LAND REFORMS IN KENYA: AN INSTITUTION OF SURVEYORS
OF KENYA (ISK) INITIATIVE
Humphrey K NJUGUNA and Martin M BAYA, Kenya
Key words:
Abstract
Land is, in most forms of society, the most important of natural
resources required for the creation of wealth. As a direct result,
control of the land brings economic power, which in turn, is often the
basis of social and political power. The centrality of land in human
life made it the main reason for the struggle for Kenya's independence
from British colonial rule. Land has been, and will continue to be the
mainstay of Kenya's economy, where over 80% of its population derives
its livelihood from agriculture. This resource has continued to play a
significant role in the socio-economic and political development of
the country. Therefore, its ownership, allocation, distribution and
utilization is of great concern to most Kenyans.
The present legal and institutional framework of land tenure, land
use, and the system of acquisition and disposition of land rights
which have been in place since the colonial times has brought about
tension, strife and litigation in land matters. The structural
framework and principles for the management and administration of land
inherited from the colonial times and developed over the three decades
since independence has largely failed to instill confidence in the
land market. Some of the problems within the land sector in Kenya may
be attributed to its colonial history, a proliferation of statutes
governing ownership and use of land (some of which are conflicting),
broad socio-economic patterns and demographic trends that have exerted
pressure on usable land. Other issues that have taken centre stage in
the land debate in Kenya include the optimal economic use of land,
rural and urban development, squatting, the quality and security of
tenure and the protection of the environment.
This paper is essentially a summary of the issues raised in the
booklet - "Land Reforms in Kenya: The Institution of
Surveyors of Kenya Perspective", which is the result of
extensive consultation and deliberations by a committee of ISK Council
on broad land reforms in Kenya. It gives the position of the
Institution on the Terms of Reference (ToRs) given to the Presidential
Commission of Inquiry into the Land Law System of Kenya that was
commissioned on 17th. November 1999. The Commission was to, among
other things, undertake a broad review of land issues in Kenya and to
recommend the main principles of a land policy framework which would
foster an economically efficient, socially equitable and
environmentally sustainable land tenure and land use system. The
booklet and this paper gives proposals on the main tenets of a
national land policy, and a reform of the entire land delivery system
in Kenya, such as survey, registration and the preparation of official
records relevant to such survey and registration. It also makes
proposals on land distribution and redistribution, inheritance of land
and access of land to women.
It is recognized from the outset that the (booklet) paper does not
give a conclusive treatise on land reforms, - there are many more
players (professional and civil society) within the land sector - but
the issues raised will stimulate an informed discourse in Kenya on the
all important land issue.
1. INTRODUCTION
Kenya has an area of approximately 582, 646 km2, with an estimated
population of about 28 million people by 1999, giving an overall
population density of 48 people per square kilometer. Over 80% of the
land area may be classified as arid and semi-arid with very low
agricultural potential. As a result, over 80% of the population is
settled on only about 20% of the land (considered to be of medium to
high potential). Further, about 70% of the land is held under
customary systems of ownership and use, while 10% is categorized as
Government Land/Reserves, with only 20% being private land under
statute.
In the past three and a half decades since Kenya's independence
from British colonial rule, it has been observed that the general
system of land delivery in Kenya, the land laws in place and the
management of land has been inappropriate and has led to a great deal
of strife, tension and controversy in dealings in land. Apart from the
above, land has today, become a very sensitive issue in Kenya because
of:
- The centrality of land in human life, making it the main reason
for the struggle for Kenya's independence from British colonial
rule.
- The complexity of the laws governing land ownership in Kenya,
and the historical genesis of how these laws were applied to
different "parts" of Kenya.
- The abuse of existing land laws and other state powers that have
allowed the irregular allocation (grabbing) of public land to a
favoured and privileged few.
- The disorganization, mismanagement and corruption at the
Ministry of Lands headquarters and the various District Land
Offices in the country.
