As we have seen in the previous section, the objectives of Land Use are well clarified in the New Constitution. However, Land Management is of even greater importance in comparison; for if well-handled, it has the potential to yield desirable social outputs encompassing not only ownership - registration and transfer, but to bring closure to historical land injustices, build inter-ethnic cohesion, and social peace and reconciliation. Indeed there remains a lot of ground to cover with regard to equity and justice in the very sensitive question that is land in Kenya. To oversee this huge and complex process, will be the development of a comprehensive national land policy anchored in law. Chapter 5 - Land and Environment, Part 1 - Land:
60. (2) These principles shall be implemented through a national land policy developed and reviewed regularly by the national government and through legislation.
Documentation, Registration & Legislation of Ownership
Proper documentation remains one of the most common challenges facing all classes of land ownership in Kenya, i.e. private, community and public land. For different yet unclear reasons, successive governments since independence have not issued millions of title deeds to private land owners in the country. This is especially true for Counties in the coastal regions of Kenya - a factor that formed a key campaign pillar for the major political party coalitions at the 2013 General Elections. In August of the same year, the National Government began a public process of issuing what it said would be 60,000 title deeds in the three Counties of Lamu, Kilifi, and Kwale, promising to complete proper registration of 5 million ownership titles countrywide by the year 2018.
Many instances of incomplete documentation and registration of land ownership continue to dog the question of land ownership in Kenya; many such cases dating back several generations. For example, many private 'owners' of family land (who own it singly or together with close relatives), continue to be embroiled in endless and sometimes violent quarrels over ancestral land. For others, an uncertified share certificate is all the claim they have to ownership. Even Community Land has not been spared challenges of its own mainly involving proof of survey and demarcation. The same case applies to Public Land. Consequently, the Constitution of Kenya 2010 has sought to regularise all documentation related to land ownership in order to grant all and sundry due rights to land in which they have lawful interest. Excerpts from Article 60:
60. (1) Land in Kenya shall be held ....... in accordance with the following principles— (a) equitable access to land; (b) security of land rights; (d) transparent and cost effective administration of land; (f) elimination of gender discrimination in law, customs and practices related to land and property in land; .......
When implemented, the clauses above will, inter alia, ensure that all claims to ownership of land (including by women) are well protected under clear laws. The Constitution requires that all documentation relating to Public Land be processed and registered.
62. (2) Public land shall vest in and be held by a county government in trust for the people resident in the county, .......
(3) Public land classified under clause (1) (f) to (m) shall vest in and be held by the national government in trust for the people of Kenya and .......
What's more, the Constitution is unassuming and covers all angles with respect to classification of land when it declares that legislation can be enacted should the need arise, to classify land that may not have been so contemplated:
62. (1) Public land is—(n) any other land declared to be public land by an Act of Parliament— (i) in force at the effective date; or (ii) enacted after the effective date.
63. (2) Community land consists of— (c) any other land declared to be community land by an Act of Parliament; .......
Furthermore, County governments must move quickly and claim all Community Land under their jurisdiction and begin to manage such land:
63. (3) Any unregistered community land shall be held in trust by county governments on behalf of the communities for which it is held.
Such land includes all unclaimed land, unregistered land, mineral-rich land, forests, thoroughfares, rivers, etc (see Article 62 (1)). Going forward, County governments and the National government will, in sync with their respective roles and functions under devolution, divide between them such land, and document it. All documentation accompanying Land ownership transfers and more importantly, land use, must henceforth be carried out strictly by the book, with accompanying terms and rights of all interested party or parties clearly listed:
62. (4) Public land shall not be disposed of or otherwise used except in terms of an Act of Parliament specifying the nature and terms of that disposal or use.
63. (4) Community land shall not be disposed of or otherwise used except in terms of legislation specifying the nature and extent of the rights of members of each community individually and collectively.
Full, proper, and lawful documentation and registration of all land classes in Kenya is expected to be conducted in the short and medium-term by the National Land Commission NLC. This is a positive and far-reaching provision in that it takes away the powers and functions of land registration from government to an Independent Commission thereby offering the guarantee of transparency and accountability, while at the same time minimising corruption, impunity and injustice.
