THE
GOVERNANCE AND CONSTITUTING FRAMEWORKS
The formation of
the National Land Commission (hereinafter the Commission) was first embraced by
the National Land Policy (NLP) as adopted by Parliament in December 2009. The
policy provides in Section 232 that
NLC shall be a constitutional body and its composition shall be defined by an
Act of Parliament taking into account the need to ensure broad representation,
expertise, integrity and equity.
Consequently, NLC was espoused
as a Constitutional body under Chapter Fifteen of the Constitution (on
Commissions and Independent Offices) and it has the powers, privileges and
authority as accorded to such commissions under the Constitution. Moreover, the
Commission is established under Article
67 of the Constitution and further constituted by the National Land
Commission Act, 2012 where it is charged with a broad mandate.
Section 41 of the policy requires that the
Constitution shall provide for the establishment of a National Land Commission
(NLC) to carry out efficient, equitable and sustainable land administration and
management.
Apart from the
obligations outlined in the Constitution and NLP, the mandate of the Commission
stretches to the various functions assigned to it by the various Land Laws
including the National Land Commission Act, 2012, the Land Act, 2012 and the
Land Registration Act, 2012. This brief analysis of the Commission’s milestones
will focus on the Constitution and the above mentioned legislations.
It is important to
appreciate the fact that most of the Commission’s functions codified in the
policy were further entrenched in the above-mentioned constitutional and legal
frameworks. Such includes holding title to and manage public land on behalf of
the Government; establishing and maintaining a register of all public, private
and community land in the country; installing and operating an electronic land
registry; establishing a Land Policy
Research Centre (LPRC) to coordinate land policy research among others.
(a)
The
Constitution
i)
Introduction
The Constitution in Article 67 (2) outlines the broad
obligations of the Commission as follows;
·
To manage public land on behalf of the national
and county governments.
·
To recommend a national land policy to
the national government.
·
To advise the national government on a
comprehensive programme for the registration of title in land throughout Kenya.
·
To conduct research related to land and
the use of natural resources, and make recommendations to appropriate
authorities.
·
To initiate investigations, on its own
initiative or on a complaint, into present or historical land injustices, and
recommend appropriate redress.
·
To encourage the application of
traditional dispute resolution mechanisms in land conflicts.
·
To assess tax on land and premiums on
immovable property in any area designated by law.
·
To monitor and have oversight
responsibilities over land use planning throughout the country.
Article
62
defines Public Land and further states the exact scope of the Commission’s
mandate to administer Public Land under Article 62 (2). It states to the effect
that Public land shall vest in and be held by a county government in trust for
the people resident in the county, and shall be administered on their behalf by
the National Land Commission, if it is classified under the following
categories;
- land which at the effective date was unalienated government land as defined by an Act of Parliament in force at the effective date
- land transferred to the State by way of sale, reversion or surrender
- land in respect of which no individual or community ownership can be established by any legal process
- land in respect of which no heir can be identified by any legal process
- Land lawfully held, used or occupied by a State organ other than a national State organ, except any such land that is occupied by the State organ as lessee under a private lease.
With respect to Public
Land that vests in and is held in trust for the people of Kenya by the national
government, the scope of the Commission’s administration mandate is also
specified as to extend to the following categories of land;
·
all minerals and mineral oils as defined
by law
·
government forests other than forests to which
Article 63 (2) (d) (i) applies (land classified as community land),
government game reserves, water catchment areas, national parks, government
animal sanctuaries, and specially protected areas
·
all roads and thoroughfares provided for
by an Act of Parliament
·
all rivers, lakes and other water bodies
as defined by an Act of Parliament
·
the territorial sea, the exclusive
economic zone and the sea bed
·
the continental shelf
·
all land between the high and low water
marks
·
Any land not classified as private or
community land under this Constitution.
Apart from Article 67(2) (e), the constitution
further provides under Article 252(1)
(a) that the Commission, being a Constitutional commission, will be
required to conduct investigations on its own initiative or on a complaint made
by a member of the public. Such complaints will relate to land managed and
administered by the commission. In Article
252 1 (b) the Commission is also given the powers necessary for
conciliation, mediation and negotiation. Such conciliation, mediation and
negotiation will relate to disputes or matters concerning land managed and
administered by the Commission.
ii)
Key Milestones
The milestones to be
achieved by the NLC are outlined in the following enabling Acts;-
(i) The National Land
Commission Act, No 5 of 2012.
