23July2017

Mwathane Why Kenya's land compensation model calls for a rethink!

LAND REFORMS IN KENYA AND AROUND AFRICA

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Why Kenya's land compensation model calls for a rethink!

Posted by on in Land Governance
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Addis Ababa is now one of the few African Cities with a light rail system. My sojourns there allowed me to watch its construction commence and end. Work started in late 2011. It was completed and providing services to the city by the end of 2015. That’s record time when one takes into account that it traversed through a functional City. Think about the affected settlements and town properties. Think about the volumes of traffic that had to be stopped and diverted during construction. Think about the land needed to lay the line. When I got discussing how the feat could have been accomplished so fast, I was reminded that land in the Country is owned by the State. So land is not a limiting problem for public projects. Affected persons are just relocated elsewhere, I learnt! But let’s come back home and examine the different scenarios we’ve faced while developing our public infrastructure.

Scenario one! Government plans some major public project in some site far away from the capital city where land values have always been rather low. Soon after, bureaucrats selectively leak the information to friends who move there and buy chunks of the surrounding land. Some even begin to erect structures in readiness to exact maximum returns. Once project commences and compensation has to be done, the land that initially sold for Ksh80, 000 or less per acre is compensated at Ksh1 million per acre and above! All from public coffers! Beats logic, doesn’t it…….these are manipulated rates! Just go check out how much an acre of land in interior Lamu, Garissa or Isiolo ordinarily used to trade for and compare with the going compensation rates after LAPSSET was mooted!

Scenario two! Remember the construction of the Eastern bypass and Lang’ata road some years back? The bypass was completed then could not be connected to Mombasa Road for years. Citizens greatly suffered since the unconnected section became a major traffic hold up zone for travellers headed to the Airport and Mombasa. Why? Because land compensation issues needed to be sorted out in the compulsory acquisition of the affected private land on which the connecting traffic interchange was to be constructed. Similarly, the construction of Lang’ata Road was held up for long because land compensation issues for the traffic interchange at Bomas of Kenya needed to be resolved. In construction terms and lost national opportunity, the cost to the country in each of the cases was astronomical.

Scenario three involves the ongoing Standard Gauge Railway. Not only have we had endless controversy on the rates of compensation and alleged irregular compensation but also have had the project stopped in some sections by court interventions twice now. Both on account of compensation! In this scenario, the public is perhaps paying for exaggerated and/or irregular compensation rates and will pay dearly for the stoppages too.

Scenario four is a little different since it involves private investors. Much needed wind energy projects have either relocated or been slowed down in Nyandarua, Turkana and Meru Counties. Issues are simmering around the proposed coal project in Lamu County too. In each of the cases, land compensation issues have been to blame! In these power projects, local political incitement may have added to the menu of grievances.

It is important that communities and affected individuals are sensitized in good time about the projects within their jurisdictions and their importance to our local and national economies. It is also important that private land rights draw a fair return if compulsorily acquired. But the emerging trend where key public projects are held hostage at the whim of individual interests needs to get us thinking. Our constitution provides for the just and prompt compensation in full to those whose property has to be acquired in the public interest. This constitutional provision is operationalized through the Land Act which requires the national or county government to submit requests for the compulsory acquisition of land to the Land Commission for consideration. The Commission proceeds to effect the request if set criteria is met. But there is telltale evidence around us that this process gets abused, is unfair to the taxpayer and holds up much needed public projects. It is a process prone to manipulation between pliant land owners, involved professionals and suave political operatives.

When I shared our local experience with some professional peer from one of the European countries, he mentioned that in their jurisdiction, compensation issues or disputes never hold back public projects. The law allows them to isolate the affected sections, put anticipated funds in a holding account then leave the matters in dispute to judicial adjudication while the projects proceed. Once resolved, beneficiaries are paid from the project holding account. Of course this is buttressed by fair and efficient judicial processes!

Kenya may want to begin to seriously question its land compensation model and the associated legal framework. The country may have to make tough choices between retaining a framework that limits the escalation of much needed public projects and a much more flexible mechanism which would allow us to expedite public projects. It’s perhaps in situations like these where we ask whether the law was made for man or man for law! And even before we fully figure this, one gets the impression that there could be interim process safeguards that could be put in place to enhance transparency and justification for the compensation rates applicable to public projects.

 

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