By Harold Ayodo
Multiple colonial land laws led to the massive illegal and irregular allocation of land countrywide.
Paul Ndung’u who chaired the Commission of Inquiry into Illegal and Irregular Allocations of Public Land attributes some of the laws to massive land grabbing.
Ndung’u, who was also a member of the Njonjo Land Commission on the Land Law System of Kenya, says the laws also led to historical injustices in parts of the country.
“Current emotive land disputes started before independence and magnified after 1963 with adoption of colonial land laws,” Ndung’u says.
crown land ordnance
He says that the Crown Land Ordinances of 1902 and 1915 empowered the governor to manage and administer land.
“They authorised the governor to allocate land to whoever he wished and on such terms and conditions that he deemed fit,” he says.
Ndung’u, who recently presented a paper on historical land injustices at the continuing legal education seminar in Eldoret, said governors wielded immense powers.
The legal research paper was titled Introduction, Historical background and Constitutional Provisions.
“Up to 1951, land allocation was done through auctions to the highest bidder, which was infiltrated by cartels of the wealthy,” he says.
Ndung’u, a lawyer by profession, says that the cartels ensured that few ordinary people benefitted from allocations of public land.
Allocations via public auctions were later replaced by a new method through the district committees.
The Crown Lands Ordinances contained one significant proviso, which empowered the governor to have land allocated directly to him.
“Some parcels of land were not auctioned or allocated through the district committees, but went directly to the governor,” Ndung’u says.
He says that the powers were entailed in Section 12 of the Crown lands Ordinance, which stated: “Leases of town plots shall, unless the Governor otherwise orders in any particular case or cases, be sold by auction”
A similar proviso in relation to agricultural land was contained in Section 20 of the Ordinance.
The original objective of the proviso was to enable the Executive to directly allocate the odd property if it was in the national interest do so.
“The extensive abuse of the two provisos that led to massive illegal and irregular allocations of thousands of acres of land after independence,” says Ndung’u.
The massive grabbing of land during the 1990s led to the establishment of the Commission of Inquiry into Illegal and Irregular Allocations of Public Land in 2003.
Ndung’u land commission
The commission (popularly known as the Ndung’u Land Commission) made recommendations including formulation of a comprehensive national land policy.
Other recommendations were to anchor land management in the Constitution and harmonisation of land legislation.
It also proposed the establishment of a land division of the High Court and a National Land Commission. Some of the recommendations have since been implemented.
Lawyer Ambrose Rachier says that the three new land laws sought to harmonise the more than 70 colonial laws on land. “The Land Act, Land Registration Act and national Land Commission Act sought to institute land reforms,” Rachier says.
Rachier, who was among the drafters of the new land laws, says that the Constitution had already established the National Land Commission with specified functions.
“The Constitution limited powers of the National Land Commission to merely advise, recommend and investigate matters on land,” he says.
According to Ndung’u, earlier attempts by the Government to address the emotive land disputes included establishing of commissions.
For instance, the Parliamentary Committee on the Coastal Land Problems in 1976 chaired by Hon Mwangi Mathai.
“The Njonjo Land Commission on the Land Law System of Kenya was established and worked between1999 to 2002. Charles Njonjo was its chairman,” Ndung’u says.
The Ndung’u Land Commission on Illegal and Irregular Allocation of Public Land that exposed massive grabbing of land worked between 2003 and 2004. The three commissions and committees made more or less similar recommendations.
They included the need for a comprehensive national land policy and importance of anchoring land management in the Constitution.
proposal
They also proposed to place land management and administration under a national land commission or authority established by the Constitution.
Legal scholars are now saying that a Community Land Act should be enacted to protect threatened communities that have been victims of land grabbing.
Mount Kenya University law lecturer Collins Odongo, says that the legislation would protect the 70 per cent of unadjudicated land countrywide.
“Majority of the unadjudicated land countrywide are community land that must be protected from the grabbing experienced in the past,” says Odongo.
Currently, the Task Force on Community Land and Evictions and Resettlement Bills is collecting views towards drafting the Community Land Bill. Members of the taskforce were appointed via Gazette Notice No 13,557 of September 19, 2012. Article 63 of the Constitution provides for community land.
“The Community Land Act, if passed, would lay down provisions on the institution to protect community land,” Odongo says.
Lawyer Benson Ochieng’ says community land consisted land lawfully registered in the name of group representatives.
“It also entails those transferred to a specific community by any process of law or any land declared to be community land by an Act of Parliament,” says Ochieng’.
