Land Reforms in Kenya: Achievements and the Missing Link

By Duncan Okowa*

This past week, one of the local dailies ran a story narrating how many county and national government institutions are squatters on what used to be public property, and even face eviction by new owners. It described how in Meru for instance, land meant for the most critical public institutions — police stations, hospitals, government offices, roads, even sensitive installations like the County Commissioner’s residence — has been allocated to individuals. Land grabbing and irregular land allocation is commonplace in Kenya. Just last month, Kenyans were treated to disturbing scenes of injured pupils of a primary school in Lang’ata after police threw tear gas canisters at them as they protested the grabbing of their school’s playground.

The Lang’ata school land saga came hot on the heels of what is believed to be the biggest single heist of private land in independent Kenya — the invasion and acquisition of a multi-billion shillings 134-acres property in Karen, with the alleged connivance of state officials. And there is the five-acre wetland plot allegedly grabbed by a church in Nairobi’s Westlands area recently. Examples of land grabbing in Kenya could go on and on. But Kenya’s land problems are not limited to land grabbing. A number of other unresolved critical land issues have also impeded the use of land to support economic growth and sustainable livelihoods. They include issues of tenure security; maximum and minimum land holding; unsustainable land use; and women and other vulnerable groups’ right of access to land.

But why the fuss about land?

Land is not only the most important factor of production but also a very highly emotive issue in Kenya. For starters, ours is a country where over 80% of the population rely on agriculture, yet only 20% of the land mass comprise arable land. Those in political class and in business regard land as a source of personal wealth and power. For citizens especially the majority rural population, land is not only their soul livelihood source but also the subject of great emotional attachment. Land was in fact one of the key issues that drove the fight for independence from the British colonial powers. But even after independence, discontent over land ownership has remained the most notable source of frequent conflicts and tribal clashes between Kenyan communities. The way land is used and managed is therefore extremely critical to Kenya’s peace, prosperity and posterity.

 A history of land problems

Kenya’s history of land problems can be traced back to the colonial government’s apparent conviction that private ownership of land created more incentives for long-term investment, access to capital, and growth. Instructively, this conviction has been pursued with remarkable consistency and success by successive post-independence governments. As a result, the vast majority of commercial, residential, and arable land in Kenya was brought under private individual ownership by a process of systematic first registration. For anyone, especially the indigenous people to obtain land, they had to go through the state. This bred a culture of selective land allocation for political support by those in power, inefficiency and corruption. The result was many indigenous people remaining landless and many other land-related problems.

 The clamour for land reforms, the National Land Policy and the Constitution

This led to a clamour for land reforms which eventually yielded the Kenya National Land Policy (NLP) adopted in 2009, and a comprehensive treatment of land in the Constitution of Kenya promulgated in August 2010. Both the NLP and the Constitution followed a well-structured process of wide consultation and public participation. The two documents brought a raft of changes in the way land is managed and utilized, in essence laying the foundation for sustainable management and utilization of land. They detail land policy principles which must be adhered to when holding, using or managing land, and provide the framework for addressing several critical land issues. Among the land policy principles are equity; security of tenure; access to land information; transparency; and good democratic governance.

Notably, the two documents repudiate the long-standing priority of privatizing land, by recognizing communal ownership of land as a legal tenure regime equal in status to the other two – private and public tenure. Another important feature of NLP is that it identifies subsistence farmers, pastoralists, hunters and gatherers as vulnerable groups who require special recognition and facilitation in order to gain secure land rights and effectively participate in land-related decision making. The Constitution and NLP also encourage application of recognized local community initiatives for settling disputes over land.

The Constitution recognizes that lasting solution to the land problem lies in an effective legal and institutional framework. It thus requires all laws relating to land to be revised, consolidated and rationalized. Consequently, parliament has enacted the Land Act 2012 which aims to revise, consolidate and rationalize land laws in order to provide for the sustainable administration and management of land and land based resources. Parliament also enacted the Land Registration Act 2012 whose object is to revise, consolidate and rationalize the registration of titles to land. In the same year, the National Land Commission Act 2012 was enacted purposely to establish and provide for the functioning of the National Land Commission (NLC), the public body charged with managing public land on behalf of the national and county governments. A number of other land-related laws are under consideration, including the Community Land Bill, the Evictions and Resettlement Bill and the Investigation and Adjudication of Historical Land Injustices Bill.

 So what’s ailing the land reform process?

Despite this enormous progress, Kenya’s land reform process seem to have hit a snag, and there are justifiable fears that even the gains made so far in the legal and legislative front are on the verge of being reversed.

 Four closely linked and inter-related factors have contributed to this. First, deeply entrenched vested interests have denied the land reform process the much needed political and business support. Many powerful people in politics and business, especially the beneficiaries of the past flawed land regime and those who are angling to benefit from a non-streamlined land sector, see the reforms as a hindrance to personal wealth and power. Very closely related to this is a lack of political goodwill as senior national and county government officials as well as several members of parliament are deeply entangled in land-grabbing and other irregular land allocation cases. Many of them will go any length to ensure the desired land reforms don’t see the light of day. The third challenge is that the laws that have so far been enacted to effect land reforms have not counted for much because of poor implementation. In fact, even the legislative reforms have lost momentum as evidenced by the slow pace of developing a law on community land, lack of which continue to disenfranchise many communities.

The fourth challenge is a weaknesses in terms of resources, capacity and independence among the public institutions charged with managing land. This weakness is perhaps epitomized by the power struggles and persistent wrangling between the National Land Commission (NLC) and the Ministry of Land, Housing and Urban Development. In President Uhuru Kenyatta’s own words, the internal differences between the commission and the ministry has not only caused uncertainty and concern, but also impeded the government’s ability to move ahead in terms of economic development. Although there exists grey areas in law in terms of clearly defining the roles of the two institutions, pundits believe that a strong political will to implement the desired land reforms would very easily surmount this. Moreover, the NLC especially its chairman Dr Mohammed Swazuri is seen as too meek to survive amidst deeply entrenched political and business interests that surround land reforms. NLC has also not reached a level of functional independence as it still relies very much on the national government for its staff needs and resource allocation, making it vulnerable to manipulation and control.

Which way land reforms?

As a result of these challenges, and despite the enormous progress, most current and historical land injustices remain unresolved. Grabbing and illegal allocation of public and communal land goes on unabated almost throughout the country. The rights of communities, especially vulnerable groups including women and youth continue to be infringed upon or violated, and critical ecosystems continue to be degraded.

 For the land reform process to proceed and succeed, as it must, the challenges and constraints, mainly entrenched political and business interests, and poor capacity of state organs to deliver on their mandates have to be confronted and overcome. Going forward, Kenya’s land reform process should prioritize: a strong political will to achieve land reforms; supporting state organs to deliver on their mandates; acquisition of land to settle the landless; completing and enacting the Community Land Bill; securing land rights and tenure in various contexts for citizens and non-citizens; developing a land use policy to promote land settlement and productive land use; and facilitating public access to information and participation in land management and utilization.

*Duncan Okowa is a Programme Officer at the Institute for Law and Environmental Governance (ILEG). The views expressed here are purely his own and do not necessarily reflect ILEG’s position. Twitter: @duncanokowa