Bona-fide Land Laws for Kenya!
  • Petitioned Parliament of Kenya

This petition was delivered to:

Hon. Kenneth Marende, EGH, MP, Speaker of the National Assembly
Parliament of Kenya
Minster of Lands
Hon. James Orengo
Chair of Parliamentary Select Committee on Constitutional Reform
Mr. Mohammed Abdikadir
Chair, Commission for the Implementation of the Constitution
Mr. Charles Nyachae
Chair, Parliamentary Committee on Lands and Natural Resources
Hon. Mutava Musyim

Bona-fide Land Laws for Kenya!

    1. Petition by

      David Gathuru

The three pending land bills before Parliament (Land Bill, Land Registration Bill, and National Land Commission Bill) will be the foundational laws implementing the land reforms that the country has been grappling with for many years, as land is the keystone issue affecting the lives of Kenyans and the development of the country.

BACKGROUND
Kenya is faced today with the critical task of developing and adopting a set of laws to implement constitutional provisions on land as well as the National Land Policy of 2009 approved by the cabinet and the parliament. These provisions are among the most important parts of the Constitution, and the elements concerning land must honestly and effectively incorporate major reforms that meet the needs of Kenyan society.
 
For millions of Kenyans, they are the most important, because they are landless, or living on land to which they have no legal right, even though their ancestors may have cleared that land a hundred years ago and have lived there ever since. Daily we see evictions of families from land which is their home, their houses demolished by bulldozers, their few possessions destroyed, their community shattered.


Land is critical for the economy, politics, livelihood, culture, and development of the people. Land policies have been the single most important factor in the shaping Kenya’s history and its many problems, including

·      under colonialism and since, many communities were dispossessed of their land

·      since independence, much land has been taken over illegally by a few families and individuals, much of it still uncultivated

·      many families have no land or such small parcels that they cannot sustain even subsistence

·      thousands of families have been displaced from their homes and farms, often victims of politics

·      many people live in informal settlements, without legal title

·      land rights of many others are disregarded, particularly of minorities like the Nubians, forest dwellers and pastoralist, which constantly threaten national peace and unity, and are convenient tool for politicians

·      the grabbing of land and unfair allocations of land have been the principal cause of ethnic conflict, many people displaced from their homes and deprived of the means of livelihood

·      land administration is highly centralised, grossly inefficient and corrupt

·      violation of land law by the rich and the well connected has been the major cause of corruption and impunity

·      some of the most deplorable violations of human rights are connected with illegal land transactions and evictions (affecting rights of children, elderly, education, shelter, sanitation, health, employment)

·      the quality of land has deteriorated and the environment degraded

·      laws on land law are voluminous, complicated, unfair, and open to abuse

Our Prayers

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These are the prayers of Kenyans for how the current bills tabled in Parliament should be amended before being enacted:

 National Land Commission Bill

 The Bill should expressly provide for the autonomy and independence of the Commission.

 The Bill should further detail the Commission’s authorities and functions.

 The Bill must advance the constitutional prerogative of devolving land administration and management from the central government.

 The Bill does not fully incorporate the breadth of the Commission’s functions as set out in directives under the Constitution and National Land Policy.

 The Bill does not adequately incorporate constitutional directions and principles in regard to gender equity.

 The Bill should expand the procedural powers of the Commission as related to investigations and inquiries.

 The Bill lacks adequate direction for transition of functions and assets from the Ministry.

 The Commission’s reporting requirements ought to be strengthened.

 The Bill allows for gaps in appointment of commissioners that could be detrimental to the Commission’s functioning.

 The Bill ought to provide for judicial review of the Commission’s decisions.

 

 Land Bill

 The Bill ought to contain a framework chapter that provides the philosophical roadmap and context for the land bill. 

 The Bill must clearly articulate the functions and powers of key land administration and management institutions.

 The Bill ought to incorporate provisions on community land to protect it as an equal form of tenure and to ensure harmony with other substantive provisions.

 The Bill must advance the constitutional prerogative of devolving land administration and management from the central government.

 Matrimonial property should be held in joint tenancy by spouses, and not as tenants-in-common, so as to protect the rights of surviving spouses. 

 The Bill must clearly define the relationship between the NLC and public agencies with specific authorities over public land, such as the KWS, KFS, and NEMA.

 In light of the emphasis on alternative dispute resolution (ADR) found in the Constitution, the Bill must provide mechanisms for ADR. 

 The Bill should eliminate ambiguity on the status of distress for rent – including the future application of the Distress for Rent Act. 

 The provisions related to the settlement of needy and marginalised people and groups are inadequate.

 The Bill fails to address the reality of involuntary evictions or provide any safeguards to protect evictees.

 The Bill must include adequate transition provisions in order to efficiently and effectively implement the legislation and the new land governance structure. 

 The Bill calls for the repeal of only two existing laws, despite the fact that there are numerous other laws that should be appealed or amended. 

  Land Registration Bill

 The Bill ought to specify at the outset that the registry covers all three categories of land, and should describe the contents of the registry with respect to each of these categories.

 The bill must clearly articulate the functions and powers of key land administration and management institutions.

 The Bill must advance the constitutional prerogative of devolving land administration and management from the central government.

 The Bill must provide for registration of public and community lands with the constitutionally proper rights holders.

 Protections for gender equitable land rights should be enhanced.

 The bill ought to provide mechanisms for transfer of fee-simple ownership by foreigners to 99-year lease rights.

 The section on overriding interests is over-broad, threatening security of title. Spousal interests in land (including but not limited to matrimonial property) ought to be noted in the register to ensure notice to third parties when dispositions such as charges or transfers are made.

 The land registry should constitute authoritative notice of the information contained within.

_________________

We ask that you work to ensure that these prayers are appropriately addressed in the ammendments to the bills which you will be taking under consideration in the coming days.

Do not succumb to vested interests and politics as usual. Pass strong land bills that will provide for real land reforms!

 

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