On 17th. November 1999, the President of Kenya, through Gazette
Notice No. 6593 and 6594 appointed a Commission of Inquiry into the
Land Law System of Kenya to, among other things,
- undertake a broad review of land issues in Kenya and to
recommend the main principles of a land policy framework which
would foster an economically efficient, socially equitable and
environmentally sustainable land tenure and land use systems;
- undertake an analysis of the legal and institutional framework
of land tenure and land use in Kenya and to recommend a programme
or programmes of legislation that would give effect to such
policies;
- recommend guidelines for a basic land law and complementary
legislation and associated subsidiary legislation which would
address a number of issues such as appropriate systems of land
tenure for the country, systems of land ownership and control,
systems of acquisition and disposition of land rights, and the
structural framework of land management and land administration in
Kenya.
The above review was to also take cognisance of all customary laws
relating to land and so far as is practicable, incorporate such laws
as may be considered desirable into statute.
The ISK Council nominated a committee to deliberate on the terms of
reference of the Commission of Inquiry, and also on general land
reform issues, so as to be able to present an informed memorandum to
the Commission. Apart from the terms of reference of the Commission,
the ISK Committee on Land Reforms noted that the review should take
into account other broader socio-economic factors that will influence
the formulation of a comprehensive policy on land. The following were
identified:
- Comprehensive changes in land use and land planning, coupled
with the increase in human population during the past three and a
half decades, have resulted in an increase in the demand for
usable land and escalation in competitive bids for residential
land in and around the main urban areas.
- Increase in rural population has equally increased the demand
for agricultural use, resulting in encroachment into forested
areas, and riparian reserves. The growth in the pastoral and
livestock population has increased the demand for grazing
pastures, resulting in urban immigration by pastoralists and has
also created serious soil erosion problems in certain areas.
- While the population has been growing at about 3% per annum
since independence, the industrial sector has not been expanding
as fast. Land, has thus, remained the only source of income for
most ruralites. Over 80% of the population draws their subsistence
from land.
- The increased rural-urban migration has resulted in high demand
for land for settlements while the decline in the agricultural
sector has failed to halt such migratory habits owing to poverty
in the rural areas. Such migrations have resulted in the increased
demand and creation of squalid settlements devoid of planning and
infrastructure in or about urban areas.
- The increase in rural population and the increase in demand for
arable land, accelerated by the co-operative movement has resulted
in intensive demarcation of land that has denied this country
preservation of precious agricultural land that may sustain food
production to feed the nation without relying on food hand-outs.
- The Kenyan culture that dictates that everyone should own some
land, regardless of meaningful size, has resulted in an increased
demand for land for developing a home or burial grounds. This has
notably encouraged more and more people to bid for the limited
number of demarcated plots, by itself, intensifying sub-division
of available land or for parents to demarcate land for purposes of
bequeathing some piece to each child depending on the local
culture.
The following proposals and recommendations on various aspects of
the land debate represent a culmination of extensive consultation,
observations, deliberations of the committee, and also the
recommendations that came from a workshop held at the Limuru
Conference Centre held between 19th-20th July 2000, to deliberate on
the report of the ISK Committee.
2. THE NEED FOR A NATIONAL LAND POLICY
Kenya now requires an elaborate land policy that would guide this
country in the new millennium and beyond so as to dictate the manner
in which the land is to be allocated, distributed, utilized and owned,
and also provide a lasting solution to the long inherited land
problems in the different parts of the country.
A land policy is a set of socio-economic, legal, technical and
political measures that dictate the manner in which land, and benefits
accruing from land are allocated, distributed and utilized. A National
Land Policy promotes and ensures a secure land tenure system,
encourages the optimal use of land resources, and facilitates
broad-based social and economic development without upsetting or
endangering the ecological balance of the environment. It further
ensures that land is made available in sufficient quantities, in
appropriate locations and at acceptable costs for different users.
Kenya does not have a clearly articulated national land policy that
spells out the relationship between the people, the STATE and the
land. Aspects of land policy are currently found in various sections
of the Constitution of Kenya, Presidential decrees, administrative
circulars, etc.
The major cause of the haphazard manner of land administration may
be attributable partly to the total lack of a national land policy.
- Changes in land use and the increase in human population over
the last 36 years since Independence have increased the demand for
land especially in and around the major urban centers.
