Provisions of proposed plan for re-allocate land in Kenya raises critical questions

NAIROBI: A radical government proposal to ensure no Kenyan is landless has caused uproar in some quarters and been faulted as ill-conceived and impractical.

The Bill, published by Lands, Housing and Urban Development Acting Cabinet Secretary Fred Matiang’i, proposes that the national and county governments be given powers to seize land from private individuals and distribute it to the landless.

“The government at either level may acquire surplus land and redistribute it to the landless persons capable of putting it into productive economic use,” the Bill says in part.

Any “surplus” above the legal limits will be taxed according to provisions “relation to land use”, it is proposed.

The taxation on land deemed “idle” is aimed at making it expensive to hold onto it and to compel owners to offload it either to the market or the state.

In his objects and reasons memorandum, Dr Matiang’i says the Bill crafted to give life to Article 68 of the Constitution was aimed at “reducing inequality and promoting equitable distribution of land”, among other objectives.

If it becomes law, the Bill would set a ceiling of 25 acres as the maximum land one can own in high potential areas, 38 acres in low potential areas, and 5,000 acres for cattle ranching.

It is also seeks to limit sub-division of agricultural and urban land into stamp-size pieces to improve food security, economic viability and urban planning.

To achieve this, the State, if the Bill is approved, will seize all land above the set limits and re-distribute it to the landless, who are defined only as “those capable of putting the land into economic use”.

But even before this Bill — currently undergoing public debate conducted by the Constitution Implementation Commission (CIC) — can land in Parliament for debate, critics are calling it a recipe for anarchy.

While the landless may be eager for the Bill to become law, small holders in high potential regions and urban centres gripe that they could lose their freedom to continue slicing up their land.

Large land owners worry the Bill is a dispossession scheme to impose high taxes on their land and compel them to sell or surrender land deemed “excess idle” to the State at low prices.

POLITICAL MINEFIELD

The Bill, titled The Minimum and Maximum Land Holding Acreage Bill, also establishes Sub-County Land Control Committees to take charge of granting or denying consent in land transactions. It does not mention the County Land Management Boards already set up by the National Land Commission.

In addition, the Bill grants the Cabinet Secretary powers to grant exemptions where he deems necessary.

But stakeholders have faulted this proviso as a political minefield akin to sneaking back to the executive powers previously enjoyed by defunct office of the Commissioner of Lands, but since vested in the National Land Commission.

In an interview, the chairman of the Senate Committee on Agriculture, Land and Natural Resources, Mr Lenny Kivuti, faulted the Bill as being “too casual in its approach to land reforms”.

“The priority on land reforms is review of the National Land Policy (2009) to align it with the new Constitution (2010) and the Community Land Bill. It is curious that the Government is not keen on the Community Land Bill, which has been stalled by lack of leadership,” Kivuti said.

He also described the proposed legislation as impractical: “The planning tradition practised and accepted for the minimum land holding size of 50 by 100 feet. This is the national planning standard on which basis more than three million titles have been issued over the years. How do you wake up one morning and decide to overturn this?

“If you cannot impose a limit to how much gold anyone can own legally, how do you impose a ceiling on maximum land holding? The land reforms debate has been invaded by too many activists whose interests, motivations and objectives are unclear.”

And in a memorandum to the CIC, a land reforms lobby group says there existed sufficient legal instruments to achieve what the Bill purports to propose and so should never have been entertained in the first place.

In its statement dated July 3, the Land Development and Governance Institute (LDGI) said the Bill contradicted Article 40 of the Constitution that guaranteed private property rights.

“The requirement for enactment of minimum and maximum land holdings acreage on private land (Article 68), had already been met through provisions in the Urban Areas and Cities Act (2011).

“The Bill is not informed by any scientific study or any known criteria,” the memorandum signed by LDGI board chair Ibrahim Mwathane says.

The memorandum was copied to the Attorney General, The Acting CS for Lands, the constitutional advisers to the President and the Deputy President.