(ii) The Land Act, No 6
of 2012.
(b)
The
National Land Commission Act
i)
Introduction
In addition to the
obligations provided in the Constitution and NLP, the National Land Commission
Act outlines several objectives. In Section
5 the Commission is required to;
·
Alienate public land on behalf of and
with the consent of the national and county governments as applicable.
·
Monitor the registration of all rights
and interests in land
·
Ensure that public land and land under
the management of designated state agencies are sustainably managed for their intended
purpose and for future generations.
·
Develop and maintain an effective land
information management system at national and county levels.
·
Manage and administer all unregistered
trust land and unregistered community land on behalf of the county government.
·
Develop and encourage alternative
dispute resolution mechanisms in land dispute handling and management.
ii)
Key Milestones
·
Section
5(3)
on functions of the Commission provides that the Commission shall ensure that all unregistered land is
registered within ten years from the commencement of this Act.
However, Parliament may, after taking
into consideration the progress of registration, extend the period set by the
Commission as outlined in Section 5 (4).
The
Commission time period to comply with this runs effectively from 2nd
May 2012 to 2nd May 2022 subject to extension by Parliament.
·
Section
14(1) on review of
grants and dispositions provides that Subject to Article 68(c) (v) of the
Constitution, the Commission shall, within five years of the commencement of
this Act, on its own motion or upon a complaint by the national or a county
government, a community or an individual, review all grants or dispositions of
public land to establish their propriety or legality.
The
Commission time period to comply with this runs effectively from 2nd
May 2012 to 2nd May 2017.
·
Section
15
on investigation and adjudication
provides that the Commission shall, within two years of its appointment,
recommend to Parliament appropriate legislation to provide for investigation
and adjudication of claims arising out of historical land injustices for the
purposes of Article 67(2) (e) of the Constitution.
The Commission time period to
comply with this runs effectively from February 2013 to February 2015.
This provision is
in line with Section 234 of NLP
which provides that within two years of its establishment, the NLC shall
initiate the process of formulating necessary legal and administrative reforms
to facilitate timely implementation of this policy including resolution of
historical land injustices.
·
Section
16
on Establishment of Committees and County
Offices provides that Commission may establish such County and
Sub-Committees and co-opt other persons whose knowledge and skills are
necessary to the functions of the Commission.
Since
this is a discretionary provision, it is not time bound. However, pursuant to Constitutional
provisions in Article 6 on the need for a national State organ to ensure
reasonable access to its services in all parts of the Republic and the above
obligations to also manage public land at the County government level, it is important for the Commission to treat
this expectation with the urgency and importance it deserves.
In
fact Section 17 on Consultations, the
Commission is to work in consultation and cooperation with the national and
county governments subject to Article 10 and 232 of the Constitution.
·
Section
18 on Establishment and
Composition of County Land Management Boards. These
are to be established in consultation and cooperation with the national and
county governments for the purposes of managing public land. Neither the Act nor Sections 241-245 of
NLP provide timelines for this critical assignment of the Commission at County
levels.
·
Sections
22 and 23 on
the Appointment and Secondment of Staff-No timelines but
this is critical so as to ensure that the Commission has the requisite
competencies and expertise.
·
Section
33 on the Annual
Report- Pursuant to Article 254 of the Constitution,
develop, publish and publicize such a report capturing the financial
statements, activities, progress in the registration of title in land,
recommendations to the County or national governments or to any state agency,
impediments to its work and other appropriate information.
Article 254 of the Constitution
provides that this should be done “as soon as practicable after the end of each
financial year”. From July of every calendar year.
·
Section
34
on Code of Conduct provides that the
Commission shall within six months develop a conduct for its members and staff.
The Commission time period to
comply with this runs effectively from February 2013 to July 2013.
·
Section
36 on
Regulations provides that the
Commission may make regulations generally for the better carrying into effect
of any provisions of this Act and such regulations shall be tabled before
Parliament for approval. The Act does not
provide for a specific time for this to be implemented.
(c)
The
Land Act, No 6 of 2012
Policy formulation
Section
6
of the Act requires the Commission to recommend policies on land to the Cabinet
Secretary designated to address Land matters. Currently there is a National
Policy which was formulated before the promulgation of the Constitution,
however most of the issues addressed therein can be said to be outdated since
the enactment of the new land laws and the current constitution have rendered a
substantial part of the policy nugatory. There is thus an outstanding
obligation to formulate and recommend a land policy to the Cabinet Secretary
pursuant to the said provision.