- Increased urbanization requiring more land for settlements,
industries and commerce, etc., on the one hand, and the need to
preserve valuable agricultural land on the other, has increased
the pressure on the limited stock of land.
- Increasing awareness amongst the population of the value of land
and property has led to an upsurge in the number of people wishing
to acquire land, especially in the major urban centers. This has
led to more competition for the limited number of plots available
for allocation by the various authorities.
- For many people in Kenya, land remains the core of their
existence since the majority of Kenyans are still dependent on the
produce from the soil for food and other needs of life.
- The current categories of land, i.e., Government Land, Trust
land and Private Land came about as a direct result of the
colonial history when land was categorized on racial grounds and
that these categories of land have contributed partly to the
problems in the management and administration of land.
In view of the above, the Institution of Surveyors of Kenya
recommends that:
- a well articulated national land policy must be formulated first
before repealing and/or amending any existing land laws, or before
the enactment of any new land laws.
- the land policy should be the result of a national political
process, and its basic tenets should be enshrined in the
Constitution of Kenya.
The basic tenets of the national land policy should include the
following:
- The land policy should recognize and reaffirm the rights of all
Kenyans to own land as a basic resource in order to enhance social
and economic equity.
- The policy should encourage the private ownership of land but at
the same time discourage the speculative holding of land and
ensure that land is put to its most productive use to promote
rapid social and economic development of the country. A land tax
on idle land should be established.
- While the policy should be investment friendly, it should
nevertheless discourage the ownership of freehold land by
foreigners irrespective of the use the land will be put to.
- The land policy should redefine the categories of land so as to
distinguish between State Land and Government Land.
In recognition of the fact that land is a national asset, the
policy should reduce significantly the powers of one individual to
allocate land. These powers should instead be vested in a Permanent
Land Commission, which should be established by the Constitution to
continually review matters relating to the formulation and
implementation of land policy. The Constitution of Kenya should vest
all State and Public land to the Permanent Land Commission as trustee
on behalf of all citizens.
3. ABUSE OF EXISTING LAND LAWS
The main problems bedeviling land administration in Kenya can be
attributed to the abuse of the existing laws and corruption. The most
abused of these laws are the Government Lands Act, Cap. 280, and the
Trust Land Act, Cap. 288. This is with regard to the allocation of
Government land and the setting apart of Trust Land.
The Government Lands Act (GLA) was enacted about 70 years ago, and
it is the statute under which all land in Kenya is administered -
apart from Trust land or plots of land with freehold title which is
registered in the name of an individual or a body corporate.
Under the GLA, only the President can sign documents granting
title. The President can and has delegated his powers to the
Commissioner of Lands. The GLA lays down the procedures the
Commissioner of Lands must follow in allocating In recent years, the
GLA and Trust Land Act have been abused to irregularly allocate land
to a privileged few for speculative purposes. Local authorities and
parastatals like Kenya Railways, Kenya Ports Authority have abused the
law to irregularly allocate land without adequate consultation with
the Commissioner of Lands. The Commissioner of lands has also
allocated local authority land without proper consultation with the
local authorities hence leading to cases of double/multiple
allocations of the same piece of land.
The Institution of Surveyors of Kenya therefore, recommends that:
- All allocations should be based on merit and the ability of the
applicant to develop the plot.
- All plots prepared for allocation should be advertised in the
Kenya Gazette and made by the Permanent Land Commission
established above.
- The power given to the President to make direct allocations of
land should now be exercised by the Permanent Land Commission;
this provision should in any case be used sparingly in the rare
and exceptional cases which require direct allocation.
- All allocations of government land must be through auction as
required by section 12 and 13 of the GLA. This will reduce the
temptation to allocate land purely on a speculative basis and also
ensure that the state realizes full value of the nation's
resources. The full benefit of the value should be derived by the
whole nation and not by a few profiteers.
- Allocations of State Land, Government land, Public Land, and/or
Trust Land must be approved by Parliament through the Permanent
Land Commission.
