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TERMS OF REFERENCE (TORs) FOR A CONSULTANT TO UNDERTAKE A LEGAL AND POLICY ANALYSIS OF KENYA’S COMPENSATION AND RESETTLEMENT FRAMEWORKS TO IDENTIFY GAPS AND STRATEGIC ENTRY POINTS FOR REFORM, WITH A FOCUS ON ENHANCING RESPONSIBLE BUSINESS CONDUCT AND SAFEGUARDING HUMAN RIGHTS

1. BACKGROUND

Kenya's economic development trajectory across the various sectors necessitates land acquisition which often leads to involuntary resettlement and compensation issues. Kenya is currently implementing the National Action Plan on Business and Human Rights, which explicitly identifies land and natural resources as a priority thematic area and acknowledges existing gaps in legal, policy, and institutional frameworks in connection with business impacts on human rights, including those concerning land acquisition, compensation and resettlement.

The NAP calls for policy reforms in land acquisition and compensation regimes emphasizing the need to harmonize resettlement and compensation frameworks and develop procedural guidelines or policies to guide businesses, individuals, and communities in negotiating land access and acquisition.

Kenya currently operates under a patchwork of laws and policies governing land acquisition and compensation across sectors such as extractives, agriculture, and infrastructure. This fragmented legal landscape often results in inconsistent practices, leading to widespread public dissatisfaction and human rights concerns.

Common issues include forced evictions, inadequate consultation with affected communities, and delayed or insufficient compensation awards. These challenges are largely attributed to the absence of a comprehensive, cross-sectoral policy on resettlement and compensation. As a result, different sectors
apply varying principles—many of which fall short of aligning with international best practices and human rights standards.

To support the implementation of the Kenya National Action Plan on Business and Human Rights, the Kenya Human Rights Commission (KHRC) and the Danish Institute for Human Rights (DIHR), in collaboration with the Department of Justice under the Office of the Attorney General, seek to undertake a legal review and analysis as a critical first step in assessing the current policy landscape, identifying existing gaps, and informing the necessary policy reforms aimed at establishing a robust, rights-based framework for land acquisition, compensation, and resettlement across sectors in Kenya.

2. PURPOSE/OBJECTIVE OF THE TASK

The primary objective of this consultancy is to conduct a comprehensive, deskbased analysis of Kenya’s legal and policy frameworks governing compensation and resettlement—focusing on legislation, regulations, policy documents, and select judicial decisions. The study will identify key gaps, inconsistencies, and areas of overlap to inform future multi-stakeholder dialogue on reform aimed at
promoting responsible land acquisition, compensation, and resettlement practices across sectors.

SCOPE OF WORK

The consultant will undertake the following tasks:

• Map and critically analyse Kenya’s legal, policy, regulatory, and institutional frameworks—including relevant case law—governing land acquisition, compensation, and resettlement. The
  analysis should identify key gaps, inconsistencies, and areas of weakness across sectors, and compare how various frameworks address compensation and resettlement, using a well-defined
  analytical framework.
• Where feasible, draw on real-life examples from Kenya—such as Resettlement Action Plans (RAPs) and Resettlement Policy Frameworks (RPFs)—to illustrate how compensation and resettlement frameworks are applied in practice, and highlight any human rights implications or  implementation challenges.
• Identify comparative approaches and lessons from other jurisdictions that have addressed compensation and resettlement challenges in a manner consistent with international human rights standards. Examples should reflect diverse land-use contexts (e.g., infrastructure, agriculture, extractives) and inform future discussions without prescribing policy solutions.
• Benchmark Kenya’s legal and policy frameworks against relevant international and regional standards—such as the UN Guiding Principles on Business and Human Rights (UNGPs), IFC Performance Standards, and the World Bank Environmental and Social Framework—to assess alignment with established human rights principles.

3. METHODOLOGY

This will be a desktop-based, qualitative study relying primarily on secondary data sources such as legal texts, policy documents, academic research, institutional guidelines, and existing project reports. No primary fieldwork is anticipated at this stage. However, the consultant is encouraged to propose appropriate analytical and theoretical frameworks to support the review.

