Re-define land law to reduce disputes

By Pravin Bowry

Land; land which historically the colonialists made theirs with a stroke of a pen, land, for which Kenyans waged a war for their independence, land, for which freedom fighters with the stature of Dedan Kimathi sacrificed their lives, and land which after Independence in 1963, became the source of immense wealth, sometimes ill-gotten.

Talk of land, and Kenyans will passionately sacrifice, fight to the hilt and engage in epic battles in court, not to mention other unconventional means they may take to safeguard land as witnessed by our history, old and recent.

Whereto now in matters of land under the new constitutional dispensation?

Kenyans must realise that in relation to land law and dispute resolution on conflicts of land, its usage and management, the law has been changed forever.

The economic and political future of the country will be greatly influenced by how the new constitutional provisions are moulded into meaningful change.

The constitution has a separate chapter on Land and Environment, which spells the principles of land policy. Land is classified as "public’ "community" or "private" and all carry elaborate definitions and resultant consequences rights and restrictions and limitations.

Public land vests in the county government in trust for the people resident in the country and is to be administered by the National Land Commission.

Pandora’s box

Community land vests in and will be held by the communities identified on the basis of ethnicity, culture or similar community interest and private land is land of freehold or leasehold tenure.

The National Land Commission will be the de facto manager of all public land and the policy maker and the enforcement agency of the National Governmental Policy. It can investigate present or past historical land injustices, a provision which will open a Pandora’s box.

Parliament under Article 68 is mandated to legislate on all matters of land and revise, consolidate and rationalise existing laws but it must put in place legislation to enable "the review of all grants or disposition of public land to establish their propriety or legality."

Parliament will be required to provide minimum and maximum land holding acreages in respect of private land and to regulate the manner in which any land may be converted from one category to another.

Laws touching on protection, conservation and access of public lands and immovable matrimonial properties will be re-enacted.

Before 26th August 2011, over 50 existing statutes will have to be amended, in harmony with the constitution. Is this a utopian dream and will our partisan parliamentarians make this a reality?

To those in the know, these are mammoth challenges.

The amendment and synchronising the laws will present many legal and logistic hurdles.

The beneficiaries of ill-gotten or fraudulent or manipulative allocations have no protection.

Fundamental right to protection of property is given only to lawfully acquired lands.

Allocations of all public lands to private Kenyans, therefore, will come under scrutiny.

Ndung’u Report

Article 40(6) of the Constitution states that the protection of right to property does not "extend to any property that has been found to have been unlawfully acquired". Has this provision solved the title vows of over 20,000 properties mentioned in the "Ndung’u Report"?

Politicians, academicians and draftsmen well versed in land matters — not to mention litigation oriented lawyers — are bound to be sharpening their pencils in anticipation of some epic days.

—The writer is an Assistant Director with KACC. The views expressed are those of the author.

pbowry@integrity.go.ke