There’s progress in land reforms but much more work lies ahead

Kenya’s journey to land reforms has been long and exhausting. Nevertheless, the progress has been encouraging.

This has included the enactment of a national land policy, anchoring its key principles in the Constitution and the enactment of several new land laws.

Some key land management roles, including approval of development applications, are now devolved to the counties.

The National Land Commission (NLC)—never mind its chequered history—is now in place. That makes protection and management of public land a lot more reassuring and systematic.

The NLC’s attempt to repossess grabbed public land never quite went well and the timeline to deal expired. And Parliament refused to extend it.

The timeline to receive reports of historical land injustices elapsed in September. Kenyans are eagerly waiting to see how the commission resolves the claims it has received.

Closure to unresolved historical grievances is necessary. They are bad for our economy and political stability.

Reforms also saw the Environment and Land Courts established to resolve land disputes. Even though they are not yet enough and suffer capacity gaps, the courts have enhanced access to justice and are more dedicated to reducing the pending land cases.

The Community Land Act was enacted to provide recognition, protection and registration of community land.

Community land forms over 60 per cent of the country’s landmass and is spread across 24 of the 47 counties.

A good and effective application of this law could transform the fortunes of the semi-arid coastal and northern regions, which hold vital natural resources and have huge potential for economic transformation.

We also now have legal provisions that protect the rights of the vulnerable, such as internally displaced persons, marginalised communities and squatters. But we have not done well on their implementation.

We have continued to handle the eviction of unauthorised occupiers of public and private land like there’s a lacuna in law.

Women’s land rights

On women’s land rights, Kenya has done quite well. These are now mainstreamed in policy and law and, to some extent, practice.

But cultural attitudes and practices associated with patrilineal societies continue to present barriers that must be carefully navigated.

The country is yet to develop guidelines on maximum and minimum land holdings of private land as required under the Constitution. An enabling Bill was dead on arrival and has never been revived.

But whilst capitalist systems, like ours, have challenges with land maximums, we have to mind the minimums.

The rapid fragmentation of agricultural and pastoral land poses a fundamental threat to food security. From an economic viability and food production perspective, the matter of minimum land sizes needs to be revisited.

The government has issued more title deeds in the past eight years than ever before. The tally stands at over 11 million, a major feat by continental standards. This is good for tenure security, but still below our full potential.

This year has seen work done to review the Survey Act and its regulations. This old law is critical to mapping and titling and its enactment should be expedited.

New regulations to the Sectional Properties Act 2020, which repealed the 1987 Act, were enacted. This law supports vertical developments and the provision of titles to individual units in high-rise commercial and residential developments, reducing pressure on land in urban areas.

In March, Kenya launched “Ardhisasa”, a computer-based system for processing a wide range of land transactions. This was a most laudable development. Practising professionals, however, continue to recount challenges they face with the new system.

It’s hoped that the next government will continue to prioritise operations of the Lands ministry to ensure that Ardhisasa is successfully rolled out countrywide and the comprehensive reform gains so far safely banked.

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