JUDICIAL PERFORMANCE IMPROVEMENT PROJECT (JPIP)
Resettlement Policy Framework (RPF)
Final Report
The Judiciary
Supreme Court of Kenya, City Hall Way
P.O. BOX 30041 - 00100, Nairobi, Kenya
September 20, 2012
REPUBLIC OF KENYA
©Joshua Oyieko
No part of these specifications/printed matter may be reproduced and/or published by print, photocopy, microfilm or by any other means, without the priorwritten permission of Joshua Oyieko nor may they be used, without such permission, for any purposes other than that for which they were produced
1
JUDICIAL PERFORMANCE IMPROVEMENT PROJECT (JPIP)
Resettlement Policy Framework (RPF)
Final Report
file : Water & Environment'
registration number : Pan-12-081
version : 1
Republic of Kenya, TheJudiciary
P.O. BOX 30041 - 00100, Nairobi, Kenya
September 2012
CONTENTSPAGE
Project summary
List ofAbbreviations
Glossary and definitions
Executive summary
1Introduction
1.1Project Background
1.2Objectives of JPIP
1.3Objectives of the Resettlement Policy Framework (RPF)
1.4RPF Study Approach and Methodology
1.5Rationale for Preparing the RPF
1.6Scope of Application of the RPF
1.7Resettlement Policy Framework Report Layout
2Project Objective and Description
2.1Project Objectives
2.2Project Components and Sub-Components
2.2.1Component 1: Court Administration and Case Management
2.2.2Component 2: Judicial Training/Staff Development
2.2.3Component 3: Courts Infrastructure
2.2.4Component 4: Project Management
2.3Project Locations
2.4Proposed Designs of Magistrate and High Courts
2.5Implementing Agency of the RPF
3Legal & Policy Frameworks Governing Resettlement
3.1Introduction
3.2The Environmental Management & Coordination Act (EMCA), 1999
3.3The Forests Act, 2005
3.4The Agricultural Act Cap 318
3.5The Land Registration Act, 2012
3.6The Land (Group Representative) Act Cap 287
3.7The Trust Lands Act Cap. 288
3.8The Land Control Act Cap 302
3.9The Local Government Act (Cap. 265)
3.10The Land Adjudication Act, Cap. 284
3.11The Constitution of Kenya, 2010
3.12The Land Act 2012
3.13The Environment and Land Court Act of 2011
3.14Physical Planning Act (Cap 286)
3.15World Bank Safeguard Policies relating to Relocation and Resettlement
3.15.1Involuntary Resettlement: OP/BP 4.12
3.15.2Indigenous People: OP/BP 4.10
3.16 Land Tenure Issues
3.16.1Public Land
3.16.2Private Land
3.16.3Community/Trust Land
3.16.4Other Interests
3.17Valuation and related legal Issues
3.18Gaps between Government of Kenya Laws and WB Policies on Resettlement
3.19Mechanisms for addressing such gaps
4Project Preparation and Methodology
4.1Resettlement Policy Framework Preparation Process
4.2Schedule of Activities
4.3Literature Review
4.3.1Overview on Literature Review
4.3.2Initial Findings/Results on the Review
4.4Stakeholder Consultation
4.4.1Consultation with the Judiciary and World Bank
4.4.2Field Site Survey
4.4.3Preparation and submission of a Draft RPF
4.4.4Appraisal Workshop
4.4.5Preparation and submission of a Final RPF
4.5Results on Findings
5Potential Impacts of Project
5.1Project Activities with Displacement Potential