Section
10
of NLP provides that there will be need to review this Land Policy every ten
years to take into account current and future needs in view of social and
economic dynamics in the land sector.
Section
8 on the Management of
Public Land provide an obligation to manage and
administer public land by requiring the Commission to identify public land for
purposes of keeping a database as well as evaluating the land based on land
capability classification, land resources mapping consideration, overall
potential for use, and resource evaluation data for land use planning.
It also requires the
Commission to share data with the public and relevant institutions in order to
discharge their respective functions and powers, and to give direction for the
use of such land for specified purposes and subject to such conditions,
covenants, encumbrances or reservations as are specified in the relevant order
or other instrument.
However,
no specific timelines are provided.
Section
9 (4) requires the Commission to prepare and keep a
register of particulars relating to public land converted to private land by
alienation, names and addresses of all persons whose land has converted to public
land through compulsory acquisition or reversion of leasehold, community land
converted to either private or public and any other details.
Section
9
further provides under sub-sections 5, 6
and 7 that the Commission may make rules for the better
carrying out of the provisions of this section and they shall be tabled before
Parliament for approval.
Section
10
requires the Commission to prescribe guidelines for the management of public land
by all public agencies, statutory bodies and state corporations in actual occupation
or use of public land. It requires that the guidelines indicate management
priorities and operational principles for the management of public land
resources for identified uses.
The Commission shall
comply with Article 10(2) of the Constitution on national values and principles
of governance in the development of the guidelines.
Section
11
requires the Commission to take appropriate action to maintain public land that
has endangered or endemic species of flora and fauna, critical habitats or
protected areas, to identify ecologically sensitive areas that are within public
lands and demarcate or take any other justified action on those areas and act
to prevent environmental degradation and climate change. The Commission shall
consult existing institutions dealing with conservation.
Regulations
The Act requires the
Commission to make rules and regulations in respect of several objectives. The
rules are necessary for the implementation of its obligations under the Act.
These rules include the rules under Section
12 prescribing the criteria for allocation of public land, particularly
forms of ownership and access to land under all tenure systems, the procedure
and manner of setting aside land for investments, procedures to be followed
with respect to auction and disposition of land, appropriate mechanisms for
repossession of land given to citizens at the expiry of a lease and mechanisms
of benefit sharing with local communities whose land have been set aside for
investment subject to Article 65 of
the Constitution.
Article
65
clearly provides for landholding by non-citizens as follows;-
65.
(1)
A person who is not a citizen may hold land on the basis of leasehold tenure
only, and any such lease, however granted, shall not exceed ninety-nine years.
(2) If a
provision of any agreement, deed, conveyance or document of whatever nature
purports to confer on a person who is not a citizen an interest in land greater
than a ninety-nine year lease, the provision shall be regarded as conferring on
the person a ninety-nine year leasehold interest, and no more.
(3) For purposes
of this Article—
(a) A
body corporate shall be regarded as a citizen only if the body corporate is
wholly owned by one or more citizens; and
(b) Property
held in trust shall be regarded as being held by a citizen only if all of the
beneficial interest of the trust is held by persons who are citizens.
(4) Parliament
may enact legislation to make further provision for the operation of this
Article.
This is also in
line with the Sessional Paper No 3 of
2009 on National Land Policy which provides under Section 80 that;-To facilitate the exercise of leasehold rights,
the Government shall:
(a) Align all leases to this policy;
(b) Establish
mechanisms for the creation of leasehold interests out of public, community and
private land;
(c) Ensure that the duration of all leases does not exceed 99 years but
is nevertheless sufficient to encourage long-term investments in land;
(d) Establish appropriate mechanisms for the surrender of interests
currently held beyond 99 years in exchange for the proposed leasehold term;
(e) Subject the renewal of all leases to general planning requirements;
and
(f) Encourage the
use of leasehold rights to facilitate concurrent, multiple and shared access to
land.
Section 93 of NLP further provides that
to ensure the grant of land rights to non-citizens does not unduly deny
citizens access to land, the Government shall:
(a) Prohibit non-citizens from holding freehold interests in land;
(b) Allow non-citizens and foreign companies to acquire leasehold
interests only, subject to public policy considerations such as security; and
(c) Ensure that
the leasehold term for land leased to non-citizens shall be based on intended
use but shall not in any event exceed 99 years.