4. LAND OWNERSHIP AND LAND TENURE
Before colonialism, land in Kenya was owned communally and governed
by customary law. An individual did not own the land; a whole
community owned the land with each individual having a right to use it
in a manner acceptable to the others. The most important new concept
introduced by the colonial rulers in land law was about individual
ownership of land, which perceives a situation where an individual
person owns a piece of land to the total exclusion of all others.
English land law also introduced the concept of land tenure (freehold,
leasehold) to define the kind of interest owned.
It is noted that while the concept of individual ownership
and the land tenure systems is beneficial for economic development it
has also created some problems:
- Individualization of tenure has in some instances resulted in
landlessness especially in areas where land adjudication and/or
consolidation has been implemented.
- Individualization of tenure may not be suitable in certain parts
of the country, e.g., the pastoralist areas, due to ecological and
socio-cultural factors.
It has also been NOTED that there is no clear policy on the
security of the leasehold interest granted by the Government from the
point of view of granting an extension or renewal of lease.
Having considered the above, the Institution of Surveyors of Kenya recommends
that:
- Where individualization of tenure may be counter-productive,
such as in North Eastern Province, parts of Rift Valley and Coast
Provinces, a communal land tenure system should be established and
codified. The current Land (Group Representatives) Act could be
improved for this purpose. In parts of the country where
subdivisions have rendered the parcels to be of uneconomic size,
modalities should be put in place to facilitate
combination/amalgamation.
- There should be a guarantee on the continued security of tenure
in leasehold titles through the replacement of extension of
leases with renewal of leases.
- The renewal of leases, however, should not be automatic:
- a leaseholder should submit an application for renewal of
lease so that physical planning authorities may have an
opportunity to impose development conditions.
- Where it is necessary for a lease to be extended before its
expiry, e.g. when a financial institution makes it a condition for
granting a facility, extension of lease upto 50 years should be
granted.
- All freehold urban land should be converted to leaseholds of 99
years to facilitate urban planning and development control.
5. PHYSICAL PLANNING
One of the main objectives of the enactment of the Physical
Planning Act (PPA) in 1996 was to try to bring together the laws
dealing with physical development in urban and rural areas. The
enactment of the PPA repealed the Town Planning Act (TPA) and the Land
Planning Act (LPA).
However, a number of problems still exist in the legal framework
regulating physical planning:
- There are serious conflicts between the PPA on the one hand and
other statutes dealing with control on the use of land, such as,
the Land Control Act (LCA), the Government Lands Act (GLA), the
Trust Land Act (TLA), and the Local Government Act (LGA). These
Acts give different agencies powers to regulate the use of land,
hence creating areas of conflict. For example, the Government
Lands Act recognizes the Commissioner of Lands as the approving
authority on development applications on leasehold land, while the
PPA accords such powers to the Local Authority.
- A major challenge facing land-use planning is the uncontrolled
subdivisions of agricultural land into very small parcels of land
that cannot be economically utilized for agriculture. This is
especially common in the rural areas and areas surrounding the big
towns such as, Nairobi, Mombasa, Eldoret and Nakuru.
6. LAND MANAGEMENT AND ADMINISTRATION
The Institution of Surveyors of Kenya has noted a number of
drawbacks within the land management and land administration
structures and practices in Kenya, such as:
- the lack of clearly defined institutional hierarchy for land
administration which has resulted in, for example, multiple land
allocations, which in turn have led to complicated land disputes.
- the lack of an efficient land information system. Land is a
limited resource, and it is important to know how much land is
occupied by whom and for what purposes and how much land is still
left out for further allocation/development. The lack of an
efficient land information system has also led to multiple
allocations of land.
- the volume of land information/data has increased substantially,
making it difficult for the existing manual land information
management systems to cope.
- the multiplicity of land laws and administrative procedures have
tended to compound the problems that land managers and
administrators have to deal with. These procedures sometimes cause
land to be delivered to the wrong hands.
- persons not trained in the landed or legal professions being
deployed as land managers/administrators.
The ISK therefore, recommends that:
- the numerous land laws be consolidated into a few Acts to take
care of the substantive land law and registration of land, and to
take care of physical planning and land law.
- in addition to formulating appropriate land policy, that ensures
proper land management, it is also important that the
administration and management of land be undertaken by competent
and professionally trained manpower. Establishment of the National
Land Commission as recommended elsewhere in this report will
address this issue.
