The Status of Land Law Reforms in kenya
Paper presented at the Law Society of Kenya Annual Conference 2011, Leisure Beach Hotel , Mombasa
Table Of Contents
1Background of the Land Law Reforms
1.1Introduction
1.2The National Land Policy
1.3Constitutional Provisions on Land Law Reform
2.Reforming the Legal framework for Land Registration
2.1.Overview of the proposed National Land Commission Bill, 2011
2.2.Overview of the proposed Land Registration Bill, 2011
2.3.Overview of the proposed Land Bill, 2011
2.4.Overview of the proposed the Land and Environment Court Bill, 2011
3. Lessons Learned so far and moving forward
3.1. Stakeholders’ Support and Participation
3.2. High Level Government Support
3.3. Lead Agency as the Champion for Change
3.4. Reform to be guided by an over-all framework or roadmap.
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1Background of the Land Law Reforms
1.1Introduction
Land in Kenya is both a ‘social’ and an economic asset. As an economic asset, land works either as a financial or production tool.[2]Land is a factor of production and is essential for production of agricultural goods and for provision of urban housing services. At the same time, land is an important financial and speculative tool that can be used to hedge against inflation especially in countries where the financial market is not well developed.[3] Financial institutions frequently prefer land as collateral in advancing credit largely because land is immobile, its depreciation over time is small and its value is not eroded by inflation.[4]
Land as a resource is often the most important, if not the only means of livelihood, for many people in Kenya. All activities, be they economic or social, depend largely on land. Land is the foundation of shelter, food, work and indeed a sense of nationhood. As such, rights of land ownership and land use not only involve emotions but also provide important ways through which political influence is practiced. The ‘land question’ or questions concerning issues of land ownership and usage have therefore continued to take centre stage. Multiple laws, some of which are mutually contradictory, characterize Kenya’s land law regime.[5] The application of these laws has resulted in an inefficient land management and administration system.[6]
While it is generally recognised that land laws play a major role in shaping land use pattern in Kenya, knowledge on the nature and extent of this influence is insufficient.[7] Although there have been some attempts to understand this relationship, evidence remains scattered and in most cases conjectural.[8] With an economy heavily reliant on agriculture (as evidenced by its contribution to the GDP, exports and employment) and a significant proportion of the population engaged in land-based economic activities, it is important that this relationship between land laws and land use pattern is mainstreamed in national debate and land policy.[9]
1.2The National Land Policy
The Government of Kenya in 2009 enacted a comprehensive National Land Policy (‘NLP’) to deal with the thorny issue of land in Kenya. The Vision of the NPL is “to guide the country towards efficient, sustainable and equitable use of land for prosperity and posterity.”[10]Its main objectives are to promote and ensure wise use of land, guide allocations, prevent degradation and resolve conflicts.[11] Specifically, the NLP seeks to address issues relating to land administration, access to land, land use planning, restitution of historical injustices, environmental degradation, conflicts, unplanned proliferation of informal urban settlements, outdated legal framework, institutional framework and land information management. The NLP has identified the following peculiar legal issues affecting land in Kenya:
(a)The existence of a dual land regime system that makes land administration complex and ineffective. Besides, the regime tends to discriminate and marginalize some communities and individuals;
(b)Existence of too many statutes on land administration: The policy identifies over 75 statutes dealing with land administration and management and involving various uncoordinated institutions;
(c)The problem of historical land injustices. Numerous persons, groups and entities within the Republic of Kenya claim to be victims of historical injustices concerning land and seek diverse remedies;
(d)Land issues peculiar to some regions. The NLP has highlighted peculiar land issues affecting the Coastal province and the Pastoral communities that require special intervention;
(e)Lack of a computer-based land information system;
(f)Illegal and irregular land allocations and double titling; and
(g)Emerging issues of informal settlements, squatters, part time share ownership, HIV / AIDS and Internally Displaced Persons.
The Ministry of Lands hired a team of consultants to undertake the land law reform project with a view to develop appropriate legal framework for the implementation of the National Land Policy. The team of consultants is specifically required to:-
(a)develop of draft bills for the pieces of legislation contemplated in the NLP namely: the Land Act, the National Land Commission Act and the Land Registration Act.
(b)Identifying statutes touching on land that require amendments so as to harmonize them with the provisions of the NLP;
(c)Develop an overall legal Implementation Plan/Road Map for the long term holistic implementation of the NLP taking into account the key recommendations of the Policy that include:
(i)Repeal and harmonization of existing land laws,
(ii)Legal and institutional mechanisms for review, determination and addressing of historical injustices,
(iii)Framework for identification and verification of communities, groups, individuals and other interest groups that require redress in terms of land rights,
(iv)Framework for addressing special land issues peculiar to Coast Province and other regions; vulnerable groups, minority communities, informal settlements, marginalized communities and internally displaced persons;
(v) Land administration and management institutions and supporting agencies;
(vi) Research requirements, capacity building packages for implementation of the proposed legal framework;
The team is further required to develop linkages and working arrangements with the Technical Working Groupsof the Ministry of Landsandkey stakeholders. Besides, the team is required to develop Terms of Reference for carrying out of the tasks identified in the implementation plan.