However, the whole question of who between the NLC and the National Government is in-charge of the Central Land Registry took the 1 year old supremacy contest between the two institutions a notch higher in early May 2014 when the Cabinet Secretary for Land effected a planned-closure of the Central Registry in Nairobi for two weeks ostensibly to 'organise and streamline it' - a move that the NLC felt was illegal, undermined its authority and infringed on its functions and mandate.
Meanwhile, the Commission had lodged a petition in the Supreme Court for an advisory opinion on the separation of powers and functions between itself and the Ministry of Land. This was despite a 'middle ground' opinion offered at the time by the Attorney General to the effect that the two bodies were by law, assigned connected, complimentary and inter-related mandates.
On the 30th of October 2014, the Supreme Court chose to allow the Commission and the Government the opportunity to hold discussions aimed at ironing out their differences and establishing a favourable working relationship under the law.
In any event, the social-political responsibility in ensuring that registration of all land in Kenya is completed, remains with the National Government:
67. (2) The functions of the National Land Commission are—(c) to advise the national government on a comprehensive programme for the registration of title in land throughout Kenya;
In July 2013, the National Land Commission NLC invited all holders of Letters of Allotment of Private Land to present their documents for verification and subsequent registration and issuance of title deeds upon payment "....... of requisite stand premium and appropriate fees." This was one of the early moves undertaken within the legal timelines binding the Commission to register all land in Kenya within 10 years. The National Land Commission Act No 5 of 2012, Section 5(3):
5. (3) Despite the provisions of this section, the Commission shall ensure that all unregistered land is registered within ten years from the commencement of this Act.
More on this important Commission can be found under its link in the paragraph above. The importance of legislation governing land use management cannot really be overemphasised. In the past a lot of land in both rural and urban areas has been 'grabbed' by wealthy and well-connected people and converted to different uses for personal gain at the exclusion of the larger public majority. The results have been land degradation, corruption, displacement, and unlawful disposal of such land. To solve this problem, any future reclassification of land will no longer be carried out by Government in an ad hoc manner but must be governed by law:
68. Parliament shall— (c) enact legislation— (ii) to regulate the manner in which any land may be converted from one category to another;
Many cases abound of displacement of populations from land they had occupied for generations. Such displacements and hounding out took place without due process and without regard to natural justice. Such scenarios will no longer be tolerated under our Constitution which protects the interests and rights of those who must vacate from such land.
By default, the details of land use will inevitably determine the type of land ownership. Hence, going forward, a lot of land must change ownership from private and community land to public land due to the discovery of minerals and the attendant exploitation, infrastructure development, urban expansion, etc. Even then, this must be done under the law and must respect individual and community rights and liberties. Excerpts from Article 40 of Chapter 4 - The Bill of Rights, Part 2 - Rights and Fundamental Freedoms:
40. (2) Parliament shall not enact a law that permits the State or any person— (a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or (b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4).
It will now be mandatory for the State to ensure that full, fair and timely compensation is accorded those to be displaced from their own Private Land and even more importantly, those in Community Land:
(3) The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation— (a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or (b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that— (i) requires prompt payment in full, of just compensation to the person; and (ii) allows any person who has an interest in, or right over, that property a right of access to a court of law.
(4) Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may not hold title to the land.
As would be expected, compensation for private land that has been acquired for public interest is unlikely to follow any predictable order. Some claims for full compensation go back decades and may have to undergo the inconvenience of long-drawn legal processes and the requisite political agitation before they can be paid. Others however, are more recent and involve hundred of millions of shillings claimed by just a handful of private citizens.
Indeed, the National Land Commission paid out 246 million shillings in August 2014 on behalf of a National Government agency in-charge of urban roads, in compensation to private home owners who had refused to give way for the expansion of a road intersection in Nairobi whose construction had started just a couple of years before.
