Contentious in the Rift-Valley Province: Land

Will the government take away my land? This is in the ms of ever Kenyan. WKR tells whoever wishes to listen that the government of Kenya, of which he is a prominent member, SHALL take it away. James Orengo, the lands minister says it shall not be taken away.

The NO camp says the new katiba gets yes and you kiss your land bye. Not the way Paul Scholes was kissed by the other guy after ManU scored in the dying minutes to deny ManCity the points. No, it means government is introducing socialism and redistribution of wealth. Doesn't that sound familiar? The only difference is that this message is being given to people who have no land. They are landless while some families hoard 500,000 acres of land. Incredible Kenya.

The YES camp says vote YES and the government gets the teeth to redress the injustices related to land.

Let us retrace our steps.

At the height of mayhem in Kenya in 2008, Dr Kofi Anan was invited by the African Union (AU to help Kenyans talk to, rather than at, each other. In order to resolve the humanitarian crisis, wanton lose of life and property and return Kenya to civility, Dr Anan drafted a four agenda framework. These were:

1. Immediate action to stop violence and restore fundamental rights and liberties
2. Immediate measures to address the humanitarian crisis, promote reconciliation, healing and restoration
3. How to overcome the current political crisis and
4. Long term issues and solutions.

With regard to Agenda number four which has now gained fame as Agenda Four, these were further identified as the sticking issues.

• Undertaking constitutional, legal and institutional reform
• Tackling poverty and INEQUITY, as well as combating regional development imbalances;
• Tackling unemployment, particularly among the youth;
• Consolidating national cohession and unity;
• Undertaking a Land Reform;
• Addressing transparency, accountability and impunity

The meeting agreed that Agendas 1-3 be resolved in a period between 7 and 15 days from the commencement of dialogue (28 Jan 2008) while Agenda Four was to be resolved within one year from the same date. The document was signed by Karua and Mudavadi with Kofi Anan as a witness on 1 Feb 2008.

See the document here.

In a follow-up to address the Agenda Four Implementation Framework, Kofi Anan left the negotiations to H.E. Oluyemi Adeniji who, together with PNU's Martha Karua, Mutula Kilonzo, Moses Wetangula and Sam Ongeri sat with OMD'S Musalia Mudavadi, William Ruto, Sally Kosgei and James Orengo. The nine agreed on a Statement of Principles and Long-term issues and solutions in a document they signed on 23 May 2008. You may view the signed document here
.

In summary, on land the Agenda Four intentions cover the following key aspects:

1. Constitutional review to address fundamental issues of land tenure and land use
2. The development and implementation of land policies should take into account the linkages between land use, environmental conservation, forestry and water resources
3. Finalisation of the draft National Land Use Policy and enactment of attendant legislation
4. Land Laws to be harmonised into one Statute to reduce multiple allocation of title deeds
5. Establishment of a transparent, decentralised and efficient GIS-based Land Information Management System and a GIS-based Land Registry at the Ministry of Lands including all local authorities
6. Land Ownership Document Replacement for owners affected by post-election violence
7. Development of a National Land Use Masterplan, taking into account environmental considerations
8. Land Reform Transformation Unit in the Ministry of Lands to facilitate the implementation  of the land reform programme as outlined in the National Land Use policy
9. Strengthen local-level mechanisms for sustainable land rights administration and management
10. Finalise the Land Dispute Tribunal Act.

In order to implement these recommendations, the Ministry of Lands was designated as the Focal Point and the mechanism and timeframe for implementation was given as follows:

Land Reform process to be factored in the constitutional review process within 12 months
Let us look at the Draft constitution.

Now let us focus on Chapter Five: Land and Environment.

Part 1—Land
Principles of land policy 

60 .

1. Land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable, and in accordance with the following principles—

• equitable access to land;
• security of land rights;
• sustainable and productive management of land resources;
• transparent and cost effective administration of land;
• sound conservation and protection of ecologically sensitive areas;
• elimination of gender discrimination in law, customs and practices related to land and property in land; and
• encouragement of communities to settle land disputes through recognised local community initiatives consistent with this Constitution.

