Bill seeks to clip land commission powers

National Assembly Majority Leader Kimani Ichung'wah. [Boniface Okendo, Standard]

The push by the Executive to strip the National Land Commission of powers to compulsorily acquire land and compensate owners has opened a new battlefront.

National Assembly Majority Leader Kimani Ichungwah tabled the Land Laws (Amendment) (No.2) Bill before Parliament which seeks to vest the mandate of compulsory land acquisition under the Lands Cabinet Secretary.

The Bill if approved will see the Lands CS have the powers to compulsorily acquire public land on behalf of county and national governments, pay compensation to the affected land owners, issue awards, inspect property and take charge of the land lease renewal process.

"The Bill vests upon the Cabinet Secretary, the mandate of handling compulsory land acquisition, eliminating conflict of interests likely to occur when one entity is involved in the valuation process and at the same time making compensation payments and eliminate delay in acquiring land since the acquiring public body has direct control in making compensation payments as opposed to when funds were being transferred to the commission and establish the land acquisition committee to replace the land acquisition tribunal," reads the Bill in part.

The Bill seeks to repeal section 107 of the Land Act 2012 which stipulates that whenever the national or county government deems it necessary to acquire land, the respective Cabinet Secretary or the County Executive Committee Member shall submit a request for the acquisition of public land to NLC to acquire the land on its behalf.

This function, should the Bill be enacted into law, will see the CS have powers to craft procedures to be adhered to when acquiring land.

It further proposes the deletion of section 111 (1A) that requires any acquiring authority to deposit to the NLC the compensation funds in addition to survey fees, registration fees, and any other costs before the acquisition is undertaken. Instead, it proposes, that the funds should be deposited with the Lands CS after the land-acquiring entity demonstrates that the funds are available.

The Bill also proposes the establishment of a Lands Acquisition Committee comprising five members appointed by the CS. It will be charged with hearing and determining appeals emanating from the decisions made by the CS with regard to the compulsory land acquisition process.

It will consider the applications made within 90 days and will be at liberty to confirm, vary or quash the decision of the Lands CS.

The committee shall comprise a chairperson who should be an advocate of at least ten years and members including two registered valuers with at least ten years experience in statutory valuation in a public body, one licensed surveyor of at least ten years standing and one person with extensive knowledge and experience in the informal sector representing the public.

The NLC is however opposed to the proposed amendments terming them an affront to the Constitution.

In its submission to the National Assembly Lands Committee, the commission argued that the amendments were not only unconstitutional but would erode the major strides in the lands reform sector.

The commission was concerned that the development would pave the way for irregular acquisitions, lack of transparency and subjective compensation assessments.

"The proposed amendment of Section 107(3&4) of the Land Act No. 6 of 2012 offends the principle of separation of functions since it leaves the discretion on whether to accept or reject any land acquisition to the Cabinet Secretary in charge of Land who is an appointee of the President, limiting objectivity due to apparent political influence or interference," reads the document.

NLC is seeking to have the amendment allowing acquiring entities to submit a request for acquisition of land to the Cabinet Secretary dropped, arguing that it affects Articles 174 and 175 of the Constitution on the objects of devolution which promotes the autonomy of the national and county governments.