The final report must include a section on the methodological limitations of relying exclusively on secondary data, which while expected is not a constraint as long as it is acknowledged and appropriately framed from the beginning.

4. ASSUMPTIONS

The study is premised on the assumption that comprehensive, harmonized, and rights-based legal and policy frameworks are critical to addressing the persistent settlement, resettlement, and compensation challenges experienced by states and corporations—particularly in the extractive and broader land-based sectors. It further assumes that meaningful reform must be anchored in both domestic obligations and Kenya's regional and international human rights commitments.

5. PROFILE OF THE CONSULTANT/FIRM

• A human rights expert with minimum of seven years of demonstrable experience in land  policy/governance, natural resource management and should be based in Kenya.
• Proven experience in conducting legal and policy analysis; previous experience on land acquisition, compensation and resettlement highly preferred.
• Conversant with national legal and policy frameworks on land, resettlement and compensation.
• Advanced degree (Master's or PhD) in Law, Land Economics, Political Science, Development  Studies, Human Rights, International Relations, Public Policy, or a related field.
• Excellent research, analytical, and report writing skills. The consultant must be able to write concisely in English.

6. DURATION AND TIMELINE

The consultancy is expected to be completed within 30 working days spread over a period of 6 weeks from the date of contract signing. The first draft must be completed and submitted by end of September 2025.

7. APPLICATION REQUIREMENTS AND SUBMISSION

Interested consultants are invited to submit a technical proposal articulating applicants’ understanding of the ToRs, proposed methodology that include suggested framework for analysis, updated detailed CV(s) of the consultant (s) and the financial proposal.  The applicant must also send at least two soft copy samples of relevant/similar work previously undertaken.

Application must be submitted electronically to consultancy@khrc.or.ke by August 12, 2025, at 5 pm EAT. Please indicate "Consultancy for the Legal Analysis Compensation and Resettlement" in the subject line.

TERMS OF REFERENCE FOR A CONSULTANT TO UNDERTAKE RESEARCH ON THE IMPLICATIONS OF PUBLIC DEBT AND THE WAGE BILL ON THE REALIZATION OF SOCIAL-ECONOMIC RIGHTS IN KENYA

1.0 ABOUT THE KENYA HUMAN RIGHTS COMMISSION

The Kenya Human Rights Commission (KHRC) is a premier non-governmental organisation (NGO) in Africa, dedicated to advancing human rights-centred governance at all levels. Guided by its vision of a society of free people and its mission to promote human dignity, freedoms, and social justice in Kenya and beyond, KHRC works through a broad network of partners. These include over 30 Human Rights Networks (HURINETs) and grassroots organisations across more than 30 counties, over 30 national-level state and non-state actors and coalitions, and more than 50 sub-regional, regional, and international human rights organisations and networks. As a domestic transnational organisation, KHRC continues to drive impactful interventions at the county and national levels—efforts that form the core of our legitimacy and extend its influence to regional and international platforms.

2.0 BACKGROUND AND RATIONALE

According to a report issued by the World Bank[1], key development challenges such as poverty, inequality, youth unemployment, transparency and accountability, continued weak private sector investment, and the vulnerability of the economy to internal and external shocks persist, despite Kenya having made significant political and economic reforms that have contributed to sustained economic growth and political stability. Service delivery remains a significant challenge due to the increasing burden of public debt, which takes up a considerable slice of government revenue and potentially diverts resources from essential services. Total debt service as a percentage of revenue was 58.8% in 2023 and 69.6% as of June 2024, meaning a large portion of the government’s revenue is used to service the debt. 

As per the latest data from the Central Bank of Kenya (CBK), Kenya’s public debt reached Ksh10.6 trillion, (equivalent to 70.0% of Gross Domestic Product (GDP)) as June 2024, marking a 2.9% increase from Kshs 10.3 trillion (70.8% of GDP) recorded in June 2023[2], making 39.6% points higher than the International Monetary Fund (IMF) threshold of 30.0% for developing countries.

