Background

From August 22nd to September 15th 2017  the Land Development  and Governance Institute (LDGI) and Land Portal Foundation will co- facilitate an online debate that will involve the contribution of major stakeholders focusing on contemporary Kenyan land governance issues.

Land governance concerns the rules, processes and structures through which decisions are made about access to land and its use, the manner in which the decisions are implemented and enforced, the way that competing interests in land are managed. Since the promulgation of the New Kenyan constitution in 2010, the system of land governance has tremedously improved. This is through creation of new and more effective land governance institutions and enactment of new land laws.

Objectives

  1. Increase exchange of information between a variety of stakeholders on Land governance in Kenya.
  2. Increase awareness of the practical implications of sustainable and good land governance by the stakeholders, land institutions and the land owners.
  3. Engage and amplify voices from Kenya to contribute to solutions in their own country, and throughout the global south, that will improve land governance.
  4. Generate dialogue that can inform potential strategies and actions to improve responsible land governance practices in Kenya.

Dialogue Questions

  1. What is the current situation of Land governance in Kenya?
    - What is the way forward towards achieving sustainable land governance in Kenya?
  2. What mechanism can be put in place to ensure that the compensation to any land compulsorily acquired is fair and benefits all the legitimate beneficiaries?
    -How can the land governance institutions involved ensure that the affected communities benefit from the land compulsorily acquired for investment purposes?
  3. What is the impact of the land use trends in Kenya today?
    -What can be done to promote sustainable land use in Kenya?
  4. What lessons can we learn from the Land governance system in Kenya?

How to participate?

To participate in the discussion, one needs to log in or register. Feel free to make more than one contribution and answer as many questions as you can and then upload your contributions to the dialogue.

You can also send your answers by email to either lizahmy@ldgi.org or monica@ldgi.org .

Comments

Dear Partners,

The Land Development and Governance Institute (LDGI) welcomes you to participate in an online debate on land governance in Kenya which is to run between August 22nd and September 1st, 2017. This online discussion comes at prime time, given that Kenya has just got out of pre-election campaigns for the 8th August general elections. In previous years, land issues were at the forefront of such campaigns. Discussion on land during such campaigns would consist of high pitch rhetoric, without clarity for structured solutions. The 2017 campaigns were however different in that politicians from all divides avoided generalities.  I believe this was because Kenya’s high level frame consisting of our national land policy, our constitution and our new land laws provides some good guide and hence discourages general rhetoric. Time and resources spent on perfecting our policy, constitution and laws is therefore not in vain.

But it is imperative that Kenya’s policy and legal frameworks are effectively implemented to provide solutions that work for the ordinary land owners, users and communities. Solutions that preserve our environment and keep it enjoyable to users and humankind. Solutions that mind planning and climate change and the future of our earth. Effective implementation must therefore become Kenya’s land sector goals, along with monitoring and evaluation to find out whether intended impacts are attained. Where results are inappropriate, evidence from the evaluations should inform reviews to the policy, the constitution and laws.

It is against this background that we frame questions relating to the compensation of land rights appropriated for public projects and land use. The constitution guarantees prompt payment in full of just compensation to owners or occupiers in good faith of property. This guarantee is further embedded in Kenya’s Land Act. Now that we have had to acquire land for the Special Gauge Railway (SGR) between Mombasa and Naivasha and the Lamu Port-South Sudan-Ethiopia-Transport (LAPSSET) Corridor under our new constitution and laws, we pose questions that seek to interrogate how these provisions have worked for land owners and affected communities on these infrastructure initiatives. Answers will help to retain or improve the respective provisions in our policy, constitution and laws when there is opportunity to review.

Land use has become a constant concern in our rural and urban spaces. In rural space, prime agricultural and pastoral land is under threat by competing and unplanned commercial and residential uses. In our urban spaces, lack of comprehensive planning particularly in peri-urban zones, incompatible land uses and the loss of green cover, recreation and future public needs, among others, is of concern. In this regard, we pose the question on land use trends in our country in order to capture what is happening in the various Counties and seek opinion on possible intervention strategies given the consequences if current trends are left unaddressed. Your views will be helpful in shaping appropriate policy and enforcement strategies at national and county level.

Please welcome and enjoy the debate.

Ibrahim Mwathane, Chairman

Kenya is at the stage of implementing policy, legal and institutional reforms to enhance people centered land governance in the country. The laws addressing recognition, registration and recognition of land rights (individuals, public and collective) are in place. The extant gap is on operationalization and enforcement. The draft rules and regulations to operationalize the land laws are critical in improving land governance.

The institutional framework for equitable and responsive land governance is also in place. The only gap on the institutional structures is the yet to be established Community Land Management Committees. There is also need to improve collaboration between all institutions working in the land sector to fast track the implementation of land reforms.

There are two major challenges facing land governance in Kenya. Access to relevant and accurate information is still a challenge. Digitization of the land records should be enhanced. The second challenge inadequate awareness of land rights, land laws and policies by the communities as well as the decision makers and implementers. To improve our land governance, we need to invest in land and natural resource rights education.

What is the way forward towards achieving sustainable land governance in Kenya?

First, I proposed developing, supporting and facilitating land governance dialogues and discourses at all levels (national, county and community) with well targeted stakeholders. For instance, the implementation of land laws can only be achieved through dialogue and building consensus between decision makers, administrators/implementers, communities, practitioners etc. Without continued consensus building and policy dialogues, there can be no sustainable practice change because the philosophy informing the current changes will not have been properly taken on board by the many stakeholders. This makes the relationship between stakeholders remain at competitive (the formulation level). You cannot implement laws through a competitive approach.

Second, there is a need for a robust land administration and management education programme. This can be in form of a campaign. Communities cannot benefit from the current land reforms if they are not aware of the provisions of laws and policies.

Third, I propose having a multi-stakeholders land forum which can bring all land stakeholders together annually to take stock of progress made in implementing land reforms. The importance of an annual land conference will be the sharing of information and having a common understanding of the status of land reforms in the country.

Fourth, it is necessary to develop a comprehensive monitoring and evaluation framework for land reforms. This should be developed through participation of all land stakeholders to provide standardized way of collecting data and measuring progress against land reforms.

