As the Lands ministry embarked on one its many attempts to automate the registry in recent times, it got a rude injunction from unlikely quarters – the Law Society of Kenya.
LSK has never raised any objections over the past 15 years that the ministry has been spending millions toying around with the automation idea. The fact that this time around they have managed to bring LSK out of the woodwork means that they are perhaps up to something more serious this time around.
In a long memo to the Cabinet secretary of Lands, LSK reminded the minister that she cannot purport to enable the transfer of property online and enable online spousal consent, among other things supposedly reserved for conveyance lawyers in the analogue world.
They concluded the memo by warning the CS that unless she stops the lands automation process, they would meet in court at the earliest opportunity in the coming week.
The CS had to summon a quick consultative meeting to assure the lawyers that most of the automated aspects would not touch their legally mandated analogue operations.
In an advert in the media, the ministry was forced to state:
The Conveyancing and security instruments such as transfers, charges, discharges, etc which are by law required to be prepared by qualified persons will continue to be so drawn. Execution and attestation of such instruments will similarly continue to be done in accordance with Law.
Only then did the lawyers offer support for the automation process and subsequently withdraw the threat to meet in court.
But the irony here is, why automate everything about land registration but leave out the main intention, which is to enable and facilitate land transactions online?
It is like writing an email on a computer, printing it out and then proceeding to the nearest post office to buy a stamp in order to post the email, the old analogue way. It is completely absurd and contradictory.
The discussion the Lands ministry should have been having with the lawyers is about how to amend the law to enable end-to-end land transactions rather than how to protect the lawyers from the inevitable disruption that technology is bringing.
Legal provisions that slow down the benefits of digitisation should be revised in a progressive forward-looking manner, rather than used to protect old habits that perhaps improve the welfare of individual lawyers at the expense of the public good.
What Kenya needs to remember very often is that we are in a global competition for investments. Investors will put money in economies that have the least friction in terms of completing transactions.
Countries like Estonia and Singapore allow investors sitting thousands of miles away to prospect, select, pay and lease or own property without having to physically travel to location, let alone meet a lawyer.
Imagine the same investors prospecting to lease, buy or develop property in East Africa.
TEDIOUS, OPAQUE PROCESS
Kenya presents them with a tedious, opaque process that requires several physical meetings with different actors in the value chain. Another country, say Rwanda, presents them with the opportunity to execute the full chain of activities and transactions online, in the shortest time possible.
Investors comparing the two economies will not think twice about where to put their money. This will translate into lost economic opportunities for that Kenyan who is sitting on idle land and not knowing what to do with it.
LSK must wake up, smell the coffee and begin to think globally. They have to get out of their comfort zone and rapidly innovate. On the other hand, we should not allow them to hold the country to ransom, simply because they are refusing to move with the modern times.
Online taxi companies Little Cab, Uber, Taxify and others disrupted the transport sector, leading to violent confrontations with the analogue taxi operators. However, the analogue taxis had to eventually adapt or perish.
LSK should see the writing on the wall and it spells out the usual message: One can never stop an idea whose time has come.
Mr Walubengo is a lecturer at Multimedia University of Kenya, Faculty of Computing and IT. Email: [email protected], Twitter: @Jwalu