The now high public debt raises concerns about its sustainability and implications for fiscal and macroeconomic stability, as a significant allocation of resources is set aside to repay debt, impacting on the ability to invest in public services such as education, social welfare, healthcare, and infrastructure, hence depriving the taxpayer a chance to enjoy social-economic rights through provision of services by government. Kenya’s tax system predominantly covers the value-added tax, income tax, customs duty, and excise duty, providing a strong nexus for solidifying a public contract, where citizens pay taxes expecting the government to deliver effective and quality services.

In Kenya, public debt has continued to reduce the fiscal space, leaving limited room for government spending on essential public services and crowding out private investment, which results in higher interest rates. For instance, interest payments made up the bulk of Kenya's debt servicing costs at Kshs 689.0 billion, equivalent to 57.4% of the total debt service in FY 2022/2023, more than the Ksh578.0 billion worth of interest payments in FY 2021/2022 and equivalent to 63.0% of the total debt service costs as of June 2022. Countries like Kenya are currently perceived as riskier, resulting in lenders demanding higher interest rates on new loans, further increasing the cost of debt servicing and straining public finances. The combination of increased debt servicing costs and reduced fiscal space has pushed the governments to enormously cut spending on critical public services like infrastructure, education, and healthcare, an injustice to their citizenry. 

Further, the wage bill crisis is one that Kenyans cannot turn a blind eye to, especially because the current public service productivity is far from driving, among others, high and sustained revenue growth, and improved service delivery. The wage bill grew steadily from Ksh464.90 billion in FY 2012/13 to Ksh733 billion in FY 2017/18 and increased to Ksh795.2 billion in FY 2018/19 due to, among others, uncurbed employment in the counties since devolution. Despite evident efforts by the Salaries and Remuneration Commission (SRC) to reduce the wage bill, the same continues to crowd out spending on development and negatively impacts the government’s ability to render public services. Notably, the politicisation of the wage bill remains a key concern. For instance, the recent increase of state departments from 50 to 57 negatively impacts the already bloated wage bill, as taxpayers are set to pay an additional Ksh66.6[3] million a year in salaries for the seven newly appointed principal secretaries.

Research by Twaweza Institute and the National Taxpayer Association revealed that 66% of people pay taxes to enable the government to deliver services. Therefore, citizens should hold governments accountable for failing to deliver services. Notably, human rights only become more than declarations of belief when they are clearly defined, have political[4] backing and are legally enforced. Legal rights exist as a fiscal reality only when they have budgeted costs, and they cannot be protected or enforced without public funding and support from citizens. This right alone explicitly links the right and the resources required to fund it.

3.0 PROBLEM STATEMENT

The realisation and enjoyment of socio-economic rights by citizens remain significantly hindered, despite the country's commitment to ensuring these rights as enshrined in Article 43 of the constitution and various international human rights frameworks. A key contributing factor to this challenge is the mismanagement of public resources, which exacerbates the inefficiency of social service delivery and undermines economic development. Specifically, the growing public debt burden, persistent corruption, and an inflated wage bill have diverted essential resources away from vital public sectors such as healthcare, education, and infrastructure development. Misallocation of resources has left a substantial portion of the population without access to basic socio-economic rights. As a result, Kenya faces a paradox where, despite an increase in economic growth, many of its citizens are not reaping the benefits of this growth, and the realization of their socio-economic rights remains a distant aspiration.

2.0 PURPOSE AND OBJECTIVE OF THE RESEARCH

2.1 Overall objective

This research seeks to explore the extent to which financial mismanagement issues, particularly public debt repayment and the ballooned wage bill, contribute to the lack of enjoyment of socio-economic rights in Kenya. The findings of this study will fill a gap in the existing body of knowledge and provide actionable recommendations to tackle the systemic challenges inhibiting equitable distribution of resources to ensure that all citizens can fully realise their socio-economic rights.

2.2 Specific Objectives

1. To assess the status of implementation of social economic rights in Kenya.
2. To investigate the impact of public debt servicing and the wage bill on the realisation of socio-economic rights. Specifically, provide the linkage between increased public debt repayment and inflated wage bill on the enjoyment of specific Article 43 rights, building on the existing report developed by The Institute for Social Accountability[5].
3. To evaluate the implications of public debt repayment and inflated wage bill on marginalised groups, including youth, women, and indigenous groups.