5.2Definition of PAPs
5.3Types of Displacements
5.3.1Involuntary Resettlement
5.3.2Socio-economic displacement
5.3.3Physical displacement
5.4Categories of PAPs
5.5Approximate Number of PAPs
5.6Potential Relocation areas
6Principles & Objectives Governing Preparation AND Implementation of RAP
6.1Overview
6.2Objectives and Guiding Principles
6.2.1Objectives
6.2.2Guiding Principles
6.3Minimization of Displacement
6.4Fair and Adequate Compensation
6.5Compensation Payment
6.6Access to Training, Employment, and Credit
6.7Assistance to Vulnerable Persons
6.8Screening of Projects for Displacement Impacts
7Process for Screening, Preparation and Review of RAP
7.1Preparation of Project Area RAP
7.2Screening for Involuntary Resettlement
7.3Project Screening
7.3.1Screening Checklist
7.3.2Review of Screening Review Checklist
7.3.3Court Design
7.4Baseline, Socio-economic Data and Census
7.5Public Consultation and Participation
7.6Preparation of Project Area RAP
7.7Review and Approval of Project Area RAP
8Notification Mechanism and Public Participation
8.1Notification Procedure
8.2Mechanism for Consultation
8.3Consultation during Project’s Preparation
8.4Data Collection Phase
8.5Consultation Proposed During Implementation
8.6Public Consultation Meetings (Barazas)
8.7Compensation and Rehabilitation
8.8Public Disclosure Procedure
8.9Monitoring and Evaluation Phase
9Eligibility Criteria for Various Categories of Project Affected People
9.1Principles
9.2Eligibility Criteria
9.2.1Eligibility for Various Categories of Affected People
9.2.2World Bank Criteria for Determining Eligibility for Compensation
9.3Method of Determining Cut-Off Dates
10Methods of Valuing Affected Assets
10.1Valuation Procedure
10.1.1Use of Standard Valuation Tables
10.1.2Preparation of Asset Inventory
10.2Valuation Methods
10.2.1Replacement Cost Approach
10.2.2Gross Current Replacement Cost
10.2.3Other methods
10.3Calculation of compensation by assets
10.3.1Compensation for Land
10.3.2Land Measurement
10.3.3Compensation Rates for Labour
10.3.4Calculation of Crops Compensation Rate
10.3.5Compensation for Buildings and Structures
10.3.6Compensation for Community Assets
10.3.7Compensation for Sacred Sites
10.3.8Compensation for Loss of Businesses
10.3.9Compensation for Cultivated Crops (both cash and subsistence) and Trees
10.3.10Compensation for vegetable gardens and other activities
10.3.11Compensation for horticultural, floricultural and fruit trees
10.3.12Other domestic fruit and shade trees
10.4Types of Compensation Payments
10.5Methods of Compensation
11Grievance Redress Mechanism and Appeals
11.1Objectives of Grievance Redress
11.2Grievance Procedures
11.3Timeliness of the process
11.4The Grievance process
11.5Grievance Log
11.6Monitoring Complaints
11.7Consensus, Negotiations, and Conflict Resolution
12Resettlement Sites
12.1Method of Site Selection and Site Alternatives
12.1.1Influx Management
12.1.2Location of Resettlement Site
12.1.3Resettlement Options
12.2Resettlement Site Development (Infrastructure, Social Service, Etc.)
