Active Political Goodwill Sorely Required to Achieve Land Reforms in Kenya

Prior to the enactment of the Constitution 2010, the Government of Kenya began to take robust and progressive steps towards land reforms in the country, addressing many of the lingering issues on the administration and management of land in the country through a raft of new legislative, policy and administrative reform measures. Land, after all, was one of the fundamental cornerstones of the country’s independence struggle.

Land Reforms in Kenya: Ndung’u Land Commission

Among the many initiatives undertaken included the establishment of the Ndungu-led Commission of Inquiry into Illegal/Irregular Allocation of Public Land in June 2003. While this commission had its predecessors, it was perhaps the most comprehensive, authoritative and widely regarded endeavour at establishing the corrupt, historic and systemic malpractices in Kenya’s system of land tenure, specifically regarding public land and its misappropriation by the ruling class. The commission released a report at the conclusion of its mandate which reveals the scale of corrupt practices in land allocation that have largely benefited the political class in the country, and a whole litany of challenges within Kenya’s land tenure and administrative systems dating back to the legacy of our country’s colonial days, the exploitation and manipulation of legal loopholes and improprieties of the ruling class in the immediate post-independence period and onward to the time the report was prepared. To its credit, the Ndungu Commission did an extensive and thorough exposé on the systematic way in which established public land administration procedures which were designed to protect the public interest, were leveraged and grossly perverted to serve the interests of shadowy private and political figures.

It is worth mentioning that the full report has never been made publicly available due to its indictment of the country’s ruling elites.

Land Reforms in Kenya: Formulation of National Land Policy

Simultaneously, the formulation of a National Land Policy involving the full spectrum of stakeholders commenced in earnest in 2004 and culminated with approval of the Draft National Land Policy (2007) and preparation of Sessional Paper No. 3 of 2009 on the National Land Policy for presentation to Parliament in June 2009.

All these efforts were geared toward the much-needed land reforms in Kenya that were envisaged to bring the country into a more equitable society where the rights and freedoms guaranteed under the new constitution would be attained.

Along the way, however, land reforms in Kenya have faltered or been still-birthed – held captive to the political machinations of successive regimes. To understand why, one might find clues in the political and elite class’ illegal allocations and theft of public land and their domination in terms of private land ownership. The fish truly rots from the head!

Land Reforms in Kenya: Legal, Policy & Institutional Reforms

These reforms required to be anchored in legal, policy and institutional frameworks, improved administrative processes and efficient management structures. It also required bold measures by the executive to address the past corruption, a herculean task by no means because the names involved, particularly in the illegal allocation of public land, span the breadth of Kenya’s political bigwigs and dynasties.

The administrative land reforms and initiatives thus far have been, to some considerable extent, inclusive and consultative, taking into account multi-sectoral stakeholder inputs from the public, private and civil society organizations, as well as expert opinion in arriving at the raft of measures recommended for land reform in the country.

Land Reforms in Kenya: Progressive Gains

While the reforms that have taken place cannot be dismissed as paltry, they could be described as slow, perhaps even token. Notably, there was the passing of the Matrimonial Property Act, 2013, which ensures greater protection over matrimonial property for the benefit of both spouses and brought in some degree of social equity, in particular for women who were hitherto disadvantaged in matters of family property.

Indeed, in terms of administrative reforms and the improvement of service delivery, there have been huge strides taken forward including the digitization of land records in some registries and steady progress toward rolling out of the land information management systems (LIMS). In the past 10 years as well, a vast majority of the legislative and policy reform agendas and milestones have been achieved. The Ministry of Lands and Physical Planning has also put developed a raft of regulatory proposals and draft policy frameworks all geared towards administrative reforms.

However, the underlying measures to bring greater equity in the distribution of land resources in the country have hardly taken root. There are established pathways for the progress towards land reforms but the pace at which the impact of these reforms will be felt is in great part dependent and hinged on political goodwill.

