‘Corruption is the main threat to public land’

Images in the local and international media of the police using tear gas to disperse pupils  from Lang’ata Primary School who were demonstrating against the grabbing of their playground by a private developer were perhaps a the best demonstration of the extent of the rot in land management in the country. However, the case stands out mainly because of the force used against the children.

Public land in the country is under threat from grabbing, encroachment and invasion by squatters, according to a study conducted by Land Development and Governance Institute (LDGI). In the recent past, irregular acquisition of land belonging to schools, hospitals and research institutions has re-emerged as a threat to public land.

Public institutions have lost big tracts of land over the years, necessitating the formulation of strategies to curb the menace and reclaim lost land, the report says.

“Corruption in land administration and management has been the biggest threat to the safety of public land. There are managers of public institutions who have allowed land under their management to be irregularly acquired or illegally occupied. Land brokers are also knowingly selling grabbed land,” the report titled “The status of public land management”, which was released on February 24, indicates.

Cases of squatters invading and settling on public land are also common, especially in areas neighbouring forests. For instance,  squatters have built houses in the Kaya and Mandunguni forests in Kilifi County. But members of the public sometimes also set up temporary structures on road reserves.

Then there are cases where one public institution encroaches on the land belonging to another, as reported in Kitui, where the Ministry of Agriculture encroached on land belonging to Kenya Medical Training College.

 Irregular acquisition by private institutions and “powerful” individuals has also become a threat to public land, the report indicates.

SHARED FUNCTIONS

The report targeted public institutions holding large tracts of land as well as the county land management boards (CLMB), which are the National Land Commission’s (NLC) agents at the devolved level, to find out the status of land under their administration.

 The current institutional framework for land administration and management involves a sharing of functions between the Ministry of Land, Housing and Urban Development (MLHUD), and the NLC, with the latter’s main mandate being the management public land.

Chapter Five of the Constitution defines public land as that occupied by state organs, government forests, game reserves and national parks, specially protected areas, roads and road reserves, among others. The NLC’s main function is managing such land on behalf of the national and county governments, a function reinforced by the National Land Commission Act.

The commission is also responsible for identifying, preparing and keeping a database of all public land, which is then geo-referenced and authenticated by the Survey of Kenya under the Lands Act 2012. Meanwhile, the county boards are tasked by the NLC Act to perform all the commissions’ duties at the devolved level. Public institutions such as government ministries, parastatals, learning and research institutions are individually responsible for managing the land on which they live.

Notably, of the 21 counties visited during the survey, Nairobi, Mombasa and Kisumu had no county boards.  But while public institutions in Nairobi can get  in touch directly with the NLC at Ardhi House, those in Mombasa and Kisumu only have a representative of the commission.

Three years into the commission’s existence, however, the gains in land governance as envisaged by those who proposed its formation are yet to be felt, as evidenced by the report. For instance,  the institute found that it was difficult for members of the public  to get information  from the county land boards. Of the 18 CLMBs approached for information, only nine provided information. Most said they did not have permission from the NLC’s county coordinator to disclose the required information.

“This portrays negatively the transparency and accountability of officers, especially those dealing with public resource management,” the report says. Of the nine that provided information, seven confirmed that they had some form of inventory of the public land in their counties. But most of these inventories were simply lists of  public institutions in the counties, with no indication of the  size, map, or  registration status of the lands they occupied. Only one board had made efforts to map out the public land on a geo-referenced platform (making aerial and satellite imagery to map out data).

The county boards that had no inventories said they had taken steps to compile  the documents.

“This poses new challenges in the management of public land as the lack of approachability and openness is likely to deter members of the public from reporting irregular or illegal acquisition of land,” the report states.

What’s more, not all counties have operationalise land boards, meaning they cannot provide services to the public. Then, the boards seem unable to act independently of  the NLC, the report adds.

DOCUMENTING OWNERSHIP

It says that 40 per cent of the officers managing public land in their  institutions have encountered cases of irregular acquisition.

Meanwhile, 77 per cent of managers of public institutions know the amount of land under their management. However, when asked whether they had the supporting documents, only 41 per cent could produce some any form of documentation.  

