By Dominic Leparmarai
SEDF Legal Adviser

In our last article on land we are going to look at policy changes in the draft constitution on the land. This policy changes touches on; current 999 years leasehold, Land acreage, Tax on idle land and National Land Commission.

To give little historical background, first Anglo-Maasai Agreement was signed between Lenana, the Maasai traditional leader, and the British Government in 1904. It forced the Maasai to vacate their lands in Suswa, Naivasha, Ol-Joro-Orok, and Ol-Kalau areas to southern Ngong and Laikipia reserves “to be used by the Government for purposes of European settlement”. In 1911, the Maasai were made to sign a second agreement, which led to their eviction from Laikipia to southern Ngong reserves, incurring heavy losses in terms of human life and livestock. It is estimated that by 1914, nearly five million acres of land had been taken away from indigenous Kenyans mostly the Maasai. In an article titled, “Who Owns Kenya”, by Standard Newspaper, Friday, 1 October, 2004 it was reported that the increasing land crises in the country will be difficult to solve because the most powerful people in the country are also among its biggest land owners. A residual class of White settlers and a group of former and current power brokers in the three post-independence regimes, a few businessmen and farmers, many with either current or past political connections, own hundreds of thousands of acres of land.

As observed by the article, most of the holders of the huge parcels of land are concentrated within the 17-20 percent part of the country that is arable, such that more than a half of the arable land in the country is in the hands of only 10 percent of the 40 million Kenyans. That leaves up to 29 percent of the population absolutely landless while another 60 percent on average own less than 1.0 hectare of land. While according to National Development Plans, 2001-2008 Pastoral activities occupy 70 percent of Kenya’s land mass area, and support 25 percent of the human population and 50 percent of all livestock.

It is then important to note that less than 20 percent of the land in Kenya is high potential and accommodates about 70 percent of the population. The result is landlessness and squatting both in rural and urban areas. This has also led to congestion, parceling of land to uneconomic units, and often to ethnic conflicts particularly in the pastoral areas.

It is in the light of these historical injustices that far reaching reforms in the land were formulated in the draft constitution. The National Land Policy recently approved by Cabinet, introduces far-reaching reforms that will go hand in hand with proposals in draft constitution paving way for resolution of perennial land problems, and redress historical injustices inherited from the colonial administration. Major highlights of the new policy include barring non-citizens from absolute ownership of land and subjecting them to a leasehold system. The policy gives the Government powers to reclaim grabbed public land, tax idle land, and reduce all leaseholds to 99 years.

HIGHLIGHTS:

999 YEAR LEASEHOLD TO 99 YEARS

It is important to note that Kenya is the only country in the world that gives foreigners a land lease of 999 years while at the Coast there were those who had been given a lease of 10,000 years. The article: 65. Of proposed constitution Call for the maximum period to hold freehold land to decreased from 999 to 99 years, and a person who is not a citizen may hold land on the basis of leasehold tenure only. This means that as soon as the new draft become effective, all that land on 999-year lease will automatically revert to 99 years.

It is then here lies the worries of those big landowners in Laikipia, Naivasha and Nakuru whose leases started in 1911 as their leases will be expiring next year. However articles 39 and 40 of draft constitution effectively address the fears of large foreign landowners. These deal with the freedom of movement, residence, and the protection of right to property.

LAND ACREAGE

The large landowners are also worried over provisions in the draft that state Parliament will form a legislation to determine the minimum and maximum size of private land one can own. Section 68(c) (1), which requires Parliament to prescribe minimum and maximum land holding acreages in respect of private land, will protect the public against the bourgeoisies who thrive on land grabbing. Other than just ensuring fair distribution of land resources from those owning more than 10,000 ha to those owning less than 1.0 ha, it also protect land from congestion and parceling to uneconomic units. A combination of these clauses in the proposed Constitution and ongoing computerization of the central land registry at Ardhi House would contain grabbers.

TAX ON IDLE LAND.

If new laws in draft constitution would be enacted it will ensure that people do not own huge tracts of land in every part of the country yet the same remained idle, as most of those holding the huge tracts of land are doing so for cosmetic value and speculation. Draft constitution then introduces tax on idle land or else its reclamation to give others to farm. It solve also problem of absentee land ownership as they will be forced to pay taxes on it or give it back to government to give it to 29% of population which are landless.

NATIONAL LAND COMMISSION

Major problem that has bedevilled Kenya since Independence has been the illegal allocation of land. People entrusted with the protection of public property have infringed on the rights of the masses by rewarding themselves and their cronies with huge tracts of land without batting an eyelid. This has happened due to current set of laws in the current constitution. Take the following examples: Section 3 of the Government Lands Act, Cap 280, empowers the President to grant titles in “unalienated government land”. The Commissioner of Lands, on behalf of the government, would issue a simple letter of “reservation” on government land to individuals. Under the Agriculture Act there are provisions that enable the Agriculture Minister to take away land that lies idle and give to “others” to farm, the formula that allowed the mass grabbing of ADC farms.
The new constitution is out to protect such situations. The proposed constitution states that the president will have no powers to allocate land. It is then on this light that National Land Commission was born and which principle role is to advise the State on land matters towards ensuring justice and equity. It has also role of initiating investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress.