Kenyans yet to grasp provisions on land use and management

By Steve Mkawale

As Parliament prepares to vet nominees to the National Land Commission (NLC) – a body that will manage public land on behalf of national and county governments, it is emerging that majority of Kenyans (63.2 per cent) are not aware of the deeper constitutional and policy provisions on land use, administration, and management.

The startling findings of a study by the Land Development and Governance Institute (LDGI) released in Nairobi early this week raised a red flag on the level of awareness among Kenyans on four key land laws that will fundamentally change the management and use of land under the new dispensation.

The report dubbed the seventh Scorecard shows that even those aware of the existence of the new laws – the Environment and Land Act 2011, the National Land Commission Act 2012, the Land Act 2012 and the Land Registration Act 2012, do not understand the contents.

New agencies

According to LDGI director Mwenda Makathimo, the survey carried out in 21 out of the 47 counties found that majority of Kenyans (79 per cent) were not aware of the new institutions set up under the new laws. Only 21 per cent of the respondents were aware of the institutions.

Mr Makathimo said the trend was worrying and called for urgent intervention by all stakeholders in the land sector considering that land is a key resource in the country’s socio-economic development.

“In the spirit of the new Constitution, there is need for the Government to initiate a proper civic education campaign to inform Kenyans on the institutions created by the new land laws, their functions and their jurisdiction,” he proposes.

Makathimo says the Government and non-state land actors should steer a campaign geared towards educating Kenyans on the importance of knowing the land laws, particularly relating to land administration and management.

“It is imperative that the Government involves mwananchi not only in the law making but also in the implementation,” he says.

On the approach to be used in the civic education, Makathimo proposes the contents of the new laws should be written in simple language that can be easily interpreted by a lay person. This, he adds, should be supplemented by thorough media campaign to raise the awareness levels.

“The vernacular FM stations are believed to reach out to and educate the common mwananchi. The authorities should also make use of the current technological advancements and employ use of ICT such as social media, email and premium text messaging services to reach out especially to the youth and to techno-savvy Kenyans,” he recommends.

The report further says access to information at the Ministry of Lands was still a challenge to most Kenyans.

A revealing 47.9 per cent of respondents to the poll carried out two months ago said it was extremely difficult to access information at various departments of the ministry.

The report further shows corruption remains extensive within land offices. Makathimo says this should serve as a wake-up call to the Government to speed up reforms, not only in the land sector but in the public service as well.

At least 44 per cent of the respondents said corruption levels were high at the ministry, while 33.7 per cent felt that corruption incidences were low, as 22.33 per cent had no idea of the level of corruption.

“Adherence to a strict code of conduct and dire consequences for those indicted with graft cases is mandatory in stamping out corruption in land administration and management,” he adds.

Ongoing reforms

On the performance of public institutions in the ongoing reforms on land, the survey found out that Kenyans have confidence in the Commission on Implementation of Constitution and the State Law Office.

On the nominees to the National Land Commission, the institute wants Parliament to make vetting a priority once the House re-convenes at the end of the month. LDGI chairman Ibrahim Mwathane says the speedy approval of the names by Parliament will pave way for the commission to deal with pending land issues including historical injustices.

“The establishment of that commission is important, taking into consideration that the decision of the Cabinet to freeze all transactions on public land,” Mwathane says.

In January, Cabinet suspended issuance of new leases for public, private and trust lands until the NLC was operational to curb irregular extension of land tenures. Cabinet also froze disposal of public assets by the Central Government and Local Authorities during the transition to guard against plunder of public assets in the transition to devolved Government.

The Transitional Authority will undertake a comprehensive inventory of public assets. Rising cases of fraudulent sale of public land prompted the ban on all transactions on public property, including transfer of land and buildings. State firms were in frenzied disposal of public property, forcing Lands Minister James Orengo to write to colleagues in Cabinet, whose ministries have oversight over the parastatals.

President Kibaki and Prime Minister Raila Odinga nominated Muhammad Swazuri, a former commissioner of the Constitution of Kenya Review Commission, as chairperson of the NLC. Other nominees are Dr Tomiik Konyimbih, Silas Muriithi, Dr Rose Musyoka, Dr Samuel Torerei, Abigael Mbagaya, Emma Njogu, Clement Lenachuru and Abdulkadir Khalif.

Mwathane observes that setting up of the commission will enable Kenyans to do business on public land freely. “The sooner we get it operating the better for the country. A lot of people are suffering. As soon as it is in place, we expect that the Cabinet will then lift that moratorium and allow Kenyans to transact on public land as they would have wished,” he says. The institute further calls for speedy operationalisation of the Land Act 2012 and the Land Registration Act 2012.

Mwathane said this will address the situation of land ownership through inheritance where many acquire land legally but do not have titles and also address the thorny issue of land historical injustices.

“If you read section 15 of the National Land Commission Act, it obliges the commission to develop some legal framework or law to resolve historical injustices within two years of its operationalisation so that Parliament can now take over,” he says.

Mwathane says it is essential for the Government to formulate an organised national register of properties if it is to effectively collect tax from landlords and other landowners. He points out that currently; it is not possible to know which property owner is paying or not paying taxes. Mwathane says maintaining such an accurate record will further help in revenue collection that can be used in other development projects.

He however observes that for such a record to be put in place and maintained, resources need to be set aside to develop it and competent professionals hired to operate it. The National Land Commission Act establishes the National Land Commission and also provides rules for the management and administration of land in accordance with the principles of land policy as outlined in the Constitution and in the national land policy.

Land laws

The Act further provides for a linkage between the commission, county Governments and other institutions dealing with land and land related resources. The National Land Commission shall manage public land on behalf of national and county Governments. The Land Act on the other hand provides the mechanism to revise, consolidate and rationalise land laws as well as provide for the sustainable administration and management of land and land based resources.