Kenya community land dealings illegal

By HAROLD AYODO

Concerns are increasing over dealings on community land in parts of the country contrary to the Constitution.

The National Land Commission (NLC) and former Commissioner of Lands (now Lands Secretary) Zablon Mabea are setting aside community land in breach of Article 63(4) of the Constitution.

“Community land shall not be disposed of or otherwise used except in terms of legislation specifying the nature and extent of rights of each community individually and collectively,” says Article 63(4) of the supreme law.

However, the NLC watches as the Constitution is perpetually breached by setting aside of community land to private individuals and institutions. For instance, in June the Commissioner for Lands signed Gazette Notice No 8658 setting apart 218 acres from community land in Tana River County.

In July, NLC chairman Muhammad Swazuri signed Gazette Notice No 10164 setting aside 200 acres of community land from counties in Coast region.

Similar Gazette notices recently published setting aside several acres of community land includes Volume CXV-N0.39 dated March 8, 2013, Volume CXV-No.96 (June 28, 2013).

Others are Volume CXV-No.109 (July 26, 2013), Volume CXV-No.112 (August 2, 2013) and Volume CXV-No. 112 (August 2, 2013)

Consequently, there are fears of keeping with previous practice where public and community land was allocated to private individuals and institutions without consultation with communities.

Concerned legal experts are raising the red flag that the outlawed dealings on community land continue even before enacting of the Community Land Act that provide for its use. The law is still under preparation and the NLC is part of the task force drafting it.

Other questions that concern land law professionals is why the Commissioner of Lands signs off Gazette Notices even after the Constitution abolished the office.

More intriguing is the NLC chairman is dealing with community land purportedly under the Trust Land Act.

Constitutionally, no community land can be disposed of unless in terms of legislation specifying the nature and extent of the rights of each community individually and collectively.

No basis in law

Moreover, Part IV of the Trust Land Act under which the purported setting aside of community land is being done ceased after the Constitution was passed three years ago.

The provision of the Trust Land Act was based on Section 118 of the former Constitution and under the Transitional and Consequential Provisions (Article 262) of the Constitution.

It does not fall within the articles under which some sections of the former Constitution can continue to apply. It is, therefore, only a matter of time before the former commissioner of Lands and the chairman of the National Land Commission are taken to court for being in breach of the Constitution.

The series of events are among reasons land pundits are concerned that the commission is on a wrong course, seven months after assumption of office. For instance, the NLC is yet to develop a guiding strategic plan and has abdicated from providing policy leadership and direction.

Vacuum

Even as the Government continues to publish notices from the Commissioner of Lands, conveyancers are concerned that there seems to be a vacuum in the administration of land even after the recent enactment of a set of new laws — The Land Act, Land Registration Act and the National Land Commission Act.

The confusion and ironies in land law and conveyance started after Parliament passed and gazetted the National Land Commission Act Land Act and Land Registration Act on May 2, last year.

Legally, the new laws abolished traditional property legislations like the Indian Transfer of Property Act (1882) and the Government Lands Act. Others included the Registered Land Act, Land Titles Act and the Registration of Titles Act.

— The writer is an advocate of the High Court