Public Land Under the New Constitution
Equity. Sustainability. Justice.
|Land Ownership||To comprehensively address land holding in the country, the Constitution of Kenya 2010 has sought to provide clarity on the question of land ownership. To this end, it has affirmed that all land in Kenya, belongs to the people of Kenya collectively as a nation, as communities and as individuals.|
|Land Use||The Constitution has further provided that, access to and use of all land in Kenya will be governed by national legislation to ensure the efficient and sustainable use of land for the equitable benefit of all.|
|Land Management||National legislation will protect the people's constitutional right and ownership of land by ensuring that the process of land registration, transfer, use and ownership is streamlined. This legislative process will also incorporate the addressing and resolution of all historical land injustices affecting individuals as well as communities.|
At the core of the land question as experienced today in Kenya, is the lack of proper legislation governing the ownership, access, and use of land. In particular, unregulated access and use of land has also given rise to poorly planned urban settlements and slums, overgrazing, pollution and environmental degradation, and human/wildlife conflicts.
Historical injustices on land can be traced back to the period of the colonialist and successive post-independence governments which, taking advantage of weak land laws, entrenched land and resource inequality leading to dispossession, displacement, conflict, and general and widespread disquiet. Impunity and weak laws on land has given rise to a small cabal of political elites, their cronies and descendants many of whom own large tracts of land in the midst of large populations of landless inhabitants. Matters have been made worse when much of this land is largely unused or is retained for speculative purposes.
It is the hope of the ordinary Kenyan that land issues will be addressed once and for all, fairly and equitably. To this end, there continues to be sustained calls for an enabling legislative framework to facilitate the implementation of the comprehensive National Land Policy, and a strong and independent National Land Commission NLC to perform a final round of review, rationalisation, redress, resettlement, and restitution in matters of land in all the 47 Counties.
As was stated at the beginning of this discussion, there are three classes of land ownership in Kenya, namely public, community and private ownership. Chapter Five - Land and Environment, Part 1 - Land, Article 61:
61. (1) All land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals.
In the past, it was not so. Public and Community Land was given out indiscriminately by politicians and top officials of the provincial administration to their cronies or as reward for political support: "Land was no longer viewed as belonging to the Kenyan people, but as a vacant space to be dished out to politically correct individuals ....... ." (Syagga, 2011).
Going forward, the Land Registration Act 2012, has gone to great lengths to add clarity and to provide for the three classes of Land Ownership by giving effect to Chapter 5 of the Constitution.
Land owned by an individual citizen is classified as private land. Such land may be owned as freehold land or as leasehold land. Chapter Five - Land and Environment, Part 1 - Land, Article 64, excerpts:
64. Private land consists of — (a) registered land held by any person under any freehold tenure; (b) land held by any person under leasehold tenure; .......
Non-citizens may hold land ownership in Kenya under a title of leasehold tenure only, and for a maximum term of 99 years without exception. This Constitutional provision in land ownership is part of the people's determination to make a break with their pre- and post-independence past where the political elite facilitated unfettered acquisition of land by well-connected foreigners and their businesses, irrespective of how noble the foreigners' cause may be:
65. (1) A person who is not a citizen may hold land on the basis of leasehold tenure only, and any such lease, however granted, shall not exceed ninety-nine years.
(2) If a provision of any agreement, deed, conveyance or document of whatever nature purports to confer on a person who is not a citizen an interest in land greater than a ninety-nine year lease, the provision shall be regarded as conferring on the person a ninety-nine year leasehold interest, and no more.
In an effort to effect the provisions of Sub-Article (2) above, the National Land Commission NLC did ask in June of 2013 that all foreigners in the country with interest in land, to submit to the Commission all documents of ownership, lease, or allotment in their possession. This is important because the New Constitution nullified all land ownership lease term periods by foreigners and placed a ceiling of 99 years. Many such leases had 999 years lease periods.
Private ownership of land by a legal entity such as a company, or organisation is also permitted under the Constitution of Kenya 2010's Article 65 (3) which has clearly defined the circumstances under which such a body may own land in Kenya.
(3) For purposes of this Article— (a) a body corporate shall be regarded as a citizen only if the body corporate is wholly owned by one or more citizens; .......
Further, trust ownership of private land is possible under the Constitution:
(3) For purposes of this Article— ....... (b) property held in trust shall be regarded as being held by a citizen only if all of the beneficial interest of the trust is held by persons who are citizens.
When we recall that the Constitution of Kenya 2010 is strong on individual rights, it has, as expected, ensured that the right to own land will be protected:
60. (1) Land in Kenya shall be held, ....... in ....... accordance with the following principles— (b) security of land rights;
Furthermore affirmative action to children and women is equally strong in the spirit and letter of the Constitution in which these groups of (marginalised) people were granted clear and inalienable rights to ownership of land - in light of the fact that customary laws and traditions generally were unfavourable to them, and to women in particular, including the married:
60. (1) Land in Kenya shall be held, ....... in ....... accordance with the following principles— (f) elimination of gender discrimination in law, customs and practices related to land and property in land; .......