The bigger question, with a clear overview of Kenya’s murky history on this issue as detailed in the Ndungu report, is whether successive governments are willing to pay the political price for what these reforms will ultimately cost. It is unlikely that they will because those who stand to lose the most out of the reforms process are the very ones of whom reforms are demanded.

This legacy is likely to just be passed on from one government to the next. Certain changes might happen, but the real issues that have brought about inequality in land justice and reform might take longer to bring to resolution.

A good example to illustrate this point would be the stagnation of the bill on the minimum and maximum land holdings which was one of the most contentious issues during the process of enactment of the Constitution of Kenya 2010.

Five years after the law was drafted in line with the mandate of the Constitution Implementation Commission (CIC), the bill is yet to come to life in legislation as was envisaged by the constitution. With the rushed timeline that the CIC had to complete their mandate, the proposed bill was not subjected to public participation. The process by which the bill was developed lacked sufficient stakeholder engagement and was reputedly hurried through without significant research implying that certain thresholds on transparency, accountability and good governance would not be met as anticipated by the constitution. Given the constraints, it is debatable whether the CIC could have achieved more. Certainly, it is telling of the current government’s political goodwill to complete some of these pending tasks in service to the goals of land reforms.

Unlike most other investment markets in the country, while the real estate market is quite robust, it lacks significant regulation and protection mechanisms across all market segments that can adequately cater to investors. For example, capital markets have a unitary regulator, the Capital Markets Authority while traditional lenders of financial products (mortgages) are governed through existing frameworks of regulation on banks, specifically the Central Bank of Kenya. However, there are currently myriad investment products in the real estate market that sold on the open market that are not regulated except only by self-regulation mechanisms.

For instance, off-plan investment schemes and other non-regulated financial products may be benchmarked against industry-practice but the channels for redress to investors when property developers fail to deliver are negligible. Much more needs to be done to rein in other players including marketers and advertisers, property developers, industry consultants (valuers, property agents, architects, lawyers and engineers).

Back to the issue of minimum and maximum holdings, some context is required to understand why this was a critical concern at the formulation of Kenya’s Constitution 2010. For the rural masses often living in poverty and even for many families that might be considered as middle class, land is primarily a resource for the sustenance of livelihoods. They perceive and use land for economic productivity and for self-sustenance. However, for those in the upper echelons of society, land is primarily a store of value, for the accumulation of capital gains and a tool for the transmission of wealth across generations. It may also be considered a factor of production for them, but the impact on their livelihoods and survival is of far less significance than it is to say a subsistence farmer. This presents the problem that while land is the greatest factor of production, productivity would likely to remain low if land large tracts of land were concentrated in the hands of the few, as it is in Kenya.

Indeed, for the political class who can leverage on national development agendas, there would be a negligible need to focus on land as a factor of production when they could simply steer development in the direction of their holdings and reap off higher land values that come with an increase in settlement. With only 20% arable land, the goals for which the Bill was conceived included the promotion of equitable distribution of land, regulation of subdivision of land to ensure that agriculturally productive zones were retained as such, preservation of ecological zones, creation of employment and reduction of poverty, sustainable utilization of private land and promotion of national security and economic stability.

Without adequate reforms and regulation, the prevailing inequalities will continue to persist. Investors will require to make sound decisions with a clear understanding of microeconomic risks. Stakeholders can do more to proverbially hold the feet of the ruling class to the fire in ensuring that reform and regulation become institutionalized and engineered into the fabric of land administration in Kenya and to protect investments in the marketplace. There is plenty of hard work still left to be done but for the security and heritage of future generations, it will take a radical rethinking of policy and a forward-looking attitude that doesn’t just focus on the legacy of colonialism and the bane of political patronage. Will that happen any time soon? That’s anyone’s guess.

An authoritative report published by the African Centre for Open Governance (Africog) on the progress of the implementation of the Report of the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land (the Ndung’u Commission), and by extension, on the progress of land reforms in Kenya, indicts political actors in implementing the necessary reforms required to address land injustices in Kenya. While much has changed in the 10 years since, there is still very slow progress!