1.3Constitutional Provisions on Land Law Reform
The Constitution of Kenya lays down broad land reform principles and overrides the reform prescriptions in the National Land Policy.The key provisions in the Constitution on land reform that requires implementation includes;
(a)The development of land legislation that reflects the principles on land policy outlined in section 60;
(b)The development of land legislation that reflects the land tenure principles outlined from section 62-64;
(c)The development of land legislation that incorporate the constitutional limits on the ownership of land by non-citizens as outlined in section 65;
(d)The development of legislation on land use and property as required by section 66.
(e)The development of legislation to establish the National Land Commission as required by section 67;
(f)The revision, consolidation and rationalization of existing land laws and land use laws as required by section 68 (a) and 68 (b) respectively;
(g)The enactment of legislation matters identified in section 68(c) such;
(i)the minimum and maximum land holding acreages in respect of private land;
(ii) the conversion of land from one category to another;
(iii) the regulation and protection of matrimonial property and in particular the matrimonial home;
(iv)the protection, conservation, access to public land; and
(v) the review of all grants or dispositions of public land to establish their property and legality.
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2.Reforming the Legal framework for Land Registration
2.1.Overview of the proposed National Land Commission Bill, 2011
Objectives
Article 67 of the Constitution establishes the National Land Commission and gives room for parliament to enact legislation to provide for other matters of the Commission.[12] The proposed National Land Commission Bill, 2011 is enacted pursuant to this provision.The Essentially, the Bill seeks to provide for the functions, powers, qualifications of, and appointment procedure for members of the National Land Commission established by Article 67 of the Constitution and for connected purposes.[13]
Composition of the Commission
The bill provides that theCommission shall comprise the chairperson and eight others members[14]. To qualify for appointment of the member of the Commission a person shall be qualified in, and shall have had a distinguished career, and posses a university degree and at least ten years working experience, in any of the following fields[15]:-
(a)land economics or real estate economics;
(b)land survey or geospatial science
(c)land law;
(d)environmental management or natural resources management;
(e)agriculture or animal husbandry;
(f)physical planning;
(g)land administration and management;
(h)gender and human rights; or
(i)infrastructure development.
Besides, to qualify for appointment of the chairperson a person is required to possess a university degree in any of the fields mentioned above and shall have had a distinguished career and at least fifteen years working experience.[16]A person shall not be appointed as chairperson, member or Secretary of the Commission unless thatperson:-
(a)is of irreproachable integrity and moral standing;
(b) is not a beneficiary of an unlawful or unprocedural allocation of public land; and
(c)has not been convicted of an offence involving fraud, dishonesty and abuse of office.
Interview and Short-listing Panel
The Bill sets upan interview and short-listing panel which shall comprise
(a)the Chairperson of the Public Service Commission who shall be the Chairperson of the Panel;
(b)the Principal Secretary in the Ministry responsible for matters relating to lands, or his or her representative appointed in writing;
(c)the Attorney-General, or his or her representative appointed in writing;
(d)a representative nominated by an organization or association of professional societies, appointed by the Cabinet Secretary;
(e)a representative nominated by an organization or association dealing with the rights of women, appointed by the Cabinet Secretary; and
(f)a representative nominated by a forum of organisation or organizations working for public benefit on land matters , appointed by the Cabinet Secretary.
The panel is principally responsible for the identification and recommendation for appointment of the Chairperson and the commissioners[17]. The Bill requires that the President, the National Assembly, the panel and any other person or institution involved in the process of appointment under this Act shall ensure that the process is transparent and that the public is fully informed of any decision taken and the reason for that decision.[18] Besides, the composition of the Commission shall reflect gender and regional balance.[19] The Chairperson and members of the Commission are required to serve on full time basis.[20]
Functions of the Commission
In addition to the functions of the Commission set out in Article 67(2) of the Constitution, the Bill proposes Commission to perform the following other functions:[21]-
(a)advise the National Government and County Governments respectively in the discharge of their functions relating to management of land vested under the Constitution or any Act of Parliament;
(b)advise the National Government and County Governments on the review of statutes, regulations, on the issues of any permits, licences and on other administrative matters relating to land;
(c)advise the National Government and the County Governments on any matter relating to public land;
(d)establish and maintain a register of all public land, private land and community land in Kenya and the transactions thereof;
(e)advise the National Government, the County Governments and communities on means to realise the value of land in terms of economic productivity, equity, environmental sustainability and conservation;
(f)promote and ensure the utilization of public land resources on a sustainable basis and promote orderly and planned development of public land resources;
(g)provide technical services to the National Government and the County Governments on matters relating to the use of land;
(h)provide technical support to the ministry responsible for matters relating to land in the preparation and implementation of a national land use policy and other land related policies;
(i)carry out such activities, and undertake such projects, as may be necessary for the execution of its functions; and
(j)perform such other functions as may be assigned to it by any other Act of Parliament
Powers of the Commission
The bill provides that the Commission shall have powers to:[22]-
(a)assess land use demands from different sectors of the economy and advise the government accordingly;
(b)issue legal instruments authorising the use or other dealing in public land or interest thereon;
(c)in accordance with the law, repossess public land that was acquired through unlawful or unprocedural means;
(d)conduct periodic inspection to determine whether there has occurred encroachment on public land and take action to remove those encroaching;
(e)make regulations on land use planning, assessment of tax on land and premiums on immovable property in areas designated by law; and
(f)shall have all powers necessary or incidental to the performance of its functions under the Constitution, the Act or any other Act of Parliament.
