The Citizen Handbook
The Constitution of Kenya, 2010: The People’s Power
The Constitution of Kenya, 2010: My Constitution, My Future
LandUse & Management
This section outlines the land provisions
captured in the Constitution. It highlights the different categories of the
land tenure system.Land ownership has been a controversial issue ever since the
struggle for independence.
land in Kenya belongs to the people of Kenya collectively as a nation, as
communities and as individuals.”
Article 61(1), The Constitution of Kenya,
Principles on Land Management
Our country has experienced land related
clashes since independence because of competition for land ownership and
corruption. The clashes have persistently threatened the national cohesion of our
country. In an effort to resolve this historical problem, the constitution
includes general principles for the management of land matters. some of the key
provisions on land management in the constitution are:
· ensuring equitable access to land;
· encouraging efficient, productive and sustainable usage of land;
· enforcing transparent and cost effective administration of land;
· requiring the conservation and protection of ecologically sensitive areas;
· eliminating gender discrimination in laws, customs and practices related to land and property in land; and
· encouraging communities to settle land disputes through recognized local community initiatives consistent with the law.
Types of Land
The Constitution classifies land into three
categories: (1) public land, (2) community land, and (3) private land. Below is
an explanation of each:
- Public Land
Article 62 (1)
- Community Land
· Land lawfully registered in the name of group representatives or transferred to a specific community;
· Ancestral lands as well as lands occupied traditionally by hunter gatherer communities;
· Land managed or used by specific communities as community forests, grazing areas or shrines;
· Land held as trust land by the county governments (excluding any public land held in trust); and
· Land declared to be community land by Parliament
Article 63 (1)
- Private Land
Reforms in land ownership are one of the
key features of the 2010 Constitution. Specific types of land ownership
outlined in the Constitution are below:
· Freehold tenure is the ownership of land with the right to pass it on through inheritance. The landowner may have acquired the land through purchase or inheritance.
· Leasehold tenure is the temporary ownership of land through the payment of land rent. This is similar to renting a house and paying the property owner rent at an agreed amount without actually owning the house.
· Partial interest tenure is land that has many different interests or stakeholders on a specific parcel of land. This can include easements where one landholder has rights to certain parts of another landholder’s land. Examples of partial interest tenureinclude government regulation, zoning or even by negotiation among private and/or public parties.
· Customary tenure is land ownership granted through traditions. The Constitution does not recognize customary tenure when it conflicts with the principles or provisions of the Constitution on issues such as disinheritance because of gender.
The maximum leasehold is now 99 years, which is a major shift from the previous system that allowed citizens to lease land for up to 999 years. A person who is not a citizen may hold land based on leasehold tenure only, which is different from the old system allowing for the most valuable land to be owned by foreigners. The new land provisions in the Constitution will, therefore, make land more accessible to many citizens and help to reduce poverty in the country.
Role of the State in Regulating Land Use
“The State may regulate
the use of any land, or any interest in or right over any land, in the
interest of defence, public safety, public order, public morality, public
health, or land use planning.”
66 (1), The Constitution of Kenya, 2010
Laws on Landholding
Parliament has already passed three laws
that support the various land provisions in the Constitution. They are:
· The National Land Commission Act, 2012
· The Land Act, 2012
· The Land Registration Act, 2012
Some additional complementary laws are still required for aspects of land provisions in the Constitution. At a minimum, this includes laws to regulate community land, address historical injustices related to land ownership, and address the rights of informal settlers like protection from arbitrary eviction.
Establishment of the National Land Commission
Article 67 of the Constitution and provisions
in the National Land Commission Act, 2012
establish the National Land Commission. Some of the Commission's primary
functions are to:
· manage public land on behalf of the national and county governments;
· develop a national land policy;
· advise the national government on matters related to land titles and monitoring;
· oversee land use throughout the country;
· investigate present or historical land injustices and recommend the appropriate redress; and
· encourage the use of traditional dispute resolution mechanisms in land conflicts.
In accordance with Article 6(3) of the Constitution, the headquarters of the National Land Commission is in Nairobi, but it is required to provide access to citizens in all parts of the country. The Commission is required to produce an annual report, which includes the following information:financial statements, progress report on work conducted so far, and any recommendations or challenges. The Commission should publish their report for public viewing as soon as it is practical after each financial year.
Application & Implication
The Constitution contains a full chapter
dedicated to land management and environmental issues. This chapter is critical
given the country’s unique history of land disputes dating back to pre-colonial
years. Historically, land ownership has been the root of many disputes.The
establishment of the National Land Commission, and the implementation of
constitutional provisions on land use and management, will increase
accountability and transparency as well as reduce the possibility of illegal
land seizure. New land laws passed by Parliament require the review of all
grants or dispositions of public land and illegal land ownership. The
constitutional provisions on land will also prevent the elite from occupying
vast tracts of land. Finally, the Constitution requires efficient and effective