Land Governance Priorities for the New Administration in Kenya

On Tuesday, 13 September 2022, H.E. Dr William Ruto took his oath of office and began his term as the fifth president of the Republic of Kenya. In his inauguration speech, the president purposed to hit the ground running and lead Kenyans on a path of economic transformation and in the days following he confirmed his intention with action. The new administration introduced policy changes that gave us an idea of how the next five years will be. The new economic direction appears to be one of subsidizing production, and not consumption, with the latter being deemed unsustainable and harmful to the economy in the long run.

The president’s campaign focused on economic transformation and empowering Kenyans at all income levels to be able to earn a decent living. The plan to achieve this as detailed in the Kenya

Kwanza manifesto is heavy on investing in capital (Hustler’s fund, subsidizing production, bringing down the cost of living), and labour (job creation) but not as detailed in the other two factors of production: entrepreneurship and land.

Among the basic factors of production, land is the only one that is finite and as such, the success and efficiency of the new administration’s plans for economic transformation will also depend on how the state will manage and administer land to support investments as well as individual and communal property rights.

The Kenya Kwanza manifesto lists landlessness, insecure land tenure, the squatter problem in the Coast region, land fragmentation, and encroachment of forests and other ecologically sensitive areas among the top land-related challenges the country faces.

To resolve these challenges, the new administration pledged to establish a settlement fund to acquire land and resolve landlessness, and to stop land fragmentation and make optimal use of agricultural lands. The manifesto also included a commitment to establish 5 million acres (20,000 km²) of agroforestry woodlots in drylands. In addition, the coalition pledged to take administrative measures to ensure 100 per cent enforcement of the spousal consent legal provisions in land transactions to cushion women and children from dispossession of family land.

Beyond the solutions listed above, the new administration should invest in enhancing service delivery by improving management of land information, developing and ensuring adherence to land use plans and spatial plans, and supporting continued implementation of land and environment laws and policies. Overall, sufficient budgetary support and political goodwill will be the main factors that can ensure progress in the plans the new administration will have to improve land administration.

In the coming days, the president will name a cabinet and the fourteen to twenty-two individuals will be the executors of the government’s plans for a prosperous Kenya. For the incoming Lands Cabinet Secretary, here are five main things he or she can deliver on to create the right conditions for growth in investments and economic empowerment for individuals and communities:

Digitization of records and automation of services

The new administration should continue investing in the process of digitizing land records and automating processes for the whole country. Digitizing land records and automating lands services will not only improve service delivery by improving turnaround times for information requests such as land searches, but it will also significantly reduce cases of fraud.

The previous administration, which the current president was a part of, showed that full and efficient automation is achievable through the success of platforms such as eCitizen and NTSA TIMS. Kenyans will expect this level of efficiency when it comes to digital land records and automated services. The new administration should continue to deliver on this promise of automation by supporting the continued rollout of ArdhiSasa.

Institutional support for land administration

The foundational steps to reform the land sector have been taken through the new laws that have been enacted since the promulgation of the 2010 Constitution, and the new institutions we have introduced in the framework of land governance. For these institutions to undertake their mandate to the full extent envisioned when enacting the laws, we will need to continually invest in them. This investment should come in the form of financial and human resources to implement programmes such as the national titling programme, registration of community lands, digitization of land records, and adjudication and titling of public lands. Implementation of actions to resolve historical land injustices, including addressing issues of landless families and squatters in the coastal region and other parts of the country, will require adequate budgetary allocation and political goodwill. The new administration had listed the squatter problem in the coastal region among the main land issues the country faces, and this acknowledgement is an indicator that this matter will be a priority.

The new administration should continue to deliver on this promise of automation by supporting the continued rollout of ArdhiSasa.

Additionally, institutional support will come in the form of political goodwill to ensure more judges can be appointed to the Environment & Land Court, as well as national government support to county governments in developing county spatial plans. The swearing in of two more judges to the Environment & Land Court in the president’s first full day in office, for example, demonstrates the kind of goodwill that will guarantee continued progress in land governance.

