ISSUE 101, September 1-30, 2014
Unfiltered, uninhibited…just the gruesome truth
Lack of political commitment derailing land reforms
By HENRY OWINO The advent of current Constitution 2010 that was followed by its promulgation on August 27 came with numerous changes in Kenya. Land reforms were among the major amendments that took effect automatically reducing timeframe of land leasehold from 999 to 99 years for foreigners. And it is not surprising that many Kenyans chose to support the passage of the Constitution in 2010 with high expectations. One was that it would address and provide ‘silver bullet’ answers to land challenges they had faced over the decades. Indeed great milestones have been realised in the recent past with the most important being the inclusion of a whole Chapter on Land and Environment in the Constitution 2010. Chapter Five of the Constitution is about land and environment stating that all land in Kenya belongs to the people of Kenya collectively as a nation, communities and individuals. This, therefore, classifies land in Kenya as public, community and private. Additionally, enabling legislations have been enacted to ensure that provisions of the Constitution are effectively implemented. Some of these changes, however, are still on course to being implemented while others need time which may take five years or more for full implementation. For instance, Environment and Land Court Act 2011; the Land Registration Act 2012, The National Land Commission Act 2012 and the National Land Policy are some of the implemented laws. As a result of these laws, the National Land Commission as well as the Environment and Land Court have been established to ensure realisation of the anticipated reforms in the land sector. Despite the milestones made so far which are irreversible amendments unless otherwise, there is resistance especially from the political mighty who had acquired chunk of lands fraudu-
lently. This is because the law is now catching up with them as they are being exposed. Notably, it is surprising that the war of supremacy between the Ministry Lands, Housing and Urban Development headed by Charity Ngilu and the National Land Commission chairman Muhammad Swazuri emanates from vested interests from individuals in Government. The disagreement is about powers and functions regarding respective institutions. This could be attributed to some grey areas in the land laws which have resulted to blurred separation of powers between the two institutions.
Abigael Mukolwe, Deputy National Land Commissioner. Most public servants who grabbed public land in office are now seeking protection. The land problem in Kenya will never be sorted out if this trend of cushioning perpetrators of land grabbing persists. A few have been forced by courts of law to relinquish land they possess illegally to the rightful owners. Ministry of Lands, Housing and Urban Development seems to be in full charge of the lands issues in Kenya and recently announced that they had revoked title deeds in various Counties. Again the recent revelation by President Uhuru Kenyatta that up 70 per cent (500,000 acres) of land in Lamu County was allocated under dubious and corrupt circumstances is an indica-
A family tilling in their ancentral land (community) yet to be sub-divided amongst them and title deeds issued to individuals. tion that despite the gains made in putting in place legislative framework to govern administration of land in Kenya, more still needs to be done to achieve the anticipated reforms. The National Land Commission has been overshadowed by these two government agencies which the current constitution does not recognise. This is a clear indication that there is a resistance to reforms and majority want to maintain status quo of the old system. According to Abigael Mukolwe, Deputy Land Commissioner, the Constitution recognises the Commission as the only institution mandated to deal with lands matters countrywide. The Ministry of Lands, therefore, ceased to exist including all its operations, functions, staff members and even its assets transferred to the Commission. “The law is very clear about National Land Commission and with the promulgation of the Constitution in 2010 several land issues were automatically converted to Commission,” says Mukolwe. She adds: “However, not all functions were moved until the formation of National Land Commission on 27 February, 2013 that rendered Ministry of Lands irrelevant and fully replaced.” Mukolwe says despite the National Land Commission taking charge to implement land reforms in the country, the Commission is facing a lot of setbacks. First was inadequate funding, which could not even pay its staff. Worse they are unable to travel across the country to settle land disputes. Secondly, entrenched interest by individuals who never want records put straight on how they acquired land remains a big challenge for the National Land Commission. Mukolwe observes that lack of awareness on land laws remains high. She regrets that even highly educated people get manipulated and buy land fraudulently without following due process.
“There is need for the public to read Chapter Five of the Constitution and understand it well. You can also walk in at Ardhi House and consult commissioners for assistance,” advices Mukolwe. She adds: “Otherwise we have been allocated KSh1.7 billion this financial year of which part of it we shall use for creating awareness in the counties.”
Another challenge is the complex legislative framework involving land matters which are being digitised under one roof. Transferring files from hard to soft copy may take time but Mukolwe promises better services are on the way. Although the challenges are many, Mukolwe notes that the National LandCommission is determined to ensure that reforms are on course and will be achieved according to the spirit and letter of the Constitution. “The National Land Commission is determined to ensure land reforms take place but it is not as easy as it may appear. The spirit is there with us and we shall fight on regardless of the obstacles,” says Mukolwe. She adds: “In fact the challenges are making us build a strong institution that will stand the test of time.” The Land Commission is currently developing legislation for various laws under the Land Act and Registration Act, policies, procedures to manage land at the county level. This will hasten settling land disputes especially at the county level. “For example, public land management at the county level will be handled at the county land commissioners and one will not necessary come all the way to Nairobi,” Mukolwe explains. According to Odenda Lumumba, Chief Executive Officer, Kenya Land Alliance, land reforms entail restructuring systems, organising policies and aligning land documents properly in a manner that no Government agency can interfere with.
Lumumba regrets that in Kenya there are organisations that have researched and given tentative reports on land disputes but they have been ignored by the Government. Cases in point include the Ndung’u report as well as the Truth, Justice and Reconciliation Commission (TJRC) report and Parliamentary Committee Reports which are kept in shelves somewhere to gather dust. Lumumba emphasises that unless there is a political will and commitment by Government on land reforms, the land problem in Kenya will not go away. He notes that the manner in which land is used and managed matters a lot in Kenya. “Land utilization in Kenya is a big question and a problem,” says Lumumba. He adds: “People own large tracts of land that is not in use yet others are landless.” According to Lumumba the law is unclear on minimum and maximum acreage an individual should own but it is high time the Commission establishes it as a law. The post-election violence of 20072008 was blamed on historical injustices of which land ranked top.
“The National Land Commission is determined to ensure land reforms take place but it is not as easy as it may appear. The spirit is there with us and we shall fight on regardless of the obstacles,” Abigael Mukulwe