Based on the assessment of proposed investments, the following types of impacts are envisaged:-

Investment Source of Impacts

Non motorised transport

Small scale traders will be displaced to create room for pedestrian passage, bicycles lanes and parking, footbridges, bus stops for passenger transport, etc

Bus parks and markets

Traders in open air and lockable premises may be displaced to create room for markets, bus parks, markets accesses and ancillary structures.

Water supply and drainage infrastructure

Settlements and businesses may be displaced to give room for drainage works, mains lines, manholes, etc

Solid waste management

Displacement will only occur if land for new dumpsites and their access lanes will be required.

Fire management Displacement will only be triggered if land for new construction is required.

Need for Resettlement Policy Framework (RPF)

1.5 The bulk of Investment projects proposed under the Program are still at the identification and prefeasibility study stages where the details of location, scope, technology and technical specifications which have direct bearing on the land requirements and hence the scope of impacts are yet to be determined. 1.6 In the absence of such information, this generic RPF has been prepared to lay down the broad compensation payments and resettlement assistance policy provisions, procedures and institutional arrangements that will be followed in addressing the potential impacts associated with land acquisition

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and related impacts. This RPF has been prepared consistent with the applicable policy provisions of Kenyan Government and the provisions of the World Bank's Safeguard Policy on Involuntary Resettlement (OP 4.12). OP 4.12 requires that an RPF be prepared for all projects that anticipate land acquisition and displacement affecting shelter, livelihood and associated impacts. A detailed sub-project specific Resettlement Action Plan will be prepared using the provisions available in this RPF during the design stage of the respective sub-projects. The RPF applies to all components of the program irrespective of source financing and need to be endorsed by the concerned Municipalities prior to accessing the financing under the program. The RPF will be reviewed periodically based on the experiences from implementation and amended as need arises.

Objectives of Resettlement Outcomes

1.7 The process and policy provisions outlined in this RPF will facilitate the finalisation of objectives of resettlement, i.e. the affected people are paid fair compensation for assets lost to the program and received assistance for re-establishing their shelter and livelihood. This will be achieved through proper screening, preparation of mitigation plans and their implementation through appropriate monitoring mechanisms. The outcomes of resettlement will be measured through impact evaluation to be undertaken after reasonable period after receipt of the compensation and assistance though pre-identified baseline values in terms of income, occupation, asset ownership, socio-economic conditions among others.

Outline of this RPF

1.8 This RPF is presented in Four Chapters and 8 Annexes. Annex 1.1 provides a definition of Terms used in this RPF. Chapter 1 introduces the background and provides a brief description of the program. The chapter also outlines the potential nature of land acquisition and resettlement impacts resulting from the diverse activities envisaged under the Program and justifies the need for the RPF.

1.9 Chapter II provides an overview of the applicable GOK’s policy previsions and statutes for payment of compensation and assistance. It also lists the requirements of the operations policy of the World Bank in respect of Involuntary Resettlement. Further, the gaps between GOK and the World Bank policy provisions are identified and mechanisms for their bridging have been put in place. With the help of an Entitlement Matrix provided, the details of compensation and assistance for different types of impacts associated with the program have been elaborated.

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1.10 Chapter III focuses on the planning process to be adopted for screening the sub-projects and subsequent preparation of the Resettlement Action Plans (RAP) including requisite consultations. Chapter IV outlines the details of institutional mechanism and implementation procedures in terms of grievance redress mechanisms, coordination at various levels, and monitoring and evaluation arrangements.

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2 CHAPTER 2: THE LEGAL/INSTITUITONAL FRAMEWORK

Statutory mechanism for Land acquisition

2.1 The Kenyan Law recognises three categories of land ownership in which basic or radical title vests namely: - (i) Government-owned land, (ii) Trust land and, (iii) Private land. This RPF will set out modalities for acquisition of land falling in each of the three categories.

2.2 The Kenyan law has an explicit provision for expropriation of land under any of the three categories as follows: -

2.3 Provisions under the Constitution: In Kenya, expropriation is provided for in the Constitution under section 75 for private land and sections 117 and 118 for unregistered Trust Land. Section 75(1) of the Constitution provides for the Government to take possession of private land if it is deemed necessary in the interest of town planning among other public interests. The constitution however only provides general guidelines and detailed procedures for acquisition are elaborated under the Land Acquisition Act in Chapter 295 for private land and Chapter 288 for unregistered Trust Lands.

2.4 Procedures under Chapter 295: In approaching expropriation, a formal request from the Commissioner of Lands will be made by the benefiting authority, e.g. a municipal council in case of urban areas. Any other public body or Government may request for acquisition this way. The Commissioner will then forward the application to the Minister in charge of lands. If the minister is convinced that the land is required for public purpose, the Minister will write to the Commissioner to that effect, and directs the Commissioner to acquire the land (Section 6(1). The Commissioner will then give “Notice of Intention” to acquire the land (section 6(2) in the “Kenya Gazette” side by side with the “Notice of Inquiry”. The public announcements will be made announced widely in standard mass communication avenues such as newspapers and on the radio.

2.5 The “Notice of Intention” must mention the public body or the public purpose for which the land is to be acquired. The “Notice of Inquiry” must mention places and fixed dates when persons interested in the subject land are to submit their claims to the Commissioner of Lands or his appointee (a “Valuation Officer” also known as “Collector of compensation”) according to Section 9. Meanwhile, the Collector of Compensation will inspect the said

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land and value it for compensation. After the inquiry the Collector will issue an award depending on his own assessment and the representations of interested parties as submitted at the inquiry (Section 10 and 11).

2.6 The award is issued in the prescribed form indicating the amount of compensation awarded while the statement form gives the landowners option of acceptance or rejection of the award. If the landowner accepts the award, the collector will issue a cheque in settlement together with a formal “Notice of Taking Possession and Vesting” (section 19). The notice instructs the landowner to take his/her title for amendment or cancellation. It is copied to the Government Surveyor and the Land Registrar to make necessary changes to the affected deed. On the other hand, if the owner rejects the award, the collector deposits the money in court pending the former’s appeal. Compensation is based on open market value. Replacement cost means replacement of assets with an amount sufficient to cover full cost of lost assets and related transaction costs. The cost is to be based on Market rate (commercial rate) according to Kenyan law for sale of land or property. Replacement cost for agricultural land implies the market value of land of equal productive potential or use located in the vicinity of the affected land, plus the costs of preparing the land to levels similar to those of the affected land; and any registration and transfer taxes;

2.7 Procedures for land acquisition under Cap 288: Cap 288 allows for the expropriation of Trust Land on condition that;-

(i) The development and utilization of the property will promote public benefit among other things.

(ii) The necessity for expropriation is great enough to justify any hardship caused to any persons

(iii) Law for prompt payment of full compensation makes the provision.

2.8 Procedures under Cap 288 start with a proposal to a Full Council Meeting where proposed acquisition is deliberated and consent given vide a Council Minute. The “District Commissioner” in charge of the affected area will then proceed to ascertain interests, determine areas and assess compensation for the land after which he is to issue an award.

2.9 Provision for compensation under Cap 288: Section 8.(1) of Cap 288 allows for compensation as follows:- Where land is set apart under section 7 of this Act, full compensation shall be promptly paid by the Government to any resident of the area of land set apart who:-

(a)under African customary law for the time being in force and applicable to the land has any right to occupy any part thereof; or

(b)Is otherwise than in common with all other residents of the land, in some other way prejudicially affected by the setting apart.

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(c) A notice of setting apart published under section 7 of this Act shall also be published by displaying a copy at the District Commissioner's office and at some other public or conspicuous place in the area concerned.

