- Alubbe warned that any legislation that waters down the powers of the independent commission, will be litigated
- The Land Laws (Amendment) Bill, 2023, is sponsored by National Assembly Majority Leader Kimani Ichung'wah
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Players in the land sector have condemned the move to strip the National Land Commission powers to conduct valuation and acquire public land.
They have described the move as a direct act to undermine the principle of checks and balances and erode democratic norms.
They say the move poses a threat to the integrity and independence of crucial land governance institutions.
The Land Laws (Amendment) Bill, 2023, is sponsored by National Assembly Majority Leader Kimani Ichung'wah.
If the new bill is enacted, Lands CS Alice Wahome will be given powers to sanction land acquisition for state projects.
“Whenever the national or county government is satisfied that it may be necessary to acquire some particular land under Section 110, the respective Cabinet Secretary or county executive committee member shall submit a request for acquisition of land to the CS to acquire the land compulsorily,” the bill says.
Kenya Land Alliance CEO Faith Alubbe said the NLC is an independent body, which should not be subject to direction or control by any person or authority.
She warned that any legislation that waters down the powers of the independent commission, will be litigated.
Allube said legislation is supposed to give life to the provisions of the Constitution and enable institutions established under it to discharge their mandate without restrictions.
"Attempts to amend the constitutional and statutory mandates of the NLC are completely illegal and in bad faith,” she said.
“It is also public knowledge that the Ministry of Lands has an unrivaled reputation as the haven of land cartels who collude with state and public officials to fraudulently acquire public and private land for speculative disposal by individuals.”
The new bill tasks land CS to prescribe the criteria and guidelines to be adhered to by the acquiring public bodies while acquiring land.
Licensed Surveyor and Consultant on Land Governance Ibrahim Mwathane warned that taking the valuation role back to the Ministry is no obvious cure to the challenges bedeviling NLC.
“The government should be very afraid of going in this direction, as it risks being perceived as clawing back on the powers of a constitutional organ established as a key reform measure without adequate justification,” he said.
Articles 62 (2), (3), and 67 (2) of the Constitution provide the mandate and functions of the NLC as those of administering and managing public land on behalf of the national and county governments.
NLC also recommends a national land policy to the national government and monitors and has oversight responsibilities over land use planning throughout the country.
Mwathane said the valuation of land for public projects plays a critical role in infrastructural development in Kenya.
“When not well done, the delivery of mega public projects gets adversely affected, with negative consequences on public funds such as the escalation of project costs,” he said.
Mwathane cited contested compensation rates, institutional delays in the compensation process, and protracted vetting procedures as some the challenges at the NLC.
He said there is a high risk of the government having vested interests in the process, which is responsible for moving billions of shillings of public money to affected landowners.
“In the event of contested compensation rates, the government itself will in the future be accused of abusing executive authority. This will cost political goodwill,” Mwathane said.
He has urged the government to work closely with NLC and key stakeholders to map out problems facing land acquisition.
Under the new bill, Lands CS may reject a request to acquire land if the request does not meet the requirements prescribed under Article 40 (3) of the Constitution, subsection (2) of this section.
It says if the CS finds the request to be meeting the requirements, the CS will cause the affected land to be mapped out and valued using criteria under the Act.
The CS will then establish that the acquiring public body has identified the number and maintained a register of persons in actual occupation of land.