In terms of a mechanism that  can be put in place to ensure that the compensation for compulsory land acquisition, first and foremost recognize the diverse land rights. The VGGT provides a good framework for doing this. There are ownership, access, user rights among others. There are those with formal ownership while others have informal etc. Map out these existing tenure on that land as well as the diverse uses. Use the two to map out the stakeholders involved in that land so that no one is left out. Compile lists of all those concerned

In addition, it is important to do a proper valuation of the land (the current market rate) as the basis for compensation.

Moreover, I would suggest consider different forms of compensation, such as giving alternative land, giving shares, providing tax reliefs, provision of certain amenities etc.

Finally, compensation should be given and finalized before the land is taken.

The impact of the land use trends in Kenya today is food insecurity, conflicts and poor planning. We are not maximizing the returns on land because of lack of proper land use planning.

As a result, let’s do a comprehensive and participatory land use planning and then enforce it. Land reforms require effective change management strategy, and  we must embrace dialogue and consensus building if we are to successfully implement land reforms programme and laws.

Kenya really began its land reforms in 2009, when the National Land Policy was published. The policy recognized for the first time the existence of community of land and declared it a new category of land, as equally important as the other 2 categories, those being, private and public land. Since then, the Constitution of Kenya of 2010 declared the devolution of powers in all areas of governance, including land management and administration and set the country off in a series of schedules for this devolution to take place through its now 47 counties, each with its own government. The Constitution further reiterated the recognition of traditional and customary tenure and management of land, and prescribed a series of bills to be enacted, amongst which were the Community Land Act (2016), the National Land Commission Act (2012), the Land Registration Act (2012), the Land Act (2012). Hence, the legal land reforms in Kenya has been set into motion however its implementation for devolved governance of land still falls short. There have been many disputes at national level between the responsibilities of the National Land Commission (a new independent commission established in the afore mentioned Constitution for the checks and balances of power and to counteract corruption allegations that popularized the Ministry of Lands and district land boards in years past) and the Ministry of Lands and Physical Planning. This impasse alone between the two main institutions dealing with land costed the country a delay of about 3 years in land reforms due to contentiousness in the mandates.

The way forward towards achieving sustainable land governance in Kenya efforts must be made on different fronts. Capacity must be built or enhanced in most counties of Kenya (particularly where communal land predominates as this is the key piece of the puzzle in the new governance of land), with initial awareness of the new laws around land and the new functions of county governments as opposed to the national government in  light of the devolution process. Communities must also be educated on how to claim their rights and take the necessary measures of establishing their own management committees (that must include women and minority representation) as per the new law as well as keeping a social cadastre of all the people over 18 years of age that form part of that community. Lastly, land use plans per each community must be developed and submitted to the county government for endorsement and inclusion in the larger spatial plans of the county. Most communities have only had ad hoc committees (for water resources, for use of forests, etc.) and these have not been gender responsive nor accountable to the community as a whole (e.g. group ranches). In sum, capacity development must take place, across the board, with county government and with communities.

Partnerships have to be fostered in the different areas that encompass land management. Clearly the entirety of this work cannot be accomplished by one stakeholder alone, it needs the support of civil society and NGOs for civic education and trainings (advocacy work), but also technical trainings on land administration, land use planning and mapping with NGOs and government stakeholders so as to work together and pool resources as much as possible.

Much of the work ahead around the area of community land tenure is a new causeway for all stakeholders. This will require some trial and error exercises in how processes are to be conducted. As much as the work on policy is almost finalized for the development of regulations for the Community Land Act, the Land Act and the Land Registration Act, there are still gaps to be filled that can only be confronted while implementing these regulations. This requires the political will to further devolve power to the communities and individual citizens themselves who will be able to claim their rights to land and, on the other hand, a service oriented government organ that can absorb those claims and register those rights diligently.

In other parts of Kenya, where there is hardly any community land (private tenure predominates) and the main livelihood tends to be agriculture (i.e. western Kenya), the challenges differ. The dynamic of extreme subdivision of the land leads to small and non-competitive yields, in terms of quantity and quality standards, for the produce market. Efforts by the government have been limited, only pointing out the issue but doing very little to address it. Except for an initial draft of a minimum and maximum land ownership bill (in terms of acreage), presented two years back and criticized for its lack of informed benchmarks, no studies or assessments from the government or other stakeholders are taking place to inform a better proposal. This is an area that must receive more attention in the next months for the sake of maintaining Kenya’s food and nutrition security.

What mechanism can be put in place to ensure that the compensation to any land compulsorily acquired is fair and benefits all the legitimate beneficiaries?

Ideally the best way for this to happen is for all land to be legally registered in the statutory framework. However the speed in which (private) land is being registered and community land being adjudicated or grabbed by investors is not at the same pace for compensation to be streamlined in the process.

Since the National Land Commission (NLC) has presence in nearly every county through a county coordinator along with support clerks with an office provided by the county government, and as per their mandate, they can act as the entry point to keep track of land transactions and land use conversions with particular attention to those cases where compensation is required. They do not have to work on this alone: in the counties where there is CSO presence, the NLC coordinator can be assisted by them in creating a roster of the transactions and their implications (and blow the whistle as necessary) when due processes of compensation are not been followed. Already, it is common for community members from remote areas of the counties to approach the NLC precisely on these matters, so it will not be a hard pitch for them to take up.

-How can the land governance institutions involved ensure that the affected communities benefit from the land compulsorily acquired for investment purposes?

In line with what I suggested in the previous answer, the institution that can lead the process of ensuring affected communities benefit from compulsory acquired land can naturally by the NLC. Besides having the support of civil society, they must also rely on the media (social media included) to make public or private development projects known to the general public so that it is the citizens themselves who are claiming their stake in the matter. It is a crucial detail, for the sake of the empowerment of the people, that the enabling conditions are created (through awareness meetings or trainings) so that communities or individuals fight for what they are entitled to. Legal focused NGOs should also be listed in order to access their support whenever possible.