(d)Under section 9.(1), a person who claims to be entitled to compensation under section 8 of Cap 288 shall apply therefore to the District Commissioner once satisfied after consultation shall award the applicant a sum of compensation in accordance with subsection (3) of this section; and if he is not so satisfied the District Commissioner shall reject the application. The compensation to be awarded shall be assessed by the District Commissioner after consultation with the Divisional Board, and shall be assessed in respect of the loss of the right of occupation referred to in paragraph (a), or in respect of the applicant having been otherwise prejudicially affected as referred to in paragraph (b), of section 8 (1) of this Act. The District Commissioner shall give notice in writing to the applicant of the award or of the rejection of the application as the case may be.

Transfer of state owned land

2.10 State owned land may be allocated free or sold on a commercial basis to individuals or communities by the Minister responsible for land administration. For cases where the state-owned land is being used by the public (for instance as settlements, for farming, for grazing or any other productive activity,) the individual or the community would be expected to pay compensation. Privately owned property, would have to be compensated for at the market value. The general guiding principle is that whoever was using the land to be acquired would be provided alternative land of equal size and quality. An option for cash compensation in lieu of land may also be provided in case alternative land is not possible or not available. 2.11 Legal provision for resettlement in Kenya: Section 12 of Cap 295 allows for in-kind compensation as follows:- Notwithstanding anything contained in the Government Lands Act, where the land is acquired for the Government the Commissioner may agree with the person whom he has determined to be the proprietor of the land that that person, instead of receiving an award, shall receive a grant of land, not exceeding in value the amount of compensation which the Commissioner considers would have been awarded, and upon the conclusion of the agreement that person shall, subject to section 18, be deemed conclusively to have been awarded and to have received all the compensation to which he is entitled in respect of his interest. An agreement under subsection (1) shall be recorded in the award.It should be noted that, other than the in-kind compensation allowed for under section 12 of Cap 295, GoK policies seem to favour compensation based on issue of cash awards and only payable to people determined to be proprietors of the land or tenants to the land. There is no other policy

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provision for Resettlement and rehabilitation under the GoK system. Therefore the principles of OP 4.12 are taken into account in design of the Resettlement and rehabilitation assistance.

Requirements of OP 4.12: Involuntary Resettlement

2.12 Any World Bank assisted project/program must comply with the provisions of OP 4.12 on involuntary resettlement for impacts associated with the land acquisition and displacement. As a pre-requisite, either a Resettlement Action Plan (RAP) where impacts are known or a Resettlement Policy Framework (RPF) where multiple sub-projects are involved is needed in advance of the project appraisal. This, RPF has been prepared for this program with the following objectives:-

To inform potential PAPs about their options and rights pertaining to land acquisition and resettlement;

To offer choices among, and identify technically and economically feasible resettlement alternatives; and,

To put in place modalities for providing prompt and effective compensation at full replacement cost for losses of assets attributable directly to the project and provide support during the transitional period to enable the affected people to improve or at least restore their pre-impact living standards.

Gaps between GoK and World Bank Policies on Land acquisition and Resettlement

2.14 Both the Kenyan and World Bank Policies on land acquisition- related impacts allow for land acquisition. However, operational differences exist between both documents as follows:-

(a)While the GoK Policy legally allows for land acquisition and thus causes displacement, the World Bank Safeguards favour a policy of avoidance or minimization of involuntary resettlement and design appropriate mitigation provision in case avoidance or minimisation is not possible.

(b)While the Kenyan system has no provision for resettlement and actually allows for compensation for land at market rates, the World Bank’s Operational Policy- OP 4.12 emphasises that affected people be provided with compensation at replacement cost and supported during the transitional period to improve or at least restore their living standards to pre-displacement levels. The Kenya system recognises only title holders as bonafide property owners while under OP 4.12, lack of legal title is no bar in extending assistance and support to those affected by the investments.

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Mechanisms for resolution of gaps between the GOK and OP 4.12 on Resettlement.

2.15 This RPF recognises both provisions of the GoK on land acquisition as stated in the constitution and its legal provisions and the policy provisions of the World Bank (as provided in OP 4.12). Where there are gaps between the Bank and GoK requirements, additional provisions were made to bridge the gaps. Towards this resolution the following are proposed:-

i. Each investment will be screened at feasibility study stage to determine the impacts associated with the land acquisition and resettlement impacts and accordingly determine the level of RAP that is need to be prepared.

ii. All sub-projects impacting more than 40 households loosing livelihoods or displacing will be categorised as S1. In case sub-projects involve less than 40 households loosing livelihoods or displacements, the sub-project will be categorised as S2. In case there are no impacts or impacts are minor and not involving either physical displacement or loss of income is less than 20%, the sub-project will be categorised as S3 in which case, additional assistance in addition to compensation may not be envisaged. In case of S-1 sub-projects, full Resettlement Action Plan (RAP) will be prepared and in case of S-2 (where impacts are minor) abbreviated Resettlement Action Plans will be prepared. In case of S3, a Note will be prepared based on the screening report results outlining the compensation to be paid in case of minor impacts or in case the screening report confirms that there are no impacts, then, no Note is required.

iii. In case of physical displacement, the following will be extended.

Depending on tenure category, PAPs will be provided transition assistance such as moving allowances, subsistence allowances and alternative plot or house where possible; and

Will be offered support after displacement, during transition period, based on a reasonable estimate of the time likely to be needed to restore their livelihood and standards of living.

PAPs will be provided with development assistance in addition to compensation measures such as land preparation, credit facilities, training, or job opportunities.

In cases where in-kind replacement is not the preferred option of the PAPs, then the cash compensation will be based on the replacement cost. For the purposes of this RPF, the use of replacement value, or market value, will mean the higher value of two options.

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Minimization of Displacement:

2.16 In line with the principles of this RPF, displacement in the Program will be minimised through the following design procedures:

Wherever inhabited dwellings may potentially be affected by an investment, the latter shall be redesigned (facility relocation, rerouting) to avoid any impact on such dwellings and to avoid displacement/relocation accordingly;

The same applies to structures used for commercial activities and other businesses. Wherever the impact on the land holding of one particular household is such that this households may not be sustainable in the long term, even if there is no need to physically displace this household, the sub-project shall be redesigned (facility relocation, rerouting) to avoid any such impact;

To the extent possible, Project facilities will utilize public easements- pipelines, public taps, other linear infrastructures etc will be routed inside existing right-of-ways (roads, streets, and power lines) wherever possible.

Livelihood Restoration

2.17 One of the objectives of this RPF is to ensure that livelihoods are improved or restored to pre-displacement levels. Where impact on land use is such that sustainability of livelihoods may be affected, preference will be given to land-for-land compensation rather than cash payouts. This applies to people who are not necessarily physically displaced but who are affected by a land loss that affects their sustainability.

2.18 The following principles will be followed for payment of compensation for lost assets -

Compensation shall be paid prior to acquisition or displacement; Compensation will be at replacement cost. Compensation for structures shall include: the full cost of materials and

labour required for reconstructing a building of similar surface and standing. In other words, the affected person must be able to have their structure rebuilt in a different location using the compensation paid for the old building. Depreciation will not be taken into account while calculating the cost of affected structures. The Compensation package will also include cost of moving, such as transport costs as well as any associated land titling or transfer fees.

2.19 Assistance to Vulnerable groups: This RPF recognises the need for providing additional support to the vulnerable groups to facilitate faster adjustment in the new environment and impacts associated with the

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program. Vulnerable households may have different land needs from most households, or needs unrelated to the amount of land available to them.

Process of Land Acquisition

2.20 Investigation of the land tenure: Going by experience, the bulk of land to be required for investments in the program may be Trust lands controlled by respective municipalities in which case, Cap 288 will largely apply. However, acquisition will start with a determination of the tenure system of target land through enquiries at the Survey offices of respective municipalities or respective District Land Registry followed by consultation with respective departments in case of government or trust lands. Land acquisition will then proceed as dictated by respective tenure and usage systems (Table 2-1).