Supporting investments in land

Kenya’s economic blueprint, Vision 2030, recognizes land as a critical resource for the socio- economic and political developments that the country is undertaking. Vision 2030 also identifies respect for property rights to land, whether owned by communities, individuals, or companies, as a prerequisite for the economic transformation the country is targeting. Having a formal registration and documentation process is the basis of recognizing land and property rights and facilitating enjoyment of those rights. We also have the Environment & Land Court to ensure access to justice in resolving disputes over land and property.

The Constitution of Kenya 2010, and the land laws enacted in 2012 (the Land Act, the Land Registration Act and the National Land Commission Act) and thereafter, provide for timely and fair compensation in the event of compulsory acquisition of land. This will only be possible once the land value index has been developed for the whole country. The land value index is a representation showing the spatial distribution of land values in a given geographical area at a specific time. The land values in the index should guide compensation matters when the government or a private entity is acquiring land for investment.

All these policy and legal developments are geared towards establishing an enabling environment for investments to thrive. In the same regard, county governments need to align their policy and legal frameworks to support investments on land. In 2015, the Ministry of Lands and the National Land Commission approved the National Spatial Plan. This plan guides the implementation of strategic national projects, and specifically the flagship projects spelt out under Kenya Vision 2030, by indicating their locations and providing a framework for absorbing the impacts of these projects.

The National Land Commission has also developed guidelines on how counties can undertake spatial planning. The NLC’s Directorate for Land Use Planning is on hand to support counties in developing spatial plans in adherence to the national spatial plan. Counties should therefore prioritize developing these plans and begin identifying solutions to reconcile community livelihoods with the impacts development and infrastructure projects will have on the communities they serve.

Registration of community land

Community land accounts for an estimated two thirds of the total area of Kenya. However, the majority of community lands were former trust lands and have never been adjudicated or registered. The communities in Turkana, Marsabit, Isiolo, Garissa, Mandera, Wajir, and Tana River, for example, have never undergone the process of adjudication to have a formal claim to their land. Yet a lot of investments are happening on these lands. We are undertaking oil exploration in Turkana County and in Marsabit County we have the largest wind power project in the country. The Lamu Port South-Sudan Ethiopia Transport Corridor (LAPSSET) goes through Lamu, Garissa, Tana River, Isiolo, Samburu, Marsabit and Turkana Counties.

The majority of community lands were former trust lands and have never been adjudicated or registered.

The communities in the counties mentioned above are among the most vulnerable groups due to a history of marginalization, and by being in areas that are categorized as arid or semi-arid. While the constitution and the land laws provide for fair and timely compensation when land is acquired for investment or public purposes, rightful beneficiaries of compensation can only be ascertained once the land has been registered. Registering community lands will also contribute to national food security. For communities to maximize the output of their land, they will need to undertake land use planning in accordance with the provisions of the Community Land Act. However, effective land use planning can only take place once communities have a formally registered claim to their land.

Environmental conservation and landscape restoration

Kenya is a party to several international conventions that are addressing environmental issues. While we have an obligation to conserve and restore the environment, we also have an obligation to ensure Kenyans are food secure and have an income to depend on.

In 2019, the United Nations Convention on Combatting Desertification (UNCCD) adopted a Land Tenure Decision which encouraged parties to recognize tenure rights and improve tenure security as they implement measures to combat land degradation and desertification. The new administration should align with this position and reconcile communities’ livelihood and food security needs with the country’s land restoration and environment conservation priorities. Neither should be achieved at the expense of the other. The next administration should take the opportunity presented by the Land Tenure Decision to centre Kenya’s restoration efforts and national environmental action targets on Kenyans. There is a need to ensure communities remain on board the framework of environmental management, so that they can become both stewards and beneficiaries of sustainable land use.