Bills proposed by Executive seek to shift power away from land commission
What you need to know:
- There has been fear that the infrastructural developments, occasioned by the discovery of oil and gas as well as the Lamu Port Southern Sudan-Ethiopia Transport Corridor project may further marginalise communities in northern Kenya.
- The most significant aspect of this Bill is the way it limits the mandate of the National Land Commission. First, the National Land Commission Act had set out a multi-stakeholder selection panel to interview would-be commissioners to ensure independence and credibility.
During a recent trip to a community parliament in Lomokamar village, Lokichar ward, Turkana county, I heard community members challenge their leaders about lack of information and openness in land transactions.
They sought to know what their leaders were doing to secure the right of communities to use land and guarantee transparency in deals with investors.
There has been fear that the infrastructural developments, occasioned by the discovery of oil and gas as well as the Lamu Port Southern Sudan-Ethiopia Transport Corridor project may further marginalise communities in northern Kenya.
Similar sentiments are being expressed in Laikipia, Kilifi, Kwale, and Kajiado. Sadly, the wrangles between the National Lands Commission (NLC) and the Ministry of Lands, Housing and Urban Development over their mandates have stalled the land reform agenda.
CONFLICTING MANDATES
To implement Chapter Five of the Constitution, the Executive has proposed three land-related Bills. First, the Land Laws (Amendment) Bill 2015 seeks to address the conflict of mandates between the Ministry of Lands and the NLC, align the laws relating to land with the Constitution, and give effect to the law on minimum and maximum land holding acreages in respect of private land. The Bill also aspires to implement the article on historical land injustices but provides no direction.
The most significant aspect of this Bill is the way it limits the mandate of the National Land Commission. First, the National Land Commission Act had set out a multi-stakeholder selection panel to interview would-be commissioners to ensure independence and credibility.
The Bill assigns the role of the selection panel to the Public Service Commission (PSC), but Article 234 (3) (a) bars the PSC from appointing State officers.
In any case, the NLC is a constitutional commission just like the PSC, and so the latter cannot be assumed to be superior to the former.
Second, whereas the Land Act had given NLC the power to reserve public land in consultation with the national or county governments, the Bill shifts this responsibility to the Cabinet secretary or members of county executive committees.
UNCLEAR ACHIEVEMENT
Third, the county land management boards, established by the NLC Act have been abolished. If a major pillar of devolution was to take services closer to the people, this amendment undermines it in a fundamental way.
The NLC also cedes ground on matters of land registration to the Cabinet secretary. It is unclear how the NLC function of “advising the national government on a comprehensive programme for registration of title in land throughout Kenya” will be achieved.
Moreover, the Land Settlement Fund, which was supposed to be administered by NLC, has been reassigned to the Land Settlement Fund Board of Trustees, which is dominated by the Executive.
The Physical Planning Bill, 2015, will address planning, use, regulation, and development of land. The Bill sets up the national and county physical planning consultation forums to promote effective coordination of the integration of physical development planning and sector planning. They will also advise on resource mobilisation and strategic physical development projects.
The Community Land Bill seeks to give effect to Article 63 (5) of the Constitution by providing for the recognition, protection, and registration of community land rights, the management and administration of community land, and the role of county governments in relation to unregistered community land.
It is significant that the Bill recognises that until any parcel of community land has been registered, such land remains unregistered community land and shall be held in trust by the county governments on behalf of the communities.
Interestingly, the NLC has a minimal role in the management of community land except in situations where public or private land is being converted to community land.
Instead, the Cabinet secretary has wide-ranging powers, including documenting, mapping, and developing an inventory of community land.
Considering how emotive the land question is, the three Bills are likely to ignite much debate.
Prof Njogu is director of Twaweza Communications and board chairman of the Legal Resources Foundation trust. [email protected]