- there should be a clear institutional framework of land
management, right from the local government level upto the central
government level.
- a computerized National Land Information System should be
established in order to facilitate the development of an accurate
and complete database on land, which is a prerequisite to proper
and efficient land management.
7. LAND SURVEY PROCESS
The role of land surveying and mapping in national development
cannot be over emphasized. Constructions such as roads, buildings,
water supply, dams, etc., and the services that go to facilitate
technical civilization cannot be planned without a survey of the land.
The basic surveying and mapping of a country including national survey
control networks; national basic mapping; title surveys; national and
international boundary surveys, must therefore be regarded as a
capital investment whose immediate return is negligible but pays
dividends later.
The following are problems that have been noted within the land
surveying process:
- The processing of cadastral surveying documents that support
registration of title takes too long - an average of 6 months from
the time of survey to the production of deed plans or amendment of
Registry Index Maps (RIMs).
- For efficient surveying and mapping, the national surveying and
mapping agency is normally expected to provide adequate survey
control networks both in extent and quality. In this country, that
is the responsibility of the Survey of Kenya, which today is
unable to fulfill this role because of financial constraints and
also due to focusing too much on routine cadastral surveying
matters.
- The Registry Index Maps (RIMs) are not updated quickly enough
upon mutation surveys taking place. In this regard, the Department
of Surveys is not able to keep up with the pace of development,
e.g., subdivisions, combinations, etc.
- The approval processes are encumbered with many bureaucratic
procedures; leading to lengthy subdivision approval processes.
The ISK makes the following proposals:
- Introduce and intensify the use of modern/innovative
technologies for the updating of existing basic and special
purpose maps and for production of new maps, especially in the
inadequately mapped northern and northeastern parts of Kenya to
facilitate development planning.
- Enhance the use of satellite technologies for the production of
registry maps required for the issuance of title deeds, especially
within the land adjudication programme to address both the
problems of accuracy and the speed of obtaining the maps.
- The processing of cadastral records should be computerized to
hasten the process of checking and authenticating survey records.
- Introduce an integrated and centralized land information system
to network all agencies/departments that deal with land
information, e.g., Local Authorities, Department of Physical
Planning, Department of Lands, Department of Survey, etc, so as to
streamline and enhance the approvals process, access to land
information, land management and development.
- Decentralize to the Districts the amendment of Registry Index
Maps (RIMs) to hasten the process of updating the survey records
for title registration to conform to the requirements of the
Registered Land Act (RLA).
- Introduce semi-fixed boundary surveys to improve on the accuracy
of general boundary surveys. This will require a review of
sections 18 - 26 of the RLA.
- The Government should seek to establish a National Mapping
Agency (NMA) charged specifically with national mapping, and to
operate like a parastatal, while the land surveying activities,
largely for titles and related development could remain in the
present day Department of Survey - Cadastral Branch. Even then,
these routine cadastral survey activities should increasingly be
out-sourced from the private sector.
8. LANDLESSNESS
As has been noted earlier, land remains the core of the existence
of the majority of Kenyans since over 80% of Kenyans live in rural
areas and depend on the produce from the soil for food and other needs
of life. There are many causes of landlessness in Kenya:
- Historical landlessness due to colonization and the allocation
of indigenous land to foreigners by different powers at different
times in history. After independence, most of these lands were
acquired by the well connected. The Settlement Schemes Programme
has not managed to settle the majority of Kenyans who were made
landless by the colonialists.
- The individualization of tenure through the land adjudication
and consolidation programmes and the subdivision of large
cooperative farms and group ranches created landlessness in the
rural areas. For example, when after registration, a piece of land
is registered under the name of a father or elder brother; this
could lead to the other dependants becoming landless. Title deeds
give legal status over land. The absolute ownership of titled land
enables the owner to evict anyone on his land.
- The recent land clashes of the 1990s in Rift Valley have created
a class of "landless" people since it has proved
difficult for the victims to go back to their original parcels of
land.
The ISK recommends that:
- An orderly form of land redistribution is implemented by
acquiring land compulsorily and resettling people.
