Cabinet Secretary Zachariah Njeru holds a very wide cabinet portfolio. It consists of Lands and Physical Planning, Housing and Public Works, and the Urban Development dockets. I cannot recall any other Lands Minister who ever held all these in one. Mr Njeru will therefore find himself extremely busy. He will need our support. Luckily for us, the Lands docket provides space and rights upon which housing, public works and urban development happen. The Minister’s efforts in Lands will therefore manifest and support his efforts in the other dockets.

Ardhisasa should expedite transactions

Delays in land transactions have for instance impended the expedient provision of land for housing and the development of infrastructure over the years. The Minister now has the discretion to have all these work in complementarity within this expanded portfolio. But the one thing he must first fix to attain efficiency is the online land management system, dubbed ardhisasa, which was launched in April 2021. The intentions of establishing this online system remain noble, the initial policy and technical hitches notwithstanding. It will help to expedite land transactions; it will immortalize our land records in better form and will help to disseminate land records countrywide real-time. It also substantially reduces human interfacing, and the consequent motivation for rent seeking.

High turnover of top leaders

Best wishes as you savour the delights of the season, and take a most deserved break as we look back. It’s an opportune moment to reflect upon the land sector too. A little earlier, out went Farida Karoney, and in came Zachariah Mwangi Njeru, to the top office at Ardhi House. Farida was bold and firm. She dared some difficult changes in the rather conservative Lands Ministry. She kick-started the establishment of a national online land management system, which should expedite business. This system is yet to be perfected though, and is the one thing that Cabinet Secretary Njeru should give priority.

As I wish Farida well in her time away from Ardhi House, I welcome CS Njeru to this rather challenging Ministry. It has caused anxiety to previous occupants, some of whom later found themselves parading court corridors, courtesy of their days there. Little wonder, this Ministry has had a high turnover at the top. Hon Amos Kimunya, Prof Kivutha Kibwana, James Orengo, Charity Ngilu, Fred Matiang’i, Prof Jacob Kaimenyi and Farida steered it during the Mwai Kibaki and Uhuru Kenyatta presidencies.

Land issues under the EAC

Discussing matters land in the East African Community has been difficult. Because land, its policies and laws, aren’t easy to agree on. They are quite jurisdiction-specific. What works in one country may be inapplicable in another. Indeed, the Protocol on the establishment of the East African Community (EAC) Common Market, which is informed by the Treaty of Establishment, is quite explicit on matters land. The Common Market Protocol provides for the free movement of goods, persons, labour, services and capital. It also provides for the rights of establishment and the rights of residence of EAC citizens. Article 15 of this protocol is on access to and use of land and premises. It tersely provides that Partner States are agreed that access to and use of land and premises shall be governed by the national policies and laws of the Partner States. This therefore limits the depth of discussions on matters land within the Community.

The mandate of the national land commission is terse. This is to manage public land on behalf of the national and county governments. The rest is sheer detail. The establishment of this constitutional organ was one of the most celebrated developments in the land sector. Clauses establishing it had been time and again struck out of drafts to our new constitution. It was largely unwelcome in some powerful quarters. Indeed, the land commission had been struck out of the Naivasha draft of the constitution, and was only restored after uncompromising stakeholder interventions as the process closed.

Privatization of public land

Often, this history, and the reason behind establishing an independent organ to manage public land in Kenya, is forgotten. The land commission was conceptualized and established following the gross mismanagement of the allocation of public land. Most biting was the casual privatization of public land reserved for a wide variety of public purposes, including education, agriculture, infrastructure development and conservation. Land for these purposes had been so commodified, that it had easily become a highway for easy multiplication of wealth. The state, through the executive, held sway over the allocation of public land, making it easy for the asset to be used as stick or carrot for political expediency.

2017 Demolitions

In 2017, I chaired a task force under the then Ministry of Lands and Physical Planning. The task force was established to investigate the processing of extension and renewal of leases since year 2010. The precursor to the establishment of this task force by the then Minister Prof Jacob Kaimenyi was ominous.

Demolition squads waving parallel lease documents had raided properties in Nairobi, forced out occupants and swiftly demolished pricey developments. Parklands, the City Center and River Road were particularly targeted. This ruthless and traumatising trend was worrying. Often, the parallel lease documents used turned out fraudulent, either irregularly prepared following the death of a lessee, or the expiry of an original lease, even in instances where applications for renewal pended in Lands offices. These aren’t legitimate methods for accessing property rights.