The impact of the land use trends in Kenya today

Should the land use trends be left alone as they currently are, land degradation and chaotic growth of towns and settlements will continue to absorb lands that may be more suitable for other uses such as agriculture. As stated before, many counties of western Kenya, some of which are the actual bread baskets of the country are subdividing land more and more to the point of making them unprofitable for agriculture or even proper living and housing conditions. In other parts of the country where land is used for livestock and the herders are mostly nomadic pastoralists, land is being degraded year after year (the recurrent droughts in the past 10 years have aggravated this situation) and pastoralists are having to walk farther distances in search of water and pastures, and, in many cases, invade private property to feed their animals. This is causing more deaths every year from the natural resource-based conflicts arising from those invasions and from what some tribes argue they are entitled to, where other land owners demand recognition of private property.

Another occurrence is the selling and leasing on what is considered community land but that is, to this day, still unregistered. Although there was a moratorium from the 2010 Constitution stating not buy or sell community land until these are registered and vested in the hands of communities themselves, dealings on communal lands have continued from every angle, including fraudsters, in urban and rural lands where they suspect there are minerals or other natural resources to benefit from.

None of the examples listed above have an active response in the making. Though some NGOs and UN agencies have tried to approach those land issues in different ways, they have largely failed due to political disinterest or a disarticulated grassroots base that is divided by tribal differences or livelihoods (or both).  

-What can be done to promote sustainable land use in Kenya?

Abiding by what is prescribed in the current Acts of parliament such as the Climate Change Act and the Forest Management and Conservation Act is a start, but not automatic. The new laws pertaining to land tenure, management and environmental conservation all need to be domesticated at devolved levels and sensitization of actual users (communities, farmers, investors, etc.) has to take place. The actual enforcement of these laws by actors such as the county governments, the Kenya Forest Service, Kenya Wildlife Service, etc. must also be activated and that starts by providing practical trainings on best practices (as per the law, as per international standards such as the Voluntary Guidelines for the Responsible Governance of Land, Forest and Fisheries, etc.). These trainings can come from development partners as much as from government itself, which is why it is critical to also sensitize the legislative bodies in the local governments i.e. the county assemblies, so that budget allocation is not only existent but adequate for land use planning, public participation and civic education on land rights.

Lessons we can learn from the Land governance system in Kenya

Despite the slow progress on such a pivotal issue such as land, civil society groups, as the intellectual arm of any advocacy work on land has been strengthened in the past few years. Although donor funding on land has not increased in the past few years, this has obliged many organizations to partner, think and work together on similar goals. A strong civil society at national level and many grassroots organizations in the counties are and will continue to be one of the strengths in Kenya’s governance system.

Not completely unrelated to the previous point, in the area of policy development (not implementation), most of the Acts passed that relate to land have been highly consultative at many levels and counted on the diverse participation of different interest groups around the country. Debates and negotiations where promoted and concerted products where delivered for the ministerial stakeholders to present to parliament. 

Overview

The fact that land is the main resource upon which all of mankind’s activities are contemplated, exercised and domiciled is no longer a matter of contention. How the enjoyment of this resource is managed is therefore very crucial to peaceful coexistence, as our history as a country ably demonstrates. We have made attempts at streamlining Land Governance guided by the many inputs from eminent Kenyans and the international community, resulting in landmark institutions, documents and instruments that now guide all aspects touching on land in Kenya. Some of these include: The Constitution of Kenya, 2010 that devotes a whole chapter to Land and the Environment (Chapter 5), the National Land Policy (NLP), various legislations that operationalize the constitutional articles touching on land, Sectoral Policies and legislation touching on Land. A number of players have varying roles in the Land Governance Framework. These include: the Ministry of Land and Physical Planning and the National Land Commission (NLC) at the National Level, respective County Ministries in charge of land in all our 47 Counties, Communities exercising control over Community Land and various Non-Governmental Organization, Faith Based Organizations, and other stakeholders in the Land Sector.

From the history of Land Management in Kenya, the focus has always been on titling of land, thereby generating private land in most instances. This focus has created a sort of appetite for land unheralded in earlier times. Beset by unscrupulous civil servants, cartels and greedy politicians, land and especially that set aside for public purpose was not immune to ‘grabbing’. This was further aggravated by the Silo mentality in the agencies that were supposed to deliver the titles. It was an open secret the manner in which the various units in the Ministry in charge of land operated. There was no proper interface in how they worked and crooked entities are said to have exploited this vague interface to perfection occasioning the now familiar tale of multiple allocations, parcels that overlap and parcels that are allegedly surveyed and titled over water bodies. It is also through such scams that unsuspecting buyers were swindled by the unscrupulous entities to buy these ‘properties’. This also compounded the quagmire that is physical planning! While excellent development plans had been prepared, their implementation on the ground was in most cases not properly enforced leading to weird developments taking place in even illegal places. The situation bleak and dismal as it appeared fueled the quest to have lasting land reforms that when implemented would help seal the loopholes that were being exploited, safeguard land tenure security, streamline operations in land management and encourage the sustainable use of land.

These land reform initiatives that birthed the NLP, the Constitution, and NLC and inspired various subsequent legislations have helped at least halt the pace of grabbing, if not to deter and stop it. Some of the key milestones given life through these reforms that we can pride ourselves of include: revocations of illegally acquired land after an expeditious Review of Grants and Disposition exercise, digitization of registries across the country, development of Phase I of the National Land Information Management System, development of the Public Land Inventory, development and enactment of the Community Land Act, harmonization of Land Laws and operationalization of various legislations and regulations. To support the proper use of land, various guidelines have been developed and published by the NLC in conjunction with the stakeholder community, and are currently being rolled out through aggressive campaigns at the Counties. These include: County Spatial Planning: Monitoring and Oversight Guidelines; NLIMS Standards and Guidelines.

What is the way forward for Sustainable Land Governance in Kenya?

Due to the encompassing nature of land, there will always remain residual challenges in streamlining Land Governance. This is driven by the human nature that tends to resist anything new and unfamiliar. Change management in Land Governance there emerges as one of the key concerns that should be factored in, in any land related reform exercise. It is necessary to ensure that all actors in the Land Governance space are brought to understand the reform exercise, how it affects their work in a positive way and how it contributes to the growth of the Country as a whole. One good thing about the average citizen and officer in Government is that they are willing to give their best to ensure the country moves forward, and it is therefore prudent to tap on this to inspire hope by using appropriate channels to relay the land reform message. In this way, whatever changes that need to be made, will be realized without a lot of pain to staff and in the long run ensure that the reform process is itself sustainable.