The study also established that 62 per cent of the institutions were aware of the NLC’s role in managing public land, while 38 per cent were not. Only 23 per cent of the public institutions had interacted with the NLC, mostly through seminars and workshops on public land management. The few institutions that had interacted with the commission sought assistance to  process ownership documents, solve encroachment disputes, and repossess grabbed land, the report said

Those managing public land identified slow processing of ownership documents as a major challenge. Lack of political will was also cited as a challenge, with many institutions observing that politicians pose the main threat to public land. Limited finances for fencing, employing guards and processing titles further hindered  efforts aimed at protecting public land, the report revealed.

However, there have been efforts to safeguard public land by public institutions, notably by surveying the land. Building a boundary wall and planning the land effectively were also found to work; physical developments, including cultivation, also helped. Out of the 88 institutions sampled, 72 had adopted planning to protect their land, 71 had surveyed their land, and 78 had fenced theirs to protect it.

“Fencing was singled out as the most effective strategy  against illegal acquisition. Most of the institutions that had perimeter fences and walls had fewer incidents of grabbing and encroachment. This, coupled with measures such as putting up signage and the use of guards to regularly patrol the property offered practical options to safeguarding their land,” the survey indicates.

The managers of public institutions proposed that county governments formulate policies and laws that ensure the protection of public land, collaboration with public institutions  and sensitisation  the public to the need to protect public land. Public institutions managing environment and forest resources also proposed that  community involvement be encouraged through sensitisation to help protectof public land.

In addition, the public land managers suggested the establishment of estate departments in public institutions  with large parcels of land, and prosecution of trespassers. They further  suggested that the NLC provide technical support in surveying as well as in the acquisition of ownership documents, besides ensuring sustainable use of public land. The public institutions also called upon the public to respect their boundaries and carry out due diligence before buying land, the survey revealed.

Meanwhile, the county boards, were found to have taken steps to protect public land from grabbing, with the repossession of grabbed land being one of their main approaches. They were also helping public institutions to get documentation for their land, with public schools the most active in this regard. In addition, they were making efforts to increase awareness of public land management. For instance, the board in Makueni County engages members of the public through barazas and distributes pamphlets to educate them on its mandate, as well as the need to protect  public land.

“However there is no evidence of a systematic campaign against land grabbing,” the report notes

The county boards’ efforts to protect public land have also been hampered by challenges such as lack of coordination between  the national and county governments.

TECHNICAL SUPPORT

The boards also indicated that public institutions should ensure that  their land is planned, surveyed, registered and clearly fenced. They  also called upon public institutions to  use land sustainably and encouraged the reporting of cases of grabbing to the NLC or CLMB.

The county governments’ efforts should be encouraged through the provision of technical and financial support, political goodwill, and upholding of integrity.

The CLMBs called on the NLC to fast-track the establishment of a national land information management system to improve their efficiency and effectiveness. The boards advised the public to perform due diligence before buying land.

“There is a need to establish of an inventory of public land to ensure the protection of public spaces, and it is necessary for the NLC to prioritise the establishment of an inventory on public land. This will ensure that the extent of land under the commission’s management is well known and any attempt to irregularly acquire or illegally occupy it will be easily detected and addressed. This information should be easily accessible by the public,” the report says.

 The institute said the lands ministry needed to fast-track the surveying, planning and subsequent titling of all public land. Further, it should define specific actionable timelines and roadmaps for this, and make this information public.

The report said the NLC should provide technical support to institutions and sensitise citizens to the necessity of planning, obtaining letters of allotment, surveying and registering  their land. It should also carry out  sensitisation campaigns to promote sustainable management of public land by institutions.  The report adds that  the county boards and public institutions should freely share information.  It found that some county boards were unwilling to share information on land under their administration

 “This is counter to their mandate of ensuring the protection of such land, which would be best done where such information is freely shared with stakeholders,” the report states. Some public institutions were also uncooperative when it came to giving information about managing their land. “All public institutions should respect  the provisions of Article 35 of the Constitution of Kenya, which gives every citizen the right of access to any information held by the state. This will ensure public goodwill and support in safeguarding public land,” the report concludes.