3.0: SCOPE OF THE STUDY

The focus of the study will be limited to Nairobi City County, with a particular focus on residents in both informal (characterized by lower socio-economic status) and affluent estates (wealthier, higher socio-economic status). The geographical focus will allow the research to examine the inequality dynamics between different socio-economic classes, highlighting the disparities in realising socio-economic rights. The study will explore how public debt servicing, the inflated wage bill, and mismanagement of public resources affect the fulfilment of socio-economic rights, especially for marginalised groups, including women and youth.

4.0 DELIVERABLES

The consultants will be expected to produce the following deliverables:

1. An inception report detailing the survey methodology, work plan, and tools for data collection.
2. A draft report summarizing preliminary findings of the survey.
3. A validation workshop to present and discuss findings with stakeholders.
4. A final report incorporating feedback from stakeholders, complete with recommendations and policy briefs for each of the target objectives.

5.0 TIMELINES

The consultancy time will be 20 days (excluding KHRC review time), effective from the date of signing this contract.

6.0 PROFESSIONAL EXPERIENCE AND SKILLS REQUIRED

1. Proven experience in Public Finance Management, budget analysis and research.
2. Strong analytical skills and the ability to interpret complex data.
3. Familiarity with the Human Rights-Based Approach, public debt, and wage bill frameworks, practices, and conversations in Kenya.
4. Knowledge and application of the legal and policy frameworks related to Public Finance Management.
5. Proven experience in undertaking national and county evaluations or assessments with outstanding skills in qualitative and quantitative research and data analysis, specifically around budget research/analysis/tracking.
6. Demonstrated professionalism, integrity, ability to work independently with minimum supervision, adherence to set timelines, and availability during the research peri

7.0 HOW TO APPLY

Bids should include the consultant’s up-to-date CV (including at least three recent professional organisations that have contracted the individual/company), a sample report of previous work related to this assignment, a cover letter explaining interest and suitability for this assignment, a proposal outlining methodology and work plan, and a financial proposal (maximum six pages). The interested candidates are required to submit their bid documents by Thursday, May 1, 2025, to consultancy@khrc.or.ke quoting the title of the assignment.

REFERENCES

[1] https://www.worldbank.org/en/country/kenya/overview

[2] Reports from the National Treasury

[3] https://nation.africa/kenya/news/how-the-new-seven-pss-will-impact-the-bloated-wage-bill-4976336

[4] Holmes and Sunstein 1999

[5] https://drive.google.com/drive/folders/17Nj7oHbBhN561kga3ejbTU4RTzE_goq-

TERMS OF REFERENCE (TOR)

1. INTRODUCTION

The Kenya Human Rights Commission (KHRC) is a non-governmental organization established in 1992 to promote the protection and realization of human rights in Kenya. KHRC's mandate is to create a rights-conscious society that upholds the dignity of all people by advocating for legal reforms, civic education, and the empowerment of marginalized communities. KHRC has been at the forefront of challenging injustices such as corruption, public finance mismanagement, impunity, land rights violations, and the failure of governance institutions to protect vulnerable groups.

KHRC is commissioning a study on Tax, Inequality, and the Question of Land Justice in Kenya, aligning with its mission to address structural inequalities and promote social justice. Land has been at the core of historical injustices in Kenya, deepening wealth disparities and undermining human rights. KHRC acknowledges that wealth taxation—particularly through equitable land reform and reparative justice—offers a vital pathway to addressing these inequalities and advancing sustainable and inclusive development.

2. BACKGROUND TO THE STUDY

Land in Kenya remains a contentious issue tied to colonial legacies, post-colonial elite capture, and ongoing neo-colonial exploitation. The land injustices, coupled with neoliberal economic policies, continue to deepen inequality. Therefore, as global discussions on wealth taxation gain momentum, there is a unique opportunity for Kenya to address its land inequality through reforms that also support tax justice. This study will explore how integrating land justice into tax policies can help reduce inequality, promote sustainable development and create a fairer society. The study will contribute to KHRC's advocacy work in pushing for policy changes that align with human rights standards and promote social equity. By addressing wealth disparities rooted in land injustices, KHRC aims to strengthen its policy interventions and broaden its impact in promoting fair tax systems that ensure all citizens, especially marginalized communities, benefit from national development.

