Policy and legal reform

Kenya’s journey to land reforms has been long and exhausting. Nevertheless, the progress has been encouraging. This has included the enactment of a national land policy, anchoring its key principles in the constitution and the enactment of several new land laws. Some key land management roles, including the approval of development applications, are now devolved to the Counties. A national land commission, never mind its chequered history, is now in place. This makes the protection and management of public land a lot more reassuring and systematic. The Commission’s attempt to repossess grabbed public land never quite went well, and the timeline to deal expired. Parliament refused to extend it. The timeline to receive historical land injustices expired in September this year. Kenyans are eagerly waiting to see how the Commission resolves the claims received. A closure to unresolved historical grievances is necessary. They are bad for our economy and political stability.

Access to justice: Environment and Land Courts

Reforms also saw Kenya establish Environment and Land Courts to resolve land disputes. Even though these courts aren’t yet enough and suffer capacity gaps, they’ve enhanced access to justice and are more dedicated to reducing the pending land cases. A Community Land Act was enacted to provide recognition, protection and registration of community land. Community land forms over 60% of Kenya’s land and is spread across 24 of the 47 Counties. A good and effective application of this law could transform the fortunes of the semi-arid Coast and Northern regions, which hold vital natural resources and have big potential for economic transformation.

We also now have legal provisions that protect the rights of the vulnerable, such as internally displaced persons, marginalized communities and squatters. But we haven’t done well on their implementation, and much work remains to be done. We have continued to handle the eviction of unauthorized occupiers of public and private land like there’s a lacuna in law. On women land rights, I think Kenya has done quite well. These are now mainstreamed in policy and law, and to some extent, practice. Cultural attitudes and practices associated with patrilineal societies however continue to present barriers, which must be carefully navigated.

Maximum and minimum land sizes: No progress

Kenya hasn’t yet been able to develop guidelines regarding maximum and minimum land holdings of private land as required under our constitution. An enabling bill was once drafted but faced great hostility. It died pronto and has never been revisited. But whilst capitalist systems like ours have challenges with land maximums, we’ve to mind minimums. The rapid fragmentation of agricultural and pastoral land in various places poses a fundamental threat to our food security. From an economic viability and food production perspective, the matter of minimum land sizes compels and will need to be revisited. On titling, one notes that Kenya has issued more titles in the last eight years than it had before and after independence. The tally currently stands at over 11 million, a major feat by continental standards. This is good for tenure security but still below our full potential.

This year has seen work done to review the Survey Act and its regulations. This old law is critical to Kenya’s mapping and titling and its enactment should be expedited. New regulations to the Sectional Properties Act 2020, which repealed the 1987 Act, were enacted. This law supports vertical developments and the provision of titles to individual units in high-rise commercial and residential developments, reducing pressure on land in urban areas.

On line land information management system

In March, Kenya launched a computer-based system, dubbed ardhisasa, for processing a wide range of land transactions. This was a most laudable development. Practicing professionals however continue to recount challenges they face with the new system. These will need to be gradually resolved. It’s hoped that the next government will continue to prioritise operations of the Lands Ministry to ensure that ardhisasa is successfully rolled out countrywide, and that the comprehensive reform gains made hitherto are safely banked.

Dated: 24th December, 2021