Land Commission must be set up now to forestall complicity and graft

The promulgation of the Constitution on August 27 ushered in peculiar challenges. We must remain conscious that land reform provisions are not abstract. They do, and will, apply.

For instance, consistent with Article 65 on land holding by non-citizens, Section 8 of Schedule 6 on ‘‘Transition and Consequential Provisions’’ says that on the effective date, any freehold interest in land held by a non-citizen shall revert to the Republic to be held on behalf of the people of Kenya, and the State shall grant to the person a 99-year lease at peppercorn rental.

It similarly provides that any interest in land greater than a 99-year lease held by a non-citizen shall be converted to a 99-year lease. These provisions applied from Friday, August 27 at about 10.27 am. The holders of such interests in land, therefore, have no titles.

Similarly, financial institutions holding such titles as collateral must quickly seek substitute securities, unless the titles are quickly cured through re-grants and conversion. This applies to many of the Laikipia ranches, tracts of agricultural land in the Rift Valley, in Central Kenya, around Konza in Machakos, and parts of Coast Province.

There are freehold parcels held by non-citizens in places like Karen and Muthaiga too. The intention of the constitutional provisions is not to erode the worth of such land grants, some of which host major investments beneficial to Kenya, but to align them to the wishes of Kenyans.

However, delays in providing for suitable institutional guidelines and procedures could result in injury to such investors. This must be averted. In the interim, the Commissioner of Lands could gazette Regulations or Guidelines for the surrender and re-grant or conversion of such titles in accordance with the respective Acts of Parliament.

If the Commissioner were to resort to this measure, then clearly, it would be supervised by the selfsame ministry. Can it be trusted to do so? Furthermore, some of these titles will require vetting. How then would the vetting be entrusted to the same office which issued the titles, and which is likely to have vested interest in some?

The constitutional principles envisaged a scenario where an independent National Land Commission would play the central role of co-ordinating and driving land reforms. Without this, we shall have a situation where the agency we intend to reform will take charge of the reforms. The results will be adulterated by partisan institutional actors.

Schedule Five reveals that the timeline for the establishment of the National Land Commission under Article 67 of the Constitution was left out. In the circumstances, it would fall under the “General” category which provides for a five-year timeline.

I would advise that we use this “ five-year’’ provision to fast-track the Bill for the formation of the Land Commission. This should be done in less than six months, short of which there will be a field day in the Ministry of Lands. There will be underhand deals, lots of informal payments to influence “looking aside”, and irregular redrafting of documents otherwise targeted for vetting.

Indeed, now that we are set to draft legislation to help review and audit the legality and propriety of grants of previously allocated public land, this may also be frustrated through discrete sales of such properties, which will undermine the intent. The Cabinet Implementation Committee, Parliament’s Constitutional Implementation Oversight Committee, and the Implementation Commission, must appreciate the fragile nature of the intended land reforms and seal the loopholes.

Now that the Land Policy has been approved and we have a new Constitution, two things that always stood in the way, all complicit actors are alert. They will use their influence to “seal the gaps” and cheat to ensure that the intended reforms are either diluted or aborted altogether.

Yet the legislation required to establish a National Land Commission isn’t rocket science. The Ministry of Lands, the Attorney-General and the Law Reform Commission could come up with a suitable framework for consideration by Parliament fast. This must be expedited to pre-empt anxiety to some land-owners, investors, and financial institutions, and also seal loopholes that can frustrate land reforms.

Mr Mwathane is a consultant in surveying and a director with the Land Development and Governance Institute. (mwathane@landsca.co.ke)