Ministry overhaul plans threaten land reforms

By HAROLD AYODO

A proposed new organisation structure of the Ministry of Land, Housing and Urban Development is causing ripples.

Under the structure, the National Land Commission (NLC) would be a parastatal in the ministry, a move that would defeat what was intended by the land governance and institutional framework.

The team that came up with the structure is understood to have considered several factors while crafting the new organisational structure, including functions of the Ministry as provided in the Executive Order No 2 of 2013 and Schedule Four of the Constitution.

Other considerations are transfer of functions to newly established institutions such as the NLC, National Construction Authority, Kenya Building Research Centre and devolved functions.

The team endeavoured to group related functions together for ease of coordination and management. It further recommended that the ministry be organised into four technical directorates and an administrative and support services division. The proposed directorates included lands, housing, public works and survey.

However, concerns remain whether the proposed structure would enable the NLC to perform its constitutional functions. What is particularly worrisome is the move to place the NLC under the ministry. This is clearly unconstitutional and probably the most blatant evidence that genuine land reforms are under serious threat from a section that want to maintain the status quo. Under the Constitution, the NLC is independent and only answerable to Parliament.

According to pundits in the land sector, it is perplexing to place the constitutional Commission at the same level with institutions like the National Housing Corporation (NHC).

Challenges

Moreover, the fact that Parliament has consistently declined to allocate adequate resources to the commission to discharge its functions also raises eyebrows. Under the 2013/14 budget, the commission does not even have a separate vote, which could be a clear indicator that the much-anticipated land reforms may remain a pipe dream.

The functions of the NLC as stipulated in the Constitution are to recommend a national land policy to the national government. Others are to manage public land on behalf of the national and county governments, advise the national government on a programme for registration of titles countrywide.

The NLC should also conduct research related to land and make recommendations to appropriate authorities, initiate investigations on complaints on land and recommend appropriate redress. It is also required to encourage the application of traditional dispute resolution mechanisms in land conflicts and assess tax on land and premiums on immovable property.

The commission should also monitor and have oversight responsibilities over land use planning countrywide and perform any other functions prescribed by a national legislation.

A section of property lawyers and land experts have raised the red flag that the hands of the NLC would remain tied unless the Constitution is amended.

 In real sense, Parliament holds power to provisions that many investors and landowners thought would be bestowed on the NLC. Take the case of Article 68 of the Constitution, which bestows powers on Parliament to revise, consolidate and rationalise existing land laws and revise sectoral land use.

The Constitution also empowers Parliament to enact laws to prescribe minimum and maximum land holding in acreages and regulate conversion of land from one category to another.

It should also regulate recognition and protection of matrimonial property, especially matrimonial home during and upon termination of marriage.

Other functions and powers of Parliament are to protect, conserve and provide access to public land, enable review of all grants or dispositions of public land to establish their legality.

It is also supposed to protect the dependants of deceased persons holding interests in land, including interest of spouses in actual possession of land and provide other necessary provisions.