Given that we are in the Information Age, it is necessary that appropriate technologies for data collection, processing, management and storage be employed in the management of Land Information early on. Running the risk of beating drums to the same rhythm, I dare say that if we fail to leverage these existing and new technologies, we will still be grappling with the same development questions and wondering where the rains started beating us. I have always held the informed view that, if systems for land information management are properly implemented and appropriate budgetary allocation availed to them, these solutions have the innate capacity to be self-sustaining, and not just that but that they can actually rake in revenue for the County and National Governments. The benefits of such systems are clear for all to see: reduction in duplication of efforts in information collection, analysis and management; seamless integration across the land information ecosystem allowing fast and correct information sharing; enhanced image of the actors in the land sector through the availing of information about the processes in a transparent manner; and spurring economic growth across the country through short turnaround time for investors desiring to access land for investment purposes.

Having systems in place also imply that officers and the general public make use of the systems. These actually constitute part of the system as the users of the system. Any system is only as good as the data it has, and the use to which it is put to. It is therefore necessary that while harping on the importance of the system, that proper mechanisms are put in place to ensure that the data is primarily secured, is current and is accurate. This is achievable through fairly simple strategies that firstly insist on the need for an integrated thinking and implementation, making sure that the entities that produce data take charge and custody of the data and are provided with systems tools to help them exercise this fully. Secondly, it is necessary to ensure that where payments are made through the services offered on these systems, part of these payment is retained to contribute to the improvement and maintenance of the systems. Thirdly, it is imperative that users (staff and the citizen) are continually trained and kept up to date with capabilities that the systems have to offer.

Moving away from systems, having great visionaries at the help of the institutions that play a role in Land Governance is crucial to ensuring that brilliant ideas and strategies do not remain in the boardrooms but are actually executed and the benefits accruing experienced by all. Such leaders are able to influence the political class appropriately so that requisite allocations in terms of funds and resources are availed. In addition to this, it is necessary that entities that engage in research on land matters are brought into the fold to help in informing policy decisions from sound research. Some experiences from the developed world are fitting to drive these points home: Singapore has fully automated their Land Information Management Systems, making land readily accessible to anyone interested in investing there. In addition, the entities that cooperate in land management have well defined interfaces allowing seamless working. Australia and New Zealand too have automated solutions on land management and a large collection of literature on processes, procedures, legislations and general guidelines on the subject.

Conclusion

I have attempted to trace the historical path that as a country we have taken to get to where we are. We are far from getting perfect Land Governance, but all is not gloom. There is a lot that is going on, in fact, this online debate is one of the initiatives that can shed light to what needs to be done to ensure we have sustainable use of land. I have made proposals on what needs to be done to ensure we have good land governance, although my proposals are nuanced around my pet areas of interest which are Land Information and its Management. My discussion has been restricted to the question of the situational analysis of land governance in Kenya and I look forward to getting feedback – critical or otherwise to the thoughts I have shared here.

There is a level of good governance in Kenya, because we now have rules and structures in place.

To achieve sustainable land governance there is need for those who are charged with the management of land, land use planning, dispute resolution and the land information systems to be beyond reproach.

Institutions put in place to manage land must have the required capacity to manage change, because the law and policies relating to land are not static.  For systems to succeed there must also be political support at the highest level, while consultation with the stakeholders must continue.

 

What mechanism can be put in place to ensure that the compensation to any land compulsorily acquired is fair and benefits all the legitimate beneficiaries?

 

Currently the Compulsorily Acquisition of land is regulated through the procedures laid down by the Land Act 2012. Section 107 (7) states that interested persons shall include any person whose interests appear in the land registry and the spouse or spouses of any such person, as well as any person actually occupying the land and the spouse or spouses of such a person.

The draft regulations (2017) for the Land Act 2012, section 69. State 1) The Commission shall prepare an award which shall include the size of the land to be acquired, the value of the land and the amount of compensation payable to the persons with interest in the land.(2) This shall be served on each person with a determined interest in Form No.. notifying the respective persons of the award and offer for compensation.

Both documents are not clear on how they will ensure that the compensation paid will be fair and benefits all the legitimate beneficiaries. Cases of beneficiaries being disfranchised in the payment of compensation are common.

 

The bonafide person(s) shall be required to communicate their acceptance or rejection of the award in the prescribed form LA No................

(4) Where the award is accepted, the bonafide person(s) shall forward their bank details, PIN No. and identification documents to the Commission.

(5) where the award is contested, the bonafide person(s) shall be required to register their objection with the Court in accordance to section 127 of the Act

 

From the above clearly there are no mechanisms or safeguards that will ensure all members of the family benefit from the compensation for the land.

 

Suggestions:

  1. Ideally the Act and the regulations should have required the acquiring authority to investigate which family members hold de facto interests in the land and will suffer losses from its compulsory acquisition. From that investigation then compensation funds should be distributed by the interest one has on the land.  The alternative is to allow all who have an interest to become joint decision makers in how the funds will be spent. This should be done before compensation is paid, and the paying authority should ensure that this is done.

 

  1. There is a need to engage affected beneficiaries to find out what they want.
  2. Where compensation is in the form of alternative land, then each case should be reviewed separately.
  3. The offer of alternative land may also avoid problems that arise when financial compensation is paid to people who are unused to handling large amounts of money.  From the Standard Gauge Railway (SGR) project compulsory acquisition in Kenya, several heads of household who were male were reported to have spent all the money they received unwisely, leaving the family with no money and no land.

 

 

-How can the land governance institutions involved ensure that the affected communities benefit from the land compulsorily acquired for investment purposes?

 

Land Governance Institutions should be using the right mechanisms to ensure that those affected benefit from the land compulsorily acquired for investment purposes by (can adopt policies and guidelines recommended by the World Bank and Inter-American Development Bank:

 

  1. Making sure communities share in project benefits
  2. Consultation with the affected communities

 

 

Impact of the land use trends in Kenya today?

