Proposed amendments to roll back gains made in land reform

Throughout Kenya’s history, land has been an emotive issue, blamed for most of the deadly conflicts between clans, races, ethnic groups, multi-nationals, and  land buying companies.

The violence witnessed in the aftermath of the 2007-2008 General Election was the wake-up call that amalgamated Kenya’s collective conscience that something needs to be done urgently to reform land issues.

The violence revealed festering tribal and political fault lines mainly in the Rift Valley, the Coast, and in urban informal settlements.

LAND COMMISSION

As a result of this, Kenyans agreed on a new Constitution that created an independent National Land Commission (NLC) to manage public land on behalf of the national and county governments, lead national land policies, advise the national government on the registration of titles, research and investigate land issues, apply alternative dispute resolution on traditional land issues, and monitor and provide oversight on use and planning that touches on land.

Consequently, in 2012, Parliament passed the National Land Commission Act, the Land Registration Act, and the Land Act, which replaced numerous other statutes.

Parliament was lauded because the three laws stuck to the spirit and letter of the Constitution.

However, Mrs Charity Ngilu, the first Cabinet secretary for Lands in the Jubilee administration, quickly embarked on a mission to undermine the NLC and its mandate.

She insisted on treating the commission as a department under her ministry instead of an independent constitutional commission with oversight powers over her ministry.

Her successor, Fred Matiang’i, has chosen the same path of confrontation with the NLC.

DUALE'S BILL

Mr Aden Duale, the Leader of Majority, has introduced the Land Laws (Amendment) Bill of 2015, an omnibus Bill that is seen by many as an attempt to roll back the reforms in the sector by sneaking in amendments that fly in the face of the Constitution in the guise of clarifying the roles of the ministry and the NLC.

The proposed law basically reduces NLC commissioners to mere civil servants under the ministry by providing that they be appointees of the Public Service Commission, a sister commission of NLC under Article 255.

The Bill purports to remove the NLC’s constitutional role of alternative dispute resolution, an amendment that is not worth the paper it is written on because the Constitution clearly forbids Parliament from amending the Constitution in matters relating to the powers and functions of constitutional commissions and independent offices without a referendum.

The Bill also disregards the principles of devolution by removing the county land management boards.

NO SPOUSAL CONSENT

Quite interestingly, the Bill removes the requirement for spousal consent for the disposal of registered matrimonial property.

The amendments do not establish elaborate community institutions or structures and ignore the role of public participation for adjudication of communal land, a major flashpoint in many areas in Kenya.

Instead, the Bill classifies community land as “controlled land” where the government, through the county executive for land, has powers to authorise transactions on unregistered community land.

With regard to evictions, the Bill peels back recent provisions that required evictions to be carried out during the day, in good weather, and with due regard to children and instead proposes that these matters be decided by the “property owner” and the county executive in charge of land.

There is no requirement for a court order as a precursor to evictions.

Gross corruption in the acquisition, registration, and administration of land has been a major problem in Kenya.

The Ndung'u Report noted that public land was illegally and irregularly allocated “in total disregard of the public interest and in circumstances that fly in the face of the law”.

The report specifically cited senior public servants in the Lands Ministry and local land boards as the main culprits. Which begs the question: Why does the National Assembly and the State want to take us back to the past that culminated in post-election violence?

 Mr Kiprono is an advocate of the High Court of Kenya and a senior programmes officer at Article 19, Eastern Africa. [email protected].