Pending land bills contravene Kenya’s public interest

NAIROBI: It is amazing that we expect the wrangling between the National Land Commission and the Ministry of Lands, Housing and Urban Planning officials to be cured by outright legislation as contemplated in the pending land Bills before Parliament.

It is important to situate the disagreements between the two Government institutions within the National Land Policy of 2009 and the 2010 Constitution.

The pending amendments only intend to water down the seriousness with which Kenyans resolved to tackle the perpetual land problems.

A little background is necessary. During the coalition Government of President Mwai Kibaki and Premier Raila Odinga, then Minister for Lands James Orengo formed the first task force to prepare a Community Land Bill. It was also supposed to prepare an Evictions and Resettlements Bill. Mr Orengo thereafter formed another task force to relook and rework the numerous land laws sprawled into many diverse, contradictory and duplicitous statutes and regulations.

The third initiative was formed by the National Land Commission to prepare a Draft Bill on historical land injustices. However, when Lands Cabinet Secretary Charity Ngilu was charged in court with alleged corruption-related crimes, Information Cabinet Secretary Fred Matiang’i was appointed to act in her stead. He subsequently formed another task force to prepare a Draft Bill on Maximum and Minimum Land acreages for ownership in Kenya.

As expected, all the four bills found their way to the Cabinet Secretary, but only three were approved for publication and subsequent debate in Parliament.

The three were the Community Land Bill, the Physical and Spatial Planning Bill, both dated August 11, 2015, and the Land Laws (amendment) Bill, dated August 18, 2015.

The key principles in the Historical Land Injustices Bill together with the pillars of the Evictions/Resettlements Draft Bill were presumably amalgamated into an 88-page Omnibus Bill. It also purportedly included key tenets of the Draft Bill on Maximum and Minimum Land Acreages.

However, this Omnibus bill has attracted immediate and fierce criticism from major stakeholders and experts on land matters.

The most crucial bone of contention is the brazen attempt to overthrow the National Land Commission through the backdoor by reversing crucial functions and powers vested upon it by the National Land Policy of 2009, the Constitution and the statutes.

First, the former Settlement Fund Trustee, now renamed the Land Settlement Fund, supposed to control billions of shillings, has been grabbed from the National Land Commission and taken back to the ministry.

It therefore means the commission will be a mere spectator as far as purchase of land meant for resettlement is undertaken. Similarly, the commission will not be involved in the public infrastructure programmes, which should be its core mandate.

Equally puzzling is the attempt to reverse the commission’s powers to establish, maintain and manage the land information systems, which had been removed from the ministry to help fight corruption.

But of fundamental concern is the scrapping of the County Land Management Boards that the National Land Commission has spent the better part of the last year establishing systematically in every county.

Furthermore, the national land commissioners will be vetted and recruited by the Public Service Commission. This means one set of commissioners will be expected to hire and fire another set of commissioners. This directly contravenes the spirit and letter of the Constitution, enacted to liberate and entrench institutions, as critical vanguards for individual liberties, rights and freedoms.

But one of the most curious omissions of the Omnibus Bill is a blatant attempt not to address historical land injustices. This is despite the fact that even though an impression was created that the historical land injustices draft bill had been incorporated into it, there is a glaring absence of a historical injustice legal framework in the omnibus bill.

It is equally curious that the Land Use Planning Bill (2015), which was developed by the National Land Commission, was discarded and yet the Physical and Spatial Planning Bill, which was the brainchild of the ministry’s bureaucrats was adopted wholesome and published for debate.

That notwithstanding, the Community Land Bill 2015 doesn’t create a framework upon which communities and their representatives can engage and participate in decision–making processes.

 Mr Mohamud comments on topical issues