 

The land use trends in Kenya are leading to land use conflicts and conversion of prime agricultural land to residential or commercial use.  This second trend has the effect of reducing the land available for food production and thus affects food security.

 

To promote sustainable land use in Kenya the formulation of a Land Use policy must be completed and better land use planning must be done both in the urban and rural areas.

 

What lessons can we learn from the Land governance system in Kenya?

 

That Kenya has made good strides, especially from the legal point of view, with the Constitution and the National Land Policy, The land Laws and the institutions that are in place e.g. the Ministry of Lands and Physical Planning and National Land Commission.  There are however, many areas that the two institutions can improve on.  Service delivery is still not efficient, creation of a Land policy research unit in collaboration with Universities is still pending (this was also recommended by the National Land Policy, Sessional paper No. 3 of 2009).  The rules and regulations that were prepared to operationalize the Land Acts are still in draft.  These are necessary for the effective implementation of the Land laws.

 

Land Governance in Kenya is not in a good state especially during this time where devolution is taking shape. The lands sector  been ranked as one of the most bribery prone sectors in the country and  a lot has to be done on what factors propel corruption in land administration and what strategies can be put in place to promote accountability and transparency in land governance.

The way forward towards achieving sustainable land governance in Kenya

For any country to sustainably manage its land, it must have both spatial and non-spatial information of its land resources in one database. ICT architecture should then be developed to see integration of this land based information. This will offer opportunity for organising the spatial information for informed decision making. The service-oriented IT architecture can improve the communication between administrative systems and also establish more reliable data due to the use the original data instead of copies. This should be adopted in the governmental guidelines for service-oriented architecture e-government. The key elements in this architecture should be: (i) Flexibility and accessibility which facilitates decision-making at all levels, (ii) Quality, authenticity and actuality due to direct access for reading and updating in the basic databases, and (iii) Standardization through homogeneously selection of communications and exchange standards. This should be applied in the area of land administration through close cooperation between the agencies and stakeholders involved in and governance.

What mechanism can be put in place to ensure that the compensation to any land compulsorily acquired is fair and benefits all the legitimate beneficiaries?

The government may need land for public interest projects such as expanding roads or establishing other public utilities. In such instances, the rights of the government override individual rights of ownership, and therefore the government can take privately owned land through a process termed as compulsory acquisition. However, the government must give adequate notice and prompt compensation to the private owners of the land before acquiring it. The process should be fair, just and at speed.

 

The Land Act, 2012 (enacted pursuant to Article 40) under Part V11 gives the procedure to be followed in the compulsory acquisition of land.

-How can the land governance institutions involved ensure that the affected communities benefit from the land compulsorily acquired for investment purposes?

Compulsory acquisition is naturally disruptive. Even when compensation is generous and procedures are generally fair and efficient, the displacement of people from established homes, businesses and communities will still entail significant human costs. In seeking balance in interests during this process, government institutions should apply principles that ensure that the use of this power is limited, that is, it is used for the benefit of society for public use, public purpose, or in the public interest. This is the principle of eminent domain.

Further the Constitution also allows any aggrieved person the right of access to a court of law to seek a remedy on the acquisition or compensation process (Article 40(3)).

 

The land acquisition and compensation process is a process that requires a high degree of technical expertise to complete. Determining ownership and amount of award/compensation

required is the mandate of the National Land Commission. Therefore the Commission should be tasked to account for the criteria used in determining size of land, its value and awards to be paid. A mechanism should be put in place to monitor this implementation and the decisions made on the whole compensation process. This will ensure accountability by the Commission.

The impact of the land use trends in Kenya today

There is an intensified land use cover change in Kenya. In the last decade Kenya has experienced rapid growth in terms of population and land market (real estate) which has put pressure on its limited resources and adversely affected other land uses in the entire country. Real estate and new infrastructural development are taking over the land use in Kenya resulting to conversion of agricultural lands to commercial and residential areas.

To promote sustainable land use in Kenya the Multipurpose Cadastre-The use of the cadastral map is still one of the major challenges. With the current change of trends in land use, the cadastral authority (Survey of Kenya) should be imposed by the obligation of registration of new themes in the cadastre such as the coastal protection zone, soil contaminated areas etc. It should also consider including planning regulations and various land-use restrictions to be “hosted” by the cadastral map. This concept of “hosting” land-use regulations in the cadastral map will now be replaced by the service-oriented IT architecture. The focus will be on facilitating the use of the cadastral information as a basic layer for registering all kind land-use regulations and restrictions. The planning authorities and sectorial land-use authorities must then learn how to use the cadastral information within their area of responsibility including awareness of benefits and costs as well as legal and organizational impacts. The concept of the multipurpose cadastre therefore no longer means that all kind of regulations and responsibilities will be registered in the cadastre. It means that the cadastre represent the basic layer to be used by the relevant authorities for registering their information and presenting this information for decision making and to the citizens. This will require an educated use of the map to ensure consistency between cadastral changes and the connected land restrictions.

4.   What lessons can we learn from the Land governance system in Kenya?

The Land governance system in Kenya works well in the sense that it supports sustainable development through an efficient land market and effective land use management. Unfortunately, the cadastre not integrated as the basis for land information infrastructure in support of all four land administration functions ie Land Vale, Use, Ownership and development. This is should be improved and adapted to new ICT opportunities. Also, some institutional arrangements could be improved and, more generally, there is need for improving the awareness the land management area as coherent whole.

 

While appreciating changes within the land sector during the last 8 years since the endorsement of the National Land Policy in 2009, the promulgation of the Constitution in 2010 and the enactment of successive land laws and those related to land since 2011 to 2016. There is a need to re-think the continuity of past bad governance practices in terms of general patterns of land and resource appropriation and dispossession for mega-projects taking place in community land spaces. Focusing mainly on the provisions on pre-emptive rights of renewal of leases to the immediate past holder of the leasehold interest which is cherished and the paternalistic land professionals assumption of the responsibility for deciding who should and who should be exposed to the risks and opportunities of market engagement in matters of land value index (call it land compensation) that is being encouraged without conforming to the principle of participation in amending the land law on compulsory acquisition clause.  I argue that those charged with land governance should exercise a rationality that balances multiple objectives by defining appropriate land rights for all land occupiers, users and owners hinged on the best interest of all rather than on differentiated stage of development. In brief our common approach towards sustainable land governance should avoid the division between private and community land tenure regimes that amounts to separating community landholders from market forces as those who need to be guided, while individual entities are designated as full competent market subjects to enjoy profits from land deals. 