2.21 The Entitlement Matrix: The entitlement matrix outlined below defines the type of compensation and assistance to be provided to the different categories of project affected households.

Computation of Compensation: Where any land has been acquired under Cap 288, compensation shall only be payable in addition to the value of any improvement or works constructed on such lands for the:

- loss of rights over such lands in the case of land under customary tenure, and

- market value of such lands in the case of freehold land.

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Table 2.1 Entitlement Matrix

NO Type of Loss Unit of entitlement EntitlementsA. Loss of Agricultural Land

1 Less than 20% of land lost or residual land is viable

(a) Title holder Cash compensation at replacement cost for the portion surrendered;

Additional 15% ex-gratia for compulsory acquisition.; and,

Compensation for crop damages at market value.(b) Tenants Cash compensation in lieu of unexpired lease period;

and Compensation for crop damages at market value

(c) Encroachers 2 months Advance Notice to vacate. Right to harvest all crops or compensation for crop

damages2 More than 20% of land lost

or residual land is economically non-viable

(a) Title holder Cash compensation at replacement cost for the lost portion.

Option to surrender remaining portion at replacement cost;

Additional 15% ex-gratia for compulsory acquisition;. Compensation for crop damages at market value Where alternative land is available, land for land

option will be considered; and. Transitional grant equivalent of 6 months of minimum

wages. (b) Tenants Cash compensation in lieu of unexpired lease

Compensation for crop damages at market value

(c) Encroachers 2 months Advance Notice to vacate and right to harvest all seasonal crops

Right to harvest all crops or compensation for crop damages

B. Loss of residential/commercial/industrial land 1 Partial loss of land but

residual is viable (a) Title holder Cash compensation for loss at replacement cost

Additional 15% ex-gratia for compulsory acquisition(b) Tenant/ Transitional allowance equivalent to 3 months rental

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NO Type of Loss Unit of entitlement EntitlementsLease holder allowance

(c) Squatters 2months advance notice to vacate land2 Entire loss of land (a)Owners Cash compensation at replacement cost; Ex-gratia

@15% of compensation amount towards compulsory acquisition; and,

The right to salvage all materials(b) Tenants/ Lease

holders Cash compensation for unexpired portion of lease

period Transitional allowance equivalent to 3 months income

(c) Squatters Advance notice to vacateC. Loss of structures

1 Partial loss but residual viable

(a) Legal User with valid titles

Cash compensation at replacement cost for affected portion calculated on MOW rate without depreciation;

Ex-gratia @15% of compensation amount towards compulsory acquisition

Repair costs equivalent to 25% of the compensation Right to salvage material

(b) Owner without titles

Cash compensation at replacement cost for affected portion based on MOW rates but without depreciation;.

Repair costs for unaffected structure at 25% of compensation; and

Right to salvage material(c) Squatter Cash compensation at replacement cost without

deprecation Repair costs equivalent to 25% of the compensation Right to salvage material

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Table 2.1 Entitlement Matrix continued

NO Type of Loss Unit of entitlement Entitlements2 Fully affected/ part

affected and remaining structure is non-viable

(a)Structure owners with/without valid title

Alternative accommodation where possible, or Developed plot Plus cash compensation at

replacement cost without depreciation and 15% of compensation towards compulsory acquisition or

Cash compensation at replacement cost without depreciation Plus15percentage towards compulsory acquisition. and 50% of ex-gratia amount towards house building allowance;

Subsistence allowance equivalent to six months or minimum wages for unskilled labour

One time shifting allowance of kshs. 5000 Right to salvage materials.

(b) Tenant/ Lease Holder

Subsistence allowance for three month equivalent rental value

A onetime shifting allowance of kshs. 5000 Right to salvage materials Right to alternative accommodation for a vulnerable

household. (c) Squatter Cash compensation at replacement cost of the

affected unit based on Scheduled of Rates without depreciation plus a house building allowance at 50% of compensation;

Subsistence allowance for 3 months Assistance to enrol in Government sponsored housing

schemes. One time shifting allowance of kshs. 2500 Vulnerable households will be offered alternative

accommodation Right to salvage materials.

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NO Type of Loss Unit of entitlement EntitlementsD. Loss of Income1 Loss of permanent

source of incomeHousehold Subsistence allowance equivalent to 3 months

minimum wages for unskilled agriculture workers. A lump sum payment of kshs. 100,000.00 to help

recreate a viable livelihood. Skills development for PAPs in this category.

2 Loss of rental income Subsistence allowance equivalent to 6 months rental income value.

3 Loss of income from business

(a)Owners Cash grant equivalent to one year minimum wages based on local labour laws or for audited business, cash grant equivalent to one year income as an average of the previous three years.

(b)Employees Lump sum maintenance allowance equivalent to 3 months of minimum wages as per local guidelines.

(c)Hawkers Subsistence allowance for 3 months at the equivalent of minimum wage guideline.

A one off shifting allowance of kshs. 2,500.00E. Loss of community propriety resources

LA will replace or reconstruct the affected properties.

F. Support to vulnerable groups Additional cash support of Kshs. 2,000.00 per

month for the first three months. Support in overcoming the respective vulnerability.

G. Unidentified Impacts Mitigation measures will be proposed based on the

principle of this RPFNote: - Uneconomical unit is one where the non arable land either because of rockiness, slope exceeding 55%, water logging, or cannot afford space adequate ……… for housing and economic utilization; ...........-- Some of the Entitlements categories are mutually inclusive.

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2.22 In estimating the compensation to be given for any land or any estate therein or the potential profits thereof, the following shall be taken into account:

The value of such lands, estates or interests or profits at the time of the emission of the notice to acquire, and shall not take into account any improvements or works made or constructed thereafter on the lands,

That part only of the lands belonging to any entity /person acquired under this Act without consideration for the enhancement of the value of the residue of the lands by reason of the proximity of any improvements or works to be made or constructed by the Project, and

The value of the lands acquired for public purposes but also to the damage, if any, to be sustained by the owner by reason of the injurious effects of severance of such lands from other lands belonging to such owner or occupier.

2.23 For cash payments, compensation will be calculated in Kenyan currency adjusted for inflation annually. For compensation in kind, items such as land, houses, other buildings, building materials, seedlings, agricultural inputs and financial credits for equipment may be included. Assistance may include moving allowance, transportation and labor.

2.24 In dealing with compensation, preference shall be given to land based resettlement strategies for Project Affected Persons whose livelihoods are land-based. Where sufficient land is not available at a reasonable price, non-land based options centred on opportunities for employment or self re-employment will be provided in addition to cash compensation for land and other assets lost. However this lack of land shall be documented and justified.

2.24 Compensation for vulnerable groups: In addition to these entitlements, households who are found in difficult situations and are at greater risk of impoverishment (i.e. widowed household heads, households without employment, single parent households, etc) as identified by the census will be provided with appropriate assistance by the project. Assistance may be in form of food, temporary accommodation, medical subsidy, employment referrals or priority employment in project activities. The assistance is meant to help them cope with the displacement caused by the project.

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CHAPTER 3: PLANNING FOR LAND ACQUISITION AND RESETTLMENT MITIGATION

Screening process

3.1 Each investments proposed under the program will be screened for land acquisition and displacement impacts. Screening will seek to identify the nature and diversity of potential impacts anticipated from project activities and based on the impacts, the appropriate mitigation plans will be determined. The screening checklist provided in Volume One (ESMF) will be incorporated into the Project's Implementation Manual and will be completed by the Town Engineer and approved by the Town Clerk. However, the PMU will require to revalidate and counter-sign all screening reports.

