Legal, political wars loom over changes to land laws

A raft of proposed legal amendments published last week have raised the prospects of political and legal battles over legality and rationale.

One of the proposed amendments seeks to transfer the function of lease management from the National Land Commission (NLC) to the Cabinet Secretary and land registrar.

“To provide for that the lease of license for private land be issued by the Cabinet Secretary and registered by the Chief Land Registrar,” the proposed amendments read in part.

The proposals contained in the Statute Law (Miscellaneous Amendment) Bill, 2018, seek to further make changes to various statutes  including the National Land Act No 6 of 2012,  and the Wildlife Conservation and management Act (2013), among others.

FALLACY

National Land Commission member, Mr Abdulkadir  Khalif,  cautioned that the proponents of the amendments would have to find a way to circumvent the constitution that vested the lease management function to the NLC.

“That proposal is based on erroneous assumption that there is a document called private lease in Kenya, which is a fallacy. Under the constitution, all leases are granted either by the national or county governments, and at the expiry of the lease period, the leased properties revert to the national or county governments, which have power to extend, change conditions of lease, or re-allocate the same for another purpose. This is an NLC domain. To suggest leased land is private is only imaginary. The Supreme Court has also  pronounced itself on the matter and CS would have to seek leave of court on the matter,” Khalif, a trained land surveyor, said on Friday.

The proposal to amend the law also flies in the face of regulations and guidelines approved by parliament last Thursday, and which vests the lease function with the NLC.

The regulations were crafted by a multi-stakeholder task force appointed by immediate former Lands Cabinet Secretary Jacob Kaimenyi, who had publicly committed to implement the Supreme Court Advisory on the matter.

INTEGRITY

His successor, Ms Farida Karoney, was yet to make public her reasoning for intent to backtrack and overturn the policy.

Another proposal targets to raise the bar for the appointment of the next Director-General of KWS very high to include “at least 15 years professional experience at management level in a related field”, raise penalties for poachers to Sh100 million and 20 years imprisonment or both for killing endagered species, and Sh20 million and 10 years for other species, among others.

In addition to 15 years professional experience, other qualifications include being a Kenyan citizen, compliant with Chapter 6 on integrity, a degree holder in disciplines like  natural resources management, finance or strategic management, including local and internation fundraising.

Parastatals are funded by the tax payer and it is not clear why the amendment puts a premium on local and external fundraising prowess, a requirement likely to be used to knock off  internal rank and file talents from ascending to the pinnacle of the organisation.

OBSTRUCTING

Currently, the KWS has no substantive Director-General, and all holders of  senior executive positions are in acting capacities while the Board of Trustees composition is to to be reconsituted following expiry of its chairman, Dr Richard Leakey’s term two weeks ago.

Three other board members’ terms also lapsed and replacements were yet to be effected.

In the absence of a substantive  policy and technical leadership, the timing of the amendment is likely to suffer requisite articulation, especially the proposal to collapse the current County Wildlife Conservation and Compensation Committees from 47 to 8, effectively reversing the 2013 Act’s trajectory to devolve decision making and enhance community participation on wildlife matters.

The proposals to put the community committees under regional KWS assistant directors also came at a time the Senate is debating a petition by the County Wildlife Conservation and Compensation Committees  accusing the government of obstructing local participation in natural resource management  by denying the committees gazetted in 2015 the  resources to operate and function.