Allocation of public
land
Further, under Section 12 the Commission is required
on behalf of the National or county governments, to allocate public land by way
of public auction to the highest bidder at prevailing market value subject to
and not less than the reserved price, application confined to a targeted group
of persons or groups in order to ameliorate their disadvantaged position,
public notice of tenders as it may prescribe, public drawing of lots as may be
prescribed, public request for proposals as may be prescribed or public
exchanges of equal value as may be prescribed.
The Commission is also
required to ensure that any public land that has been identified for allocation
does not fall within the categories of public land that is subject to erosion,
floods, earth slips or water logging; public land that falls within forest and
wild life reserves, mangroves, and wetlands or fall within the buffer zones of
such reserves or within environmentally sensitive areas; public land that is
along watersheds, river and stream catchments, public water reservoirs, lakes,
beaches, fish landing areas riparian and the territorial sea as may be
prescribed; public land that has been reserved for security, education,
research and other strategic public uses as may be prescribed; natural,
cultural, and historical features of exceptional national value falling within
public lands; reserved land; or any other land categorized as such, by the
Commission, by an order published in the Gazette.
In Subsection (3) the Commission is also required to set aside land
for investment purposes and ensure that the investments in the land benefit
local communities and their economies. In Subsection
(4) the Commission is required, in consultation with the National and
county governments, to allocate land to foreign governments on a reciprocal
basis in accordance with the Vienna Convention on Diplomatic relations.
In Subsection (10) the Commission while allocating public land is
required to impose any terms, covenants, stipulations and reservations that it
considers advisable, including requiring the applicant to personally occupy and
reside on the land for a period set by the Commission; the applicant to do such
work and spend such money for permanent improvement of the public land within
the period specified by the Commission or consideration be paid for a
disposition of public land.
Grant of Pre-emptive
rights to allocation
Section
13(1) provides that the Commission shall offer to the
immediate past holder of the leasehold interest pre-emptive rights to
allocation of the land provided that such lessee is a Kenyan citizen and that
the land is not required by the national or the county government for public
purposes.
Section
13(2) further provides that the Commission may make rules
for the better carrying out the provisions of this section, and without
prejudice to the generality of the foregoing, the rules may provide for the
following—
(a) Prescribing
the procedures for applying for extension of leases before their expiry;
(b) Prescribing
the factors to be considered by the Commission in determining whether to extend
the tenure of the lease or re-allocate the land to the lessee;
(c) The stand
premium and or the annual rent to be paid by the lessee in consideration of
extension of the lease or re-allocation of the land;
(d) Other covenants and
conditions to be observed by the lessee.
Notification of
allocation of public land
Section
14
provides that the Commission shall before allocating any public land, issue,
publish or send a notice of action, to the public and interested parties, at least thirty days before, offering for allocation, a
tract or tracts of public land. The notice shall include the terms, covenants,
conditions and reservations which are to be included in the conveyance document
and the method of allocation. The notice shall provide a period of fifteen days from the date of issuance within
which the public and interested parties may comment.
Section
14(4) provides that at
least thirty days prior to the allocation of public land, the
Commission shall send a notice to the governor in whose county the public land
proposed for allocation is located and to the head of the governing body of any
administrative subdivision having development control or other land use
regulatory responsibility in the geographic area within which the public lands
are located and to the head of any administrative subdivision having
administrative or public services responsibility in the geographic area within
which the lands are located.
Section
14 (5) provides that the notice under subsection (4) shall
be sent to other known interested parties including, but not limited to,
adjoining landowners, persons in actual occupation of the land including—
(a) Marginalised
communities and groups living in the general vicinity of the public lands being
proposed for allocation; and
(b) boards of
cities and municipalities and town administrators, created under sections 12, 13 and 31 of the Urban Areas
and Cities Act, 2011 (No. 13 of 2011), in the geographic vicinity
within which the public lands proposed for allocation are located.
Section
14(6) provides the notice under subsection (4) shall be
published in the Gazette and at
least once a week for a period of three weeks and thereafter shall be
published in a newspaper of general circulation in the general vicinity of the
public land being proposed to be offered for allocation.
Section
14 (7) provides that the notice shall specify the place,
date, and time of allocation, the appraised value of the land, describe with
particularity each parcel of land to be allocated, and specify that the terms
of allocation shall be available in the Commission’s offices in Nairobi and the
Commission office nearest the land being proposed for allocation.