Historical Land Injustices
The Bill requires Cabinet Secretary, on the recommendation of the Commission, and within one year of its appointment, to make rules for the conduct of investigations into historical land injustices as provided for in Article 67(2) (e) of the Constitution.[23]
The enacted rules are required to, among other things, provide for the right of any person to lodge a complaint with the Commission.[24] In redressing land injustice, the Commission is required to make its recommendations for appropriate action and such recommendation shall include:-
(a)recommendation to Parliament and the President regarding the enactment of any necessary legislation;
(b)the taking of any necessary legal proceedings either by the Commission itself or other public authority; or
(c)the settlement of any particular dispute through alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution; or
(d)the award of compensation to such victim as the Commission may deem just, taking into account, among other things, the economic circumstances of the victim and the financial sustainability of any type of compensation.[25]
A recommendation by the Commission is required to be directed to the appropriate public authority and such public authority shall act in accordance with that recommendation.[26]
The bill allows the Commission, for purposes of expediting investigations and redress in respect of present and historical land injustices contemplated in Article 67(2) (e) of the Constitution, to establish special committees comprising members of the Commission to assist the Commission in the discharge of that function.[27]
The special committee) may include any such persons as the Commission may consider necessary for purposes of enabling the Commission reach a just and informed decision in any particular case, except that persons shall not vote on any matter before any committee.[28]
Annual Report
The Bill requires theCommission to cause an annual report to be prepared for each financial year.[29]Theannual report is required to be published in the Gazette and send to the President and to Parliament.[30]The report shall contain, in respect of the year to which it relates; the financial statements of the Commission; and description of the activities of the Commission such as –
(a)status of the investigations into historical land injustices and recommendations made;
(b)the recovery of public land that was unprocedurally or illegally allocated;
(c)the allocation, administration and management of public of land;
(d)administration and management of leasehold interests; and
(e)any other information relating to its functions that the Commission considers necessary.
The Commission is required to publish the report in at least two newspapers with national circulation.
2.2.Overview of the proposed Land Registration Bill, 2011
The objective of this bill is to revise, consolidate and rationalise the law governing the registration of title to land, and for the regulation of dealings in land so registered, and for connected purposes.[31] Specifically, it is intended that the Act shall apply to registration of interests to all public land as declared by Article 62 of the Constitution; and registration of interests to all private land as declared by Article 64 of the Constitution.[32] The bill seeks to achieve the following objectives fundamental policy objectives[33] in land reform:
(a)efficient and orderly management of land records;
(b)security and equitable access of land registration information;
(c)integrity and sanctity of title to land; and
(d) good governance of land information systems.
The following matters proposed to be contained in the bill:-
- Creation of land registration districts;
- Maintenance of land registers;
- Maintenance of the register in electronic form;
- Public access to the integrated electronic registry;
- Appointment of land registration officer;
- Maintenance of geo-referenced data at the land registry;
- Rights of a proprietor and protection of interest conferred by registration;
- Provisions protecting the certificate of title, proprietorship, voluntary transfer of title, and overriding interests in land;
- General and specific principles governing disposition of land ;
- Specific provisions protecting creditors;
- Provisions allowing one to regain possession of land after concluding contract of sale of land, procedure for obtaining order for possession, relief against rescission of contract for the sale of land etc;
- General and specific provisions governing leases. This includes provisions on transfers, assignments and other transactions relating to leases.
- General and specific provisions governing charges;
- Provisions on transmissions and trusts;
- Provisions on restrains on disposition of land;
- Provisions relating to sectional property;
- The jurisdiction of land and environment court and general power to make regulations
The bill proposes to repeal the following legislation
- The Indian Transfer of Property Act 1882;
- Distress for Rent Act, Chapter 302 of the Laws of Kenya;
- Sectional Properties Act, 1987;
- Registered Land Act, Chapter 300 of the Laws of Kenya; and
- The Registration of Titles Act, Chapter 281 of the Laws of Kenya.
2.3.Overview of the proposed Land Bill, 2011
The objective of this bill is to provide for the sustainable administration and management of land and land-based resources and for connected purposes.[34] Specifically, the Bill seeks to provide a comprehensive, harmonized, efficient and effective legal framework for the administration and management of land to achieve the following objectives[35]: