In a recent contribution to the 2020/21 budget allocations, I observed that one of the prioritized items for the national land commission is the development of an inventory of public land. This is a comprehensive record of the size, location, use and/or developments on public land, ordinarily held by state ministries, departments and agencies at national and county level. Kenya currently doesn’t have this. We therefore cannot effectively quantify our portfolio on public land and property. This makes it difficult for the state to make investment decisions, especially where local or foreign investment proposals call for use of available public land. Worse, the gap makes public land susceptible to irregular privatization. And this happened with impunity in the past. Kenya lost public land needlessly on account of a poor public policy and a weak land administration system.

The emerging saga on the privatization of Ngong forest helps us to revisit that era for lessons, and to interrogate the consequences of today’s actions or inactions to recover the lost land. When most land grabs in Kenya happened, our constitution and laws strongly protected title to land, regardless of the root of title. Fighting back to repossess such land therefore used to be a difficult and a near impossible task. The 2010 constitution, and the subsequent land laws, lifted this protection, clearly stating that titles to property obtained unlawfully would not enjoy any protection. Because they have a good legal basis, today’s courts will easily grant orders to cancel title to unlawfully obtained land once evidence is adduced.

This affords our national land commission, the constitutional organ charged with the management of public land, good latitude for interventions to stem irregular allocations. Therefore, the commission, along with the state ministry responsible for forests, should now be easily able to protect our existing forests. Furthermore, following our constitutional commitment to attain a ten per cent tree cover of Kenya’s total land size, one expects the ministry responsible to make efforts to expand our forest plantations. Such efforts may include attempts to recover lost forest land, and replanting it with trees. This would be in keeping with national commitments and the ministry’s mandate.

But in trying to recover any previously allocated land, the government must keep in mind the history and “facts on the ground”, a phrase often used during negotiations in conflict areas. This phrase calls for negotiators to bear in mind changed circumstances, particularly where antagonists may have moved into territories and set permanent occupation. Such humbling realities occasionally change outcomes. In the Ngong forest case, what are some of the “facts on the ground”? First, the government of the time oversaw the processes of allocation, registration and transfer of public land to private persons. Subsequently, many senior public servants, members of the disciplined forces, religious groups, businesses people and some political bigwigs who benefitted moved in and invested heavily.

Third parties, believing the titles to be valid, purchased land and developed permanent homes too. And in Kenya’s registration system, government guarantees titles. These contradictions, added to the overt and subtle interventions likely to be driven by the targeted persons, will be consequential. Choosing between increasing our forest cover and protecting private title, which are both enshrined in our constitution, is a hard place to be for any government.

The recovery process will therefore need to be very carefully thought through, to pre-empt or minimise the anticipated social-economic, political and legal consequences. In making its decision, the government needs to involve the national land commission, given its role in managing public land. And in view of the “facts on the ground”, if no degazettement was ever done, it may be prudent to prioritise the recovery of any undeveloped plots, and, given that the affected land size is comparatively small, regularize title to the developed ones.