3.2 A project will be deemed to cause displacement if it triggers any of the criteria listed in Annex 3.2 based on which, it will be categorised into S1, S2, or S32. For projects deemed to be devoid of displacement impacts, such information shall also be indicated in the subproject application form along with a request to waive the requirement for a RAP but for category S1 and S2 projects the RAP process will be initiated.

3.3 Draft Terms of Reference for preparation of RAPs: In principle, RAPs will be prepared and implemented by respective Municipalities preferably with the support of technical service providers or mobile extension teams (Terms of Reference in respect of preparation of RAPs is provided in Annex 3.3). The Terms of Reference for each sub-project will be finalised based on the finding of the screening report. The basic elements of a RAP will include;-

i) Identification of project impacts and affected populations;ii) Particular aspects of the legal framework for land acquisition and

compensation, as defined in this RPFiii) Socio-economic characteristics of the affected population with key

base line values. iv) Particular aspects of the compensation details, as applied to the

sub-project;v) Description of resettlement assistance and restoration of-livelihood

activities;vi) Detailed budget;vii) Implementation schedule;viii) Particular aspects of the description of organizational

responsibilities, as applied to the sub-project;2 All sub-projects involving more than 40 households loosing livelihoods or displaced will be categorised as S1. In case sub-projects involve less than 40 households loosing livelihoods or displacements, the sub-project will be categorised as S2. In case there are no impacts or impacts are minor and not involving either physical displacement or loss of income is less than 20%, the sub-project will be categorised as S3.

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ix) Details of public consultation, participation, and planning for the sub-project;

x) Particular aspects of the description of provisions for redress of grievances, as applied to the sub- project; and

xi) Particular aspects of the Framework for monitoring, evaluation, and reporting, as applied to the sub-project.

3.4 Timing of the RAP Preparations: The RAP will be prepared early in the Design Stage for respective investments so as to ensure that compensation is effected long before project start-up. As such, availability of approved RAP reports will be a crucial pre-requisite for acceptance of the sub-projects for financing under the Program.

Inventory of Project Affected People:

3.5 Public Sensitisation meetings: Upon determination of the full extent of physical coverage of the project and the potentially affected lands, meetings will be held in the area of project coverage with a view to publicising the project and the draft RAP to all potentially affected persons. The general public will be accessed through widely publicised barazas on a per ward basis while other PAPs will be accessed individually or at corporate level. During the meetings, the RAP Team will explain the proposed project to the potential PAPs and clearly identify the project sites on the map so as to help identify who is likely to be affected and in what way. As well, the RAP process will also be explained to all people and each public sensitisation meeting will end up with registration of all PAPs for further follow-up during socio-economic surveys. Compensation procedures as provided in RPF and RAP will also be explained and their feedback will be sought. The feedback as appropriate will be incorporated in the final RAP.

3.6 The census Socio-economic Surveys: The Team responsible for preparation of RAP will undertake census socio-economic surveys to identify all affected PAPs for purposes of identifying the potentially affected properties, the extent of potential acquisition, diversity of stakeholders to the property, status of legal tenure and the development thereon. The baseline survey will revalidate the Register of PAPs and respective claims to determine who will be eligible for compensation and assistance and hence discourage inflow of speculators. The following categories of people will be recognised for eligibility for providing assistance and Support:. Those who have formal rights to land including customary/communal

land, traditional and religious rights recognized under Kenyan Law.

Those who do not have formal legal rights to land at the time the census begins but have a claim to such land or assets provided that such claims are recognized under the laws of Kenya or become recognized through a process identified in the resettlement plan.

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Those who have no recognizable legal right or claim to the land they are occupying, using or getting their livelihood from the affected assets.

3.7 The inventory will be fully consultative taking the form of household interviews, group discussions, Focus Group Discussions, Key Informant Interviews and review of existing documentary evidence (such as permits and licenses) for assets to be lost in the program. There will be a review of whether the asset is individually owned or belongs to a group and the end result will be compilation of the final register of PAPs who will henceforth be negotiated with. The inventory and evaluation will be signed and a copy given on the spot to the affected person. At this time, a copy of the grievance procedure will also be given to the affected person and the process explained. A sample form for capturing the details of PAPs is included in Annex 3.4.

3.8 Inventory of Vulnerable groups: As part of the Socio-economic baseline survey, people considered to be disadvantaged as compared to rest of society will be inventoried to ensure provision of soft landings in the compensation process. Such groups should include;-

Indigenous people: These are people who are closely tied to their traditional or customary lands and natural resources on these lands, but these lands may not be under legal ownership. Any form of resettlement for indigenous people embodies more serious risks than for any other populations and should consequently be avoided. If this is not feasible, the indigenous peoples' land use will be documented by experts in collaboration with the affected households without prejudicing any land claim. The affected indigenous people will be informed of their rights with respect to these lands under national laws, including any national law recognizing customary rights or use. Going by tradition, indigenous peoples are rarely encountered in urban centres and it is unlikely that any will be displaced under the KMP.

Physically handicapped people: Such are usually disadvantaged in that their labour is challenged which makes them often unable to secure employment and locks them out of certain businesses. Elderly persons: Elderly people without assets or investments and people to depend on suffer numerous vulnerabilities.. Their economic viability may depend on how much land they farm or how much they produce because, by producing even small amounts of food to "exchange" with others, they can subsist on cooked food and generous return gifts of cereal from people such as their kith, kin and neighbours. Displacement will affect their economic viability. However, resettlement would damage their economic viability even more than losing land since it will separate them from the person or household on whom they depend for their support.

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HIV/AIDS afflicted persons: Relatively high percentages of the poor and total population are living with HIV or are terminally ill with AIDS. Many are beneficiaries of numerous health Programs from the government, international organizations and the NGO community.

Orphans and street children: Due to the impacts of the AIDS pandemic, there are a considerable number of orphaned children, whose parents have died from AIDS related diseases. These children today fall into three categories of care namely (i) those being looked after by close relatives, (ii) those being looked after by the government, local authorities or NGOs and (iii) those living alone and providing for themselves and other siblings. These children are more vulnerable since they are often "voiceless" because they have no parents to defend or stand up for them and also because they are considered too young to be heard.

Numerous orphaned children will be encountered in Kenyan urban areas where they engage in any form of economic activity to provide for themselves and their siblings. Core occupation include activities such as manual work at open air markets, transporting loads for short distances, scavenging for waste paper and metals and other exploitative employment. Compensation for these orphans and street children, if they are affected by the projects in a way which requires their physical relocation, would take the form of paying for their rehabilitation and training to acquire useful vocational skills.

Small-scale farmers: Small-scale farmers are normally elderly ladies and men who subsist through cultivating small plots in urban areas- sometimes even along sewage lines and displacement thus denies them of a vital lifeline for survival. It should be possible for LAs to offer in-kind compensation to this category or to introduce other packages that replace livelihoods so lost.

These groups could be identified as being particularly vulnerable to land acquisition activities, and as such the following considerations will be made when project sites are identified and PAP listed:-

o Special consideration should be paid to these groups by identifying their needs from the socio-economic and baseline studies undertaken as part of the RAP process;

o The groups should be individually consulted and given opportunities to participate in the resettlement decision-making process, as well as project activities;

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o Consultation with these groups should ensure that resulting resettlement and compensation improves their pre-project livelihood;

o The RAPs should be designed to ensure special attention is paid to the monitoring of the resettlement process in order to ensure that pre-project livelihoods are indeed improved upon;

o PAPs should be given sufficient technical and financial assistance to make use of the grievance mechanisms of the project where required;

o Decisions concerning them should be made in the shortest possible time.

