Despite past efforts, land problems continue to exist in the country. Continuous work is necessary to develop solutions to the myriad challenges facing the land sector.
While the land question has historical roots and has continued to exist since and has political, economic, social and ecological aspects, its exact nature is always contested.
For example, there is agreement on the need to protect land rights. However, when there is a dispute between a citizen in a rural area who sold land to some entrepreneur as to whether the sale was voluntary and in the best interests of the parties, there will be those who argue that the doctrine of willing buyer willing seller, a key hallmark of any transaction for the sale of goods should be the underlying guide.
On the contrary, some will argue that the power balance between the two parties in the above transaction is uneven, consequently social justice requires that we protect the farmer from being exploited. How to protect land rights in this case is not straight forward.
Six year ago, we adopted the 2010 Constitution. Coming a year after the National Land Policy, the country defined its path to resolving the myriad land challenges facing the country. Principles of land policy were clearly stipulated, with a focus on equity, sustainability, efficiency and productivity in all land relations. The powers of the President over public land were circumscribed through the creation of the National Land Commission.
The process of compulsory acquisition was also made clearer and more democratic. When one Reads the Njonjo Land Commission report of 2002 and the Ndungu Land Commission report of 2005, it emerges that many of the problems that had bedeviled the land sector were dealt with in the National Land Policy and the Constitution.
Unfortunately, the landscape for land governance has not improved as much as was promised by the 2010 Constitution. The country is yet to fully clarify the role of county governments in land governance. In instances where natural resources are discovered in a particular county, for example, extractives, contestation between the community, the investor and the different levels of government is the norm. This is exacerbated by the fusion of ownership of the land and that of the resource by these groups.
A few weeks ago, for example I was in my rural village. For the first time in the lives of the rural community in Asumbi, there is tarmacking of the main road traversing the rural village. This is going to be the first tarmac in the entire constituency. Consequently, there is excitement about it. However, in the process, land and some property of the residents who abut the road is being cleared so that the road can be expanded.
Unfortunately, there has been very little engagement by the National Land Commission with the residents. They have been left to the mercy of the construction company, who have expanded the boundaries of the road three times. The residents were thus left on their own, wondering whether to object to the expansion, or just watch silently since the road will benefit them.
The provisions on the Constitution and the Land Act on the procedure for compulsory acquisition, while progressive was not of any help to this village. In the end there have focused on the wider benefits they will get from the road.
To ensure that land reforms that Kenyans continue to yearn for is realized and sustained, there is need for continued vigilance and engagement of the citizenry. This is the essence of the constitutional provisions on public participation. Participation to be meaningful has to be informed.
Provision of land information is a necessary aspect of citizens engagement. In the above example, the local residents required to be provided with more information to ensure they understand the issues surrounding the road construction so that they are not taken by surprise.
The Constitution mandates the National Land Commission to undertake research on land matters. The academy’s primary role is research and provision of options for policy makers. In addition, civil society too caries out some research. It is necessary though that a research agenda is developed by these groups and sustained. Such research must deal with both historical issues and contemporary issues.
[Article published in the Business Daily on Monday, 19th November 2018]
