Coming: New law that could ease land prices, but...
By GAKUU MATHENGE | September 1st 2015
The Government has published a bill that could add millions of acres of land to the property market, thus taming ever-rising land prices in the country. The Community Land Bill (2015) proposes to have all community land, which comprises 67 per cent of Kenya’s land mass, registered. The bulk of land in Kenya is unregistered and therefore un-tradeable. It is estimated that only six million title deeds have been issued since independence.
The tiny number of registered parcels of land is partly to blame for high property prices.
Among the players watching the bill closely are financial institutions and real estate developers who are likely to find millions of acres of previously inaccessible land suddenly available for development. The move is likely to see land prices stabilise or come down down.
The bill is among three bills on land published by the Government, which are being scrutinised by the the National Assembly Departmental Committee on Land.
A fierce debate has, however, emerged among stakeholders over what comprises “community” in families, clans or ethnic groups in whose name the land is to be registered. In the bill, the State proposes to register community under the Societies Act (Cap 108): “Where a community claiming or occupying land identifies the extent and the boundaries of its land to the satisfaction of the Cabinet secretary, the registrar may issue an interim certificate of reservation for community land to the community...” Some have objected to this proviso, faulting it as a clever scheme to provide for an open-ended “societies regime” to gain access to undeserved land.
The National Land Commission (NLC) wants the provision removed and replaced with a watertight clause that is not vulnerable to temptation and possible abuse.
In a memorandum to the departmental committee on land, NLC asks: “What criteria does one use to measure the satisfaction of the Cabinet secretary? Communities should register as body corporates in any manner they choose.
The amorphous definition in the bill opens up the community to possible abuse by stretching the meaning of community too widely to capture the intended meaning for purposes of registration.”
Questions have also been asked about whether the definition of “community” is limited to an ethnic group in an area or “community of interests”, and how to determine this in a manner that does not lead to conflicts along ethnic, clan, class or gender lines.
A similar bill tabled before the Senate by Majority Leader Prof Kithure Kindiki last year provides for community land assemblies and community land management committees, but debate was yet to be concluded.
There have been calls for harmonisation of the two bills. Since oil, coal, gas and other precious minerals were discovered in areas previously perceived as God-forsaken waste lands, intense interest has turned into a power struggle over who can transact on the land.
Bulk of land
Sixty seven per cent of the national territory is communally owned and undemarcated, unsurveyed and unadjudicated. The bulk of it was held in “trust” by the defunct county councils, and now by the county governments. The law says county governments assume trusteeship until registration of community land.
Consensus is yet to be found on the role of the county governments in administration and management of unregistered community land, and what the law should permit or prohibit. The NLC proposes the law should prohibit conversion of community land to private ownership, but permit conversion for public utilities and leasing for limited periods of time.
However, Land Development and Governance Institute (LDGI) MD Mwenda Makathimo says the law should not give county governments “trustee” status previously enjoyed by the now defunct county councils over community land. “The law should seek to vest land in well-defined community institutions, not county governments. County governments are prone to corruption like their predecessors who were pressured, manipulated or compromised to authorise questionable acquisition of community land by vested interests that included the military, the Kenya Wildlife Service (KWS) and profiteers,” he said.
NLC also proposes in its memorandum that communities should be allowed to choose the manner in which to register their land. They should be allowed to register trusts, co-operatives, private companies or associations — whichever is most convenient for their respective circumstances. “The issuance of reservation certificates should also be devoid of conditionalities to preserve community land pending adjudication. Provisions should also be made detailing procedures and guidelines to identify boundaries before issuance of certificates,” NLC says in the memorandum.
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