To desire to move toward a sustainable land governance need to be debated with a clear separation of the making of the policy, constitution and land laws from the implementation which determines the expected outcomes.  So far the good intentions of land reformers are not being implemented by political and land administrative institutions. Indeed the continuities of past bad land governance witnessed today arise from institutional inertia and from the culture of business as usual. 

The practices being exhibited by institutional interests  at land offices are tendencies of carrying out governance activities with same old organizational culture i.e. doing the same things, albeit under different names of old departments now called directorates. Ongoing attempts to reform the same old personalties in-charge of land governance is failing to take effect. To many Kenyans , it is not surprising that the more things change, the more they stay the same.

However, given that we have a new script to guide the land governance in Kenya it would be prudent to ensure different groups of land reformers seek to shape the implementation to ensure attainment of expected outcomes as per the national land policy, and the constitution.

Kenya has a total land area of 580,000 square kilometers and an estimated population of more than 46 million people as at beginning of 2016. 78% of this population is rural. Estimates from the Ministry of land in Kenya, show that more than 60% of the land is unregistered and held as trust lands. While land in at least 2 out of the 47 counties has been fully adjudicated and registered, none of the counties in the north have completed this process. This is because northern Kenya is mostly arid or semi-arid grasslands inhabited by pastoralists such that there was not historical pressure for titles to farms. The recent discovery of oil and other natural resources in the north though created increased pressure to title lands to spur investment. The National Land Policy designates land in Kenya as public, private (freehold or leasehold tenure), or community land (to be converted from trust lands and ranches). Community land is vested in a specific community but currently controlled by county governments for the benefit of the community.

In December 2009, the Kenyan Parliament approved the National Land Policy (NLP) which is supported by the August 2010 Constitution to ensure that land is held and used in an equitable, efficient, productive and sustainable manner. The policy reasserts customary land tenure rights and repudiates the focus on converting customary tenure into individual ownership. The approval of the NLP was a critical step toward addressing land issues in Kenya by paving the way for the enactment of the Land Act and the Community Land Act. The Community Land Act was passed in August 2016. Focus now is on finalization of regulations to implement the Community Land Act. All these are vital legal tools as regards land tenure security in Kenya. Though there is a legal framework in Kenya for land management, like many countries in Africa, there is significant uncertainty regarding implementation of these legal provisions.

Strengthening local governance is key to community land tenure security in Kenya. Though with several of loopholes, which I won’t list here, the Community Land Act provides a means by which communities can protect their lands. If empowered and sensitized communities can take advantage of the Act. In as much people think possession of a title is protection, I think the fact would be missed if referring to community lands. Community land protection and security of tenure actually lie in an empowered and knowledgeable community; the title only acts as evidence of the community’s claim.

Key questions that arise when community empowerment is mentioned include; How to build, more democratic, participatory local governance systems? How to support sustainable local economies that lead to authentic community prosperity? How to support communities to regenerate their ecosystems and make their lands into “arks” of biodiversity, as we head into climate change? How to support the maintenance and revitalization of diverse cultures and traditions?

All these questions can be addressed by working directly with the communities themselves. Firstly, talk to them about the security of their land, let them embrace and own the need to protect their land and let them choose what they want to do and how they want to protect their land. Secondly, guide the community to strengthen local governance of their lands and document their lands. This is done through the drafting of by-laws, identify and institutionalize a local and representative governance structure to work for them, by-laws providing for a mechanism for democratic decision making and means of holding the leaders accountable. Thirdly, the communities should be supported to harmonize and document their boundaries. With all these, the community is better placed to apply for a title considering they already have concrete internal governance mechanisms.

Namati, an international organization dedicated to advancing the field of legal empowerment implements innovative, evidence-driven legal empowerment programs addressing issues of pressing global significance which include protecting community land rights. Namati has been working to deploy grassroots legal advocates who work with communities to proactively strengthen their ability to protect, document and steward their customary and indigenous lands. Namati has designed an integrated community land protection approach which combines the legal and technical work of mapping and documentation with the governance work of establishing mechanisms for accountable, equitable and participatory local management of land and natural resources.

 

The current land use and management in Kenya is still unsustainable. Full reforms are unlikely due to the political sensitivity. Land fragmentation remains a big problem. In a country relying heavily on rain and size for productivity, the issue of fragmentation seem urgent and it is.  The solution of land use in Kenya calls for multi-faced, multi-sectoral approach. This is much more urgent in the highlands where land has been heavily fragmented but farmers have been facing less yields due to diminishing soil fertility.

 

To address these problems, farmers need farm level training on different skill such as sustainable re-fertilization of the soils. Some of the solution, like making compost are localized with the farms. The cost of inputs still high although policy on subsidies is vague and poorly implemented.

 

Increasing productivity in the current farms sizes is easier. Much more difficult is stop fragmentation. While it is now generally agreed that registration of land beyond a certain size is unsustainable, cultural practices requiring off-springs to get their own parcels of land will hinder any effort to amalgamation of small pieces of land into larger family holdings.

Family holdings in places with high rates of land fragmentation should be encourages. This will require campaigns to educate members of the same family on the need to pull land resource toward increased yields. The advantages of forming family holding are: families can specialize, it easier to get funding and attract investors. Making easier to get funding, training and access to markets will act as incentives for families to form holdings.

Over the past decade or so, the country has undertaken legal and institutional reform after years of systematic bureaucracies that resulted in difficulties in transacting on land and enabled powerful to grab public land. The reforms process has resulted in policy and constitutional direction on land governance, and thereafter enactment of new land laws to replace the many laws that previously complicated land administration and management. These laws include: the Land Act (2012), the National Land Commission Act (2012), the Land Registration Act (2012), the Environment and Land Court Act (2011), and the Community Land Act (2016). The National Land Commission, mainly mandated to manage public land, and the Environment & Land Court have also been established. Additionally, county governments (devolved governance units) have taken up some roles in land administration at the local level. The reform process has also encountered challenges such as delay in implementation, resistance to institutional changes, and new realities such as large scale land acquisition for public investments.

Sectoral reports on land governance in Kenya have regularly shown that Kenyans haven’t fully felt the impact of the reforms process that has been ongoing. This may be as a result of the reforms focusing more on institutions and legislation, and less on procedures and processes. In addition, communities in general haven’t been adequately involved in the reforms process. To ensure sustainable land governance, emphasis has to be put on improving processes through, for example, digitization of land records and automation of processes such as land searches. Multi-stakeholder approaches in implementing reforms, including increasing community involvement, can also ensure sustainability of the process.

The first step that can ensure legitimate beneficiaries benefit from compensation for compulsory acquisition is fast-tracking the process of registering land. In most cases so far, most land that has been compulsorily acquired has been land categorized as community land. Over 90% of this land is unregistered. Due to this reality, ensuring the legitimate communities benefit in the event of compulsory acquisition has been a challenge. With a Community Land Act (2016) now in place, enactment of regulations and initiation of the process of registering community land can go a long a way in safeguarding community interest on land and ensuring they benefit from any investment. County governments are well placed to initiate some of these processes, even if in terms of awareness creation among communities, owing to the goodwill they currently enjoy.

Governance institutions such as the Ministry of Lands and the National Land Commission can help in safeguarding community benefit in land acquisition through improving officers understanding of policy and legislative provisions of community land. County governments on the other hand can play a part by not transacting on community land as per the provisions of section 6 of the Community Land Act. Counties can also be in the lead in community sensitization on current legal provisions on community land. The three institutions also have a role in ensuring that community participation is meaningful and representative, and happens prior to the acquisition process.

 

  • Impact of the land use trends in Kenya today

In general, land use trends in Kenya have had negative impacts on the environment due to poor management and lack of planning. Emphasis on sustainable land use practices from the respective land governance institutions can ensure the limited land we have is put to good use and ably satisfies the country’s needs.

Improving approaches, processes and procedures when transacting on land, and ensuring increased citizen participation and community involvement in land governance is at the centre of sustainable land use in Kenya. Adoption of internationally accepted/ tested methods can also promote sustainability in land use in Kenya can be a start.

  • Lessons we can learn from the Land governance system in Kenya

An important lesson from land governance in Kenya is the need to build both lands officers and communities’/ citizens’ capacity in the policy and legislative reforms being undertaken. Once both groups have a better understanding and appreciation of the reforms, they can ensure more active participation in the process. The need to always use representative, multi-stakeholder approaches in governance is equally important in this regard.

 

Hello Everyone! We appreciate your comprehensive contribution to the ongoing debate on sustainable land governance in Kenya. Here is a summary of the major points so far.

The formulation of the National Land Policy in 2009 and the promulgation of the Constitution of Kenya in 2010 provided a foundation for enactment of new land laws that repealed some of the old land laws. Most of the laws have taken effect though the regulations to operationalize them are yet to be established. To ensure that the Acts are working towards the intended legal objective there has been various amendments that have been made to remove the ambiguity in interpretation of law. It is notable that the most recent Act to be enacted is the Community Land Act, 2016, that provides for recognition, protection and registration of community land rights and management, administration of community land.

Kenyan statutes have established new land governance institutions and defined their mandates and procedures of carrying out their functions. The Ministry of Lands and Physical Planning (MoLPP) and the National Land Commission (NLC) are two institutions that are charged with the mandate of land administration and management and they have decentralized their functions to the county levels. The Community Land Act safeguards the rights of the communities for both the registered and unregistered community land. The ownership and management of registered community land vests in the communities. County Governments shall hold in trust unregistered community land on behalf of the community.

The land laws have provided for fairness and equity to all citizens in acquiring and ownership of land without discrimination of any person on basis of gender, culture, age, disability, minority or marital status. It is evident that security of tenure has been guaranteed for all categories of land in Kenya by the law.

Subdivision of agricultural land and the growing need for urban land use has led to increased change in land use and fragmentation of agricultural land making it less economical, further affecting food production. With respect to pastoral land in Kenya, extensive land degradation has been noted which has largely been caused by overgrazing and adverse climatic conditions. Contributors observed that, at times the pastoral communities invade private land to feed their livestock, causing natural resource-based conflicts.

Since the colonial era, land information and processes have largely been paper based; this has made the process of carrying out transaction lengthy, costly and time consuming due to bulk land records. There have been various efforts towards transformation from manual to automated land recording at the land registries. The most recent  ones being;1) the digitization of the land registries by the Ministry of Lands and Physical Planning with an aim of making the land data available in an efficient and transparent way, 2) Development of Phase I of the National Land Information Management System by the National Land Commission. Digitization of Nairobi registry is already complete and one can access the land searches from the e-citizen portal which is free of charge. Currently, land information especially for the community land, access on procedures and processes, land rights and legislations by the community members is inadequate.

Kenyan statutes have provided for alternative disputes resolution (ADR) processes to address land disputes. ADR provide cheaper, shorter process of resolving disputes and an effective way of easing the backlog of land cases. In the event an agreement is not reached through the ADR process, the matter is taken to the Environment and Land Court which is a judicial land institution that has been established to handle land and environmental cases. One of the functions of National land commission (NLC) is to investigate into present and historical injustices and recommend appropriate redress; the Commission has prepared a draft historical land injustices bill, when enacted will address the injustices. NLC in its mandate to address the injustices and manage public land has revoked the titles of illegally acquired land after an efficient review of grants and disposition exercise.

To promote effective implementation of reforms in Kenya, the following were recommended;

  • Increased involvement of stakeholder though dialogue and building consensus throughout the implementation process.
  • Robust land administration and management education programmes especially at the county and community levels, on land rights, policies and processes of forming their own management committees.
  • Multi-stakeholders land forums that bring all land stakeholders together annually to take stock of progress made in implementing land reforms, administration and management, land use planning, mapping and registration; this would enable information sharing and learning.
  • Development of a comprehensive monitoring and evaluation framework of the land reforms by engaging all the stakeholders.  
  • Factoring in the change management in land reforms and governance. All the actors need to continuously be informed of the developments in land governance, benefits and contributions to the growth of the country.
  • To promote community benefit from the compensation for compulsorily acquired land, there is to involve all the land governance institutions. The development projects ought to be known by the general public, creating enabling condition by empowering the community members.

