Government must act to bring sanity into land and property issues

The government should establish a settlement fund to acquire land and resolve landlessness, stop land fragmentation and make optimal use of agricultural lands.

The 2010 Constitution heralded a paradigm shift in land administration and management. Chapter Five on Land and Environment provides opportunities for the enactment of progressive pieces of legislation.

Emerging issues have prompted land sector actors to devise better governance mechanisms. For instance, the use of digital technologies and enactment of land-related laws that respond to contemporary land use and management issues. Since independence, Kenya has faced myriad challenges around commoditisation and resultant land fragmentation, parcellation, inequality, marginalisation and discrimination, communal land conflicts arising from boundary disputes and threats to economic activities, among others.

From the late 1800s, Kenya’s complex challenges and opportunities relating to land ownership, use, control and other conceptual matters have variously shifted in four distinct phases:  forceful land acquisition (1890-1920) through conquest, treaties, and one-sided agreements. This was followed by the imposition of the infamous land laws (1920-1950).

Then came the land laws transformation (1950-2009). And finally, the modern phase (2009 – present) where the National Land Policy was passed in 2009 (Sessional Paper No. 3) and was immediately followed by the Constitution of Kenya (2010) as promulgated on August 27, 2010, and which contains Chapter 5 on Land and Environment.

According to the KLA, the first challenge since 2010 is the lack of constitutionalism and observance of the rule of law which is encapsulated within the Constitution itself, numerous laws from Parliament, jurisprudence emerging from the Courts of Law, and other proclamations. Simply, there is consistent and persistent impunity against this paradigm shift.

There are the other usual suspects such as; the vociferous ‘land-grabbing’ problem perpetrated by the elite members of the society, especially government officials, politicians, top businessmen and women; historical land injustices, some of which were inherited at independence and after; and, finally, the question of environmental degradation now culminating in the climate change pandemic. 

The second challenge is that there is a disconnect between policy and practice in women’s land and property rights. This means that while Article 60 (1) (f) of the Constitution of Kenya, 2010 protects women from discrimination, some customs and practices related to land and proprietary interest in land are still based on gender. Many rural and urban women still encounter significant hurdles. The challenges faced by women in Taita Taveta and Kakamega counties are representative of such.

Further to the above, in border counties such as Taita Taveta, Migori and Marsabit; women who are married to Kenyan men cannot own or inherit land because they do not have IDs. Section 11 of the Kenya Citizenship and Immigration Act, 2011 provides for citizenship by marriage for a person who has been married to a Kenyan citizen for a period of not less than seven years.

By failing to issue these women with ID cards and ID numbers that grant them citizenship and the rights that accrue thereof, the government has blatantly and greatly disenfranchised them from enjoying their property rights, including the right to own, control and use land and the attendant benefits.

The third challenge, according to KLA, is the lack of space for women in community land conversations. The enactment of the Community Land Act in 2016 provides for the recognition, protection and registration of communities and communal land. This empowers communities to participate in decision-making on matters pertaining to land administration and management.

Indeed, this is the panacea for land-related conflicts arising from non-participatory decisions on investment, mining activities and unregulated excisions in the erstwhile marginalised communities, in areas and counties hosting community lands in Kenya. Community land accounts for more than 60 per cent of unregistered land in Kenya, demonstrating the significance and importance of this Act.  However, communities still lack adequate information on how to participate in the process of registration, making them even more susceptible to injustices that often occur as a result of elite capture. Even worse, the participation of women is minimal if not non-existent in some communities. Even the election of Community Land Management Committee members in some areas contravenes the two-thirds gender rule stipulated in Article 27 (8) of the Constitution.

The fourth challenge is the issue of commodification and parcellation. The commoditisation and parcellation of land in pastoralist communities in counties such as Kajiado, Narok and Marsabit pose significant threats to sustainable land use and management. Continued appetite to commodify and subdivide the land, will adversely affect pastoralist communities where large stocks of livestock are kept and grazed in rangeland systems. This will heavily contribute to conflicts, food and income insecurity. The pockets of land-related violence in Kajiado and Narok counties are harbingers of more widespread land conflicts likely to be witnessed in the future.

Finally, democratising and digitising land governance is a bold step towards transparency, accountability and efficiency in land management in Kenya. There is, however, a need for more feasibility studies on this process, especially in the context of marginalised communities in Kenya.

It shouldn’t be forgotten there are other issues such as bedevilling and unresolved historical injustices, and the ongoing alleged ‘community-led conservation’ efforts, especially in the north of the country. There is also the so-called, engineered urbanisation like in Kiambu County, where flats are rising up at record speed, reducing access to arable land. Landlessness, insecure land tenure, the squatter problem especially in the Coastal counties (of course arising from the colonial period), land fragmentation, and encroachment of forests and other ecologically sensitive areas are among the top land-related challenges the country faces; they also offer great opportunities.

To resolve these challenges, the government should establish a settlement fund to acquire land and resolve landlessness, stop land fragmentation and make optimal use of agricultural lands. We hope the government can make good on its commitment to establish five million acres of agroforestry woodlots in dry lands.

- The writer is Kenya Land Alliance CEO