Big landowners to lose excess holdings under proposed law

A proposed new law is out to cap the amount of land an individual can own, setting big landowners on the path to giving up large chunks of their holdings or paying taxes on idle land.

The Kenya Minimum and Maximum Land Holding Acreage Bill 2015, which has been put out for public scrutiny by the Commission for Implementation of the Constitution (CIC), also seeks to repossess “excess” land in private hands for redistribution to the landless and demarcate agricultural and pastoralist zones.

“The acreages based on ecological zones, will reduce inequality, promote equitable distribution of land, regulate subdivision, promote sustainable use of private land and enhance national security and economic stability,” acting Land secretary Fred Matiang’i says in the Bill’s memorandum.

If Parliament passes the Bill, every landowner will have to maintain a tree cover of not less than 10 per cent of the total holding and observe the maximum livestock numbers prescribed for each zone.

Article 68 of the Constitution requires Parliament to enact legislation prescribing maximum and minimum landholding acreages in respect to private land.

Under the proposed law, individuals in rich agricultural highlands will own a maximum of 10 hectares (24.7 acres) — a limit that extends to 15 hectares for the not-so-rich agricultural land.

That means, if the Bill becomes law, no single individual will own more than 24.7 acres in Bomet, Kisii, Nyamira, Nandi, Trans-Zoia, Vihiga, Uasin Gishu and Bungoma counties, which are classified as high potential agricultural areas.

Individuals living in semi-arid areas will be allowed to hold a maximum of 25 hectares (61.8 acres) while those living in dry and remote sections of Isiolo, Mandera, Kajiado, Kwale, Garissa, Wajir, Tana River and Turkana counties will be allowed to own up to 2,471 acres.

The drafters of the Bill say capping individual ownership will ensure prudent exploitation of available land in the face of rapidly growing population.
“Holders of land may engage in cooperative farming by pooling their land and other resources together to enable them undertake large-scale farming and share earnings,” the Land Ministry, which is the sponsor of the Bill, says.

The proposed law seeks to empower both the national and county governments to acquire “surplus land and redistribute to landless persons who are capable of putting it into economic use”.

Where a person holds land in excess of the prescribed limit and such land is not put to use, “such land shall be taxed.”

The Bill also says that the size of land to be held by married couples and foreigners will be specified in a guideline to be issued by the minister after the Bill is passed.

On Wednesday, the CIC said it was testing the Bill’s alignment to the Constitution and is seeking the input of civil society, counties and farmers.
“They have up to July 3 to submit written memorandum by e-mail,” CIC chairman Charles Nyachae said.

Ibrahim Mwathane, a surveying and land information consultant, read mischief in the ministry’s rush to get the Bill approved, saying the public had been edged out of its drafting.

“Obviously, the ministry opted to keep the public in the dark because it appreciates the controversial nature of this Bill,” Mr Mwathane, also chairperson of the Land Development and Governance Institute, said.

“They are now trying to get the CIC to legitimise the Bill by inviting public comment at this late hour but the one week given is still not enough for mass participation.”

Mr Mwathane opposed the idea of maximum land limit, saying it would discourage free market enterprise even as he backed the setting of the minimum amount of land that can be registered.

“Minimum size will stop senseless subdivision of agricultural land beyond viable units but individuals who hold huge tracts of unproductive land should be discouraged by punitive taxes, not by setting  ownership limits,” he said.

OPINION: Let market determine private land size

It remains to be seen whether the political class with huge tracts of unproductive land will support the Bill.

President Uhuru Kenyatta’s family, for instance, holds 36,000 acres in Taita/Taveta County, a zone where Dr Matiang’i seeks to limit ownership by an individual to 61.8 acres.

The Bill hands the Land secretary sweeping powers to approve applications from individuals seeking to hold larger tracts of land as long as the purpose is large-scale farming, conservation, investment or other land use “with significant economic or social value.”

“The Cabinet Secretary shall, within six months of enactment of this law, make regulations prescribing the conditions to be met before exempting a land holder from provisions of this Act.”

The Bill also seeks to prescribe minimum and maximum land that cities, towns and urban centres can set aside for residential estates, educational centres, industrial areas, airports, religious facilities, harbours, cemeteries, car parks, open air markets, and even filling stations.

In the demarcations, conservancies would get the largest allocations of up to four million hectares followed by sea ports at 361,900ha, international airports (78,000ha) and hydropower 63,200ha.

Special Economic Zones come a distant fifth with a proposed allocation of up to 27,000ha while industrial parks will have up to 5,000ha ahead of sewage treatment plants whose space will be capped at 450ha.

Land activists dismissed the proposed demarcation of the amount of land that can be set aside for various activities and the section that gives the executive powers to repossess and resettle people on seized land.

“Planning is dynamic, it is not possible to put a limit to land available for infrastructure to be built several years from today,” said Mr Mwathane.

“And given what we have seen in recent times, it is also not wise to imagine that government officials can redistribute land as community members will always want to determine who to welcome.”