Kenya finally lands a land policy: after 46 years of waiting, Kenya has finally got it right. Or has it? Braving much opposition from interest groups, the Kenyan Parliament took a cue from the cabinet and quietly passed the much-awaited Sessional Paper No. 3 on National Land Policy in mid-December. The proposals are now the subject of hot debate, reports Wanjohi Kabukuru from Nairobi.SESSIONAL PAPER NO. 3 (THE NATIONAL Land Policy proposals) has been hailed as a radical paradigm shift and possibly "the final blow" to colonialism". It seeks to introduce far-reaching reforms that will pave the way for the permanent resolution of Kenya's perennial land problems and redress historical injustices inherited from colonialism. It has been in the works since 2004, and it did not come easy.
Long before the policy was approved, it had attracted flak and stiff opposition from wealthy ranchers, mostly of European descent, and Kenya's political elite who occupy huge swathes of land under the much maligned 999-year leaseholds. The policy now serves as a sentinel warning to large-scale landowners in Kenya as it is sure to lead to groundbreaking changes to land usage and ownership.
Perhaps the clause that is bound to ruffle more feathers is the one noting: "To ensure that the grant of land rights to non-citizens [foreign entities and individuals] does not unduly deny citizens access to land, the government shall prohibit non-citizens from holding freehold interests in land."
In Kenya, 46 years after independence, land is still a sorely emotive subject! Indeed the liberation struggle waged by the famed Mau Mau freedom fighters was solely based on land, as reflected in the Mau Mau's official name: the "Land Freedom Army".
The key highlights of the new policy include barring non-citizens from enjoying the benefits of absolute ownership over land and subjecting them to a leasehold system. The policy also calls for the change of ownership of land covering thousands of acres, so that it reverts to the state.
According to James Orengo, Kenya's lands minister, the policy emphasises control of the use of, and access to, land. Food production and security is a priority. Kenyans are now bracing themselves to lease land of varying acreage and terms through "land rental markets". The policy gives the government powers to reclaim grabbed public land, tax idle land, and reduce all leaseholds to 99 years. This essentially means goodbye to the colonial edict that gave ranchers 999-year leases, and "land sharks" who prospect on land.
"It is the large-scale landowners who in most cases have unutilised 999-year-lease swathes of land; it is therefore they who would bear the brunt of taxation," says Ibrahim Mwathane, former chairman of the Institute of Surveyors of Kenya. "It is the powerful and wealthy in politics who own the majority of the undeveloped plots in towns, they also risk taxation once the policy is implemented. To them, this is not welcome," Mwathane added.
Openly opposed to the new proposals, the Kenya Landowners Association (KLA), the powerful land-lobby, under the chairmanship of Christopher Foot, appears to have finally lost the battle. According to Foot, the policy, in its current state, will end up impoverishing Kenyans as its major recommendations remove security of tenure from most landowners.
"If we are serious about Vision 2030 and feeding this nation, we cannot go by the policy as it is now; it undermines individual land ownership and promotes communal land ownership instead," Foot argues. "We want a National Land Policy, but we want a sensible policy that does not create more injustices. It should not be a policy that will end up impoverishing the country."
It is significant to note that the KLA was formed in 2007, three years after the Kenya National Land Policy Formulation Process had begun. The interests of the KLA--which brings together tea farmers, coffee, wheat and maize growers, as well as the ranching community from the Rift Valley, Eastern and Central Provinces--were obvious. Last year, it sent a 19-point critique of the policy to the lands minister, but it was flatly rejected.
Foot said: "We sent our proposed amendments to the lands ministry last year and we have never received any response. We now want to engage in a robust campaign against the implementation of the policy in its current form. This will include making the public and politicians aware of the dangers some of the proposals pose to us as a nation."
The KLA's key concerns in the 19-point critique were fears of the imminent termination of group ranches, increased rights of squatters and trespassers, inheritance tax and land taxation, introduction of capital gains tax, and the reduction of all freeholds and all 999-year leases to 99-year leases.
The KLA is also not happy with what it calls a "disproportionate" focus on historical injustices. It claims the new policy removes security of tenure for millions of domestic, commercial, agricultural and pastoral land users whilst limiting the rights of registered title holders to deal freely with their land.
The KLA's critique does not end there: It fervently argues that the new proposals stifle investors' confidence in Kenya, increase the government's powers of compulsory acquisition, and remove the constitutional requirement of compensation.
Foot dismissed the proposals as the product of elite, foreign-funded NGOs. "No country develops without property rights. If you take them away, we go back 50 to 60 years," he said.
But the government says the new land proposals will release land for the resettlement of the landless, demystify land ownership, redistribute wealth, and economically empower the youth and peasantry. It is these reasons that make it easier to understand why the government rejected KLA's criticisms without even giving them an ear. Kenya currently has 67 statutes that affect land ownership and its usage. "There are too many statutes dealing with ownership, tenure and administration of land, some of them contradictory," says Minister Orengo. "The aim of the draft policy is to have a unitary and modernised system of land administration."
Under the new proposals, there will be two land laws--one will deal with ownership of land while the other will tackle transactions covering mortgages and land charges. "Land is indeed wealth and how a country distributes it could make or break its social, economic and political order," says Mwathane. "Kenya is perhaps paying a price for maintaining a skewed land sector for far too long. That is why the new land policy, the platform to fundamental land reforms in Kenya, is good news to the many who are sincerely committed to redressing the situation."
Currently land in Kenya is designated as government land, trust land, and private land. In the reforms to come, land will be classified as public land, community land, and private land, to be managed by three bodies: a national lands commission, a district lands board, and a community lands board. Several commissions were set up in the past to examine the thorny land issue, including the 2000 Commission of Inquiry into Land Law Systems in Kenya headed by the former attorney general, Charles Njonjo, and the 2004 Commission of Inquiry into the Illegal and Irregular Allocation of Public Land (Ndung'u Commission), both of which called for equitable distribution of land.
However, despite the good intentions of the new land proposals, it has now emerged that the Kenyan government is pegging all its hopes on "donors" and "bilateral partners" to fund the implementation of the policy. What an irony!