By DANN OKOTH

Is it possible the country could end up with a defective, skewed and Executive-leaning National Land Policy against the letter and spirit of the Constitution?

This is likely to happen now that the processes leading to the formulation of the National Land Policy and National Land Commission have been mired in controversy and apathy as some key stakeholders missed out in the all-important exercise, with teams conducting the process being accused of doing a shoddy job.

Lands Minister James Orengo insists talks on the Bills have been fruitful [Photo/Standard]

And as teams charged with fine-tuning the proposed Land Bills ahead of tabling their final report before Parliament on April 17 get down to work, stakeholders have raised pertinent questions about the process as well as put forward recommendations on clauses they want included even as a new report pocked holes in the Bills.

Storm over process

Grassroots civil society organisations contend there was not enough civic education on the three Land Bills, which made it impossible for majority of poor Kenyans to actively and meaningfully participate in the process.

"We believe this was a breach of the Constitution, which clearly provides for the right to participate in the formulation and implementation of policies and laws," says Elizabeth Wanjiru from Nairobi Peoples settlement Network (NPSN).

The network is a member of a coalition of 10 community groups from various people’s settlements (read slums) which have petitioned the parliamentary committee on Land and natural resources on raft of issues they feel should be included in the Bills.

Concerns have been raised over the manner in which the committee led by Reverend Mutava Musyimi conducted public hearings on the Bills with stakeholders accusing the committee of ineptitude and complacency.

"In one of the public hearings, I was shocked that the committee arrived without copies of the bills and proceeded to tell the villagers to download them from the website," says a senior members of a civil society organisation whom cannot be named because he is still involved in the negotiations.

"How do you say that in a village with no electricity leave alone computers – it just shows the level of unpreparedness and casual manner in which the committee is handling the process," he says. In other places the committee barely spent 15 minutes, leaving the venue of the meeting even before all stakeholders arrived. "Such actions raise the question whether what the committee will present before parliament truly reflects the wishes of the public," he says.

Lands Minister James Orengo said talks between the team of key stakeholders working on the Bills namely the Land Bill, Land Registration Bill and the National Land Commission Bill "had been fruitful," adding that the National Land Commission (NLC) Bill and the Land Registration Bill had been deliberated on and dispensed with.

The team comprises of the Commission on Implementation of the Constitution (CIC) the Kenya Law Reform Commission and all chairs of departmental Parliamentary committees led by the Lands and Natural Resources Committee.

But it is how the teams arrive at their final report and the quality of the report, which would inform the creation of the legislation that has not been sitting well with some stakeholders. Meanwhile, community groups have demanded that the Bills should clearly separate the powers of the Cabinet Secretary and the NLC adding that all powers relating to land issues should be vested on the NLC.

Clause 173 (1) of the proposed bill states "The commission or the Cabinet Secretary, where applicable make (sic) regulations prescribing anything that may be prescribed under this Act". But the groups want a provision that clearly and specifically assigns the functions to designated institution to avoid confusion – either the commission or the Cabinet Secretary.

"Power to make rules and regulations must be as specific as possible to comply with all the constitutional requirements," asserts Loren Juma of Muungano wa wanavijiji, a federation of slum dwellers in Nairobi and Athi River that advocates for land and housing rights of urban slum dwellers.

Separate clause

"There is need to introduce a separate clause that clearly identifies which state organ is responsible for what and how each relate to each other," she adds.

They demand that internally displaced persons and squatters should be clearly defined in the bill and who should be in charge of the settlement programme. "We would prefer that the NLC in conjunction with the county governments be in charge of this programme with poor beneficiaries of the settlements allowed to pay only minimal fees," says Ezekiel Rehema.

They want allocation of public land be made public and clear provisions against forced evictions instituted in the bill. Before any allocation of public land, they demand, notices be given to the public through posters, radio stations, churches and mosques, chief barazas and notice boards in all county offices and strategic points.

"In the case of the nomadic communities the notices should be placed in water points so that as many community members as possible are able to see it," says Abdi Hajir of Garissa Peoples settlement network. Meanwhile, while the Land Bill contains many thorough, well-drafted sections, it also contains numerous provisions that directly contravene the letter and spirit of the Constitution and NLP, a new document says.

The document "Kenya Promara-Legal analysis of Kenya’s land bill and land registration bill" by USAid-Kenya says the Bills do not adequately incorporate the mandates of these seminal documents.

"Given the short time frame under which the government must operate to meet the deadline for adopting land legislation, the reviewers have focused comments on those priority areas of the Land Bill they perceive to be most pressing given the goal of aligning it with the Constitution, NLP, and/or international best practices," it says.

Land Bill

It goes on: "However a theme referenced throughout the Land Bill analysis is that it does not adequately incorporate the full range of rights and authorities that would be expected in national framework legislation on land."

The document cites a raft of gaps in the bill and makes recommendations including revealing that the land policy and tenure system framework as contained in the bill omits fundamental information on the nature of land rights and tenure regimes, including the principles for land governance.

"Preliminary section should be added to the bill that describes the types of land rights and tenure regimes in Kenya and definitive list of land governance principles," it recommends.

It further faults the Land Bill for not reflecting to constitutional principle of devolved government adding that to implement the principle of devolved government articulated in the Constitution and the National Land Policy, the land Bill could be modified to clearly delineate the powers and functions that will be devolved to county and community authorities.