Public Land Under the New Constitution
Equity. Sustainability. Justice.
|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.
|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.
|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.