This is no way to reform the Land Law

Apparently MPs gave themselves 60 days from February 23 to complete the land Bills, so must pass them this week – haunted as they are by the totally unrealistic spectre of the Chief Justice telling them to go home early for having failed to implement the Constitution.

Having listened to various civil society organisations at Bunge – which to be fair they did patiently and with apparent sympathy – travelled around the country listening to wananchi, and holed up in Mombasa at great public expense for a week with a bunch of distinguished initials: the CIC, the KLRC and the LSK, what will the Musyimi committee come up with?

Civil society had asked the committee to bear in mind the vision of the Constitution, and of the National Land Policy: of a Kenya without slums, mass evictions, landlessness, gender inequity, uprooted communities, land grabbing, but with a modern, efficient, equitable, coherent, transparent, participatory, accountable system of land administration and law.

Having had a glimpse of what parliamentarians will be asked to approve by way of amendment, how far do we sense that these concerns have been listened to? Let’s take evictions. There is another Bill in the pipeline, stuck there for years. The Land Bill has something about “unlawful occupants” of public land, from the Tanzanian law, that is quite helpful. But nothing about people who find themselves living on land belonging to the private sector, and are vulnerable to vicious evictions. Even a provision that would have made it harder to throw out those who have leased private land but found themselves falling behind in their obligation (not to make it impossible but to even up the playing field a bit) has been removed and the existing law re-instated.

The Community Land Bill is lagging behind; meanwhile there are fears that much will happen that will make it harder for people to claim community and customary rights, despite the Constitution’s emphasis on these.

The Land Bill still places a lot of emphasis on privatisation of public land: civil society had argued for principles of trusteeship, on setting out who should be beneficiaries of allocation, and how the land should be used.

We had argued for a programme of regularising long-standing rights in land, for all those who have letters of allotment and other bits of paper that turn out not to give them secure rights. There is no sign of this. A new requirement that the National Land Commission ensure that all unregistered land is registered within 10 years may have the opposite effect – because the intricacies of registration have often meant that those entitled are actually deprived of their rights.

We asked for modern land law: but there is no sign of recognition of environmental easements. The law on compulsory acquisition of land (by the government of private or community land) shows no sign of modern developments, and makes acquisition too easy, without enough chance to challenge it.

Rectification of historic injustices is shunted aside a bit longer – the Land Commission must propose a law within 2 years (no change in this). Any process to get back the land that has been grabbed is not clearly provided for. And, what are we to make of a provision that says if land has been irregularly acquired, the Commission must correct the irregularity (and that “irregular” means only not according to the Land Commission Act!)?

On gender, it seems that the main hope is that this will be dealt with in the Matrimonial Property Bills (also in a pipeline). So women have to wait longer for clear rules about protecting their interests in the family home, including the question of whether a home jointly owned is to be owned by the wife if the husband dies first (joint tenancy) or the husband can leave his share to someone else (tenancy in common).

The committee has apparently decided not to take the rational step of merging the Registration and the Land Bills, though it has removed the provisions of the latter on joint ownership, in favour of the, less detailed, provisions in the former.

The role of the Land Commission, its relationship to the Ministry of Land and its relationship to the system of county government remain unclear. The make-up of the panel to choose its members has shifted, in the proposed amendments, towards greater influence of the private, professional, wealthier, sections of society and away from the people.

There is no clear set of provisions to bring this whole complex body of new law into effect gradually. Lawyers are left to work out how existing laws are affected by the new laws. There are fears of chaos, or a retreat to past practices.

We don’t want to say that no efforts had been made to improve. There is some improvement in the actual writing of the Bills – removing some more obvious typing errors and confusions.

There is a list of nice-sounding principles on opportunities for members of all ethnic groups, protection of the marginalized (twice!), democracy and inclusiveness to add to an existing list of nice principles of land management. But no substitute for a framework chapter of guidelines and principles that had been proposed. A potential loophole about allocating public land to “targeted groups” (like millionaires?) has been plugged by making it clear they are to be disadvantaged. All is not bad.

Haste is written all over much of the drafting. Though one has to wonder why the Ministry was not ready for this. It really was not necessary for Kenyans to be burdened with this set of still sloppy, inconsistent, poorly written, repetitious Bills, sometimes showing poor understanding of law.

It is hard to know how much is intentional and how much failure of imagination or understanding, over-influence of the professional, bureaucratic, and land-grabbing classes, lack of professionalism or lack of time. Anyway, this is no way to design the new Kenya.

Jill Cottrell Ghai writes on behalf of a group of civil society organisations that has been working on the Bills, including Akiba Mashinani Trust, Mazingira Institute and Katiba Institute with input from many others.