3. OBJECTIVES OF THE STUDY

The overall objective of this study is to examine the intersection of land justice and tax justice in Kenya, with a focus on how addressing land injustice through wealth taxation can contribute to reducing inequality and promoting social justice.

Specific objectives include:

1. Develop legal and reparative justice arguments that link land justice with equitable development and taxation.
2. Conduct a cost-opportunity analysis of the potential economic and social impacts of land justice on disenfranchised communities.
3. Propose actionable policy recommendations that integrate land justice into tax reform efforts, aiming to reduce inequality and foster sustainable development.

4. SCOPE OF WORK 

The consultant(s) will:

1. Conduct a comprehensive literature review on the intersection of land and tax justice, focusing on Kenya and other relevant contexts.
2. Review Kenya’s legal and policy frameworks on land ownership, wealth taxation, and tax justice.
3. Develop case studies highlighting specific instances of land injustice and their socio-economic consequences.
4. Conduct stakeholder consultations with legal experts, land rights activists, policymakers, and affected communities to gather insights and recommendations.
5. Analyze how wealth taxation, particularly on land, can contribute to reparative justice and equitable national development.
6. Prepare and submit a draft report for review and feedback.
7. Incorporate feedback into a final report, providing legal, economic, and policy recommendations to KHRC and other relevant stakeholders.

5. METHODOLOGY

The study will use a mixed-methods approach, combining both qualitative and quantitative research techniques. Key methodologies include:

1. Literature Review: Analysis of existing studies on land injustice, wealth taxation, and tax justice.
2. Legal and Policy Analysis: Evaluation of Kenya's land laws, tax policies, and international best practices.
3. Case Studies: Development of real-life examples of land injustice in Kenya and their economic implications.
4. Stakeholder Consultations: Interviews with legal experts, policymakers, land rights advocates, and community members.

6. DELIVERABLES 

The consultant(s) will deliver the following: -

1. Inception Report - Detailing the methodology, work plan, and timeline for the study, including an initial literature review.
2. Draft Report - A comprehensive draft covering the literature review, stakeholder insights, case studies, legal analysis, and preliminary recommendations for feedback.
3. Final Report - The final version of the report incorporating feedback, including detailed analysis, policy recommendations, and practical strategies for integrating land justice into Kenya’s tax reform agenda.
4. Presentation of findings - A formal presentation to KHRC and other relevant stakeholders summarizing key findings and recommendations.

7. TIMEFRAME

The study is expected to take 8 weeks from the start date. The key milestones are:

• Inception Report: Within 2 weeks of contract signing
• Draft Report: 4 weeks from the start date
• Final Report: 6 weeks from the start date
• Presentation of Findings: Within 8 weeks

8. QUALIFICATIONS AND EXPERIENCE

The ideal consultant(s) should possess the following qualifications:

1. A Master’s degree or higher in law, economics, public policy, or related fields.
2. Proven expertise in land rights, taxation, and social justice in Kenya or similar contexts.
3. Demonstrated experience in policy research, particularly related to human rights, wealth taxation, and development.
4. Excellent writing and communication skills with the ability to present complex issues in a clear, accessible format.
5. Prior experience working with civil society organizations or human rights commissions is an advantage.

9. SUBMISSION OF PROPOSALS

Interested consultants should submit the following documents:

• Technical Proposal outlining the approach and methodology for conducting the study.
• Financial Proposal including a detailed budget breakdown.
• CV(s) of the consultant(s) demonstrating relevant experience and qualifications.

10. DEADLINE FOR SUBMISSION

All proposals should be submitted to KHRC by Thursday 17th October 2024 via consultancy@khrc.or.ke Only shortlisted candidates will be contacted for further discussions.