- Resettlement of land - clash victims on their original farms
should be adopted as official government policy.
9. WOMEN'S ACCESS TO LAND
Women farmers control the bulk of smallholder agriculture, which
employs about 70% of the labour force. Women do 80% of the
agricultural work and yet the majority of them have no legal rights to
the same land. While the written laws do not discriminate against
women in matters dealing with rights in land, a number of customary
laws and traditions discriminate against women when it comes to
inheritance rights to land. Under customary land law, women generally
have inferior land rights relative to men, and their access to land is
indirect and insecure. Traditional provisions which used to protect
women's land use rights have been eroded over time.
Women are usually given only usufractory rights (i.e., rights of
use) over landed property, which are not "absolute". This in
effect denies them the freedom, for example, to later sell or mortgage
property, which may have been acquired by both husband and wife during
their married life.
In the land adjudication process, for example, the land
adjudication committees (which are predominantly male in membership),
have largely continued to discriminate against women by allocating
land to heads of households who are usually male.
It is recommended that:
- in order to enhance and guarantee women's access to land and
security of tenure, women should be entitled to acquire land in
their own right; not only through purchase but also through
allocation. However inheritance of clan or family land should
continue to be governed by custom and tradition.
- affirmative action is required to empower women in terms of
adequate representation in bodies such as Land Control Boards,
Land Adjudication Committees, Plot Allocation Committees, etc.
However, this should be implemented while having due regard to
customary laws.
10. REPEAL AND REPLACEMENT OF OBSOLETE LAWS
When the British established their rule over Eastern Africa towards
the end of the nineteenth century, their first act was to appropriate
all land to the Crown and declare it Crown Land. In order to
administer these areas, the British promulgated land laws (essentially
English land laws), starting with the East African (Lands) Order in
Council of 1901. They were, later, to forcefully push the local people
out of areas with high agricultural potential and declare them
"White Highlands" for the exclusive settlement and use by
the British, and into the crowded and less productive "Native
Reserves". The English land law is an embodiment of many
principles that are foreign and have their origin in the history of
England.
These laws have come to be in operation, to a large extent,
alongside African customary land law. African customary land law
embodies principles which have their roots in the traditions and
customs of our ancestors; the main difference with English land law
being that the latter is an expression of individual or private
ownership of land while the former is an expression of communal or
family ownership and use of land.
Much of the law governing the ownership and use of land in Kenya is
essentially English land law simply extended to Kenya in colonial
times, and others passed around the time of independence. By virtue of
our colonial history, when land in Kenya was categorized on racial
grounds, our land law is now expressed in the form of many Acts of
Parliament (numbering about 40) to take care of the varied interests
over time.
Although fairly well documented, these laws:
- are often complex, and are an embodiment of many principles that
are foreign, and have their origin in the history and traditions
of England. Sometimes, even the professionals in the legal and
landed professions find them difficult to decipher.
- lack uniformity due to the fact that they were enacted in the
absence of a coherent land policy and were essentially aimed at
addressing specific interests and issues at different times in
history. There was no attempt at harmonizing them.
This state of affairs makes the understanding and use of these laws
a most difficult exercise, especially for the layman. The Institution
of Surveyors of Kenya therefore recommends that:
- a number of these Acts need to be repealed, because they are
either obsolete and no longer serve any useful purpose, or are
fatally flawed and are causing more harm than good.
- a consolidation of the land law into a few Acts to take care of
the substantive land law, registration of land, planning and
survey.
CONTACT
Humphrey K Njuguna
Chairman of the Institution of Surveyors of Kenya ISK
Third Floor, Alibhai Shariff Building
P.O. Box 40707
Nairobi
KENYA
Fax + 254 2 214 770
Tel: + 254 2 313 490
E-mail: isk@iconnect.co.ke
Martin M Baya
Honorary Secretary of the Institution of Surveyors of Kenya ISK
Geodetic Systems
P.O. Box 69677
Nairobi
KENYA
Tel. + 254 2 714 722
Fax + 254 2 729 506
E-mail: geodetic@iconnect.co.ke
14 April 2001
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