New laws clear on Lands ministry, NLC roles

Under the 2010 Constitution, the National Land Commission is charged with, among other functions, managing public land on behalf of the national and county governments, advising the national government on a comprehensive programme for the registration of titles in land throughout the country, conducting research related to land and the use of natural resources, and making recommendations to appropriate authorities.

On the other hand, the Government through the Lands ministry is mandated with providing policy direction, setting national standards and coordination of all matters concerning lands, housing and urban development.

The Ministry is thus responsible for putting in place policies and initiating laws that ensure sustainable land management and that promote sustainable housing for all and foster orderly urban development in the country.

The overlapping constitutional duties for the two institutions have led to incessant turf wars which at one point were a subject of constitutional reference to the Supreme Court.

On its part, the Supreme Court felt that it was not fully seized of the matter at the time, and directed the two institutions to look for a way of resolving the wrangles and harmonising the functions. Without a clear position from the Supreme Court, the situation was further aggravated owing to the fact that the laws that were intended to clarify the land situation including the roles of the different organs governing land were among the ones rushed through Parliament in 2012/2013 to meet the constitutional deadline.

Chief among them include the National Land Commission Act, the Land Registration Act and the Land Act. Inevitably, there has been confusion on who is supposed to do what and when in administration and adjudication of land functions.

The architecture of the Constitution guarantees that both the Government and the National Land Commission are treated as legitimate children in land management. It is not one over the other but both carrying out complementary functions.

Although the Constitution created an independent commission to cushion land administration from political manipulation, the Government as the body conferred with democratic legitimacy as an elected representative was allocated sufficient mandate for accountability purposes.

The new land bills and the proposed amendments must thus be seen in this light. A clear reading of the 2012 Land Acts reveal that constitutional functions were either swapped or overlain, adding to the confusion that the Acts sought to remedy in the first place; through consolidation of previous land laws.

A few cases exemplify this argument. Under Article 67(2) (c) for example, the National Land Commission is supposed to advise the Government on a comprehensive programme for registration of titles to land throughout Kenya.

Turning to section 6 of the Land Registration Act, the commission is mandated to constitute land registration units in consultation with the national and county governments.

This is a clear case of unconstitutionality and reversal of roles. This is because article 67(2) (c) in no uncertain terms confers the commission with an advisory role and bequeaths the Government through the Lands ministry the substantive role of implementing the registration process.

There is a proposed amendment to section 6 of the Land Registration Act in the new laws to cure this constitutional anomaly by reserving the registration role to the Government through the Cabinet secretary. Inevitably, there is a further proposed amendment to section 5(3) of the National Land Commission Act, which mandates the commission to ensure registration of unregistered land within 10 years.

With the clarification of the registration role under section 6 of the Land Registration Act, it follows naturally that section 5 must be amended.

Other amendments are meant to ensure that there is a clear policy direction in land matters as envisaged by the Constitution.

In this regard, the Government through the Cabinet secretary, in line with the Constitution, is supposed to provide policy direction in all classes of land.

The Government will further administer all dealings and interests in private land. Notably, the Commission is vested with the role of managing public land on behalf of the national and county governments while administration of private land vests in the Government under the Constitution.

An objective analysis of the land bills dispels the notion that the Government is hell-bent on hijacking the constitutional roles of NLC.

In any case, the land bills are before Parliament for crucial debate before endorsement. As the body conferred with legislative mandate under the Constitution, the outcome of those debates will be democratic and legitimate.