A cursory examination of the land Bills that are waiting to be passed in Parliament before the 18-month constitutional deadline of 26 February reveals glaring inconsistencies with the Constitution, the National Land Policy, applicable international standards, and even with each other and with other sectoral laws.
For example, the Land Bill runs contrary to the principles of devolution, does not bring out the tenure system or attempt to come up with legal solutions to the long-standing tenure problems associated with the landless poor, persons in informal settlement in urban areas, or those who have weak tenure claims, such as the so-called “squatters”.
The Land Bill also takes away the constitutional mandate of the National Land Commission and hands it over to the Cabinet Secretary, thus making the proposed law no different from the existing system.
The Land Bill does not offer any mechanisms for the allocation and disposal of public land, including entrenching public participation procedures.
This perpetuates the same legal order that has caused abuse of public land by those in authority.
The Land Registration Bill is equally inconsistent with the Constitution, for instance with regard to devolution, gender equity, and systems for land registration that would promote the constitutionally required resolution of historical injustices for marginalised groups, minorities, women, and historically disadvantaged groups.
The Community Land Bill appears to have been modelled from the legislation of a foreign country, with no bearing whatsoever on the demands of Kenya’s new Constitution and the National Land Policy.
It does not even have any connection with the mandate of the National Land Commission.
Similar inconsistencies appear in the Bills developed by the Ministry of Lands under Article 68.
They are complex and voluminous, thus the need for a careful review of each clause.
An analytical perspective that takes into account the poor, marginalised, minorities, and historically disadvantaged is required in tackling the land question in Kenya.
It should respond to most of the challenges affecting the voiceless Kenyans and in the spirit of the new Constitution and the radical National Land Policy of 2009.
Such a perspective must fully inform the land Bills and should not be subservient to the pro-investment, pro-property perspective that seems to run across the existing land laws and the proposed Bills.
Land is at the core of Kenya’s political, economic, social, and cultural problems.
The land-related ethnic clashes over the years that culminated in the post-election violence of 2007/2008 support the view that unless there is radical land reform with a view to promoting the rights of the poor, marginalised, minorities and historically disadvantaged groups, Kenya’s future stability is at stake.
We at Kituo cha Sheria call for a review of the Bills and fresh proposals because we believe that in their present form, they risk being declared unconstitutional.
The Bills that are supposed to be enacted under Article 68, and which should be reviewed, are the Land Bill, the Land Registration Bill, the National Land Commission Bill, the Community Land Bill, the Matrimonial Property Bill, and the Law of Succession Bill.
So far, the Ministry of Lands has only released the first three Bills, unconstitutionally sidelining the gender-friendly land Bills.
More public consultations and participation, and in particular engagement of experienced and qualified persons in Land Law, are needed to review the land Bills and critique them, identify gaps, and propose amendments for consideration by the various entities in the constitutional implementation legislation-making chain.
This includes the Executive (through the Ministry of Lands, who are the originating drafters of the Bills), the Commission on the Implementation of the Constitution, the Attorney General, the Kenya Law Reform Commission, the Parliamentary Committee on Land and Natural Resources, and the Oversight Committee on Implementation of the Constitution.
Ms Kanyua and Mr Gatitu work for Kituo Cha Sheria. Ms Kanyua is the executive director. [email protected]