68. Parliament shall (c) enact legislation (iii) to regulate the recognition and protection of matrimonial property and in particular the matrimonial home during and on the termination of marriage; (vi) to protect the dependants of deceased persons holding interests in any land, including the interests of spouses in actual occupation of land; .......
Ownership of private land does not bequeath the owner unregulated right to the use of that land. As we will see under the sections on Land Use and Land Management, the Constitution requires that comprehensive laws be in place to govern access, use and management of all land in Kenya.
The Constitution of Kenya 2010 has a second type of land classification and ownership known as Community Land; a 'Community' in this case, being a people with a common linguistic or cultural identity:
63. (1) Community land shall vest in and be held by communities identified on the basis of ethnicity, culture or similar community of interest.
Such communities have the constitutional and inalienable right to formal (or informal) association for their individual and collective benefit and voice under the Bill of Rights. Chapter 4 - The Bill of Rights, Part 2 - Rights and Fundamental Freedoms, Article 44, excerpts:
44. (2) A person belonging to a cultural or linguistic community has the right, with other members of that community— (b) to form, join and maintain cultural and linguistic associations and other organs of civil society.
It is through such registered associations or community groupings complete with duly elected officials that communities will be able to assume lawful ownership of land:
63. (2) Community land consists of— (a) land lawfully registered in the name of group representatives under the provisions of any law; (b) land lawfully transferred to a specific community by any process of law;
Community land is unique in the sense that it will have a certain and valuable meaning derived over a lengthy history of use and control by the community.
(2) Community land consists of— (d) land that is— (i) lawfully held, managed or used by specific communities as community forests, grazing areas or shrines; (ii) ancestral lands and lands traditionally occupied by hunter-gatherer communities; .......
Under Kenya's new system of devolved governments, Community Land has taken on a new and significant meaning to the local communities within the counties in that, their own governments having accordingly been granted trust ownership over the land:
63. (2) Community land consists of—(d) land that is— (iii) lawfully held as trust land by the county governments, but not including any public land held in trust by the county government under Article 62 (2).
Of all the three classes of land ownership in Kenya, Public Land has the widest definition under the Constitution of Kenya 2010. Thus, Public Land has been defined as all that land that was neither privately nor community-owned at the time of the promulgation of the Constitution in August 2010:
62. (1) Public land is— (a) land which at the effective date was unalienated government land ....... at the effective date; (d) land in respect of which no individual or community ownership can be established ....... (m) any land not classified as private or community land under this Constitution; .......
Further, any private or community land that has no known heir automatically becomes Public Land:
(1) Public land is—(e) land in respect of which no heir can be identified .......;
Public Land is held (in trust) by government which under the country's two-tier devolved system, means the National Government and the 47 County Governments:
(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 ....... shall vest in and be held by the national government in trust for the people of Kenya ....... .
Governments may indirectly hold public land through subordinate State organs:
62. (1) Public land is— (b) land lawfully held, used or occupied by any State organ, .......
As we stated at the beginning of this section, public land has a wide and extensive definition under the New Constitution and will strictly be backed by statutory law. Additional parts of this definition include the following:
62. (1) Public land is— (c) land transferred to the State by way of sale, reversion or surrender; (f) all minerals and mineral oils as defined by law; (g) government forests other than forests to which Article 63 (2) (d) (i) applies, government game reserves, water catchment areas, national parks, government animal sanctuaries, and specially protected areas; (h) all roads and thoroughfares provided for by an Act of Parliament; (i) all rivers, lakes and other water bodies as defined by an Act of Parliament; (j) the territorial sea, the exclusive economic zone and the sea bed; (k) the continental shelf; (l) all land between the high and low water marks; (m) any land not classified as private or community land under this Constitution; and (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.
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.
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'.
1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney General.
2. Syagga P (2011). "Public Land, historical land injustices and the new Constitution". Constitution Working Paper Series No 9, Society for International Development, SID. Regal Press Ltd.
3. The Land Act 2012. National Council for Law Reporting. The Attorney General.
4. The Land Registration Act 2012. National Council for Law Reporting. The Attorney General.
5. National Land Commission Act no. 5 of 2012. National Council for Law Reporting. The Attorney General.
6. The Kenya Gazette. Kenya Law Reports. National Council for Law Reporting. The Attorney General.
7. "AG backs Ngilu in Lands power tussle". Daily Nation online. Retrieved April 2014.
8. "Swazuri demands involvement of lands commission in Lapsset matters". Daily Nation article. Retrieved October 15, 2014.
9. In Re the Matter of The National Lands Commission Under Article 163(6) of The Constitution of Kenya  eKLR. National Council for Law Reporting. The Attorney General.