Land elicits so much emotion in Kenya. Most of the vicious and deadly violence we have witnessed have been about land ownership.
Earlier this year, Parliament amended the law that guides compensation of land acquired compulsorily by government. Curiously, the amendments passed without much qualms from the public, the civil society or even the MPs whose main task is to protect public interest.
In a nutshell, the law is bad and spells doom for all land owners- small or large; private or community-owned.
First, there are very serious troubling issues with the Land Value Index (Amendment) Bill that was passed by Parliament and assented to by the President in August. Though the Act is meant to provide guidance on the assessment of the value of all land that is subject to compulsory acquisition and other purposes, it succeeds in creating confusion and panic and exposes land owners to a myriad of risks.
The Act provides new definition of terms like “just compensation” “prompt” and “full” payment as outlined in the Constitution. The law dictates that government must not deprive a person of property unless “the deprivation” is for a public purpose or in the public interest.
It also cautions that the acquisition ought to be carried out in accordance with the law besides it requiring prompt payment in full of “just compensation”.
It also provides the criteria for the assessment of the value of land acquired compulsorily by the government for the public good and identifies the forms of compensation to be provided for private and community land.
While the rationale for introducing the Act is laudable, the value of community land is not reflected it in and appreciated as envisaged in the Constitution.
The Land Value index (Amendment) Act, 2019 directly affected and made functional amendments to the following legislation; Land Act No. 6 of 2012; Land Registration Act No. 3 of 2012, Prevention, Protection, and Assistance to Internally Displaced Persons and Affected Communities Act No. 56 of 2012.
These amendments have created a protracted period within which compensation will be paid to the communities up to one year after the National Land Commission (NLC) has taken possession. Which is neither ‘just’ not prompt. Also, the value of compensation will be based on market rates and tax returns for the land in question – which are non-existent in the case of most community land.
Considering that community land makes up around 60 per cent of Kenya, this is not a small matter. Surely the law should be relevant to all circumstances, or at least the major circumstances. Yet again, community land is being marginalised to a ‘minority issues’.
The amendment has no provision on the format in which information on compulsory acquisition should be provided in what kind of notice and obligation to provide information on the intention of the government to acquire the community land. This only ends up penalising communities who will lose ancestral land as a result.
The amendment further promotes inequality as it preferences, private land owned by literate businesspeople. It does not provide for sensitisation of communities on the Government’s intention of taking their land and it does not compensate for the loss of ancestral land and livelihoods, the inconvenience and cost of relocation.
In addition, neither the NLC nor non-government experts on valuation such as the Surveyors of Kenya will be involved in the development of the Land Value Index which should have been completed by February this year, and no provision is given on whether Land Value Index will be reviewed or updated.
It was additionally unfortunate that when our Parliament recently approved and passed this unwise amendment to the Land Value Index law that undermines Community Land, no single representative from the areas with the most community land – the pastoralist areas, opposed this amendment or were present in Parliament. This is clearly a dereliction of duty or outright ineptitude.
This Amendment is not only unconstitutional, but it is also a recipe for chaos in the pastoralists-dominated regions like the Northern Kenyan region where mega-projects such as LAPSSET, airports, resort cities, and other major national projects will be implemented in the region on community land that will be taken without either just and/or prompt compensation.
Mr Guleid is the Chief Executive Officer- Frontier Counties Development Council [email protected]