We need objective debate of proposed amendments to existing land laws
What you need to know:
- In shaping the first three laws, the drafters used sub-Article 67 (3), which provides that the commission can undertake “any other roles prescribed by national legislation” to add roles to the commission.
- It is under this law that critical technical roles such as constituting land registration units, determining the form of register in land registries, appointing dates to geo-reference plans, and being a depository of cadastral maps under the Land Registration law were included.
- The same law gave the Cabinet secretary immense powers to make regulations on the manner and form of registries, formats of register, and procedures and working hours to be followed.
The debate on the new land laws is getting louder, drawing in even the political class. This is fine. Clearly, the National Land Commission has done well in whipping up support for its cause.
Being a key player, this is in order. Indeed, it is a pity that the voice of the parent Ministry of Lands has been loudly missing in the discourse. It would greatly help Kenyans who have not had the benefit of reading the three proposed Bills to strike some balance.
Kenya needs good laws and it is our business to formulate them. So let us listen to one another, make our inputs, then leave Parliament to debate and enact the laws.
For over two-and-a-half years now, we have witnessed conflicts between the Ministry of Lands and the National Land Commission.
Why is this so? If you take time to read the national land policy, the Constitution, the Land Act, the Land Registration Act, and the National Land Commission Act, you will notice that the land policy proposed a commission with broad technical roles including holding title to land, managing public land on behalf of the State, maintaining a register of all categories of land, and developing a land information management system.
However, soon after we obtained our land policy, we started reviewing our Constitution.
The proposed constitution had a land chapter, which suggested the anchoring of a land commission as envisaged under the policy.
However, the parliamentary committee that sat in Naivasha in 2010 deleted the proposal to have a land commission from the constitutional proposals entirely.
It took the intervention of stakeholders and the Constitution of Kenya Review Committee to restore the proposal.
The post-Naivasha version of the land commission was totally different from the pre-Naivasha one. Its functions and roles were no longer technical but advisory.
They were to manage public land on behalf of both levels of government, recommend a national land policy, advise the national government on a programme of registration of title, conduct research and make recommendations, and initiate investigations into historical land injustices and make recommendations for redress.
The Commission was to encourage use of alternative dispute resolution, assess tax on land, and monitor and have oversight on land use planning.
In shaping the first three laws, the drafters used sub-Article 67 (3), which provides that the commission can undertake “any other roles prescribed by national legislation” to add roles to the commission.
It is under this law that critical technical roles such as constituting land registration units, determining the form of register in land registries, appointing dates to geo-reference plans, and being a depository of cadastral maps under the Land Registration law were included.
The same law gave the Cabinet secretary immense powers to make regulations on the manner and form of registries, formats of register, and procedures and working hours to be followed.
It also gave the Cabinet secretary powers to prescribe regulations to any other matter necessary to operationalise the Registration Act. In doing so, the Cabinet secretary would take into account the commission’s advice.
Under the Land Act, the commission was given powers to manage settlement programmes while the Land Adjudication Act, under which the Ministry’s Land Adjudication and Settlement Department undertakes similar roles, was left unrepealed.
Then the National Land Commission Act gave the commission the role of establishing a land information management system, which the Ministry had been progressively developing over time and which is best handled by whoever maintains the land registry.
The above cocktail set up an ideal environment for endless turf wars. As a result, service consumers have suffered. This must be addressed.
The key question, therefore, is: If the Constitution meant to give the Land Commission the various technical roles donated by statutes, why did it not expressly state so?
This is part of what should inform us to objectively examine the proposed amendments to the existing laws.
Mr Mwathane is a surveyor. [email protected]:twitter: @mwathane
