By Timothy W. Mwangi – Registered Physical Planner
The ‘Land Question’ debate is restricted to land administration. This is because our philosophy of land management is wrong. Processing title deeds as quickly as possible and expediting the process of conducting searches in Land Registries is considered the hallmark of a successful land management system. We set ambitious targets on the number of title deeds to be issued, but are least concerned about how the registered parcels will be utilized. We think that registration of land is the solution to land related problems. We view land as ‘a commodity for exchange in the market’ rather than as a resource. A careful reading of Chapter Five of the Constitution reveals otherwise.
Physical Planning at national, regional and county levels ensures that land is ‘ held, used and managed in a manner that is equitable, efficient, productive and sustainable’ as provided in Article 60 of the Constitution. Utilization of land after registration is equally more important than registration. If proper land use is ignored Kenya will remain unattractive and uncompetitive and unable to attain the national vision of ‘a middle income country providing a high quality of life to all its citizens by the year 2030.’
The National Spatial Plan ( NSP) 2015 – 2045 identifies uneconomic fragmentation of land parcels due to human settlements as a threat to the grain basket ( that include Trans Nzoia, Uasin Gishu, Bomet and Nakuru) and the beef reservoir ( that include Narok, Kajiado, Laikipia and Isiolo ) regions of Kenya. The Plan proposes control of fragmentation of agricultural land; maintaining urban growth limits and rigorous justification of change of use.
How did we arrive here? First, the country has, since independence, operated without a National Spatial Plan to guide the utilization of land. Second, despite provisions in section 9 of the Land Control Act Cap 302 , Land Control Boards have for decades granted consents for subdivision of land to parcels which cannot be utilized for the intended purpose . For instance a forty by sixty feet parcel cannot be profitably utilized for agricultural purposes yet Boards grant consent . Third, although county governments have a constitutional mandate under the Fourth Schedule to the Constitution and section 110 (f) of the County Governments Act,2012 to delineate urban boundaries and control development in urban – rural interfaces, there is no evidence they have done so . Fourth and most important, land adjudication and registration is carried out without a statute on the minimum size of land that should be registered for various agro-ecological zones . We pride ourselves as having an expanded Bills of Rights .However, we must in equal measure commend the Drafters for the wording in Article 68 that requires Parliament to enact legislation to prescribe minimum and maximum land holding acreages in respect to private land. This is one of the least mentioned part of the Constitution yet our future rests on it . The eleventh Parliament has not enacted this statute. Probably it is not a priority. On Friday 16th June, 2017, Parliament proceeds on Sine Die Recess. It is hopeless to expect enactment of the Bill during the current fifth and final session.
What is the way forward? Since county governments have failed to enforce development control guidelines, solution lies in making it more difficult to register land below scientifically determined minimum land holdings. This may appear as an extreme measure, but it is necessary. Our history of lack of national discipline is bolstered by an observation by The Committee of Experts on Constitutional Review. In its Final Report, the eminent experts had this to say “Law is after all the product of the realization that man is inherently selfish and disorderly if left to his vice. Law seeks to create order in society so that competing human interests do not lead to mutual annihilation which destroys the society itself. ‘That is why the radical legislation contemplated in Article 68 should be enacted. The Twelfth Parliament will hopefully prioritize this Bill; if not, a petition may be filed under The National Assembly Standing Order No. 219 requesting the House to enact the legislation. The National Land Commission and professional associations in the land sector should act in the public interest and provide leadership in this regard.
As the oversight authority on land use in the country, The National Land Commission should be more vigilant to ensure that National, Regional and County Spatial Plans are complied with. The Commission is not a toothless bulldog. It has teeth enshrined in Article 249 and section 6(2)(c) of the National Land Commission Act, 2012.
Unless subdivision of prime agricultural land into uneconomic units is stopped and urbanization guided within the framework of the NSP, the often cited social and economic rights will not be realized. In addition, national security will be compromised.
The Book of Genesis records that God put Adam in the Garden of Eden to tend and keep it. That is the essence of land management. Wanton subdivision as if there is no tomorrow is not in keeping with God’s edict at creation. ‘We, the people of Kenya’, promised in the Preamble to The Constitution to bequeath unborn generations a sustainable environment. At this rate we may fail to do so .That will be most unfortunate and irresponsible of us. Over to the Twelfth Parliament.