We look forward to your continued participation.

 

One way of achieving sustainable land governance in Kenya is to carry out capacity building for National and County governments. The capacity building should cover technical, legal, organizational and financial aspects of land governance. In summary, the technical aspects should include how improvements can be made on procedure for collecting data related to land, how the data is processed, managed and disseminated, possibly through Land Information Management Systems. Capacity building on the legal aspects of land governance should include the introduced land laws and how they are currently operating, or how the laws should actually operate. The organization issues should cover how the various agencies that govern land at the National and County government should relate with each other for sustainable land governance to be achieved. Finally, the financial aspects should cover how the various agencies related to land governance should generate revenue and how that revenue should be allocated or used by government. It is through this type of capacity building that the country will move towards sustainable land governance.

-How can the land governance institutions involved ensure that the affected communities benefit from the land compulsorily acquired for investment purposes?

Land governance institutions can ensure affected communities benefit from compulsory land acquisition by putting in place up-to-date land registers and valuation rolls. Updated land registers will enable the institutions to quickly identify legitimate land right holders who should be compensated during a process of compulsory acquisition. If possible, the registers should be computer based to enable quick searching of right holders within a certain area. The valuation rolls should also be updated to enable determination of the right amount of compensation to be offered to affected people during an acquisition process. The challenge at the moment is that land right holders in community land areas have not been fully identified, and valuation rolls have not been updated for very many years.

In order to promote sustainable land use in Kenya, there is a need to develop appropriate spatial plans at National and County Government levels. According to the County Government Act, 2012, all County governments should develop spatial plans that are based on Geographic Information Systems (GIS). Ideally, the County government spatial plans should be linked to National Spatial plans. The GIS based spatial plans should show how different types of land use should be distributed in the counties and in the nation as a whole. In order to implement the GIS based spatial plans, there is a need capacity building on how to develop such plans and clear guidelines on how such plans should be implemented as a means of promoting sustainable land use in Kenya.

The lessons we can learn from the land governance system in Kenya are as follows.

(1) Devolution is a positive means of distributing work related to land governance and improving the quality of land governance in the country. However, without proper capacity building and guidance from the National government, the county governments might not achieve sustainable land governance.

(2) There are strengths and weaknesses of developing alternative agencies for land governance at the National level. Implementation of the National Land Commission (NLC) has complemented the efforts of the Ministry of Lands and Physical planning in managing public land. However, in some aspects, the introduction of NLC has added a layer of bureaucracy to already complex and lengthy land procedures.

(3) Most importantly, without proper political will, it is nearly impossible to implement and achieve sustainable land governance in a country. In developing countries like Kenya, institutions are usually not strong enough to make autonomous decisions without the support of the political class. Therefore, in order to have sustainable land governance, the first people who should be sensitized are politicians both at national and county government levels.

 

Following continuous efforts by the Kenyan citizenry to address the land governance challenges, the following milestones have been achieved; Adoption of Sessional Paper No 3 of 2009 on National Land Policy; The Promulgation of the Constitution of Kenya, 2010 with a distinct Chapter on Land and Environment; Land Act of 2012; Land Registration Act of 2012;The National Land Commission Act 2012; Community Land Act 2016 and Land Laws Amendment Act 2016 which provides a framework for conducting humane evictions.

The above milestones form a clear foundation and framework for addressing the land question. What awaits is the implementation of the laws and particularly paying attention to the institutions created by this framework and the clear roles that they should play. The Supreme Court advisory opinion played a key role in elaborating the functions that should be played by NLC elaborating that NLC was and is not a fourth arm of the Government, commissions are not arms of the government but independent state organs that are meant to play an oversight role. NLC therefore plays an oversight role it was and is intended to be a "people or constitutional watchdog" to monitor and ensure the compliance of the Constitution and other legislation. This was key to clarify roles of key institutions like the Ministry of Lands and the National Land Commission who have the mandate of transforming land governance in Kenya. Empowered communities have also had a big role to play in the land governance systems , having citizens demand for better services at land offices, people who are able to meaningfully enage various institutions shows that some progress has been made and more resources need to be invested to build this social capital.

We have good laws in place, a progressive constitution, a dedicated and independent judiciary to solve land disputes and an empowered community, these are key ingredients towards achieving sustainable land governance in any country. However more needs to be done to stregthen the key institutions mandated with land reforms right from the land boardsvto the ministry of lands and the commission. The good laws in place become mere paper promises if we still have massive evictions taking place without following due process despite these been legislated, it beats the purpose of good laws if we have sanctity of title deeds still in question. We need to have security of tenure for all despite social class, only then can we boast of moving towards sustainable land governance.

We have fairly comprehensive laws on compulsory acquisition which incorporates aspects of valuation before land is compulsorily acquired. However my biggest challenge with compulsory acquisition is the effect it has in urban areas and particularly on the category of people stated in Article 40(3) of the Constitution of Kenya 2010- "Occupiers in good faith" who most often than not are illegally evicted or compensated very little without taking into consideration their livelihoods and historical peculiarities that led to the rise of these settlements. In regards those with tilte deeds, compulsory acquisitions needs to compensate claimants based on valuation as opposed to a standard figure that the government sometimes comes up with. In regards benefits to the community from compulsorily acquired land, the Community Development Agreements (CDA's) in the Mining Act 2016 is a good place to start with in that communities are able to have a say and enter agreements with the investors to get benefits from investements. There is need for institutions to promote equitable benefit sharing which is already envisioned in our different legislations.

Finally we cannot talk sustainable land governance without financing, these instituions need to be adequately financed and proper audits done yearly to see impact funds have had towards land reform. The commission is also mandated to release annual land reports for stakeholders to asses progress and this should be done so that we can measure where we are at. There is still much work to be done by the institutions whose integrity must be unquestionable and beyond reproach to build confidence in the citizenry. The instituions must also challenge themselves to do better in terms of service delivery and aim to reduce cases of corruption.