Land Regime in Kenya

LAND REGIME IN KENYA

1. THE CONSTITUTION

The Constitution is the absolute authority with regard to legal position on the administration and management of land. In article 35, it guarantees access to information by the public. It provides that every citizen has the right of access to—

(a) Information held by the State; and

(b) Information held by another person and required for the exercise or protection of any right or fundamental freedom.

(2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person.

(3) The State shall publish and publicise any important information affecting the nation.

 It also provides for the protection of the right to property subject to article 65. The Parliament has the obligation to ensure that no law that seeks to arbitrarily deprive a person of his property or limit the enjoyment of his right is enacted.^[1] Article 27(4) protects individuals from discrimination on any grounds while Article 162(2) (b) establishes land and environment court that hears and determine disputes relating to environment and the use and occupation of, and title to, land.

The constitution^[2] also states that all land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals. Towards the management of this resource, there has been established various institutions that do so.

According to the Constitution, certain categories of public land shall vest in and be held by county governments in trust for the people resident in the county. These categories are: alienated government land; land transferred to the State by way of sale, reversion or surrender; land in respect of which there is no established individual or community ownership or heir and land held or occupied by a State organ (other than a national State organ).^[3]Any unregistered community land shall also be held in trust by county governments on behalf of the communities for which it is held.^[4]

Under the 4th Schedule of the Constitution, some of the responsibilities of county governments are the implementation of specific national government policies on natural resources and environmental conservation including soil and water conservation and  forestry(this covers the definition of land).Responsibilities over land are therefore a prime duty of the county just as the other responsibilities and the constitution specifically spells out them same in its division of national and county responsibilities

The policies and Acts which are involved with land include:

1.  THE NATIONAL LAND POLICY: SESSIONAL PAPER NO.3 OF 2009

The mission of the National Land Policy (NLP) is to promote positive land reforms for the improvement of the livelihoods of Kenyans through the establishment of accountable and transparent laws, institutions and systems dealing with land. It addresses the following issues; land laws, land tenure, land administration and land information management systems, land use planning, areas requiring special intervention (marginalized groups/historical injustices and institutional framework.

The Policy, though developed during the domain of the 1979 Constitution, is responsible for the birth of the current institutional framework with regard to the administration and management of Land. It informed Chapter 5 of the constitution and laid down the objects of devolution with regard to land issues. The Sessional Paper No. 3 of 2009 identified the various problems that needed to be overcome in order to realise reforms in the land sector, among them being Centralization of state responsibility over land matters, with the effect that governmental decisions had not been responsive to the citizenry, especially at the local level.^[5]It also identified that the former Constitution did not provide an adequate framework for the fiscal management of land and land based resources, thereby contributing to poor land use, speculation and loss of land based revenue. ^[6]

The policy, under Section 39 goes on to suggest the steps that should be taken in order to tackle those challenges. Among them are : rational allocation of powers and responsibilities to State institutions; transparency and accountability of State institutions; Participation of the citizenry in decision-making processes on land matters; and sound framework for the fiscal management of land and land based resources to facilitate efficient utilization and equitable allocation of land.

It goes on to provide that the Constitution should establish the National Land Commission for efficient, equitable and sustainable land administration and management. These, are the provisions that give rise to the institutions and means of accountability as established by the various acts that deal with land.

1.  THE LAND ACT, 2012

The Land Act No. 6 of 2012 seeks to give effect to Article 68 of the Constitution, to revise, consolidate and rationalize land laws. This statute delineates the role of the county governments in the administration of public land, compulsory acquisition of interests in land and creation of public rights of way respectively.

Section 9 outlines the modalities of conversion of land from one category to another. The categories being public land, community land and private land created under Article 61 of the Constitution of Kenya, 2010. Any substantial transaction involving the conversion of public land to private land shall require approval by the National Assembly or county assembly as the case may be.^[7] The involvement of the county legislature here presumably stems from the custodial role of the county governments with respect to public land of the descriptions referred to in Article 62(2).

Where a county government feels that it is necessary that a particular land parcel be compulsorily acquired, the respective County Executive Committee Member is to submit a request for such acquisition to the National Land Commission.^[8] This act initiates the process of compulsory acquisition and essentially extends eminent domain powers to the devolved governments.^[9]

Section 134(3) hints at the involvement county governments in administration of settlement programmes by mandating the National Land Commission’s provision of assistance. This is affirmed by subsection (4)(a) including a representative of the county government, approved by the county assembly in the committee charged with identification of beneficiaries of settlement programmes.