"Harmonising the Surveying Profession in the Eastern and Southern Africa Regions; Enhancing Practitioners Cooperation"

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1 "Harmonising the Surveying Profession in the Eastern and Southern Africa Regions; Enhancing Practitioners Cooperation" LAND GOVERNANCE AND REFORMS ACROSS THE REGION: CHALLENGES OF IMPLEMENTING LAND REFORMS IN KENYA A Paper Prepared for presentation at the ISK REGIONAL CONFERENCE HELD ON 16 TH 18 TH, 2016 AT THE SAFARI PARK HOTEL, NAIROBI - KENYA 1 Presenter: Silas Kinoti Muriithi, DS Commissioner, National Land Commission, Kenya

2 KENYA ON THE AFRICAN MAP Equator divides the country into nearly two equal parts (North South) 2

3 A BRIEF COUNTRY PROFILE Kenya s Production Systems Population: Over 40 million Area: 582,646 Sq. Km Land mass: 97.8% Water Surface: 2.2% High Potential: 20% ASAL: 80% Pop. Density: 2 2,000/Sq. Km 67% of land is unregistered GDP per Capita: USD 1,245 Kenya has one govt of national unity and 47 county govts 3

4 4 LAND GOVERNANCE Administration of land that involves procedures, processes, policies and institutions by which land, property and other natural resources are managed Includes decisions on access to land, land rights, land use, and land development. It is also about managing and reconciling competing claims on land, natural resources (particularly common pool resources (CPRs) and varied interest in land use)

5 LAND REFORM The process of examining and changing laws, regulations and customs relating to land ownership and land tenure (GLTN) and implementation of the same Land reform is a deeply political process with arguments that vary 5 tremendously over time and place.

6 BACKGROUND TO LAND REFORMS IN KENYA Four Epochs: 1. Pre-Colonial Era (Before 1895) 2. Colonial Era ( ) 3. Post-independent Era ( ) 4. The New Dispensation (2010 Date) [Era after the promulgation of the Kenya Constitution, 2010] 6

7 1. PRE-COLONIAL ERA (BEFORE 1895) Land held by communities based on customary rights, norms and traditions. 7

8 8 2. COLONIAL ERA ( ) Objective of the Colonial government was to entrench a dominant settler economy while subjugating the African economy through administrative and legal mechanisms Scheduled Areas High potential areas Reserved for the Europeans as Crown Land/Government land Applicable Law: CLO/GLA Long leases or freehold titles issued Coastal Areas (10-mile coastal strip) Reserved for the Sultan (Arabs) Applicable law: LTA Long leases or freehold titles issued Non-scheduled Areas/ Native Reserves Reserved for the Africans Applicable law: African customary law No titles issued

9 3. POST-INDEPENDENCE ERA ( ) Retrenchment and continuity of the colonial land policies, laws and administrative infrastructure which ensured: The settlers were able to adapt to the changed economic and political situation; The new elite were able to socialize with the colonial political, economic and social patterns; The mobilization of a nationalist base that would 9 be opposed to the continuation of colonial policies after independence was prevented.

10 POST-INDEPENDENCE ERA ( ) CONT D 10 Example: Powers of Commissioner of Lands on Government (andtrust) Lands continued Powers of the Colonial Crown (to administer/allocate Government Land) were transferred to the President and vested with the Commissioner of Lands (GLA) Powers to administer/allocate Trust Land that had been Set-Apart - vested with the Commissioner of Lands Powers to renew or extend leases - vested with the Commissioner of Lands Compulsory land acquisition, land valuation and land registration - vested with the Commissioner of Lands

11 POST-INDEPENDENCE ERA ( ) CONT D 11 Clamour for Land Reforms due to: 1. Rapid population growth in the small farms sector 2. Breakdown in land administration and land delivery procedures 3. Inadequate participation by communities in the governance and management of land and natural resources 4. Rapid urbanization mainly as a result of rural urban migrations 5. A multiplicity of legal regimes; some conflicting

12 POST-INDEPENDENCE ERA ( ) CONT D Clamour for Land Reforms Cont d: 6. Gender discrimination and exclusion of women in land decision making processes 7. Under-utilization and abandonment of agricultural land 8. General disregard for land use planning regulations 9. Unproductive and speculative land hoarding 10.Landlessness 11.Wanton destruction of forests, catchment areas and areas of unique biodiversity 12.Poverty 12