Section
14(8) states that failure to provide notice of proposed
allocations as required under this section shall serve as grounds for the
Commission to—
(i) Require that
the notification procedures outlined in this subsection be repeated; or
(ii) Void the
allocation on grounds that the notification requirements of this Act were not
properly conducted.
Reservation of public
land
Section
15 of the Act which is subject to Article 66(1) of the Constitution provides that the Commission may in consultation with the
national and county governments by order in the Gazette reserve public land located within-
(a) The surface
of the earth and the subsurface rock;
(b) Any body of
water on or under the surface;
(c) Marine
waters in the territorial sea and exclusive economic zone;
(d) Natural
resources completely contained on or under the surface; and
(e) The air space
above the surface, for one or more purposes in the public interest.
The Commission
is also tasked with undertaking an inventory of all land based natural
resources under Section 15(3).
Section 61 (b) of the NLP mandates the NLC to
hold and manage in trust for the people of Kenya, all
public lands, by identifying and keeping an inventory of the said lands.
Conservation of land
based natural resources
Section
19
requires the Commission to make rules and regulations for the sustainable
conservation of land based natural resources, particularly measures to protect
critical ecosystems and habitats, incentives for communities and individuals to
invest in income generating natural resource conservation programmes, measures
to facilitate the access, use and co-management of forests, water and other
resources by communities who have customary rights to these recourses,
procedures for the registration of natural resources in an appropriate
register, procedures on the involvement of stakeholders in the management and
utilization of land-based natural resources; and measures to ensure benefit
sharing to the affected communities.
Leases, Licenses and
Agreements for public land
Section
20
on administration of public land
provides that the Commission may grant a person a licence to use unalienated
public land for a period not exceeding
five years subject to planning principles as it may prescribe. The
Commission may serve a notice
to quit upon the licensee at any time after the expiration of nine months from
the date of the licence.
Under Section 36 the commission is required
to put up a notice of action indicating the availability of public land for use
through lease, licence, or agreement shall be published in the Gazette and
in at least two daily newspapers of nationwide circulation when a determination
has been made that such public land is available for a particular use.
The notice is required
to indicate the use proposed for the public land and shall notify the public that
applications for a lease, licence or agreement shall be considered, and specify
the form of negotiation, whether by competitive or non-competitive bidding,
under which the land use authorization shall be issued. This is especially
important to allow the whole public a chance to make applications. It furthers
the principles of equality and equity.
Compulsory acquisition
of interests in land
Section
107(1) highlights that the national or county government
through the Cabinet Secretary or the County Executive Committee Member shall
submit a request for acquisition of public land to the Commission to acquire
the land on its behalf
Section
107(2) on preliminary notice in relation to compulsory
acquisition of interests in land provides that the Commission shall prescribe a
criteria and guidelines to be adhered to by the acquiring authorities.
Section
109
of the Act requires the Commission, as soon as practicable, to promptly pay in
full just compensation for any damage resulting from the entry made by an
authorized person under section 108
(whereby the Act under section 107 allows the Commission to authorize a person
to enter and inspect the land which is subject to compulsory acquisition, and
to do all things that may be reasonably necessary to ascertain whether the land
is suitable for the intended purpose).
Section 47(d) features the NLC as the
constituency of institutional and administrative mechanism for the exercise of
the power of compulsory acquisition by the State.
Compensation to be paid
Section
111
also requires the Commission to make regulations for the just assessment of
compensation upon compulsory acquisition of land.
Compensation in respect
of public right of way
Section
148(6) on compensation in respect of public right of way
provides that the Commission shall make regulations prescribing the criteria to
be applied in the payment of compensation.
Establishment of
settlement scheme
Section
134
requires the Commission, on behalf of the national and county governments, to implement
settlement programmes to provide access to land for shelter and livelihood.
These settlement programmes shall include the provision of access to land to squatters,
persons displaced by natural causes, development projects, conservation,
internal conflicts or other such causes that may lead to movement and
displacement. It is also required to assist the national and any other law,
shall not be transferable except through a process of succession.
Land Settlement Fund
The National Land
Commission is required to administer the Land Settlement Fund under Section 135.
Authors; Botany Mathias Mwamuye; Sudi Mauti and Elizabeth Cheupe Fundi
Authors; Botany Mathias Mwamuye; Sudi Mauti and Elizabeth Cheupe Fundi
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