Proposed law to take away court's powers in stopping State projects

A proposed law blocks courts from giving orders to halt multi-billion-shilling Government infrastructural projects over land compensation disputes.

Under the legislation, projects that are the subject of land compensation disputes cannot be stopped through court injunctions, which has become the norm in recent years.

“Upon the formal taking of possession of land by the National Land Commission, no order stopping any development on the land may be issued by any court if public funds have already been committed,” reads the Land Value Index Laws (Amendment) Bill,2016 in part.

The government-sponsored legislation is to be introduced in the National Assembly this afternoon. The key objective of the Bill is to regulate the process of compulsory acquisition of land to successfully implement public infrastructural projects under Vision 2030.

The proposed law instead vests the power to make decisions on land compensation on a proposed Land Acquisition Tribunal, which will hear and determine appeals on matters relating to compulsory acquisition of land.

In July, the High Court in Mombasa halted works through extended orders barring construction of the Standard Gauge Railway (SGR) over a compensation dispute with African Gas and Oil Company over a Sh500 million land compensation row.

A dispute over land ownership has also derailed construction of a Sh15 billion wind power project in Kinangop, Nyandarua County.

In 2014, the High Court stopped the construction of the Lamu Port-Southern Sudan-Ethiopia Transport (Lapsset) project following a suit by landowners.

Other provisions in the Bill include a clause that will make it difficult for wheeler-dealers and land speculators to get insider information on land earmarked for such mega projects.

Crucial information

Wheeler-dealers, armed with crucial information often provided by insiders, buy such land from unsuspecting owners with the intention of making a kill out of government compensation.

“A person, who being a public officer divulges any information on an intended land acquisition to any person before publication of the notice of intention to acquire the land with an intention to influence any form of transaction for purposes of conferring any benefit as a result of the acquisition, commits an offence and upon conviction is liable to a fine not exceeding Sh500,000 or to imprisonment not exceeding three months or both,” says the proposed law.

Even if appeals from the tribunal end up in courts, any orders can only be made on “questions of law.”

The proposed law effectively clips the wings of the Land and Environmental Court, which currently has original and appellate jurisdiction to hear and determine all disputes relating to public, private and community land and contracts.

The Bill vests the original jurisdiction on the tribunal, whose five members shall be appointed by the Judicial Service Commission.

It further proposes alternative means of compensation other than monetary for land compulsorily acquired by the government for large infrastructural development.

“If no alternative land is available, compensation may take the form of monetary payment, issuance of government bond or equity shares in a government owned entity,” says the proposed law.