The Commission complained in October 2014 that it was errorneous and unfair for the Government to place a uniform valuation rate of 1.5 million shillings per acre as compensation for land that was privately owned and which was set to be acquired for the Lamu Port South Sudan Ethiopia Transport Corridor project (Lapsset), arguing that for such valuation to be fair and equitable to the affected families, it must take into account the uniqueness of any land area as no two parcels of land can possibly have the same characteristics. “Even if pieces of land were at the same place, you cannot give them equal rates. Factors affecting one piece will be different from those affecting the other. Lands might appear the same but each one has different characteristics and should therefore be compensated differently” (Swazuri, 2014).
It must be said that part of the problem of unfair compensation arose because the Government chose (against the law), to assign the State organs involved in the Lapsset project the task of valuation of the parcels of land in question, rather than the NLC that had the rightful mandate and expertise to perform the function.
Historical Land Injustices
Unresolved historical land injustices continue to threaten the very stability and survival of the Kenyan state as we know it. These injustices began way before independence and many remain pending to this day. Such injustices include disinheritance of people from their ancestral lands during the colonial period, and the post-independence removals of minority groups like the Ogiek from the traditional forest land (Syagga 2011). (more.....)
One of the cardinal functions of the National Land Commission NLC is to prepare the way forward for the full and just resolution of all cases of historical land injustices:
67. (2) The functions of the National Land Commission are— (e) to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress;
Indeed, the Commission set in motion the process of looking into Kenya's murky history of widespread injustices suffered by individuals, families, and groups with the aim of delivering a fair and just resolution to all who have suffered one form or other of forced dispossession, compensation, eviction, and other injustices, when it formed and gazetted a Task Force to to formulate legislation on investigation and adjudication of complains arising out of historical land injustices in May 2014.
The entire process of land restitution, redistribution and resettlement will only succeed via enabling legislation, a robust national land policy, and an independent Judiciary. According to Syagga (2011), "........ so as to avoid exposing the land reform implementation process to governance and political economy risks."
Related to this is the need to ensure that present (third party) owners of private land are not penalised for land they purchased and developed in good faith; land that was previously public land and irregularly given out.
The NLC must play a delicate balancing act in addressing this problem because of the sanctity of land registration titles. The Commission must therefore explore different avenues for redress and restitution such as buyback of private land and converting the same to public land; resettlement of displaced and dispossessed individuals and communities back to Community lands.
Should soft methods of expropriation fail, the NLC may consider hiving off some of this land from those third party owners who have made minimal investments in such land and restoring the land to its rightful owners, the landless and the poor, etc. This last method can be effective especially on land that was not adequately paid for.
These, and other measures must be carried out within the law as a matter of course, and the jury is still out on whether the political elite has the will to facilitate and implement successful land reforms.
Curious to many was the Constitutional provision that coming legislation will define minimal and maximum size of Private Land ownership. Indeed, this issue was used to canvass against the New Constitution during the 2010 referendum.
68. Parliament shall— (c) enact legislation— (i) to prescribe minimum and maximum land holding acreages in respect of private land;
Family land has continued to be divided into smaller sizes and this has negatively affected subsistence production levels, not to mention land degradation. Therefore, the idea behind this provision is in the Author's view, having everything to do with efficient management of land, and for social good too - to deliver a modicum of equity in land ownership in the country by capping an upper limit on acreage.
National Land Commission*
This is a key Commission that will play a quasi-judicial and political role in the implementation of a comprehensive National Land Policy, rationalisation of Land laws, as the country embarks on the long and winding road to addressing historical land injustices. The National Land Commission NLC will be the main player in the management of land on behalf of the National and County Governments:
67. (2) The functions of the National Land Commission are— (a) to manage public land on behalf of the national and county governments;
The people of Kenya now have the right of access to such (public) land under the care and protection of governments:
68. Parliament shall— (c) enact legislation— (iv) to protect, conserve and provide access to all public land;
This Commission will also develop and manage a detailed revenue structure to be used by governments in the form of taxation from land ownership and transfers:
(2) The functions of the National Land Commission are— (g) to assess tax on land and premiums on immovable property in any area designated by law; .......
* For more on the NLC, the reader may refer to the National Land Commission or under the sub-menu link - 'Commissions', under the link 'Government'.