From recent media reports, Parliament and the Commission for the Implementation of the Constitution (CIC) tasked the Acting Cabinet Secretary for Lands Dr Fred Matiang’i to prepare and table a bill on the maximum and minimum sizes of private land to CIC and Parliament. They would want the bill enacted by Parliament by 27^th August, the close of the Five year timeline under the Fifth Schedule of the constitution.

The two institutions appear oblivious to the realities of Kenya’s land sector and the emotive debates it elicits on some themes; and this is one. Timelines notwithstanding, they are delving into a bill that cannot be enacted by the end of August due to the legal technicalities required and the sensitivity of limiting land parcel sizes in Kenya. Parliament may be hesitant to enact such a bill till assured that it won’t adversely impact the interests of the many owners with plots below ¼ acre in size. Parliament may also want to be assured that the bill won’t ignite the open-ended politics of selective demonization of large scale landowners, most of whom pack immense economic and political influences. On this matter, Kenya will also have to contend with the irony of a policy narrative committing to a free land market and a legislation seeking to restrict the same.

Justification

It’s important to appreciate that the philosophy of minimum and maximum sizes of private land, contained in the Sessional Paper No 3 of 2009 on the national land policy and the agricultural policy currently undergoing stakeholder discussion, is noble. It helps to stop the subdivision of high potential agricultural and pastoral land into economically non-viable units. The constitution also requires ‘parliament to enact legislation to prescribe a minimum and maximum land holding acreages in respect of private land’. The new Land Act anchors this provision, requiring that within one year of its coming into force, the Cabinet Secretary commissions a scientific study to determine the economic viability of minimum and maximum acreages in respect of private land for various land zones in the country.

The Land Act further provides that the findings of the study be made available to the public for observations and inputs and that the results of the study be tabled to Parliament within three months of publication. Once approved, the Cabinet Secretary would prescribe the minimum and maximum land sizes in respect of private land for various parts of Kenya. This prescription would guide land registrars whenever instruments and dispositions on land are tabled for registration in the respective land registries in Kenya.

Fate of small and large parcels?

CIC and Parliament therefore needs to appreciate that the scientific study hasn’t been done. Once commenced, the study should be buttressed by a countrywide public sensitization programme so that Kenyans don’t misconstrue the reasons behind the proposed law. One can imagine for instance how landowners in parts of Western, Nyanza, Rift Valley, Eastern and Central Kenya where plots sizes are down to ‘envelop size’ and those that own large parcels in the Rift Valley, Central and Coast will perceive such a law.

Expedite fundamental legislation

At the moment, four major bills requiring conclusion by August 27^th under the Fifth Schedule pend enactment, a fact decried in the Land Development and Governance Institute’s (LDGI) score card results released at the end of May. These are the Community Land Bill (community land constitutes over 60% of our land making this a very compelling bill), the Mining Bill (quite key to the exploration and extraction of our natural resources such as minerals), the Agreements on Natural Resources (Ratification by Parliament) Bill and the Physical Planning Bill. These are the bills that at the time warrant expediting for enactment by August 27^th.

Land Control Act to meanwhile regulate minimum plot sizes

The timeline to the bill on minimum and maximum, which in my view is already over two years late, is spelt through the Land Act. It therefore can be changed easily through a simple amendment by Parliament. Given the technical and process demands associated with the bill, I suggest that it be prepared only after the key sectoral legislation above has been enacted. Even then, sufficient public sensitization and explanations must precede it to pre-empt misrepresentation and misperceptions.

In the meantime, some of the intentions of the bill could be realised if Land Control Boards, established under the Land Control Act to regulate transactions in agricultural land and already in use in most of the targeted zones, could be strengthened to provide effective oversight to check the wanton subdivision of agricultural land into non-viable sizes.