A view of Ardhi House in Nairobi. PHOTO | FILE NATION MEDIA GROUP
In Summary
- The lingering question is whether the mis-steps by the ministry have been honest mistakes or part of a calculated scheme to cripple the Commission.
- The Matrimonial Property Act is taking us back to the position where a spouse needs to establish contribution to the acquisition of matrimonial property to benefit from it.
By P. Kameri-Mbote
The 2010 Constitution and the National Land Policy 2009 have not delivered what Kenyans clamoured for in the sector. The attacks by the chair of the National Land Commission on the Cabinet Secretary indicate trouble at Ardhi House.
Both the Constitution and the National Land Policy proffered solutions to land problems but the promises are yet to be realised, namely: Security of tenure, transparent and responsive land management systems; conservation and protection of ecologically sensitive habitats; and elimination of gender discrimination on land matters.
Land remains a very explosive issue. It has formed the subject of various commissions of inquiry and was a key issue in the 2007-2008 Post-Election Violence.
Four years after the promulgation of the Constitution, we should have moved from the biblical Egypt to Canaan.
The question is the extent to which the normative and institutional changes have altered operations in the land sector after 2010, a very radical moment when Kenyans decided that it was not enough to devote one section to property in the Constitution.
HISTORICALLY INSECURE
They devoted a whole chapter to land and the environment, in addition to providing for security of tenure and land holding by non-Kenyans. The inertia in the implementation of these changes is attributable to putting new wine in old wine-skins.
At the normative level, there are two issues: Land rights for the broader goals of justice and equity on the one hand, and protection of legal titles for utilitarian purposes.
The latter supports the protection of land rights, however obtained, while the former seeks to restructure land rights holding, taking into consideration the gross disparities in ownership, gender and trans-generational discrimination in succession, and transfer of land and decision-making processes.
Surprisingly, while the Constitution provides for three categories of land holding – community, public and private – there is still no law governing community land which is documented as larger than private and public land.
Land tenure has historically been very insecure, prompting some communities to register it as private land. In pastoral areas, this has created tension between pastoralism and other incompatible land uses such as settlement and agriculture.
On the elimination of gender discrimination in matters related to land, the Constitution is unambiguous on the principle of gender equality and requires that matrimonial property be protected during and on termination of marriage.
The Matrimonial Property Act blatantly contravened these requirements, taking us back to the position where a spouse needs to establish contribution to the acquisition of matrimonial property to benefit from it.
This leaves women at the mercy of judges who have previously described them as “being on their husbands’ backs with their hands in the husbands’ pockets”.
CALCULATED SCHEME
The principle of equality should have provided for division of matrimonial property in equal shares to avoid distinctions on account of gendered roles within marriage.
At the institutional level, the anticipation of Kenyans was that the Commission would work closely with the ministry in implementing the reform agenda.
This has not happened. There was an inordinate delay in institutionalising the Commission which has had to fit into the space the ministry created for it literally and figuratively – it occupies the corner assigned to it and can only do what it has the resources to do, resulting in constant fights to assert its mandate.
There have been clashes of mandate between the Commission and the ministry. The lingering question is whether the mis-steps by the ministry have been honest mistakes or part of a calculated scheme to cripple the Commission.
The Commission’s mandate includes managing public land which includes wildlife and forest habitat, and overseeing land use planning.
There has been great loss of wildlife through poaching recently. The Commission is silent on measures necessary to secure wildlife habitat in the face of competing land uses. It should also guide the country on how to maintain tree cover of at least 10 per cent of the land area.
Prof Kameri-Mbote is the Dean, School of Law, University of Nairobi.