13 13 4. THE NEW DISPENSATION (2010 DATE) Land Policy and Legal Reforms 1. National Land Policy, Kenya Constitution, Environment and Land Court Act, Urban Areas and Cities Act, County Government Act, The Mining Act, 2016

14 14 THE NEW CONSTITUTION (2010 DATE) CONT D Land Policy and Legal Reforms Cont d 7. Five (5) statutes dedicated specifically at addressing the land question in line with the Constitution a) The Land Act, No. 6 of 2012 b) The Land Registration Act, No. 3 of 2012 c) The National Land Commission Act, No. 5 of 2012 d) The Land Laws (Amendments) Act, 2016 e) The Community Land Act, 2016

15 THE NEW CONSTITUTION (2010 DATE) CONT D Some Highlights on Reforms 1. Every person (Kenyan) has a right, either individually, or in association with others, to acquire and own property of any description in any part of Kenya (Art. 40(1)) 2. Compensation to be paid to occupants in good faith of land acquired, who may not hold title to land (Art. 40(4)) 3. Land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable (Article 60(1)) 15

16 THE NEW CONSTITUTION (2010 DATE) CONT D Some Highlights on Reforms (Cont d) 4. Elimination of gender discrimination in law, customs and practice related to land and property 60(1)(f)) (Art. 5. Recognition of local communities dispute resolution mechanisms [ADR/TDR) (Art. 60(1)(g) & 67(2)(f))] 6. Recognition of Community land, which shall vest and be held by the identified communities (Art. 6(2) & (63)) 7. Landholding by non-kenya citizens limited to a maximum of 99 years lease term (Art. 65) 16

17 THE NEW CONSTITUTION (2010 DATE) CONT D Some Highlights on Reforms (Cont d) 8. Public land vested with the national and county governments shall be administered and managed on their behalf by the National Land Commission [Art. 62(2), (3) & 67(2)(a)] 9. Investigation and resolution of Historical land injustices (Art. 67(2)(e)) 10. Review of all grants and dispositions of public land to establish their propriety and legality (Art. 68(c)(v)) 17

18 CHALLENGES OF IMPLEMENTING LAND REFORMS Constitutional and Legal Challenges 2. Administrative Challenges 3. Financial Challenges 4. Technical Challenges 5. Lack of Public Awareness/Ignorance 6. Cultural andtraditional Challenges 7. Lack of Political Goodwill 8. Corruption 9. Poor/Missing Records on Land 10.Land Cartels

19 CHALLENGES OF IMPLEMENTING LAND REFORMS CONT D Constitutional and Legal Challenges a) Art. 40(4): Occupants in good faith of land acquired who may not have title to land should be compensated Challenge: No law has defined occupants in good faith? So who are they? (Lamu cases) b) Art. 40(3)(b)(i): Prompt payment in full of just compensation Challenge: Does prompt mean immediate? Does just mean market value?

20 CHALLENGES OF IMPLEMENTING LAND REFORMS CONT D Constitutional and Legal Challenges Cont d c) Speculative LandValues. Challenge: How would you cushion against speculative land values (prio to compulsory acquisitions? Would a Land Value Index (LVI) suffice? d) Art. 66(3): Investments in property shall benefit local communities and their economies Challenge: What does investments in property really mean? What is the measure of benefit to the local community? Is a CSR adequate? Demands by local communities/county governments has driven investors away (eg. KinagopWind Power)

21 CHALLENGES OF IMPLEMENTING LAND REFORMS CONT D 1. Constitutional and Legal Challenges Cont d e) Public purpose projects (eg SGR) vis-à-vis public land of public interest (eg. Nairobi National Park). Challenge: Which of the two overrides the other? 21 f) Land Act: Definition of settlement of squatters, the poor and landless, and IDPs as public purpose vis-à-vis preemptive rights upon expiry of lease. Challenge: County governments have declined to approve renewal of leases, and instead preferred to acquire the lands to settle squatters. Thus denying one person and giving same land to the other

