Let us use laws, agencies to end perennial toxic politics on land

There is an established pattern whereby politicians, aspiring or in office, treat us to loud pre-election land politics. Sadly, some of this drives violence. Yet most is hype and opportunism aimed at attracting votes. 

But it’s time Kenyans shunned this manipulation and demanded accountability. Kenya now has adequate law and institutions to resolve its issues. These, and not mere rhetoric, are our best bankable pathway to the predictable and progressive use of our land for shelter, business and food production. But how?

There have been genuine grievances on land from our past: No land policy, inappropriate constitution and laws, corrupt land institutions and poor access to justice. But following a combination of participatory public processes in the past three decades, the country should be able to resolve most of the pertinent land issues without recourse to toxic politics or violence. We’ve had the benefit of processed information and recommendations from processes like the Njonjo Commission, Ndung’u Commission and Truth, Justice and Reconciliation Commission (TJRC).

We now have a national land policy and a Constitution, which anchors a comprehensive chapter on land that birthed several land laws. Besides direct public inputs, our land policy was informed by the constitutional reviews and the chapter on land in the Constitution by the land policy.

It’s this that informed our current legal and institutional dispensation. The recommendations in the constitutional review reports informed the creation of an independent National Land Commission (NLC). This was anchored in the land policy and Constitution. NLC was given powers to review and repossess, where applicable, illegally and irregularly allocated public land. It would also receive, investigate and recommend redress for all claims on historical land injustices. 

This was informed by, among others, recommendations in the TJRC report. Environment and Land Courts were created following proposals in the policy and Constitution to expedite justice.

New land laws — particularly the Land Act, the National Land Commission Act, the Land Laws (Amendment) Act, the Community Land Act, the Land Registration Act and the Environment and Land Court Act — enacted between 2011 and 2016 provided enabling offices and mechanisms for the realisation of the aspirations expressed by Kenyans. 

Boundary disputes

The laws ,therefore, enable this country to address historical land injustices, and the irregular allocation of public land, which particularly fuelled high-octane political rhetoric in the past. 

One would, therefore, expect the sitting and aspiring political leaders to familiarise with the details of our existing laws and help to improve them. For instance, NLC’s mandate to review grants to previously allocated public land, which was for a period of five years from May 2012, expired in May 2017. Applications to have Parliament extend this timeline have been unsuccessful. 

The timeline for receiving and investigating historical land injustices, which was five years from September 21, 2016, expired yesterday. One would, therefore, expect leaders with sincere concerns to have rooted for extensions. The Environment and Land Courts haven’t expedited justice to land cases, and boundary disputes queued in land registries remain in the thousands. The implementation of the Community Land Act has been slow due to inadequate technical capacity and financial resources.

One can, therefore, appreciate that the required interventions are legal and institutional, or call for enhanced resourcing. Politicians should interrogate the omissions and resource gaps and propose solutions. We, therefore, shouldn’t be treated to polarising land politics in the 2022 General Election campaigns. Any politician doing so would be insincere, really devious, and should be ignored — and even punished.

Mr Mwathane is a consultant on land governance. [email protected]