13Implementation Arrangements LINKING RESETTLEMENT IMPLEMENTATION TO CIVIL WORKS
13.1Project Launching
13.2Implementation Schedule
13.3Linking Implementation to Project Civil Works
14MONITORING AND EVALUATION (M&E) ARRANGEMENTS
14.1Overview and Objectives of M&E
14.2Setting of Monitoring and Evaluation Goals
14.3Responsibility of the authorities
14.4Indicators to Determine Status of Affected People
14.5Indicators to Measure RAP Performance
14.6Indicators to Monitoring of RPF Implementation
14.7Storage of data and information:
14.8Annual Audit
14.9Socio-economic monitoring
15ORGANIZATIONAL ELEMENTS AND PROCEDURES FOR DELIVERY OF ENTITLEMENTS
15.1Overview
15.2Specific Roles in the Compensation Procedure
15.3Community Compensation Payments
16RPF Implementation Budget
16.1RPF Implementation Budget
17REFERENCES
18COLOPHON
List of Tables
Table 1: Comparative Analysis of WB OP 4.12 and GoK Requirements on Resettlement
Table 2: Entitlement Matrix
Table 3: Forms of Compensation
Table 4: Verifiable Indicators
List of Figures
Figure 1: JPIP Implementation Matrix
Figure 2: Chart showing Grievance Redress Mechanism
Annexes
Annex 1: TOR for the preparation of an ESMF and RPF for JPIP
Annex 2: Annotated Outline for Preparing a Resettlement Action Plan (RAP)
Annex 3: Sample of Household Questionnaire
Annex 4: Sample Census Survey Form and Compensation Matrix
Annex 5: Sample Grievance and Resolution Form
Annex 6: Sample of Register of Participants at RAP Public Consultation Meeting
Annex 7: An Outline of Agenda of Public Consultation Meetings
Annex 8: Sample Resettlement Action Plan (RAP) Stakeholder Questionnaire
Annex 9: Sample Budget Items for RAP
Annex 10: Field Site Survey Report
The Judiciary/ Resettlement Policy Framework (RPF)Sept 2012
Pan-12-081- 1 -
Project summary
Project Title: / JUDICIAL PERFORMANCE IMPROVEMENT PROJECT (JPIP)Consulting Services for: / Preparation of Resettlement Policy Framework (RPF)
Objectives: / Review the ERM reports and remove the relevant information for incorporation in the proposed frameworkfor the RPF according to the outline provided to the consultant. The consultant will organize the information to take into accounts the requirements and main task which will be:
Prepare of a Resettlement Policy Framework (RPF) that will:
- Establish the resettlement and compensation principles and implementation arrangements;
- Describe the legal and institutional framework underlying approaches for resettlement, compensation and rehabilitation;
- Define the eligibility criteria for identification of project affected persons (PAPs) and entitlements;
- Describe the consultation procedures and participatory approaches involving PAPs and other key stakeholders; and provide procedures for filing grievances and resolving disputes. The Resettlement Policy Framework to be developed under this project will be consistent with Kenya legislation and regulations and with World Bank Operational Policy 4.12, on Involuntary Resettlement.
Client: / The Judiciary
Consultant: / Joshua P. Oyieko
Report Title: / Final RPF Report
Submission Date: / Sept 2012
The Judiciary/ Resettlement Policy Framework (RPF)
Pan-12-081- 1 -
List ofAbbreviations
CR / Chief RegistrarCSO / Civil Society Organizations
DANIDA / Danish International Development Agency
DC / District Commissioner
DDO / District Development Officer
DDP / District Development Plan
DEO / District Environment Officer
DIME / Development Impact Evaluation
DMS / Detailed Measurement Survey
DO / District Officer
DP / Displaced Persons
DPCT / District Project Coordination Team
DSDO / District Social Development Officer
DRC / District Resettlement Committee
EA / Environmental Assessment
EMP / Environmental Management Plan
ERM / Environmental Resources Management
ESIA / Environmental and Social Impact Assessment
EMCA / National Environment Management and Coordination Act
ESMF / Environment and Social Management Framework
FLSTAP / Financial & Legal Sector Technical Assistance Project
FMR / Financial Management Report
GoK / Government of Kenya
GIZ / German Agency for International Cooperation
ICJ-Kenya / Kenyan Section of the International Commission of Jurists
ICT / Information and Communications Technology
IFA / Integrated Fiduciary Agent
IFMIS / Integrated Financial Management System
IFR / Interim Financial Reports
IT / Information Technology
JPIP / Judicial Performance Improvement Project
JPTC / JPIP Technical Committee
JSC / Judicial Service Commission
JTI / Judicial Training Institute
JTF / Judicial Transformation Framework
JTSC / Judiciary Transformation Steering Committee
KPA / Key Result Areas
M&E / Monitoring and Evaluation
NCAJ / National Council for the Administration of Justice
