An audit of the draft Community Land Bill 2013 which is before Senate has unveiled numerous ambiguities, which would hamper its implementation if passed into law as it is.
The Land Development & Governance Institute has punched holes on the proposed law in a review, pointing out some sections that may contradict other property laws and details that have been left out.
The law is intended to safeguard community land rights and provide for the recognition, registration and protection of community land. It will provide for administration and management of community land.
“It will be a lot harder to refine the law if passed with the glaring imperfections,” said Ibrahim Mwathane, LDGI’s chairman.
It emerged last November that the draft gazetted for introduction to Senate for debate was an earlier version that did not contain views of stakeholders including the National Land Commission, Ministry of Lands and interest groups.
Among issues pointed out in the LDGI audit include the proposal to incorporate the community land management committees as legal entities, instead of making the community “the indivisible collective entity”.
“This does not correspond with the constitutional approach of vesting legal rights directly on the community,” the audit states.
A proposal to appoint a separate registrar for community land also contravenes the constitutional support to unifying registration of all categories of land under the chief land registrar.
Failure by the Public Service Commission to appoint a substantive land registrar has resulted in constant institutional tussles between the ministry of Land and NLC.
“Land registration was not meant to remain under the ministry as a function. Sadly it is and that’s where friction has been arising from,” said Mwathane.
The bill does not also clarify on the role of county governments against that of the NLC over unregistered community land. Similarly, the law should make it mandatory for all registered community land to have land-use plans.
The community land law is meant to complete the set of regulations envisaged in the National Land Policy of 2009. Four land-related laws were enacted between 2011 and 2012 including the Land and Environment Act, Land Act, Land Registration Act and National Land Commission Act.
“Currently (on land issues) the country is like a three-legged seat that that’s missing one leg – the Community Land law. Yet, community land makes up more than 55 per cent of the country’s stock of land,” said Mwenda Makathimo, LDGI’s executive director.
Among other proposals in contention include “derivative rights” which is not clearly defined; lack of room to grant grazing rights to non-community members; and lack of clarity on community interests to bring out how such are identified.