African Woman and Child Feature Service - COMMENT: Efficiency and equity in managing land
Economic recovery and poverty reduction in Kenya is critically hinged on the rational allocation of land, its planning, use and development as well as management and regulation.
Land distribution is critical to Kenya’s economic, social and cultural devopment. Resolving problems in land administration and management is, therefore, not only a requirement for sustainable economic recovery and growth but a vital process for minimizing conflicts and tensions between communities. Unfortunately, few Kenyans – policy makers and key stakeholders included – seem to appreciate the importance of a comprehensive approach to land issues.
Nearly half of the main causes of poverty in Kenya identified in the Poverty Reduction Strategy Paper were directly linked to land issues. The rising levels of poverty have been attributed to inability to gain access to the clear, enforceable and transferable property rights.
Poor land tenure systems have prevented large sections of the population that would wish to make use of land to support their livelihoods from accessing it.
An understanding of land administration and land rights delivery is necessary to create awareness on how the proposed recommendations in the draft national land policy will address the issues that have continued to influence land management in Kenya.
A question of definition Land administration is the process of registering land and disseminating information on land transactions. A good land administration system should provide a land title guarantee and land tenure security. It should support the process of land taxation and land development, and guide land transactions. A cadastre, defined as a parcel based and up-to-date land information system containing a record of interest in land is the basis of the land administration system.
Land delivery, on the other hand, is a process that entails the mobilising institutional mechanisms and personnel to ascertain rights, registration, planning, demarcation and surveying, as well as the preparation of cadastres.
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African Woman and Child Feature Service - COMMENT: Efficiency and equity in managing land
Land administration and land rights delivery has fallen below the expectations of ordinary Kenyans. Reports from the various government commissions, regional workshops that were held in all the eight provinces and consultative group meetings pointed out that there has been a systematic breakdown in land administration and rights delivery procedures throughout Kenya. Over time, structures have been over-centralized at the Ministry of Lands and key functions over-concentrated on the state. The existing land administration and land rights delivery systems are bureaucratic, expensive, undemocratic and prone to abuse. They result in inordinate delays in the administration of land.
Ordinary Kenyans are thus unable to access the information they need to make land transactions and own land. In addition, communities do not adequately take part in the governance and management of land. The involvement of unauthorized persons in land administration has only created confusion and conflict.
Common problems Large parts of Kenya have been or still fall under the category of trust land. County councils are empowered by the Trust Land Act to hold land in trust for the people who are ordinarily resident in the area, with the residents in turn owning land in accordance with the applicable customary law.
The trust land system has been widely abused by both the county councils and the central Government. Instead of acting as the custodians of the land, the councils have facilitated the alienation of such land in favour of individuals and institutions in total disregard of the rights of the residents. Residents in the areas under the control and management of local authorities face land related problems that only deepen poverty. The current arrangements for the delivery of land rights in Kenya, which are based on demarcation, surveying, titling and registration, cannot supply adequate serviced land with security of tenure to the required scale and at an affordable cost. Furthermore, the land allocation process is haphazard, expensive, lengthy, cumbersome, littered with bureaucratic red tape. It is time consuming and denies the majority of Kenyans access to land. This unsatisfactory land rights delivery system is caused by land speculation, unprofessional practices by allocation personnel, corruption, political interference, excess powers vested in those mandated to manage land, and the organization of the land registries, particularly retrieval of necessary information necessary for the operation of the land market.
Overcoming the challenge Many Kenyans, especially the urban dwellers, do not have access to land that would enable
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African Woman and Child Feature Service - COMMENT: Efficiency and equity in managing land
them to undertake useful economic activities. The existing land problems result from the inability to achieve equitable and fair distribution of the limited land resources. The draft national land policy proposes policy recommendations that address the identified shortcomings in land administration and land rights delivery in Kenya. The recommendations cover a wide spectrum, including land demarcation, surveying, adjudication, registration and allocation with the goal of achieving an efficient land delivery system.
Land administration and land rights delivery processes reforms require that appropriate human resources be developed. Surveying, mapping, valuation, town planning and land management processes and departments need to be modernised and capacity increased. Training and retraining of personnel in land registries and survey offices is necessary in order to operate the envisaged modernised infrastructure.
Eyes on the future The proposals in the draft national land policy are geared towards the improvement of the land administration and lands rights delivery processes to enable the majority of Kenyans access land and use it in productive economic activities.
To streamline Land Survey and Mapping processes the draft proposes the amendment of the Survey Act (cap 229) to allow for technological advancements and streamlining of the survey authentication procedures, and ensuring that the processes of demarcation and survey are more participatory to avoid land disputes. Also, the law on land adjudication needs to be reviewed to make the process transparent, accountable and efficient. The process will also recognize existing communal and other overlapping rights, and provide sound dispute resolution systems to protect those concerned. Additionally, the Land Adjudication Act (cap 284) and the Land Consolidation Act (cap 283) should be amended and merged to increase the pace of land adjudication in the remaining parts of the country.
In order to make land registration systems efficient, the draft national land policy proposes consolidation and harmonization of all registration statutes relating to land rights creation, and delivery into appropriate Acts of Parliament with the aim of ensuring clarity and reducing the bureaucracy and administrative bottlenecks.
All community land should be vested in representative community-based structures, such as community land boards, and a system adopted to recognize customary land rights, understand
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African Woman and Child Feature Service - COMMENT: Efficiency and equity in managing land
indigenous land management systems, and respect the rights of vulnerable groups and women.
Public and community land allocation procedures should be reviewed to make them transparent, equitable and efficient. A Public Lands Act should be enacted to replace The Government Lands Act (cap 280), which will provide for decentralization of land allocation responsibilities of public land to the local/ district government levels, taking into account planning principles and procedures.
The law should prohibit the allocation of protected areas reserved for forests, water catchments areas, road reserves, kayas, wildlife corridors, mountain and hill tops.
Finally, a Community Lands Act should be enacted to replace the Trust Land Act (cap 288). This new law should vest community land in local/district authorities and establish clear procedures and criteria for the allocation of community land to eliminate incidents of misallocation or multiple allocations. A properly functioning land administration and land rights delivery process is necessary for the sound management of land resources. This is what the draft national land policy intends to achieve. Prof Olima is a land economist and professor in the Department of Real Estate and Construction Management, University of Nairobi. He is currently the Dean, School of The Build Environment.
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