EX-CJ Maraga Arrested During Protest Over Nairobi National Park Land Excision

Former Chief Justice David Maraga was recently arrested during a protest against the proposed excision of 76 acres from Nairobi National Park for an infrastructure project. This incident has ignited a critical legal debate in Kenya, highlighting the tension between development aspirations and environmental conservation, the constitutional right to protest, and the imperative of public participation in land use decisions. The controversy underscores the robust legal framework governing protected areas under the Wildlife Conservation and Management Act, 2013, and the Environmental Management and Co-ordination Act, 1999, alongside constitutional guarantees for a clean environment and freedom of assembly. Legal professionals must navigate these complex intersections, particularly concerning the legality of land excisions from protected zones and the permissible scope of state action against peaceful demonstrators.

The recent arrest of former Chief Justice David Maraga, alongside other environmental activists, during a protest against the proposed excision of 76 acres of land from Nairobi National Park, has brought to the fore critical legal and constitutional questions in Kenya. The demonstrators gathered to oppose the planned allocation of park land, arguing that it poses a significant threat to wildlife conservation efforts and sets a dangerous precedent for the encroachment on protected areas.

This high-profile incident, involving a former head of the judiciary, underscores the growing public concern over environmental degradation and the perceived disregard for due process in major development projects. For legal practitioners, the event highlights the intricate interplay between environmental law, land law, constitutional rights, and administrative law. It necessitates a close examination of the legal framework governing protected areas, the requirements for public participation in land use changes, and the constitutional safeguards for freedom of assembly and protest.

This article will delve into the statutory and constitutional provisions relevant to this controversy, analyze the legal implications of such land excisions and arrests, and discuss the broader implications for environmental governance and the rule of law in Kenya. It aims to provide legal professionals with a comprehensive understanding of the legal landscape surrounding this contentious issue and its potential ramifications.

Kenya's legal framework for environmental protection and land management is primarily anchored in the Constitution of Kenya, 2010. Article 42 enshrines every person's right to a clean and healthy environment, including the right to have the environment protected for the benefit of present and future generations. Articles 69 and 70 further elaborate on the State's obligations to protect and conserve the environment and provide mechanisms for the enforcement of environmental rights. Specifically, Article 69 mandates the State to ensure sustainable exploitation, utilisation, management, and conservation of the environment and natural resources, and to ensure equitable sharing of benefits.

Key statutes complementing these constitutional provisions include the Environmental Management and Co-ordination Act, 1999 (EMCA), and the Wildlife Conservation and Management Act, 2013 (WCMA). EMCA establishes the National Environment Management Authority (NEMA) as the principal instrument for environmental policy implementation and coordination, mandating environmental impact assessments (EIAs) for projects likely to have significant environmental effects. The WCMA, 2013, specifically governs the protection, conservation, and management of wildlife resources, including the declaration and management of national parks and other protected areas. Any alteration of boundaries or revocation of a national park is subject to strict legal procedures under this Act.

Furthermore, the Constitution, under Article 37, guarantees every person the right, peaceably and unarmed, to assemble, demonstrate, picket, and present petitions to public authorities. This fundamental freedom is crucial for civic engagement and holding public authorities accountable. The National Land Commission (NLC), established under Article 67 of the Constitution, plays a vital role in managing public land and investigating historical land injustices, with recent amendments to the National Land Commission Act, 2012, reinforcing its powers to review grants and dispositions of public land.

The proposed excision of 76 acres from Nairobi National Park for infrastructure development, including a parking lot for the Bomas International Convention Centre and relocation of the Nairobi Animal Orphanage, raises significant legal questions regarding compliance with environmental and land laws. Critics argue that the project threatens the park's integrity, a critical wildlife habitat and a unique urban conservation area. Under the WCMA, 2013, national parks are declared protected areas, and any variation of their boundaries or revocation requires adherence to specific legal processes, often involving parliamentary approval and rigorous environmental assessments.

The approval granted by NEMA for the conversion of 31 hectares (approximately 76 acres) from a designated Low Use Zone within the park is a central point of contention. EMCA, 1999, mandates comprehensive EIAs for such projects, and the process must include adequate public participation. However, environmental groups and activists, including former CJ Maraga, contend that the public participation requirements were not met, rendering the approval process opaque and potentially illegal. The Constitution, in Article 10, explicitly lists public participation as a national value and principle of governance.

Several petitions have already been filed in the Environment and Land Court challenging the legality of the proposed excision, citing violations of constitutional and environmental safeguards, and alleging a lack of transparency and public participation. These cases underscore the judiciary's role in upholding environmental rights and ensuring adherence to due process in land use planning. The National Land Commission (Amendment) Act, 2025, further empowers the NLC to review grants and dispositions of public land, providing an additional avenue for challenging potentially irregular land allocations.

The arrest of former Chief Justice Maraga and other protestors during a peaceful demonstration along Lang'ata Road also raises concerns about the exercise of fundamental freedoms. Article 37 of the Constitution guarantees the right to assemble, demonstrate, picket, and present petitions peaceably and unarmed. While this right is not absolute and may be subject to limitations, such limitations must be reasonable and justifiable in an open and democratic society. Reports of police dispersing protestors with tear gas and denying arrests, despite visual evidence, highlight potential breaches of constitutional standards for human rights and fundamental freedoms by law enforcement.

The incident also brings into focus the broader issue of balancing conservation with development. While the government may argue for the necessity of infrastructure projects, the legal framework emphasizes sustainable development and the protection of ecologically sensitive areas. The ongoing fragmentation of wildlife corridors and protected ecosystems due to urban expansion and infrastructure development is a recurring concern for conservationists, who warn of negative impacts on biodiversity and tourism.

The arrest of former Chief Justice David Maraga during a protest against the Nairobi National Park land excision serves as a stark reminder of the ongoing legal and societal challenges in balancing development with environmental protection in Kenya. For legal practitioners, this event underscores the critical importance of a thorough understanding of the constitutional and statutory framework governing land use, environmental conservation, and fundamental rights.

Practitioners advising clients on large-scale development projects, particularly those impacting protected areas, must emphasize rigorous adherence to environmental impact assessment procedures, strategic environmental assessments, and, crucially, meaningful public participation as mandated by EMCA, 1999, and the Constitution. Failure to do so exposes projects to significant legal challenges, delays, and reputational damage. Conversely, lawyers representing environmental groups and affected communities must be prepared to vigorously enforce constitutional environmental rights under Article 70 and challenge unlawful administrative actions through judicial review and other legal avenues. The right to peaceful protest, enshrined in Article 37, remains a vital tool for civic engagement, and legal professionals have a role in defending this right against arbitrary restrictions. The ongoing court cases challenging the Nairobi National Park excision will be closely watched, as their outcomes will undoubtedly shape future environmental governance and the interpretation of public participation requirements in Kenya.