2. These principles shall be implemented through a national land policy developed and reviewed regularly by the national government and through legislation.

Classification of land
61. 

1. All land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals.
2. Land in Kenya is classified as public, community or private.

Public land
62 . 
Public land is—

• land which at the effective date was unalienated government land as defined by an Act of Parliament in force at the effective date;
• land lawfully held, used or occupied by any State organ, except any such land that is occupied by the State organ as lessee under a private lease;
• land transferred to the State by way of sale, reversion or surrender;
• land in respect of which no individual or community ownership can be established by any legal process;
• land in respect of which no heir can be identified by any legal process;
• all minerals and mineral oils as defined by law;
• government forests other than forests to which Article 76(2) (e) applies, government game reserves, water catchment areas, national parks, government animal sanctuaries, and specially protected areas;
• all roads and thoroughfares mentioned by an Act of Parliament;
• all rivers, lakes and other water bodies as defined by an Act of Parliament;
• the territorial sea, the exclusive economic zone and the sea bed;
• the continental shelf;
• all land between the high and low water marks;
• any land not classified as private or community land under this Constitution; and
• any other land declared to be public land by an Act of Parliament—

                                 i.            in force at the effective date; or

                               ii.            enacted after the effective date.

2.      Public land shall vest in and be held by a county government in trust for the people resident in the county, and shall be administered on their behalf by the National Land Commission, if it is classified under—

b)      clause (1) (a), (c) (d) or (e); and

c)      clause (1) (b), other than land held, used or occupied by a national
State organ.

3.      Public land classified under clause (1) (f) to (m) shall vest in and be held by the national government in trust for the people of Kenya and shall be administered on their behalf by the National Land Commission.

4.      Public land shall not be disposed of or otherwise used except in terms of an Act of Parliament specifying the nature and terms of that disposal or use.

Community land

63.

1.       Community land shall vest in and be held by communities identified on the basis of ethnicity, culture or similar community of interest.

2.       Community land consists of—

a)      land lawfully registered in the name of group representatives under the provisions of any law;

b)      land lawfully transferred to a specific community by any process of law;

c)      any other land declared to be community land by an Act of Parliament; and

d)      land that is—

                                       i.            lawfully held, managed or used by specific communities as community forests, grazing areas or shrines;

                                     ii.            ancestral lands and lands traditionally occupied by huntergatherer communities; or

                                    iii.            lawfully held as trust land by the county governments, but not including any public land held in trust by the county government under Article 62 (2).

3.       Any unregistered community land shall be held in trust by county governments on behalf of the communities for which it is held.

4.       Community land shall not be disposed of or otherwise used except in terms of legislation specifying the nature and extent of the rights of members of each community individually and collectively.

5.       Parliament shall enact legislation to give effect to this Article.

Private land

64.
Private land consists of —

a)      registered land held by any person under any freehold tenure;

b)      land held by any person under leasehold tenure; and

c)      any other land declared private land under an Act of Parliament.

Landholding by non-citizens

65.

1.       A person who is not a citizen may hold land on the basis of leasehold tenure only, and any such lease, however granted, shall not exceed ninety-nine years.

2.       If a provision of any agreement, deed, conveyance or document of whatever nature purports to confer on a person who is not a citizen an interest in land greater than a ninety-nine year lease, the provision shall be regarded as conferring on the person a ninety-nine year leasehold interest, and no more.

3.      For purposes of this Article –

a)      a body corporate shall be regarded as a citizen only if the body corporate is wholly owned by one or more citizens; and

b)      property held in trust shall be regarded as being held by a citizen only if all of the beneficial interest of the trust is held by persons who are citizens.

4.        Parliament may enact legislation to make further provision for the operation of this Article.

Regulation of land use and property

66.

