Radical ideas on land laws ignite debate as deadline looms

The Government has proposed radical changes in land laws to unlock stalled reforms in the face of looming constitutional deadlines.

The Government has also made draft amendments that contain radical proposals to end the incessant turf wars between the National Land Commission (NLC) and the Ministry of Lands.

The five-year constitutional deadline to enact key land laws lapses on Thursday August 27, but stakeholders are yet to agree on what should go into the final versions.

Among the key laws is the Community Land Bill, whose significance has increased following the discovery of minerals including oil, coal and metals  in regions where community land is yet to be  demarcated.

Last week, the Government published the Community Land Bill, the Physical Planning, Spatial Planning and Land Laws (Amendments) Bill 2015, targeting the National Land Act (2012), the Land Registration At (2012) and the Land Act (2012).

The Land Laws (Amendment) Bill 2015 makes radical proposals aimed at stopping wrangles between the NLC and the Ministry of Lands, Housing and Urban Development, and ease service delivery.

Streamlined roles

The two key players in the land sector have been locked in squabbles over legal mandates rooted in laws passed in 2012, some of which contradicted the National Land Policy (2009) and the Constitution.

The Land Laws (Amendment)Bill 2015, a draft of which The Standard on Sunday has seen, proposes amendments to have the Ministry of Lands fully in charge of the land information management system and the land registry.

The Bill further proposes amendments in the Land Act (2012) to put the ministry in charge of settlement schemes and the Settlement Fund Trustee (renamed Land Settlement Fund) that is mandated to acquire private land for public utilities.

The Bill further proposes amending the NLC Act to transfer the recruitment of NLC commissioners to the Public Service Commission to professionalise it and reduce political influence in the process.

These amendments seeks to streamline provisions contained in the National Land Policy (2009) but not provided for by the constitution passed in 2010.

The Land Laws (Amendment) Bill 2015 proposes amendments to Section 159 of the Land Act to provide for scientific study to precede the determination of maximum and minimum land holdings.

If this particular proposal is endorsed by Parliament, it  will have the effect of rendering redundant the Maximum Minimum Land Holdings Acreage Bill published by Acting Cabinet Secretary for Lands, Dr Fred Matiang’i, last month, and which has been faulted by some as being impractical.

Changes are also suggested to section 152 of the Land Act to provide for evictions and resettlement. This seems to render redundant the envisaged Evictions and Resettlement Procedures Bill.

In a statement released on Thursday, the Council of Governors criticised a proposal by the omnibus Bill to amend Section 18 of the Land Act to disband County Land Management Boards (CLMB) set up by the NLC as draconian and an affront to devolution.

The NLC had set up CLMBs in more than 40 counties in the last one year. However, rather than resolve the stalemate between the NLC and the ministry, these boards seemed to cascade the acrimony prevailing at Ardhi House to the counties.

There has been concerns that the CLMBs and the Sub-County Land Committees proposed by the Maximum Minimum  Land Holding Acreage Bill (2015), had the cumulative effects of creating more bureaucratic layers contrary to the National Land Policy proposal for simplified and efficient land administration systems.

The Council of Governors has called on Parliament not to entertain the  Draft Bill.

“This (Bill) will be an obstacle to determining review of grants and implementing the Ndung’u report. In addition there is a deliberate attempt not to address historical land injustices claims by making it unnecessary to have a historical injustice legal framework,” said the statement read by Kitui Governor Julius Makau Malombe.

Dr Malombe is the chairman of the Lands, Agriculture, Environment and Natural Resources Committee of the Council of Governors.

Bureaucratic layers

“It is the position of the council that the Omnibus (Amendment) Bill 2015 on land laws must be withdrawn. The Bill that should be under discussion ought to be the taskforce version of the Community Lands Bill which was submitted to the CS. The Physical and Spatial Planning Bill should be interrogated and merged with the Land Use Planning Bill, 2015,” he said.

The Land Use Planning Bill (2015) is the NLC version, while the Physical and Spatial Planning Bill is the ministry version, a pointer to the fact that the conflict between the Ministry and the NLC had escalated into the law making process.

A vocal supporter of land reforms, the Land Development and Governance Institute (LDGI) said the amendments to resolve conflicts between the two were long overdue, as players in the two institutions were hired to render services to the public not to protect territorial mandates.

Perpetual public altercations between NLC headed by Prof Mohammed Swazuri and the Ministry of Lands under suspended Cabinet Secretary Charity Ngilu have left the land sector in confusion.

“LDGI is also concerned that too many laws in the land sector had increased bureaucratic layers, made systems cumbersome and bewildering to the ordinary citizen, besides escalating the costs to both tax payer and the service consumers. LDGI also urges Parliament to provide for mandatory audit of all land transactions involving community land executed after August 2010. They should be deemed irregular and addressed as such,” said the institute’s board chairman Ibrahim Mwathane.

NLC’s chair of the Land Survey, Settlement and Adudication Committee, Abdulkadir Khalif, said the commission was concerned that the belated rush to enact key laws in two weeks may result in compromised quality of Bills.

“Public participation is a key requirement in the lawmaking process and this is not possible in two weeks. The options facing the country now are to enact unscrutinised Bills or pass amendments to extend the timelines. The NLC is concerned that the process so far had not budgetted for stakeholder input into the Bills as required by the  law,” Khaliff said in an interview.