Land

by Samuel Marete

Land is one of the most emotive issues in Kenya at this time. We are obsessed (dangerously) with “who can live where”. The proposed Constitution recognizes this and has proposed several measures for the proper management of land as a resource in the country.

The protection of the right to own property (Article 40)

As we saw earlier, Article 40 allows any citizen to own property anywhere in Kenya. It further says that Parliament cannot enact a law to arbitrarily deprive a person of property. The State cannot deprive a person of property of any description unless that property has been legally acquired (by the State), or the deprivation is for a public purpose or in the public interest. Where the latter is the case, the person so deprived of property must be promptly and justly compensated in full, and the person so deprived is allowed to contest the deprivation in a court of law.

However, the right to own property in general, and the specific right to be entitled to the protection of that right by the State (and, by extension, compensation in the event of deprivation of property) does not extend to any property found to have been unlawfully acquired (Article 40 (6)).

This clause allows the State to be involved repossess illegally acquired land without compensating the owners of that land, although there is a caveat under Article 40 (4), which states that “Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may not hold title to the land.” This rather grey area will probably result in many cases being submitted to the Environment and Lands Court (see previous article).

Principles of land policy (Article 60)

Article 60 says that the principles listed below are to be implemented through a national land policy developed and reviewed regularly by the national government and through legislation.

1. Equitable access to land;
2. Security of land rights;
3. Sustainable and productive management of land resources;
4. Transparent and cost effective administration of land;
5. Sound conservation and protection of ecologically sensitive areas;
6. Elimination of gender discrimination in law, customs and practices related to land and property in land; and
7. Encouragement of communities to settle land disputes through recognised local community initiatives consistent with this Constitution.

Types of land (Article 61)

The proposed Constitution recognizes 3 types of land:

1. Public land
2. Community land
3. Private land

Public land (Article 62)

Public land is to be held in trust for the people of Kenya by either the national government or by counties, as follows:

No.	National land	County land
1.	All minerals and mineral oils as defined by law.	Land which at the effective date was unalienated government land (i.e. land that has not been leased or allocated) as defined by an Act of Parliament in force at the effective date.
2.	Government forests other than lawfully held, managed or used by specific communities as community forests, grazing areas or shrines, government game reserves, water catchment areas, national parks, government animal sanctuaries, and specially protected areas.	Land lawfully held, used or occupied by any State organ, except any such land that is occupied by the State organ as lessee under a private lease. This does not include land held, used or occupied by a national State organ.
3.	All roads and thoroughfares provided for by an Act of Parliament.	Land transferred to the State by way of sale, reversion or surrender.
4.	All rivers, lakes and other water bodies as defined by an Act of Parliament.	Land in respect of which no individual or community ownership can be established by any legal process.
5.	The territorial sea, the exclusive economic zone and the sea bed.	Land in respect of which no heir can be identified by any legal process.
6.	The continental shelf.
7.	All land between the high and low water marks.
8.	Any land not classified as private or community land under this Constitution.

From this it can be seen that the bulk of public land will fall to counties. All public land however, whether held in trust by the national government or by counties, is to be administered by the National Land Commission on behalf of either the national government or by the particular county in question.

Community land (Article 63)

Community land is to be held by communities identified on the basis of ethnicity, culture or similar community of interest. Community land is not to be disposed of or otherwise used except in terms of legislation specifying the nature and extent of the rights of members of each community individually and collectively (most likely as specified by an Act of Parliament). It consists of:

1. Land lawfully registered in the name of group representatives under the provisions of any law;
2. Land lawfully transferred to a specific community by any process of law;
3. Any other land declared to be community land by an Act of Parliament; and
4. Land that is—
   1. Lawfully held, managed or used by specific communities as community forests, grazing areas or shrines;
   2. Ancestral lands and lands traditionally occupied by hunter-gatherer communities; or
   3. Lawfully held as trust land by the county governments,

Private land (Article 64)

Private land consists of —

1. Registered land held by any person under any freehold tenure;
2. Land held by any person under leasehold tenure; and
3. Any other land declared private land under an Act of Parliament.

Holding of land by non-citizens (Article 65)

A person who is not a citizen may hold land on the basis of leasehold tenure only of a maximum tenure of 99. Any existing leases providing tenures exceeding 99 years are to be regarded as conferring 99 year leasehold interests only.

With respect to companies, companies are to be regarded as citizens only if that company is wholly owned by one or more citizens.

Any property held in trust is to be regarded as being held by a citizen only if all of the beneficial interest of that trust is held by persons who are citizens.

The National Land Commission (Article 67)

The functions of the National Land Commission are:

1. To manage public land on behalf of the national and county governments;
2. To recommend a national land policy to the national government;
3. To advise the national government on a comprehensive programme for the registration of title in land throughout Kenya;
4. To conduct research related to land and the use of natural resources, and make recommendations to appropriate authorities;
5. To initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress;
6. To encourage the application of traditional dispute resolution mechanisms in land conflicts;
7. To assess tax on land and premiums on immovable property in any area designated by law;
8. To monitor and have oversight responsibilities over land use planning throughout the country; and
9. Any other functions prescribed by national legislation.

Additional legislation (Article 68)

Parliament is to:

1. Revise, consolidate and rationalise existing land laws
2. Revise sectoral land use laws in accordance with the principles set out above;
3. Enact legislation—
   1. To prescribe minimum and maximum land holding acreages in respect of private land (presumably the minimum is to prevent over-fragmentation of land, and the maximum is to prevent large, arable tracts of land lying idle);
   2. To regulate the manner in which any land may be converted from one category to another;
   3. To regulate the recognition and protection of matrimonial property and in particular the matrimonial home during and on the termination of marriage;
   4. To protect, conserve and provide access to all public land;
   5. To enable the review of all grants or dispositions of public land to establish their propriety or legality;
   6. To protect the dependants of deceased persons holding interests in any land, including the interests of spouses in actual occupation of land; and
   7. To provide for any other matter necessary to give effect to the provisions of this Chapter.

Conclusion

The Committee of Experts (COE) had the right idea in mind when it placed  matters concerning land under the care of bodies that would (hopefully) be inured from political interference, particularly the National Land Commission and the “Environmental and Lands Court” as I call it. However, to the COE’s eternal shame, there are at least two major problems with the provisions concerning the National Land Commission as it stands now:

1. The issue of who may be appointed to this very important Commission, and the manner of their appointment, is also left to the Public Service Commission.
2. The structure of the National Land Commission, which must administer land in each of the 47 counties nationwide, as well as land held by the national government, is left to the Public Service Commission.

It is to be hoped that the Public Service Commission will do a responsible job of putting the right structures and the right individuals within said structures to ensure the National Lands Commission functions as envisaged when the Constitution was drafted.

Next: Independent Commissions

Posted by Mzalendo Editor on Aug. 2, 2010

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