3.9 The cut off date: A cut off date from which eligibility for compensation will be terminated will be proclaimed and new inhabitants coming to the project affected areas will not be considered for compensation. The cut-off date for title holders will be the date of first notification under the land acquisition process and in case of non-title holders the date of census survey will be reckoned as cut-off date. Suitable measures will be taken to prevent further encroachments after establishing the cut-off date.

Computation of final costs and budget:

3.10 Upon completion of field work and compilation of Asset Registers, the RAP Team will embark on instituting valuation of the assets so as to determine the payments due to PAPs in the form of compensation and assistance. Valuation will be undertaken by an independent Registered Valuer who will be hired by the LA. During valuation, values of each asset will be pre-printed, shown to the affected person, and set against the type and number of such losses that the individual will be shown, and the total of all losses as well.

3.11 Compensation for land will aim at providing e.g. compensation for land, labour and crop loss. The Valuer will adopt legally acceptable valuation procedures accepted by both the Government of Kenya and as described in the World Bank’s OP4.12 on involuntary resettlement for purposes of fairness and consistency. Valuation for land will be based on market rates while that of other assets will adopt either Schedule of rates from GOK agencies such as Ministry of Lands, Ministry of Agriculture or Rates from Contractors. A top-up equivalent to 15% of the compensation package will be paid to cater for involuntary acquisition.

3.12 Negotiations on modalities for compensation: Upon assembly of the final register, PAPs in different administrative units e.g. wards will be brought together in a meeting and organised (through the Provincial

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Administration) to form a PAP committee which will then undertake negotiation on their behalf. Where feasible, such PAPCs within a Municipality will come together to form the General PAPC so that all negotiation in the respective LA will be handled by one committee. This is the committees through which compensation will be effected.

3.13 Finalisation of the RAP: RAPs once prepared will be approved in Full Council Meetings following which they will be submitted to the Project Coordinator and the World Bank for their review and clearance. Any comments received from PIU and the World Bank will be incorporated in the final report as needed. Copies of the RAP will also be forwarded to NEMA to facilitate grant of an Environmental License.

Funding implementation of this RPF

3.14 Costs of the RFP: As at the time of drafting this RPF, it is not possible to predict the nature, scope and fiscal implications of displacement likely from the activities of the program Indeed, realistic working budgets will only be available once collaborating LAs conclude respective RAPs but going by the expressed policy of minimising displacement and adoption of in-kind compensation, the monetary implication of displacement is greatly mitigated. The costs towards land acquisition and resettlement will be financed from the counterpart funding and be included as part of overall cost of the sub-project. World Bank funds could be used to finance procurement of services and works associated with the Resettlement and Rehabilitation process.

3.15 Disclosure. Prior to the consultations on the draft RAP/Abbreviated RAP with the PAPs and other stakeholders, this will be disclosed in places accessible to the local people. The final version after endorsement form MoLG will again be re-disclosed.

34 CHAPTER 4: IMPLEMENTATION PROCEDURES

Management of the Resettlement Process

4.1 Establishment of a Resettlements Action Committee-RIC: Towards managing implementation of RAPs, each participating Municipality will constitute a Resettlement Implementation Committee (RIC) directly charged with managing the resettlement process. The RAC will be chaired by

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the Local District Officer and draw membership from the Town Engineer, Social Welfare Dept, Enforcement Dept, Survey Dept, Chair of the Finance Committee, Chair of the Welfare Committee, Representative of PAPs, Local Chief and Religious Leaders. Each RIC will establish a secretariat within the Works Office of the LA and will be provided with secretarial staff by the LA.

4.2 Modalities for payment of compensation: Payment of compensation and other assistance will be implemented by respective RACs as outlined in the entitlement matrix (table 2.1) and in accordance with Cap 288 of the laws of Kenya. Section 10 of Cap 288 requires that upon conclusion of the inquiry (RAP Process), the Commissioner shall prepare a written award, in which he shall make a separate award of compensation to each person whom he has determined to be interested in the land. Every award shall be filed in the office of the Commissioner, and, subject to section 75 (2) of the Constitution and sections 18 and 29 of cap 288, shall be final and conclusive evidence of (a) the area of the land to be acquired, (b) the value, in the opinion of the Commissioner, of the land and (c) the amount of the compensation payable, whether the persons interested in the land have or have not appeared at the inquiry. Where an interest in land is held by two or more persons as tenants in common, the award shall state (a) the amount of compensation awarded in respect of that interest; and (b) the shares in which it is payable to those persons.

4.3 Upon making the award in line with Section 10 of Cap 288, t the Commissioner (through the RIC) shall serve on each person whom he has determined to be interested in the land, a notice of the award and offer of compensation in line with Section 11 of Cap 288. After notice of an award has been served under section 11 on all the persons determined to be interested in the land, the Commissioner shall, as soon as practicable, pay compensation in accordance with the award to the persons entitled there under, except in a case where (a) there is no person competent to receive payment; or (b) the person entitled does not consent to receive the amount awarded; or (c) there is a dispute as to the right of the persons entitled to receive the compensation or as to the shares in which it is to be paid. In any of these three scenarios emerging, payment may be made into Court, notifying any persons interested accordingly. All cash compensation will be lumped together in a single award paid as per agreed schedules.

4.4 Coordination of other assistance to PAPs: Delivery of other assistance to PAPs will be the responsibility of Municipal Departments under the coordination of respective RICs. Table 4.1 outlines the coordination mechanism in the delivery of identified services which will be supervised by respective Full Councils through their line sub-committees.

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Table 4.1: Modalities for delivering non-cash compensation and assistance to PAPs under the KMP

Nature of assistance Responsible department

Phasing of activity

Indicators for monitoring

Supervision

Assistance to vulnerable groups –street families, destitute adults, single parents, orphans, etc

Social Services Planning in RAP stage with budgetary allocation before award of contract. Continuous assistance during project implementation.

Availability of a register of vulnerable groups.Percentage of registered vulnerable groups being reached. Diversity of Programs offered

Social/ Welfare committee of Full Council

Provision of alternative land to PAPs

Town Clerk’s Department

Register of PAPs updatedSuitable land identified screened for environmental impactsNo. of PAPs resettledNo. of social amenities –water and sanitation, recreation etc provided in new site

Finance Committee of the Full Council

Provision of Income Replacers-(IRs) job placement, allocation of market stalls, investment in IGAs etc.

Planning Department

Ditto Register of PAPs in this categoryPercentage of PAPs receiving income replacersPercentage of beneficiary PAPs sustaining the IRs

Planning Committee of the Full Council

Delivery of Primary Health care and others

Public Health Department

Ditto No of PAPs being reachedDiversity of services offered

Social welfare Committee of the Full Council

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Table 4.1: Modalities for delivering non-cash compensation and assistance to PAPs under the KMP continued

Access to primary and pre-primary education for displaced children

Education and Social welfare departments

Ditto Register of needy children established.Percentage of children accessing educationQuality of services provided.

Social welfare committee of the Full Council.

Replacement of social assets-churches, social halls, etc.

Social welfare department in consultation with Planning Dept.

Ditto Establishment of Register of lost social assetsAlternative land identified Assistance to recreate as per Entitlement Matrix

Social Committee

Assistance to Vulnerable groups

Social Department

Ditto Establish register of vulnerable groups by categoryPercentage of PAPs being assisted.

Social Committee

Detailed planning will take place upon conclusion of the RAP but certainly during the detailed design stage to ensure allocation of adequate funding to support service delivery.

4.5 Stakeholder involvement: All RAPs will provide a clear implementation schedule for each activity covering initial baseline and preparation, actual relocation, and post relocation economic and social activities. The RAP will include a target date when the expected benefits for resettled persons and hosts would be achieved. To facilitate planning and coordination of the tasks in resettlement, respective Municipal PIUs will hold monthly meetings during which representatives of PAPs will be invited. At the construction stage, the said meetings will convert into site meetings with contractors. Such a forum will accord PAPs an opportunity to identify and own the process as they will be party to decision affecting their welfare.

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4.6 Coordination between land acquisition, resettlement and civil works: Compensation in respect of physical displacement will take place before groundbreaking. In order to safeguard interests of PAPs, the following implementation schedule will be followed:-

Conceptual framework for implementation coordination for KMP sub-projects

4.7 The following activities will be completed prior to issue of bids in the respective sub-projects- (a) The RAP will be approved by the Municipal Council after receipt of endorsement from MOLG; (b) the land acquisition process will be initiated through issue of the first notification; (c) in case on non title holders, as appropriate identity cards will be issued; (d) the sites for reconstruction of alternative community assets is identified; (e) Grievance redress committee and RIC would have been constituted; and (e) in case of any physical displacement, alternative resettlement sites are identified as needed.

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Land impact indentified at feasibility Study and ESIA stage

RAP prepared and approved

RAP identifies PAP categories,Recommends compensation and assistance

Detailed Design

Design Report allocates budget for compensation and assistance

Effect compensation package and appoint Monitoring Officer

Approval process

Recruit Contractor

Project implementation starts Periodic monitoring of RAP

Land not identified as impact

Sub-projects selected

Periodic reports to Full Councils and PCU


4.8 The following activities will be completed prior to award of respective contracts for sub-projects- (a) the compensation for land acquisition will be paid; (b) the R&R assistance will be extended to all affected people; (c) the allotment of alternative houses as needed will be effected; and (d) all the affected community assets reconstructed. The Sociologist member of the LA Team will certify successful completion of the activities in coordination with Supervision consultants, if available.

4.7 Subsequent to this schedule:

Municipal Councils bear responsibility for total and comprehensive settlement of compensation awards and other assistance.

Contracts for construction will only be affected when awards for compensation have been concluded and payments made.

A Resettlement Officer will be appointed by respective Municipalities to serve as secretary to the RIC and to coordinate compensation activity.

The RAP will be monitored continuously by the Resettlement Officer and updated accordingly. Periodic monitoring reports will be issued to the Full Council and PCU simultaneously.

Grievance redresses process

4.8 As part of the RAP, an independent grievance mechanism, comprised of respected local peer leadership will be put in place to respond to all grievances. The Grievance Team will comprise of upto three members who are not associated with the implementation. The grievance redress mechanisms will aim to solve disputes at the earliest possible time in the interest of all parties concerned.

4.9 Grievance procedures may be invoked at any time, depending on the complaint. No person or community from whom land or other productive assets are to be taken will be required to surrender those assets until any complaints he/she has about the method or value of the assets or proposed measures are satisfactorily resolved. If the verdict rendered by the GRC is not acceptable, the aggrieved party can take recourse to the High Court whose decision will be final.

Institutional coordination

4.10 Project Management at MoLG level: The Program will be implemented under the overall supervision of the Office of the Deputy Prime

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Minister and Ministry of Local Government. Specifically, the Program will be managed under the Department of Urban Planning who have provided a Project Coordinator, Social Development Officer, Component Leaders and Secretariat Staff.

4.11 In this capacity, the MoLG will interface with other sector ministries such as Ministry of Housing and other ministries on matters and policies relating to local government and urban development. The MoLG will interface with MoF on issues pertaining to Program funding to ensure smooth flow of both internal and external funding. MoLG will communicate directly with the Bank on technical issues related to the implementation of the program including financial, procurement and physical progress of the implementation and all such communication will be made take place under the signature of the Permanent Secretary (or his designated representative) as the overall accounting officer for the Ministry.

4.12 The Program Coordinator (PC) is the overall technical coordinator in the implementation of KMP and assisted by a Social Development Officer in case of land acquisition and resettlement and other social issues related to this program. The Project coordinator will supervise the MoLG project team and ensure that project implementation activities and reports are on schedule and in compliance with the financing agreement. The coordinator will report to the PS and will from time to time draw the attention of the PS to all emerging policies issues for decision at that level or a higher level.

4.13 MoLG Project Team: The MoLG has put in place a project team for the preparation and implementation of KMP with a skills mix entailing;- (i) procurement; (ii) financial management; (iii) engineering/technical supervision; (iv) monitoring and evaluation (M&E); (v) physical planning, (vi) environmental and social safeguards; and (vii) human resource management and development. This team will report to the KMP coordinator and work in collaboration with staff in the other departments of the Ministry. The project team will be responsible routine implementation and technical austerity of the KMP project activities.

4.14 Municipal Project Implementation Units: For effective implementation of the Program, Municipalities are in the process of establishing PIUs with core staff as follows; - Town Clerk, Treasurer, Engineer, Planner, Internal Auditor, Procurement Officer, Environment Officer, Social Development Officer, Surveyor, ICT officer, Human Resources Officer, and a Monitoring and Evaluation officer.

Inter-sectoral involvement coordination

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4.15 Ministry of Finance (MoF) is the borrower and interlocutor for the World Bank regarding KMP. The MoF will therefore be responsible for the negotiations and signing of the credit and any amendments to the project’s legal agreement.

4.16 The National Environment Management Authority-NEMA: The MoLG and NEMA are already collaborating in the preparation of KMP. In the capacity of Environmental Regulator, NEMA will review all ESIA reports in respect of KMP sub-projects to ascertain efficacy and adequacy of proposed ESMMPs and where land is identified as an impact, NEMA will require that a RAP be prepared to guide the compensation process. Such a RAP will then have to be reviewed and cleared by NEMA before implementation and grant of Environmental Licenses.

It is the responsibility of the Social Departments of respective Municipalities to ascertain the viability of RAPs to ensure practicability and legal soundness. The same responsibility accords at the PMU level.

Updating of unit costs. All the unit costs referred in this RPF will be reviewed and updated on annual basis, prior to commencement of each financial year.

Requirements for Monitoring and Evaluation

4.17 The arrangements for monitoring will fit in the overall monitoring plan of the entire program under auspices of the MoLG. Monitoring will focus on physical progress and associated costs as spelled out in the RAP and ensure that these are implemented and coordinated in a manner to ensure that civil works are not delayed.

4.18 In order to ensure that compensation and assistance will enable the affected people to improve or restore their livelihoods, an impact assessment will be undertaken 6-12 months after the implementation is completed to evaluate whether the intended objectives are realised. For this, suitable baseline indicators related to income, assets, land ownership, expenditure pattern of key activities, housing conditions, access to basic amenities, demographic characteristics, indebtedness, etc. will be collected during the census survey and will be used for assessing the change in the living standards while carrying out the impact evaluation. 4.19 Monitoring reports will be submitted to the PCU which has a fully fledged monitoring unit. The latter unit will synthesize monitoring reports to:-

a) Provide timely information about all resettlement arising as a result of PMU activities;

b) Identify any grievances that have not been resolved at a local level and require resolution through the involvement of the PCU;

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c) Document the timely completion of project resettlement obligations for all permanent and temporary losses;

d) Evaluate whether all PAPs have been compensated in accordance with the requirements of this RPF and that PAPs have higher living standards in comparison to their living standards before physical or economic displacement.

4.20 The annual audit of RPF implementation will include (i) a summary of the performance of each sub-project vis-a-vis its RAP, (ii) a summary of compliance and progress in implementation of the process frameworks for respective investments and (iii) a presentation of compliance and progress in the implementation of RAP and application of the provisions of RPF and remedial measures as needed based on the findings of the audit. This audit will be carried out by MOLG and based on the findings of the audit, appropriate remedial action will undertake as needed.

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5 ANNEXURES

1.1: Definitions of Terms 3.1: Criteria for screening KMP sub-projects 3.2: Template for preparation Resettlement Action Plans 3.4: Checklist for Baseline socio-economic surveys

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Annex One: Definition of Terms used in the Report Unless the context dictates otherwise, the following terms shall have the following meanings:

“Census” means a field survey carried out to identify and determine the number of Project Affected Families/households/Persons (PAF/PAH/PAP) or Displaced Families (DFs). The meaning of the word shall also embrace the criteria for eligibility for compensation, resettlement and other measures emanating from consultations with affected communities.

“Project Affected Person(s) (PAPs)” are persons affected by land use or acquisition needs of the Program. These person(s) are affected because they may lose, be denied, or be restricted access to economic assets; lose shelter, income sources, or means of livelihood. These persons are affected whether or not they must move to another location.

“Compensation” means the payment in kind, cash or other assets given in exchange for the acquisition of land including fixed assets thereon.

“Cut-off date” is the date of commencement of the census of PAPs or DPs within the project area boundaries. This is the date on and beyond which any person whose land is occupied for project use, will not be eligible for compensation.

“Displaced Persons” mean persons who, for reasons due to involuntary acquisition or voluntary contribution of their land and other assets under the project, will suffer direct economic and or social adverse impacts, regardless of whether or not the said Displaced Persons are physically relocated. These people will have their: standard of living adversely affected, whether or not the Displaced Person must move to another location ; lose right, title, interest in any house, land (including premises, agricultural and grazing land) or any other fixed or movable assets acquired or possessed, lose access to productive assets or any means of livelihood.

“Involuntary Displacement” means the involuntary acquisition of land resulting in direct or indirect economic and social impacts caused by: Loss of benefits from use of such land; relocation or loss of shelter; loss of assets or access to assets; or loss of income sources or means of livelihood, whether or not the Displaced Persons has moved to another location; or not.

“Involuntary Land Acquisition” is the repossession of land by government or other government agencies for compensation, for the purposes of a public project against the will of the landowner. The landowner may be left with the right to negotiate the amount of compensation proposed. This includes land or assets for which the owner enjoys uncontested customary rights.

“Land” refers to agricultural and/or non-agricultural land and any structures thereon whether temporary or permanent and which may be required for the Project.

“Land acquisition” means the repossession of or alienation of land, buildings or other assets thereon for purposes of the Project.

“Lease holder” means a land user who has obtained temporary usage of the land on account of 16


having entered into a lease agreement with the owner.

“Market rate” is the selling price of a commodity in the open competitive market.

“Rehabilitation Assistance” means the provision of development assistance in addition to Compensation such as moving and subsistence allowance, land preparation assistance, credit facilities, training, or job opportunities, needed to enable Displaced Persons to improve their living standards, income earning capacity and production levels; or at least maintain them at pre-Project levels.

“Resettlement and Compensation Plan”, also known as a “Resettlement Action Plan (RAP)” or “Resettlement Plan” is a resettlement instrument (document) to be prepared when program locations are identified. In such cases, land acquisition leads to physical displacement of persons, and/or loss of shelter, and /or loss of livelihoods and/or loss, denial or restriction of access to economic resources. RAPs are prepared by the party impacting on the people and their livelihoods. RAPS contain specific and legal binding requirements to resettle and compensate the affected party before implementation of the project activities. “Replacement cost” means replacement of assets with same quality and quantity with an amount sufficient to cover full cost of lost assets and related transaction costs and taxes. The cost is to be based on Market rate (commercial rate) according to Kenyan law for sale of land or property. In terms of land, this may be categorized as follows; (a) “Replacement cost for agricultural land” means the pre-project or pre-displacement, whichever is higher, market value of land of equal productive potential or use located in the vicinity of the affected land, plus the costs of: (b) preparing the land to levels similar to those of the affected land; and (c) any registration and transfer taxes;

“Replacement cost for houses and other structures” means the prevailing cost of replacing affected structures, in an area and of the quality similar to or better than that of the affected structures. Such costs shall include: (a) transporting building materials to the construction site; (b) any labor and contractors’ fees; and (c) any registration costs.

“Resettlement Assistance” means the measures to ensure that Displaced Persons who may require to be physically relocated are provided with assistance during relocation, such as moving allowances, residential housing or rentals whichever is feasible and as required, for ease of resettlement.

“The Resettlement Policy Framework (RPF)” has been prepared as an instrument to be used throughout the Water, Sanitation and Liquid Waste Disposal program implementation. The RPF will be disclosed to set out the resettlement and compensation policy, organizational arrangements and design criteria to be applied to meet the needs of the people who may be affected by the program. The Resettlement Action Plans (“RAPs”) for the program will be prepared in conformity with the provisions of this RPF.

“A Squatter” is an individual occupying land to which they have no claim under any tenure system.

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Appendix 3.1: Template for preparing Resettlement Action Plans

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Template for the design of sub-project Resettlement Action Plans

The basis for preparing RAPs is provided by Resettlement Policy Framework (RPF) which guides and governs projects as sub-projects are selected. In the case of KMP, it is the responsibility of the concerned Municipality to prepare RAP, which will be reviewed and approved by MOLG and NEMA.

This section of the RPF provides a template for description of the contents of individual RAPs for KMP sub-projects which are likely to trigger resettlement. It takes cognizance of the scope of RPF and includes the minimum information which is required to complement what is contained in the RPF.

A resettlement action plan should address potential adverse impacts of the project and at the same time make provisions for improving the socio-economic conditions of the affected populations. To address the impacts, the plan should have the following attributes:

The resettlement plan includes measures aimed at ensuring that the displaced persons are (i) informed about their options and rights pertaining to resettlement, (ii) consulted over choices and given technically and economically feasible resettlement alternatives; and (iii) provided with prompt and effective compensation at full replacement cost for losses of assets due to the project.

In case the impacts include physical relocation, the resettlement plan includes measures to ensure that the displaced persons are (i) given assistance (such as moving allowance) during relocations; and (ii) provided with residential housing or housing sites or, as required, agricultural sites for which a combination of productive potential, vocational advantages and other factors is at least equivalent to the advantages of the old site.

Where necessary, to realize the objectives of the Resettlement Policy, the plan includes measures to ensure that displaced persons are (i) offered support after displacement for a transition period which is likely to be needed to restore their livelihood and standards of living and (ii) provided with development assistance in addition to compensation measures. Such assistance includes land preparation, credit facilities, training and/or job opportunities.

The content and level of detail of a RAP will vary depending on circumstances such as the magnitude of resettlement. However, a satisfactory Resettlement Action Plan should include the following elements. Depending upon the magnitude of impacts for each sub-project, the level of RAP will be determined, but broadly the following aspects will be covered. :-

(a) Description of the project (sub-project), project area and area of influenceInformation presented in this section includes description of the project area showing location, sitting of plants, structures, lands, affected dwellings etc; projects objectives and strategy; policy and legal framework; timeframe; geographical coverage; project strategic context and rationale.

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(b) Potential ImpactsDescription of project components or activities which would trigger resettlement; the cultural, social, economic and environmental impacts envisioned; and the alternatives considered to avoid or minimize resettlement.

(c) Organizational ResponsibilityThe institutional arrangement within the implementing agency, provision of adequate resources to the agency and inter-agency coordination should be described. The capacity and commitment of the institution to implement the RAP should be assessed. Strengthening of the institutions should be considered if necessary and the steps that will be taken together with a timetable and budget should be described at the time of preparing the project. Involvement of the local people and NGOs in planning, implementation and monitoring resettlement should be highlighted.

(d) Community ParticipationThis sub-section includes:-• Description of the consultation and participation of the displaced and host communities in the design and implementation of resettlement activities including a summary of the views expressed and how these views were incorporated during the preparation of the resettlement plan. • A review of the resettlement alternatives identified and choices made by the displaced people, including choices related to forms of compensation and resettlement assistance, relocating as individual families or as part of pre-existing families and to retaining access to cultural property (e.g. cemeteries, places of worship etc).• Description of procedures for redress of grievances by affected people throughout the planning and implementation period.• Description of measures aimed at sensitizing and educating the affected and host communities on matters of resettlement.

