Why amending land laws is long overdue

The proposed amendments to the land laws through the Land Law (Amendment) Bill 2015, commonly referred to as the omnibus law, have generated heated debate from a cross-section of stakeholders as well as members of the public. That was expected, land being historically an emotive subject in Kenya.

Acting Lands Cabinet Secretary Fred Matiang'i (right), has a word with National Assembly Lands Committee Chairman Thomas Mwadegu in Nairobi recently after meeting the committee on Land bills. (PHOTO:BONIFACE OKENDO/ STANDARD)

The proposed amendments were long overdue, especially in light of the persistent wrangles and conflicts between the Ministry of Lands and the National Land Commission (NLC), as well as the seemingly stalled implementation of land reforms in Kenya. Amendments to the land laws have been a long time coming.

In 2012, then Lands Minister James Orengo, gazetted a taskforce to review the three land laws, develop amendments to align them and formulate regulations to implement them.

The taskforce completed its assignment but its report has not seen the light of day, thanks to persistent power wrangles between the ministry and the NLC. Further, the battle to control the processes and procedures of land administration saw other actors, particularly in the Office of the President and the Lands ministry, developing parallel amendments.

The reality of the August 27 deadline for enacting constitutional bills seemingly renewed the rush to complete the process.

Various versions that had been developed by the other actors were merged into the omnibus law, which seeks to align land laws to the Constitution, harmonise land administration processes and procedures as well as give effect to various articles of the Constitution, particularly Articles 67 (2) (e) and 68 (c) (i).

The bill has reopened debate reminiscent of the pre-National Land Policy (NLP) era.

The main areas of contention are land registration, administration of private land, management of settlement trust fund, evictions and resettlement.

A closer look at these amendments, however, points to a mismatch between the spirit and the letter of the National Land Policy. That is the cause of the quagmire we have find ourselves in today.

A different group is guided by the spirit of the NLP and while others want to strictly follow the letter. The question is this: Is it possible to separate the two and achieve the intended reforms?

The answer is that we must find a balance and soberly address the legislative overlaps that have brought about the confusion in the land sector.

It should not be lost on us that Chapter 5 of the Constitution is hinged on the challenges that bedevilled the land sector for many years as clearly identified in the land policy.

The main debate, however, is whether the proposed amendments should embody the spirit or the letter of the National Land Policy of 2009.

Whereas the land policy, which was developed through an extensive consultation with stakeholders, had proposed a wide range of policy recommendations to address the recurrent challenges in the land sector, the Constitution to some extent, did not embody the whole spirit of the land policy.

The process of retaining provisions of the policy in the Constitution was a protracted one and therefore ended up with negotiated positions that did not factor in all provisions in the policy.

The ongoing debate is therefore healthy and should be carried out with the sobriety it deserves.

The opportunity to amend the three land laws - the Land Act, the Land Registrations Act and the National Land Policy - is an opportunity to streamline the legal and institutional framework governing land administration processes.

It might be the only opportunity to right the wrongs that came with the rush to enact the three laws.

The National Assembly, currently in possession of the final version of the bill, should spearhead constructive dialogue to solve these issues once and for all.