NAIROBI: Land experts have warned that a proposed new law that limits the amount of land an individual can own will face serious opposition if not amended.
According to Ibrahim Mwathane, a surveyor and the chairman of Land Development and Governance Institute (LDGI), the Kenya Minimum and Maximum Land Holding Acreage Bill 2015, which is currently being scrutinised by the public, is a political landmine in an ethnically and politically polarised society like Kenya.
The bill proposes that individuals in rich agricultural areas can only own a maximum of 10 hectares (24.7 acres) while those in low- potential areas can own up to 15 hectares.
Big landowners who have more than the set limits will be required to either give up the excess chunks for redistribution to other Kenyans or pay taxes on them.
To be affected most by the proposed law, put out recently for public consultation by the Commission for the Implementation of the Constitution (CIC), are individual landowners in the rich agricultural highlands of Bomet, Kisii, Nyamira, Nandi, Trans Nzoia, Vihiga, Uasin Gishu and Bungoma counties.
Under the proposed law, individuals living in semi-arid areas will be allowed to hold a maximum of 25 hectares (61.8 acres) while those living in the dry and remote sections of Isiolo, Mandera, Kajiado, Kwale, Garissa, Wajir, Tana River and Turkana counties will be allowed to own up to 2,471 acres.
That means small land holders in high-potential areas will lose their freedom to continue sub-dividing their land into smaller sizes, while large landowners will face high taxation on "excess idle" land beyond legally allowed limits or risk being compelled to forfeit them to the State for redistribution.
Landowners will also be required to maintain a tree cover of not less than 10 per cent of the total holding and observe the maximum livestock numbers prescribed for each zone.
The bill was published by acting Lands Cabinet Secretary Fred Matiang'i. The CIC is obligated by the Constitution to ensure public participation to ensure their views are incorporated.
In the bill's memorandum, Dr Matiang'i says the objective of the proposed law is to reduce inequality, promote equity in land distribution, regulate subdivision, promote sustainable use of private land and enhance national security and economic stability.
But Mr Mwathane reads sinister motives on the timing of bill. He says the ministry, the CIC and the Constitutional Implementation Oversight Committee (Cioc) have ignored more critical laws that have more impact on national security, political stability and economic development.
Land redistribution by politicians and bureaucrats, he says, is an uphill task and a political landmine in an ethnically and politically polarised society like Kenya.
"Redistribution only works where there are functioning community institutions, and it is never an imposition from outside," he said.
Debate on what constitutes "idle land" and Article 40 of the Constitution that guarantees property rights for individuals may also impact the bill.
The bill is in line with Article 68 of the Constitution that states in part: "Parliament shall enact legislation to prescribe minimum and maximum land holding acreage in respect of private land."
The Land Act (2012) proposed that determination of land holding acreage limitations would be preceded by a scientific study to determine the economic viability of maximum and minimum sizes in different ecological zones
"The findings of the study will be subjected to public comment and thereafter debated and if deemed fit, adopted by Parliament. Rules prescribing the minimum and maximum acreages, based solely on the report adopted by Parliament, will then be published by the Cabinet secretary in charge of matters related to land," it says.
The study is yet to be conducted. "We have no budget to conduct a scientific study," Matiang'i said.
Private land is defined as registered land held by any person under freehold or leasehold tenure or any other land declared private by an Act of Parliament. Many large holdings of land acquired before independence are on 999-year leases.
If the National Assembly and the Senate pass the bill, it would lay the foundation for repossessions of the so-called idle land for redistribution to the landless or for "productive use".