NCLR / National Council on Law Reporting
NGO / Non Governmental Organization
NEMA / National Environment Management Authority
OP/BP / Operational Policy/Bank Procedure
PAPs / Project Affected Persons
PC / Project Coordinator
PCU / Project Coordination Unit
PCT / Project Coordination Team
PDO / Project Development Objective
PIT / Project Implementation Team
PIU / Project Implementation Unit
PMU / Project Management Unit
PRC / Provincial Resettlement Committee
PPDA / Public Procurement and Disposal Act of 2005
PPF / Project Preparation Facility
RF / Resettlement Framework
RAP / Resettlement Action Plan
RIC / RAP Implementation Committee
ROW / Right of Way
RPF / Resettlement Policy Framework
S-ESIA / Strategic Environmental Impact Assessment
TA / Technical Assistance
TOR / Terms of Reference
WB / World Bank
Glossary and definitions
Census / A field survey carried out to identify and determine the number of Project Affected Persons (PAPs) or Displaced Persons (DPs) as a result of land acquisition and related impacts. The census provides the basic information necessary for determining eligibility for compensation, resettlement, and other measures emanating from consultations with affected communities and the local government institutions.Compensation / The payment in kind, cash or other assets given in exchange for the acquisition of land including fixed assets, is called compensation. These include other impacts resulting from activities to rehabilitate or cushion the impacts from displacement.
Cut-off Date / The 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 the project area, will not be eligible for compensation.
Encroachers / Those people who move into the project area after the cut‐off date and aretherefore not eligible for compensation or other rehabilitation measures provided by theproject.
Entitlement / Range of measures comprising cash or kind compensation, relocationcost, income rehabilitation assistance, transfer assistance, income substitution, and relocationwhich are due to business restoration to PAPs, depending on the type and nature of theirlosses, to restore their social and economic base.
Full Cost of Resettlement Compensation / Full Cost of Resettlement Compensation based on the present value of replacement of the lostasset, resource or income without taking into account depreciation.
Grievance Mechanism / Mechanism based on policies and procedures that are designed to ensure that the complaints or disputes about any aspect of the land acquisition, compensation, resettlement, and rehabilitation process, etc. are being addressed. This mechanism includes a procedure for filing of complaints and a process for dispute resolution within an acceptable time period.
Implementation Schedule / The RPF contains an implementation schedule that outlines the time frame for planning, implementation, and monitoring and evaluation of the RAPs for project area activities, if applicable.
Income Restoration / The measures required to ensure that PAPs have the resources to atleast restore, if not improve, their livelihoods.
Indigenous peoples / The people indigenous to an area and include ethnic minorities asdefined by World Bank Operational Policy on Indigenous Peoples (OP 4.10).
Involuntary Resettlement / Refers both to physical displacement (relocation or loss of shelter)and to economic displacement (loss of assets or access to assets that leads to loss of incomesources or means of livelihood) as a result of project‐related land acquisition. Resettlement isconsidered involuntary when affected individuals or communities do not have the right torefuse land acquisition that result in displacement. This occurs in cases of: (i) lawfulexpropriation or restrictions on land use based on eminent domain: and (ii) negotiatedsettlements in which the government can resort to expropriation or impose legal restrictions on landuse if negotiations with the seller fail.
Land / Land refers to all types of agricultural and/or non-agricultural land and any structures thereon whether temporary or permanent and which may be acquired by the project.
Land Acquisition / Land acquisition means the possession of or alienation of land, buildings, or other assets thereon for purposes of the project.
Market Value / Means the process of establishing appropriate compensation figures so that the affected population is able to restore theirstandards of living to levels “at least as good as or better than” that they were prior to theproject. Where the Government rates do not provide for this standard of value, the Judiciary, with thetechnical support of the independent evaluator will calculate and adjust the compensationfigures according to these principles.
