Address conflicts in land laws and policy

By Pravin Bowry

Kenya: Land tenure and land usage in Kenya has largely governed the history and destiny of this country and all of a sudden the possibility of history repeating itself is manifesting in more than one ways.

There are several key developments across the country that are likely to change the land tenure and land usage such as the construction of the Lamu port, the prospect of a new rail link to South Sudan, discovery of oil fields, prospects of coal and titanium mining amongst other rare minerals. Even the discovery of underground water already has set in motion the speculators’ interest.

Land for satellite urban centres, golf estates for the elite, huge housing estates, land for slum dwellers and not forgetting the requirement for Kenya’s core agricultural industry means that there is a developing dilemma in which different governmental agencies are likely to clash.

Sign pending titles

In the wake of all this is the legal quagmire of new land laws compounded by the shadow of old colonial and historical enactments from which authorities are finding it difficult to extricate.

The new Constitution catapulted the enactment of new land laws in May 2012 but the enforcement and application of these laws is turning out to be a major nightmare.

The Land Housing and Urban Development Cabinet Secretary, Charity Ngilu, has unilaterally created a post of Director General of Lands effectively removing the former Commissioner of Lands and whether she is thus usurping the powers of the National Land Commission is yet another contentious issue which will attract much public debate.

The process of dealing with title deeds at the lands office is at a standstill because no one knows who is meant to sign pending title documents. The status and functions of the National Land Commission are being questioned and the earlier the President and the National Assembly intervene the better.

With the enactment of new laws some pieces of legislation like the Land Control Act have been rendered nugatory yet they still cause confusion. The Constitution allows non-Kenyans to buy leasehold land but the Land Control Act bars land transactions involving foreigners.

It remains unclear what role the land control boards still play in light of the fact that Municipal councils are no longer in existence and agricultural land in the country under that act was defined as being land outside the Municipal areas.

The authorities have also failed to stipulate the process of converting freehold titles to leasehold titles or vice versa and many transactions involving multinationals are stalling on that score.

Tracts of land are beginning to revert to influential and financially well endowed individuals and bodies to the detriment of the ordinary Kenyan. Owning even a small piece of land in urban and even rural Kenya will soon become virtually unaffordable and this may turn out to be a huge political and economic blunder in times to come.

Should the politicians not be reconsidering the laws before the country is mortgaged to the Americans, Arabs, Chinese and Indian businessmen only interested in petro-dollars?

Many questions relating management of lands and planning are coming to the fore. On the one hand attempts are being made to get rid of slums but on the other hand hundreds of small unauthorised, unplanned and environmentally disastrous settlements are mushrooming along major highways and all lack provision of water or waste control.

Politically correct

All this is happening when elaborate laws exist but the law enforcing agencies turn a blind eye.

This state of affairs does not augur well for the future of the economic development of this country where the trend is to convert agricultural land to residential or industrial usage.

The process of allocation of land under the new land laws needs to be made public and the days of allocating government land to the rich, influential and politically correct must be seen to be over. Three years after enactment of the Constitution, Kenyans have not been made aware of their land acquirement rights.

The tenancy laws for both residential and business premises also need reconsideration starting with the ridiculous financial limitations applicable to the Rent Restriction Act which is the law applicable for residential premises.

Business premises are governed by the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act which sets up the Business Premises Tribunal. The tribunal which operates from Nairobi should ideally be moved to all the Counties and its Chairperson appointed by the Judiciary and not the Housing Secretary.

3,000 per cent

As it is, the Tribunal is presently without a Chairperson and thousands of tribunal cases are at a standstill — in this day and age of efficiency this is totally unacceptable.

Laws dealing with government revenue from land too must be reviewed because some huge tracts of land do not pay the revenue authorities. Tanzania recently increased its land rates in some cases by over 3,000 per cent after assessment of its rating policies.

Suffice it to say, that efforts to get all land laws to function in concert, without conflict and institutional fragmentation should be stepped up as land policy and laws will, as in the past, determine the success story of this nation. 

The writer is a lawyer.

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