By Gakuu Mathenge

The Cabinet on Thursday approved the Draft National Land Policy, setting the stage for a historic overturning of more than 100 years legacy of colonial structures that govern access, ownership and control of land.

If Parliament passes a sessional paper supporting the new policy, the Law Reform Commission will draft new laws to replace the current ones, and align them with the new policy.

At Independence, in 1963, the British colonial government vested the power to decide who enjoys access, ownership, and control of land in the President. He exercises the power through the Commissioner of Lands.

The Cabinet endorsed the Draft National Land Policy that proposes a radical review of powers vested in the President and Commissioner of Lands, and devolve them into new institutions.

Patriarchal property

The new institutions are the National Land Commission, the District Land Board and Community Land Board. The draft also targets the patriarchal property ownership inherent in the cultural and legal systems. It infuses progressive clauses that put both spouses and children in the centre of land ownership and transactions.

Prime Minister Raila Odinga, Lands Minister James Orengo and PS Dorothy Angote check documents at Ardhi House, Nairobi. [PHOTO: FILE/STANDARD]

The draft has provisions for restitution and compensation to settle historical injustices and claims, an emotive and long drawn matter that has refused to go away for generations. Institutions like churches, Government agencies like the Kenya Wildlife Service and the military are among entities that face restitution claims for using their corporate muscle and proximity to State to secure land without compensation.

The bold step by Government to face up the demons of the land question will not come cheap. Lands Minister James Orengo says it will cost Sh6 billion over six years to implement.

Institution of Surveyors of Kenya Chairman Mwenda Makathimo, however, says the Sh6 billion is a small price to pay.

"The Ministry of Lands collects Sh1 billion in revenue every year. ISK is willing to provide its expertise to Government to expedite the process. With creative harnessing of resources and some help from development partners, the Government can do this in one and half years. Executive and Parliament should not delay in delivering the benefits of a new land policy," he said.

To resolve convoluted land disputes, the Draft Land Policy proposes special land courts — along the lines of specialised commercial and family courts — to speed up justice.

Land grabbers have also been put on notice: "To secure tenure of public land, the Government shall identify and keep inventory of all public land and place it under the National Land Commission to hold in trust for the people of Kenya… repossess any public land acquired irregularly… Establish an appropriate land taxation system to discourage land speculation and mobilise revenue," The draft says in chapter 3.3.

Colonial times

If Parliament passes the sessional paper to make the draft policy official, speculators holding on to vast swathes of idle land will have to release it, or pay tax for keeping it.

For the first time, local communities, especially minorities, will have community land boards. These are local institutions through which they can make decisions affecting land taken away from them during the colonial times.

At independence, this authority was vested in the Central Government, which has remained less sensitive to local needs.

Many communities have resented conversion of their lands into national game parks, military cantonments, public or foreign investment zones, and individual holdings for the rich and powerful, among others, with little recourse for redress. This has generated hostilities among communities and between communities and State or private institutions.

By endorsing the Draft National Land Policy, the Cabinet also seeks to address the grey area of national sovereignty and independence from Britain on the one hand, and retention of 999-year leases granted by the colonial government to British nationals and commercial interests.

The draft sets 99 years as the maximum leasehold period, saying:

"The Government shall ensure the duration of all leases does not exceed 99 years, but nevertheless sufficient enough to encourage long-term investments in land… Government shall establish an appropriate mechanism for the surrender of interests currently held beyond 99 years in exchange for the proposed standard leasehold term."

In the grabbing of land to create the so-called White Highlands, the colonial government confiscated more than nine million hectares from communities in Central, Rift Valley, Western and Eastern Provinces.

At independence, and through a UK government funded willing-seller willing-buyer programme, the settlers surrendered only two million hectares in the 1960s and 1970s, and the rest is still in the hands of original owners and their descendants.

Simmering resentment against this legacy is largely blamed for the cyclic ethnic violence in the Rift Valley and the Coast Province, which has claimed thousands of lives, destroyed billions of shillings in investments, and stoked ethnic tension.

The most drastic impact of the new policy will be felt at the Coast Province, where majority of communities have squatted on their ancestral lands for over a century after Arabs acquired the so-called Ten-mile Coastal Strip.

Land has remained in the hands of the absentee landlords — Arab owners who registered it long before independence but who have since relocated to Middle East.

If Parliament endorses the policy, it will be possible "to repeal the principle of absolute sanctity of the first registration under the registered Land Act," the draft says.

Under colonial laws still applicable today, the principle of "first registration" is inviolable and absolute.