(e) Integration with host communities• Arrangements for consultation with host communities and for prompt payment to the host for land and other assets should be provided to the resettled persons.• Arrangements for resolving conflicts which may arise between the resettled persons• Arrangements for resolving conflicts which may arise between the resettled persons and host communities should be put in place.• Appropriate measures should be formulated to augment public services such as education, water, health in host communities in order to avoid disparities between resettled persons and the host communities should be put in place.• Resettled persons should be integrated economically and socially into host communities so that adverse impacts to host communities are minimized.

(f) Socio-economic Studies• Population census of the project area including a description of production systems, household organization, baseline information on livelihoods and standards of living of the displaced population (and host communities).• An inventory of assets of displaced households; the magnitude of the expected loss (total or partial for individual or group assets); and extent of physical and economic displacement.• Information on disadvantaged/vulnerable groups or persons for whom special provisions may have to be made. Such groups and persons include those living below the poverty line, the

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landless, the elderly, women, children, indigenous people, ethnic minorities and displaced persons who are not protected through national land compensation legislation. Resettlement involving vulnerable/disadvantaged groups/persons should be preceded by a social preparation phase to build their capacity to deal with issues of resettlement.• Provisions for updating information on the livelihood of displaced people and their standards of living at regular intervals.• Description of land tenure systems including common property and non-title based land ownership or allocation recognized locally and related issues.• Public infrastructure and social services that will be affected and• Social and cultural characteristics of displaced and host communities. Appropriate patterns of social organization should be promoted and the existing social and cultural institutions of resettled persons and their host should be retained, supported and used to the extent possible.

(h) Institutional arrangement This will involve the identification of agencies which are responsible for resettlement activities and NGOs that may have a role to play in project implementation and assessment of the institutional capacity of such agencies and NGOs. In the case of KMP, the agency which is responsible for resettlement activities is the Ministry of Lands and Settlement.

(i) EligibilityDefinition of displaced persons and criteria for compensation and other resettlement assistance including relevant cut off dates. The assurance should be given that lack of legal title should not bar affected persons form being compensated.

(j) Valuation and Compensation for losses• The methodology to be employed for valuing losses in order to determine their replacement cost. This is a description of the levels of compensation under the local laws and supplementary measures aimed at determining replacement of cost for lost assets and.

• A description of the packages of compensation and other resettlement measures that will ensure that each category of eligible displaced persons get their fair compensation. In conformity with the World Bank Operational Policy (OP.4.12 of Dec 2001), displaced persons should be assisted in their efforts to improve their livelihoods and standards of living or at least to restore them to pre-displacement levels or to levels prevailing prior to the start of project implementation whichever is higher.

(k) Identification of alternative sites, selection of resettlement site(s), site preparation and relocation• Institutional and technical arrangements for identifying and preparing relocation sites for which a combination of productive potential, location advantages and other factors, should be at least comparable to ancillary resources.• Procedures for physical relocation including timetable for site preparation and land title transfer and description of resettlements sites.• Measures to prevent the influx of ineligible person (encroachers and squatters) into the selected sites such as the identification and recording of affected people at the project identification stages.• Legal arrangements for regularizing tenure and transferring titles to resettled persons.

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(i) Shelter, infrastructure and social servicesThis sub-section provides details regarding plans to provide or finance housing, infrastructure (e.g. roads, water supply etc) and social services (schools, health services) and plans aimed at ensuring that services and any necessary site development to host communities are comparable to those provided to resettled persons.

(m) Environmental protectionAn assessment of the possible environmental impacts of the proposed resettlements and measures to mitigate and manage the impacts. Reference will be made to the EMCA and Environmental Impact and Audit Guidelines of NEMA.

(n) Implementation SchedulesAn implementation schedule covering all resettlement activities from project preparation through implementation (including monitoring and evaluation) indicating dates for achievement of expected benefits to resettled persons and hosts and dates for terminating the various forms of assistance.

(o) Costs and BudgetThe breakdown of cost estimates for all resettlement activities including allowances for inflation and other contingencies, timetable for expenditures, sources of funds and arrangements for timely disbursement of funds.

(p) Monitoring and evaluationUnder this sub-section, information regarding arrangements for monitoring of resettlement activities by the implementing agency is presented. When appropriate, independent monitors will supplement the role of the implementing agency to ensure objectivity and completeness of information. Performance indicators for measuring inputs, outputs and outcomes of resettlement activities and for evaluating impacts for a reasonable period of time after the resettlement activities have been completed are also presented.

(q) Commitment to follow RPF guidelines and requirementA statement of assurance that the implementing agency will follow the guidelines and requirement of the RPF should be included in the RAP

(r) Description of Programs for improvement and restoration of livelihoods and standards of living of the affected people.Programs aimed at improving and restoring the livelihoods and standards of living of the affected people in line with the Resettlement Policy should be described and the magnitude of their funding should be indicated

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Annex 3.4: Checklist to guide Inventory of PAPs

AFFECTED PLOT SHEET

Scheme name: Land Register No. District: Division: Location: Sub location:GPS Coordinates:Surface:Description of soil:

Perennial Crops: 1 Owner: 2 Owner:Annual Crops: 1 Owner:

2 Owner:Trees: 1 Owner:

2 Owner

Structures: Channels: Owner:Anti-erosive structures: Owner:

Buildings: Owner:Users: User 1:Surface used: Regime of tenure:

User 2:Surface used: Regime of tenure:User 3:Surface used: Regime of tenure:User 4:Surface used: Regime of tenure:

Valuation proposal (details of calculation on attached sheet):Land usufruct:Crops:Structures:

Proposed distribution of compensation:User 1:User 2:User 3:User 4:Date: Prepared By:

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AFFECTED BUILDING SHEETScheme Name:Map Sheet: Land Register No.District: Division: Location: Sub locationGPS Coordinates:Owner: Address:

Description:Permanent Non permanentSurface: Number of rooms:Walls: Material ConditionRoof: Material ConditionFloor: Material Condition

Annexes outside: Latrine: Bathroom: Kitchen: Others:Additional features and amenities in the house

Permanently Inhabited: By: Regime of occupation:Periodically Inhabited: By: Regime of occupation:

Valuation proposal (details of calculation on attached sheet):

Proposed distribution of compensation:User 1:User 2:User 3:User 4:

Date: Prepared By:

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AFFECTED HOUSEHOLD SHEET(This includes questions related demographic and socio-economic characteristics, assets ownership, indebtness, house type, size, ownership and available facilities in the houses, in case of shops the details related to type of shop, number of employees, turnover and income and related business information).

Household Reference: Name of Head of Household:Location: District: Division: Location: Sub-location:

Reference of Affected Asset:Type: Structure: Plot: Crops

Reference of Affected Asset Sheet:Location: District: Division: Location: Sub-location:

Household Information:Head of Household: Name: Age: Sex:Identity Document: Type: Number:

Composition of Household:Number Name Relationship

with Household Head

Sex Age Education Occupation Income Nature of vulnerability

Total Estimated Household Cash Income: .......................

Type of business premises:

Size, construction materials, Nature of business, Turnover, net incomes, Indebtedness by category. No of employees, number of customers received /day

Project Impact:Assessment of the Impact of the Loss of the Affected Asset on Household’s Livelihood:

Proposed Compensation or Resettlement PackageHousehold’s Wishes

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Proposed Package:

Proposed Livelihood Restoration Package:Household’s Wishes:

Proposed Package

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the kenya municipal programme –draft resettlement policy...

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