By Harold Ayodo
Expectations are high that the new government will implement sweeping land reforms in line with the Constitution.
Anticipations are also high that the recent enactment of the Land Act, Land Registration Act and National Land Commission Act would bring about the much-desired reforms.
It is also expected that the much-awaited Housing Bill and a law to guide vast community land countrywide will see the light of day.
Constitutionally, the Community Land Act should be passed within five years, and a task force to draft the bill is moving around the country seeking views from stakeholders.
According to Gazette Notice No 13,557 members of the taskforce are Dr Elizabeth Nzioki (chairperson), Prof Patricia Kameri-Mbote and Prof Simiyu Wandiba.
Others are Dr Winnie Mwangi, Dr Collins Odote, Dr Korir Singoei, Odindo Opiata, Ibrahim Mwathane, Peter Musyimi, Faith Waigwa, Soipan Tuya and Harry Frederick Mugo, Jane Mumbi Weru, Erastus Lokaale, Amina Hashi, Richard Lelemusi, Mercy Njamwea, Irene Mutai, Cesare Mbaria and VK Liyai.
The gazette notice names Priscilla Nyaga, Bernard Leitich and Vane Akama as joint secretaries.
The task force has held consultative meetings in Lamu, Garissa, Mombasa, Isiolo, Lodwar, Turkana, Kisumu and Siaya.
Glaring gaps in some provisions of the new laws expected to introduce sweeping reforms came to the fore during recent seminars on continuous legal education on new land laws.
For instance, legal experts concur that implementation would not be a walk in the park even after passing of the new land laws.
For starters, many contend that the National Land Commission (NLC) that was highly expected to solve historical land injustices and manage land is a toothless body — something the NLC chair Muhammad Swazuri has dismissed.
Commission powers
Powers of the commission as detailed in the Constitution and NLC Act are to advise, recommend and investigate matters on land.
Consequently, lawyers concur that for the commission to have express implementation powers, articles of the Constitution on land must be amended.
Lawyer Ambrose Rachier who was part of the experts who drafted the three new land laws admits that it would be a herculean task for NLC.
“We could not give the commission more powers when drafting the NLC Act as its roles, functions and powers were already stipulated in the Constitution,” Rachier says.
He adds that a Statute (Act of Parliament) cannot override the Constitution. Therefore, expected implementation powers of the commission are non-existent.
Paul Ndung’u who chaired the Commission of Inquiry into Illegal and Irregular Allocations of Public Land, says the Government must roll up its sleeves to implement reforms.
Ndung’u says that attempts to address land problems, brought about partly by colonialism and multiplicity of laws, have not been a walk in the park since independence.
“There have been half-hearted attempts including establishment of task forces and commissions,” Ndung’u says.
The commissions of inquiry include the Parliamentary Committee on the Coastal Land Problems in 1976 chaired by Mwangi Mathai. Others are the Njonjo Land Commission on the Land Law System of Kenya (1999 to 2002), chaired by Charles Njonjo and Commission on Illegal and Irregular Allocation of Public Land 2003/2004 (popularly known as the Ndung’u Land Commission).
“Commissions and committees on land made more or less similar recommendations that may ensure land reforms and solving of historical land disputes,” Ndung’u says.
According to Ndung’u, the chapter on land found its way in the Constitution following some of the said recommendations.
“Article 68 of the Constitution requires Parliament to revise, consolidate and rationalise land laws,” he says.
Constitutional schedule
Under the Fifth Schedule of the Constitution, Parliament was also to enact a law to establish an Environment and Land Court within one year.
The same schedule required Parliament to enact the legislation on land under Article 68 within 18 months of the promulgation of the Constitution.
This meant that laws to revise consolidate and rationalise all the colonial laws had to be in place by the end of February last year.
“Constitutional deadlines led to the establishment of the Environment and Land Court Act 2011, NLC Act 2012, Land Act 2012 and Land Registration Act 2012”, says Ndung’u.
There are also concerns on gender provisions as detailed in the new Land Act, land Registration Act and the NLC Act. National Gender and Equality Commission Chairperson Winfred Lichuma says she is concerned about some aspects of the much anticipated land reforms.
Gender consideration
“What is the gender consideration in development of the National Land Policy?” poses Lichuma.
She says there were other concerns involving property rights of women and children including how to make traditional dispute resolution gender responsive.
“What rights of women and children are protected in the land laws? How would you deal with the vulnerability of women in land management?” asks Lichuma.
She also expresses concerns on how the National Land Commission will help women and the marginalised groups realise their constitutional mandate in ownership of property.
Other areas, which Lichuma says had question marks included the cultural issues that continue to prevent women from accessing, utilisation and controlling land.
Lichuma said the laws do not expressly outline how matrimonial property has been protected in cases where courts refuse to acknowledge non-financial contribution of a woman during divorce proceedings.
