The New Constitution is quite categorical on how all land in Kenya should and must be used. The Land Act 2012, provides thorough guidelines and regulations to the use and management of all three classes of Land in Kenya. Obviously, the overriding idea is to ensure that irrespective of the classification of the land, its use and exploitation must follow certain guidelines of equity, benefit and sustainability. Chapter Five - Land and Environment, Part 1 - Land, Article 60, excerpts:
60. (1) Land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable, .......
This is not to say that merely owning land does bequeaths one unfettered use of such land without due regard to its conservation and sustainability. Such land must be put to efficient use that benefits not only the owner(s), but the wider public. Article 60 on use of land:
60. (1) ....... and in accordance with the following principles— (a) equitable access to land; (c) sustainable and productive management of land resources; (d) transparent and cost effective administration of land; (e) sound conservation and protection of ecologically sensitive areas;
It is incumbent upon the national government of the day to lay down a national land policy and ensure it is reviewed regularly with the changing times to achieve land use in Kenya that is regularised and well defined:
(2) These principles (of land use) shall be implemented through a national land policy developed and reviewed regularly by the national government and through legislation.
This is important especially in the present times where land use must address itself to competing interests of agricultural production, mining, population growth, energy, urbanisation, infrastructure, water management, sanitation, conservation, etc. And not only that, but as we shall see under the section on Land Management, "equitable land reform requires a fine balance between entitlement and efficiency. That is, the just repossession and redistribution of land must be weighed against economically efficient modes of land use, particularly when the land is already altered by development investments." (Syagga P, 2011).
Thus, whether privately, community or publicly held, overall land use must address itself to modern ecological challenges such as achieving adequate forest cover, soil erosion, and climate change; as well as those affecting the population, i.e., social-political factors:
66. (1) The State may regulate the use of any land, or any interest in or right over any land, in the interest of defence, public safety, public order, public morality, public health, or land use planning.
The greater challenge falls on Community Land which must be used for the equitable benefit and well-being of all members:
(2) Parliament shall enact legislation ensuring that investments in property benefit local communities and their economies.
Indeed, while still finalising the draft Mining Bill 2013, the Cabinet Secretary for Mining did on July 25, 2013, suspend all Land Use licenses for mining that had been issued between the January to May 2013 transitional period on the suspicion that due process was not followed, and hence the accompanying benefits were unlikely to be enjoyed by the local communities and their economies. Further, while doing so, the Secretary highlighted what has been in the public domain; namely, that many of these licenses often changed hands between speculators and without any actual exploration taking place. Thus the order by the Secretary also formed a task force to ascertain the status and legality of all mining licenses issued as far back as 2003, many of which were believed to have expired or are non-operational. The views of the task force will also be incorporated towards the national land policy.
The Secretary's draft Mining Bill 2013, will make way for the establishment of the National Mining Corporation and the National Mineral Certification Authority among other bodies, to ensure that management and use of land (for mining) is well streamlined and aligned with the spirit and letter of the Constitution. The Secretary is also on record as lamenting the lack of a comprehensive and up-to-date database on the mineral potential in Kenya. Hence legislation on Land Use (and which must rely on resource mapping), must evolve in tandem with the country's efforts to develop its own remote sensing and geographical surveys covering the entire land mass of Kenya.
Let us for a moment revisit Article 249 on the roles and functions of Commissions:
249. (1) The objects of the commissions and the independent offices are to— (a) protect the sovereignty of the people; (b) secure the observance by all State organs of democratic values and principles; and (c) promote constitutionalism.
It therefore follows that the Constitution created the National Land Commission NLC to see to it that Community and Public Land use will no longer be unregulated:
67. (2) The functions of the National Land Commission are— (b) to recommend a national land policy to the national government; (d) to conduct research related to land and the use of natural resources, and make recommendations to appropriate authorities; (h) to monitor and have oversight responsibilities over land use planning throughout the country.
Indeed, as we shall see in the next section under Land Management, both the National and County Governments must cede much of the control and management of trust land under their jurisdiction, i.e., respectively, Public and Community Land, to this Commission. Comprehensive legislation on Land Use is also expected to be enacted in the next few years as part of implementation of the New Constitution:
68. Parliament shall— (a) revise, consolidate and rationalise existing land laws; (b) revise sectoral land use laws in accordance with the principles set out in Article 60 (1); .......
The National Government too, has its work cut out in revising and enforcing Land Use practices as part of overall protection and conservation of the environment, paying heed to equitable use and benefit for all Kenyans. Excerpts from Chapter 5 - Land and Environment, Part 2 - Environment and Natural Resources, Article 69:
69. (1) The State shall— (a) ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits; (b) work to achieve and maintain a tree cover of at least ten per cent of the land area of Kenya;
Irrespective of the class of ownership of any land in Kenya, the owner(s) are obligated by the Constitution to cooperate with Governments and the NLC in the responsible use and exploitation of natural resources latent and available in the part of Mother Earth under their care:
69. (1) The State shall— (c) protect and enhance intellectual property in, and indigenous knowledge of, biodiversity and the genetic resources of the communities; (d) encourage public participation in the management, protection and conservation of the environment; (e) protect genetic resources and biological diversity; (f) establish systems of environmental impact assessment, environmental audit and monitoring of the environment; (g) eliminate processes and activities that are likely to endanger the environment; and (h) utilise the environment and natural resources for the benefit of the people of Kenya.
(2) Every person has a duty to cooperate with State organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources.
Although Land Ownership and Use demands close cooperation between Governments and citizens in order to be equitable, productive, efficient and sustainable, it also carries with it important rights for the citizen. The Constitution, thus, provides for the enforcement of Land Use laws and regulations while protecting the rights of all and providing for compensation where appropriate:
70. (1) If a person alleges that a right to a clean and healthy environment recognised and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter.
(2) On application under clause (1), the court may make any order, or give any directions, it considers appropriate–– (a) to prevent, stop or discontinue any act or omission that is harmful to the environment; (b) to compel any public officer to take measures to prevent or discontinue any act or omission that is harmful to the environment; or (c) to provide compensation for any victim of a violation of the right to a clean and healthy environment.
(3) For the purposes of this Article, an applicant does not have to demonstrate that any person has incurred loss or suffered injury.