1.       The State may regulate the use of any land, or any interest in or right over any land, in the interest of defence, public safety, public order, public morality, public health, or land use planning.

2.      Parliament shall enact legislation ensuring that investments in property benefit local communities and their economies.

National Land Commission

67.

1.      There is established the National Land Commission.

2.      The functions of the National Land Commission are—

a)      to manage public land on behalf of the national and county governments;

b)      to recommend a national land policy to the national government;

c)      to advise the national government on a comprehensive programme for the registration of title in land throughout Kenya;

d)      to conduct research related to land and the use of natural resources, and make recommendations to appropriate authorities;

e)      to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress;

f)        to encourage the application of traditional dispute resolution mechanisms in land conflicts;

g)      to assess tax on land and premiums on immovable property in any area designated by law; and

h)      to monitor and have oversight responsibilities over land use planning throughout the country.

3.       The National Land Commission may perform any other functions prescribed by national legislation.

Legislation on land

68.

1.      Parliament shall—

a)      revise, consolidate and rationalise existing land laws;

b)      revise sectoral land use laws in accordance with the principles mentioned in Article 60 (1); and

c)      enact legislation—

                                                   i.            to prescribe minimum and maximum land holding acreages in respect of private land;

                                                 ii.            to regulate the manner in which any land may be converted from one category to another;

                                                iii.            to regulate the recognition and protection of matrimonial property and in particular the matrimonial home during and on the termination of marriage;

                                               iv.            to protect, conserve and provide access to all public land;

                                                 v.            to enable the review of all grants or dispositions of public land to establish their propriety or legality;

                                               vi.            to protect the dependants of deceased persons holding interests in any land, including the interests of spouses in actual occupation of land; and

                                              vii.            to provide for any other matter necessary to give effect to the provisions of this Chapter.

Now let us look at the source of contention.

A). Is anybody going to take away your LAND?

Let us find the Article which is raising temperatures among land-grabbers (the text in red is my own annotation) 

Protection of right to property
40.

1.      Subject to Article 65 (Ownership of land by Non-citizens which limits it to leasehold of 99 years!), every person has the right, either individually or in association with others, to acquire and own property––

a)      of any description; and

b)      in any part of Kenya.

3.      Parliament shall not enact a law that permits the State or any person—

a)      to arbitrarily deprive a person of property of any description (does that EXCLUDE LAND?) or of any interest in, or right over, any property of any description; or

b)      to limit, or in any way restrict the enjoyment of, any right under this Article on the basis of any of the grounds mentioned or contemplated
in Article 27 (4).

3.   The State shall not deprive a person of property of any description (does that EXCLUDE LAND?), or of any interest in, or right over, property of any description, unless the deprivation—

a)      results from an acquisition of land (Quite naturally, if PROPERTY did NOT include LAND, why is it specifying LAND here?) or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or

b)      is for a public purpose (gava even does it now for things like Pipeline!) or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that—

i)                    requires prompt payment in full, of just compensation to the person; and

ii)                   allows any person who has an interest in, or right over, that property a right of access to a court of law.

4.      Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may not hold title to the land.

5.      The State shall support, promote and protect the intellectual property rights of the people of Kenya.

6.      The rights under this Article do not extend to any property that has been found to have been unlawfully acquired (GRABBED land for example).

B). Is LAND property or does Property not include LAND?

Let us look at Article 260 for definitions

Interpretation
260.  
In this Constitution, unless the context requires otherwise—
“land” includes—

a)      the surface of the earth and the subsurface rock;

b)      any body of water on or under the surface;

c)      marine waters in the territorial sea and exclusive economic zone;

d)       natural resources completely contained on or under the surface; and

e)       the air space above the surface;

“property” includes any vested or contingent right to, or interest in or arising from—

a)      land, or permanent fixtures on, or improvements to, land;

b)      goods or personal property;

c)      intellectual property; or

d)      money, chooses in action or negotiable instruments;