Land reforms drive enters homestretch after century

By GAKUU MATHENGE

Two parliamentary committees have intervened to end anxiety over Lands Bills published last week that stakeholders say are too defective to pass without amendments.

Constitution Implementation Oversight Committee (CIOC) and the Legal Affairs Committee sought extension of deadlines to pass the Bills from February 26 to allow for sufficient debate.

CIOC Chairman Abdikadir Mohamed and Legal Affairs vice chair Njoroge Baiya said a three-month extension of deadlines for Land and Devolution Bills would be in order.

Lands Minister James Orengo [PHOTO: FILE/STANDARD]

On Thursday, Parliament granted the 60 days extension prayer in what the committees believe would allow for sufficient debate and scrutiny of the key Bills.

"Land has been a major source of conflict and debating such important Bills in six days is not fair. Extension of deadlines is a better decision due to failure by the Executive to present Bills to Parliament in time" said Abdikadir.

The recent publication of the National Land Commission Bill and the Land Registration Bill marked the start of the last stretch to conclude the century-old struggle for land reforms, since the British introduced the first land laws in Kenya in 1908.

Long anxiety

Before the intervention by the CIOC and the Legal Affairs committee, there was anxiety the long struggle could end in a sham, with stakeholders fearing February 26 was too close for comprehensive debate on such critical Bills to take place.

On the table include the National Land Commission Bill, Land Registration Bill and the Land Bill published more than a week ago for debate and enactment by Parliament.

There was concerns the political class in Government and Parliament — in whose ranks are the biggest land owners in Kenya — were out to stifle debate to subvert genuine reforms to protect their privileges, by bringing the Bills late when there was little time for critical examination and amendments.

The process of drafting National Land Policy (2009), Chapter 5 of the Constitution, and the drafting of the Bills was acrimonious with opinion sharply divided.

For instance, the big landowners created the Kenya Land Owners Association to fight off what they perceived as radical reforms to chisel away their privileges.

In an interview, Abdikadir cautioned Kenyans to be alert on this last phase, saying the war on land reforms was not over.

"Indeed, it has just begun and I expect it will be furious and vicious. All Kenyans of goodwill must remain alert and guard against an abortion of what generations have waited for in the last a hundred years. The Bills should give birth to the dream of breaking away from the past as defined in the National Land Policy and the new Constitution. There will be a fight back and we should remain vigilant," he said.

Land sector lobbies led by the Land Development and Governance Institute (LDGI) have faulted the Ministry of Lands for dragging its feet in drafting the Bills since the promulgation of the new Constitution in August 2010, only to stampede stakeholders and Parliament by publishing the Land Bills two weeks to the constitutional deadline in February 26.

"We must appreciate we are caught up by time. It will not be possible to for Parliament to scrutinize, debate and cure all the defects in two weeks. LDGI proposes Parliament should consider extending the timelines by not less than six months to create sufficient space for debate and harmonisation with other devolution legislations and processes." LDGI director Ibrahim Mwathane said.

Draft Bills

A legal audit by the United States Agency for International Development dated January 2012 also faults the draft Bills as defective and lacking in the letter and spirit of the National Land Policy (Sessional Paper No 4, 2009) and the new Constitution.

Among others, the audit report seen by The Standard on Sunday, faults the Bills on various fronts. It says the Land Bill does not sufficiently incorporate constitutional and National Land Policy guarantees pertaining to gender-equitable land rights and governance.

It says the Land Bill should incorporate the full list of land policy principles articulated in Article 60 of the Constitution, add a section recognising and defining co-ownership rights to land, including joint ownership rights.

The audit says the Bill should incorporate gender equity provisions in sections on public lands, and in sections on private land rights that address transfers or contracts and include within its scope on community lands, clear instruction on the interplay between customary and formal law and institutions in land governance.

"The reviewers note that numerous provisions of the Bills either directly contravene the Constitution and the National Land Policy or do not adequately incorporate the mandates of these seminal documents," USAID audit report says.