Project Affected Household (PAH) / means the family or collection of PAPs that will experienceeffects from land acquisition regardless of whether they are physically displaced or relocatedor not
Project Affected Persons (PAPs) or Displaced Persons (DPs) / Project affected persons (PAPs) or Displaced Persons (DPs) are persons affected by land and other assets loss as a result of project area activities. 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 will move to another location. Most often, the term DPs applies to those who are physically relocated. These people may have their: standard of living adversely affected, whether or not the Displaced Person will move to another location ; lose right, title, interest in any houses, 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.
Project Impacts / Impacts on the people living and working in the affected areas of the project, including the surrounding and host communities are assessed as part of the overall evaluation of the project.
Project Implementing Unit (PIU) / Some projects make use of project implementing units (PIUs), which are generally separate units within the project recipient’s agency. The PIU is often composed of full time staff devoted to implementing the project, and have been encouraged to have separate teams with environment and social specialists who can carry out the activities, for example, as outlined in the RPF or RAP.
Rehabilitation Assistance / Rehabilitation assistance is the provision of development assistance in addition to compensation such as livelihood support, credit facilities, training, or job opportunities, needed to assist PAPs or DPs restore their livelihoods.
Replacement Cost / Replacement cost refers to the amount sufficient to cover full recovery of lost assets and related transaction costs. The cost should be based on Market rate (commercial rate).
Resettlement Action Plan (RAP) / The RAP is a resettlement instrument (document) to be prepared when project area 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 implementing agency and contain specific and legal binding requirements to resettle and compensate the affected people before project implementation.
Resettlement Assistance / Resettlement assistance refers to activities that are usually provided during, and immediately after, relocation, such as moving allowances, residential housing, or rentals or other assistance to make the transition smoother for affected households.
Resettlement Policy Framework (RPF) / The RPF is an instrument to be used throughout the project’s implementation. The RPF sets out the objectives and principles, organizational arrangements, and funding mechanisms for any resettlement, that may be necessary during implementation. The RPF guides the preparation of Resettlement Action Plans (RAPs), as needed, for project area activities.
Rights and Entitlements / Rights and entitlements are defined for PAPs and DPs (with the cut-off date) and cover those losing businesses, jobs, and income. These include options for land-for-land or cash compensation. Options regarding community and individual resettlement, and provisions and entitlements to be provided for each affected community or household will be determined and explained, usually in an entitlement matrix.
Socio‐economic survey / Means the census of PAHs/ PAPs of potentially affected people, whichis prepared through a detailed field survey based on actual data collected. The census providesthe basic information necessary for determining eligibility for compensation, resettlement andother measures emanating from consultations with affected communities and the localgovernment institutions (LGIs).
Vulnerable Persons / means any people who might suffer disproportionately or face the risk of beingmarginalized from the effects of resettlement i.e.; (i) female headed households withdependents; (ii) disabled household heads; (iii) poor households; (iv) landless elderlyhouseholds with no means of support; (v) households without security of tenure; and (vi) ethnicminorities.
Witness NGO or Independent Monitor / Some RPFs refer to a witness NGO or an independent monitor that can be contracted to observe the compensation process and provide an independent assessment of the quality of the process. These are usually NGOs or other agencies that are not directly involved in the project and have a reputation for independence and integrity.
The Judiciary/ Resettlement Policy Framework (RPF)
Pan-12-081- 1 -
Executive summary
INTRODUCTION
Project Background
The Judicial Performance Improvement Project (JPIP) has been under preparation since 2008 but its preparation was put on hold given the prevailing environment in the country and the Government’s commitment to judicial reforms. During its initial preparation, an Environmental and Social Management Framework (Volume II) and a Resettlement Policy Framework (Volume III) for Court Development were prepared by Environmental Resources Management Inc., (ERM). Although these reports contain the necessary information for the preparation of an ESMF and a RPF, they do not adequately cover all the sections or the issues that a standard ESMF or RPF for a project level investment such as the JPIP should address. In this regard, the Judiciary procured a consultant to review and update the ESMF and RPF.