22 CHALLENGES OF IMPLEMENTING LAND REFORMS CONT D 1. Constitutional and Legal Challenges Cont d g) Land Act sec 134(7): Land acquired in a settlement scheme shall not be transferred or subdivided except through a process of succession Challenge: Persons in settlement schemes may end up being confined to a static or depreciating land market economy, and subjected to a potential social conflict in future? 22

23 CHALLENGES OF IMPLEMENTING LAND REFORMS CONT D Constitutional and Legal Challenges Cont d h) Land Act sec 159: Maximum and Minimum Land holding by private entities vis-à-vis sustainable production Challenge: Redistribution of large scale land holding (LSLH) may lead to reduced production in future. Is it possible for profits from LSLH to be used to benefit the landless without the need for redistribution? Eg. Benefit sharing like in the mining Act? i) Land accessibility/acquisition/allocation for major projects of public interest by private investors (eg. Amu Power, Kenwind, LTWP). Challenge: Is compulsory acquisition legal for such land acquisitions?

24 CHALLENGES OF IMPLEMENTING LAND REFORMS CONT D 1. Constitutional and Legal Challenges Cont d j) Land Act sec 134 (4) as amended by the Land Laws (Amendments) Act, 2016: Sub-County Selection Committee to identify settlement scheme beneficiaries shall consist of eight (8) members. Four (4) of the eight members are to be nominated by the area member of the National Assembly (MP), with one of the nominees being the chairman. Challenge: The settlement scheme is at risk of being a political tool. Secondly, a settlement scheme is at risk of stalling since settlement schemes programmes are not bound by the parliamentary period. 24

25 CHALLENGES OF IMPLEMENTING LAND REFORMS CONT D 1. Constitutional and Legal Challenges Cont d k) Land Laws (Amendments) Act, 2016 Sec 12A: Controlled Land. This is land within the 1 st and 2 nd rows from the HWM of the Indian Ocean, and land within 25Km of inland boundaries of Kenya. Challenge: No transactions with an ineligible person (foreigner) without prio written approval of the CS. (i) How would this requirement impact on investments at the coast? (ii) Is there a limit to the width of the 1 st and 2 nd rows? (iii) All the Kenya border towns would fall within the Controlled Areas ; would the CS approval be viewed by the Governors affected as national government interference with the counties? 25

26 CHALLENGES OF IMPLEMENTING LAND REFORMS CONT D Administrative Challenges a) Resistance to Change (letting - go) b) Interpretation, understanding and operationalization of functions provided by law to various institutions c) Transfer of staff whose functions have been transferred d) Transfer of assets e) Capacity building (staff, offices, transport, equipment, setting up systems)

27 CHALLENGES OF IMPLEMENTING LAND REFORMS CONT D 3. Financial Challenges a) Inadequate finances b) Setting up systems of financial operations c) Lobbying and convincing treasury and parliament to approve budgets d) Lobbying and convincing development partners for financial support 27

28 CHALLENGES OF IMPLEMENTING LAND REFORMS CONT D 4. Technical Challenges a) Technical capacity both at the headquarters and at the counties b) Land Use planning throughout the country c) Survey (Geo-referencing all land parcels in Kenya) d) Establishment of the NLIMS both at the headquarters and counties e) Ensuring all unregistered land is registered f) Resolving Historical land injustices g) Reviewing grants and dispositions to establish their propriety 28

29 CHALLENGES OF IMPLEMENTING LAND REFORMS CONT D 5. Lack of Public Awareness/Ignorance a) Challenges of a fairly ignorant society in matters land (both the elite and the illiterate) b) High/unrealistic expectations from the public 29

30 CHALLENGES OF IMPLEMENTING LAND REFORMS CONT D 6. Corruption Greatest contribution to corruption in the land sector include; a) Missing Records/Poor Record keeping b) Land Cartels 30

31 CONCLUSION Land Reforms are fairly slow and painful. But it is the sure route to success in the land sector. The Reforms should therefore be supported by all and sundry. 31

32 32 RECOMMENDATIONS 1. Need for unwavering Political Goodwill a) Adequate Financial Support b) Adequate Administrative Support 2. Prioritize a) Integrated Land Use Planning b) Integrated National Land Information Management System (NLIMS) c) The National Spatial Data Infrastructure (NSDI)

33 33 THE END

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