Kenya has made good gains in its quest for land reforms in the last decade. It now prides itself of a new policy and legal framework around which to progress these reforms.

Implementation is driven by the Lands Ministry and the new National Land Commission. But the two institutions have picked wars on just about anything there was……office space, issuance of title deeds, land ownership and the interpretation of laws, hence compromising effective implementation. And looking at the internal structures of each, the wars won’t end unless there’s a revisit of the legal framework and the respective operational institutional structures. Look at the structures.

Besides the Housing and Urban Development dockets, the Ministry has a Directorate of Lands under which are five Departments of Administration/Planning, Lands, Survey, Physical Planning and Land Adjudication & Settlement, each under a Director. Under each of the Directors are several senior technical and administrative officers under a top-down pyramid, some at the head office in Nairobi and others at County level.

On entry, the National Land Commission established a rather bloated structure, with a whole twelve Directorates, besides the CEO’s office. These include Directorates of Audit, Finance, Human Resources and ICT. Others are Land Administration, Land Information, Land Use Planning and Legal Affairs. The other four are Natural Resources, Research, Valuation and that of Survey, Adjudication & Settlement. Under each Directorate are several ranks of senior technical and administrative officers along with support staff. The Commission is now in the process of establishing County Land Management Boards around the country. One must remember that at County level remain other organs like Land Control Boards and Land Registries under the Ministry. Comparatively, the officers under the commission are better paid though not necessarily better qualified or experienced. That tilts morale.

A quick glance reveals overlaps between these two parallel structures. Why? One also wonders why the public sector has been allowed to tremendously broaden its staff base, increasing operational costs without any evident increase in roles or improvement in service delivery. Why was the land commission allowed to recruit without a pre-audit of the technical skills available in the Ministry that could be deployed for related tasks? Why are we deploying public funds so casually? Why didn’t the Ministry, the Commission and the PSC sit to rationalise the new recruitment?

Observers will also notice that wars in the Ministry have revolved around issuance of title deeds, administration of settlement programmes and the processing of leases and development applications. Traditionally, these are the areas around which officer-discretion has been broadly exercised. These are the areas in which the discretionary decisions to allocate or extend land leases could determine ownership of millions worth of property. These are very lucrative areas where vested interests are driven or ring fenced routinely. From a priority perspective, why is the new land commission seemingly so fixated on these areas while complaints of public land grab requiring its quick attention increase? Why not map and protect such land for a start? When it comes to these areas, the Ministry too acts rather mean, seeking to keep out the commission even where the law states otherwise. Yet it’s within these areas that major processes that economically empower the rural and urban land owners and businesses are determined!

Unless the government and stakeholders wake up to the evident tell-tale signs, progress on land reforms will be stemmed. Let me illustrate. When title deeds were issued at the Coast, the Commission challenged them. When the land registry had to be reorganized, the commission challenged the office closure in court. Currently, there are parallel efforts to establish land information management systems; this is technically unwise. There’s also been a silent war on who will administer settlement programmes. This means the issuance of title deeds from community land will remain contested. Then Land Economists (Land Officers) in the Ministry remain unsure whether they are under the Ministry or the Land Commission, compromising the administration of land leases and development applications. The new County Land Management Boards are already beginning to assume some duties that they shouldn’t perform. This is a recipe for future conflicts between them and Land Control Boards and Land Registries under the Ministry.

We must therefore introduce clarity in our land governance. We need a clear chain of command too. This requires revisiting our constitution and laws. After two years of experiment, we know what won’t work.