Pending bills: background

Talk of pending draft land bills is all around. But which are they and what will they fix? There’s a Community Land Bill, a Physical Planning Bill and a Historical Land Injustices Bill. There is also talk of a Minimum and Maximum Land Holdings Acreage Bill and an Evictions and Resettlement Bill. And there’s now another, the Land Laws (Amendment) Bill.

There’s a background to this. Over the last three years, different task forces prepared different draft bills. Hon James Orengo put in place two in 2012. One was charged with preparing a Community Land Bill and an Evictions and Resettlement Bill. The other worked on regulations and amendments to Land Laws. The National Land Commission thereafter appointed another to prepare a draft bill on Historical Land Injustices. The last team, appointed by the Acting Cabinet Secretary Fred Matiang’i, produced a draft bill on minimum and maximum land sizes….in about a month. All the draft bills were supposedly passed on to the Cabinet Secretary.

Published bills

But only three found their way to publication for discussion by the National Assembly namely the Community Land Bill and the Physical Planning Bill both dated 11^th August 2015 and the Land Laws (Amendment) Bill dated 18^th August 2015, all now available at the Government Printers. A slightly different version of a Community Land Bill, dated 8^th October 2014, had been earlier published and tabled for discussion in the Senate. Hope this will be converged with the recently published one.

So have we lost the other three? Not at all! The key principles in the draft bills on historical land injustices, evictions/resettlement and the one curbing land sizes have been carried as amendments to the National Land Commission and the Land Act of 2012. These have been combined with other amendments to the two statutes and the Land Registration Act to produce an 88-page omnibus bill.

Published bills should guide discussions

There’s been heated debate aimed at the matter of curbing land sizes, community land and amendments to existing laws. A lot of these comments were aimed at the earlier versions of the respective bills. For objective comments to improve the bills before enactment, it helps to carefully read the published versions. And given the very technical nature of land bills and their propensity towards political capture, Parliament is advised to prioritise and avoid discussing them at the tail end of the extended one year timeline anticipated to be August 2016. This will be the eve of our 2017 elections and land bills won’t find objective debate.

Overview: Published bills

For a brief overview, the Community Land Bill published for introduction into the National Assembly aims at providing for the recognition, protection and registration of community land rights. It also provides for the management and administration of such land. While this bill doesn’t elaborate on how communities and their representatives will participate in decision making, the bill published for discussion in the Senate does. Just like private land owners, communities need to enjoy a voice in decisions regarding their community land. Investors keen on investments on community land-based natural resources need to take time to understand how related agreements are provided for under the law. And given that the constitution outlawed dispositions on community land unless under an appropriate legal framework, an audit of dispositions of such land made before the enactment of this law will beg.

The Physical Planning Bill 2015 provides for the planning, use, regulation and development of land and repeals the Physical Planning Act of 1996. This law will greatly impact on development and development applications around the country and investors and professionals need to familiarise with its provisions.

The Land Laws (Amendment) Bill introduces amendments to the Land, the Registration and the National Land Commission Acts aimed at clarifying the roles of the National Land Commission and the Lands Ministry in order to eliminate overlaps of mandate and the resultant conflicts over land registration. Among others, it also introduces amendments to the Land Registration Act with the effect of recognising titles previously issued under the Government Lands Act and the Land Titles Act which lending institutions had difficulties accepting after enactment of this law.

Minimum and maximum land size curbs to undergo public input before application

The amendments also make it mandatory for the Lands Cabinet Secretary to first consult Kenyans before introducing minimum and maximum land sizes. The seven zone schedule earlier imposed on Kenyans by the initial draft bill was dropped. An amendment to the Land Commission Act gives the Commission powers to receive, investigate and recommend appropriate redress on historical land injustice complaints while another shifts powers of appointing the Chair and commissioners to the Public Service Commission. The Land Act is also amended to provide for mechanisms of evicting unauthorised persons from private land. This and a number of other amendments will be contentious.

Ibrahim Mwathane(Chair, Land Development and Governance Institute: This e-mail address is being protected from spambots. You need JavaScript enabled to view it ; twitter: @mwathane)