Good law, but shall we respect it?

Wednesday May 16 2012

The Land Act, which will overhaul and streamline land management, has come under sharp criticism from a section of the civil society, which argues that it contravenes the Constitution and the National Land Policy.

The Land Act, which will overhaul and streamline land management, has come under sharp criticism from a section of the civil society, which argues that it contravenes the Constitution and the National Land Policy.  

By JACOB NG’ETICH [email protected]

Mr Goodluck Mbaga, a resident of Kijipwa Settlement Scheme in Kikambala, Kilifi, gets emotional when he talks about the land problem at the Coast.

This is a problem that has bedevilled three generations of his family — his grandfather’s, his father’s, and now his. And it seems likely to pass on to his children as well if change does not come soon.

“It is a perennial problem for us, from the colonial days. Close to 50 years after independence, we are still in limbo. I don’t know when we’ll ever enjoy the pride of owning land,” he says.

Mr Mbaga, also an environmental and peace advocate, says Kijipwa residents became squatters through the government’s actions.

He explains: “The land meant for the landless was given to undeserving government officers, thereby subjecting residents to induced poverty.”

Mr Mbaga’s comments refer to the 1,600-acre piece of land that the hundreds of Kijipwa residents were allocated in 1964, only for nine government officials, including the then minister for Lands, to take more than a half of it.

“Our efforts to fight this injustice were frustrated. Now resorts and lodges have been built here, while the residents continue to squat,” he says.

According to Mr Mbaga, such examples abound in the region, with a number of other places having even worse cases.

And this is probably why several people have joined the Mombasa Republican Council, an outfit he says captures the frustration of the people at the Coast. Kijipwa residents are among many other landless Kenyans.

Recently, President Kibaki approved three laws that are expected to bring back sanity to land ownership.

The enactment of the three land laws — the National Land Commission Act, the Lands Act, and the Land Registration Act — may seem to be just part of the constitutional implementation process, but land experts and human rights activist say the ramifications of the laws, if fully implemented, will be enormous and will likely solve the perennial land problems in the country.

For the first time in Kenya’s history, there will be a commission that will manage land with such functions as overseeing alienation of public land, monitoring registration of land, and maintaining an information management system for all land in Kenya.

The new laws, according Mr Ibrahim Mwathane, the chairman of the Land Development and Governance Institute (LDGI) and a land consultant, can solve the problem of land, especially at the Coast, if well implemented.

“The National Land Commission will be required to, among other things, within two years of its coming into force, initiate investigations into present or historical land injustices and make recommendations on appropriate redress,” Mr Mwathane explained.

He added that the law also expects the commission to register all unlisted land in the country within 10 years. “This will eventually ensure that people at the Coast and all over the country have access to registered land,” he said.

Mr Jasper Mrutu, a human rights activist in Taita Taveta County, said the commission would be timely.

“Our people have suffered for long, many living without land and a few living on unregistered land. They have never enjoyed ownership of land. This new law, with the creation of the National Land Commission, will pave the way for them to become land owners,” he said.

With all these potential benefits, some experts have questioned why the formation of the commission has been delayed. Mr Lumumba Odenda, the chairman of the Land Alliance says:

“The minister of Lands had promised that the commission would be in place by February this year. He later said by the end of March. We now do not know when, but now that the law has been put in place, we expect it not later than June.”

He added that in last year’s budget, Treasury allocated Sh200 million for the formation of the commission and that the money was still lying idle.

Although the commission is expected to be independent, the mode of appointment of its members has raised concerns.

The part played by the Executive in the selection panel, according to Mr Mwathane, is likely to influence the appointments.

“It will depend on the goodwill of the Executive in coming up with the members of the selection panel that will appoint the members of the commission. The Executive can manipulate appointees, which means that the commission will cease to be independent,” said Mr Mwathane.

Another concern is the criteria for vetting staff at the Lands Ministry. Unlike in the Judiciary, where a team was set up to conduct the vetting, the Lands staff will be vetted by the commissioners.

“There is no clarity on who will go and who will remain, meaning that the commissioners may end up retaining the same staff, thus maintaining the status quo at the ministry, which has a lot of rot,” said Mr Mwathane.

Concerning the Land Registration Act, Mr Odenda said its biggest undoing was the retention of land registration powers in the hands of the Ministry of Lands.

“The registration of land should have automatically shifted to the commission to ensure harmony in the running of land issues, otherwise it weakens the powers of the commission over land management,” Mr Odenda says.

On his part, Mr Mwathane said the Act would bring harmony and civility into land registration by bringing together five land registration Acts into one, and removing the responsibility of registration from the commission and retaining it under an independent chief registrar of lands.

He added that the commission would introduce the fundamental shift in land administration, which includes shifting the powers to allocate public land from the President and the commissioner of lands to an independent body.

The Land Act, which will overhaul and streamline land management, has come under sharp criticism from a section of the civil society, which argues that it contravenes the Constitution and the National Land Policy.

The civil society insists that whereas the Act covers the allocation and management of public land and the administration of private lands, it has left out community land and is silent on the various forms of land tenure and the rights accruing in respect of each of those tenure systems.

But Mr Odenda said the laws guarantee the realisation of the National Land Policy. “The law will ensure the proper management and coordination of land and natural resources, thereby solving one of the biggest challenges in Kenya”.

The challenge for the country, he says, is to ensure that the laws are implemented and respected.

“After the laws were passed, what remains is for us to ensure that they are enforced, otherwise they will become a nuisance. In Kenya, the problem is not the lack of laws, but the absolute disregard for them,” he said.