The Minimum and Maximum Land Holding Acreages Bill of 2015 is likely to be contentiously controversial. If it is enacted into law, it will shake the foundation of the land market that this county has always committed to.
The Bill raises a policy question of discriminately interfering with the fundamental right to private land. Such interference will likely kill the land market dynamism that always laid the golden eggs in form of capital. This should concern you.
Retrospectively, preserving such a principle in Article 68 of the Constitution is an indictment of our failure to appreciate market dynamism.
It is also a reflection of the dominant view of the framers of the Constitution. Such a view was a manifestation of the framer’s mistrust in the manner past governments had executed land reforms.
The framers naively viewed the Constitution as a panacea to all governance issues, including land matters.
Consequently they chose to tie the current and future generations with a static quantifiable acreage of private land to address a perceived market failure.
First, the Bill’s aim of setting a minimum and maximum land holding in private land is discriminatory and raises constitutional question.
Public and community land covers 13 per cent and 67 per cent respectively of Kenya’s total land acreage, relative to 20 per cent private.
Therefore such glaring variance calls for a compelling policy justification of why land capping must apply to private and not other land categories, particularly community land.
While the private land capping principle is provided in the Constitution, its execution could as well be a violation of the fundamental right to property.
Article 40 of the Constitution prohibits the state or any person from arbitrarily depriving a person or property of any description or of any interest in, or right over, any property of any description.
Such discrepancy would call for judicial interpretation or a constitutional amendment.
Secondly, the Bill aims at regulating subdivision of private land. Ostensibly, the constitutional capping of private land addresses the manifestation of perceived market failures rather than their causation.
The policy concern should not be how much private land one holds but rather what he or she does with it. Consequently we don’t need constitutional peremptory directive to impose efficient usage of private land.
There are existing laws like local zoning ordinance that can guide the market to establish the most efficient minimum acreage of private holding as evidenced by proliferation of a gated community that controls subdivision.
The third aim of the Bill is reducing inequality and promoting equitable distribution of land perceptively attributable to market failure.
It is indeed the government’s responsibility to correct market failure wherever there existence.
Granted, that any government’s action is susceptible to political manipulation, execution of land distribution calls for caution.
We had tried in the past and failed. Land distribution is an equity issue that is politically driven.
In conclusion, although the overall objective of the Bill is to effect Article 68, its execution is likely to be discriminative and might lead to inefficient subdivision, control and land distribution.
Moreover, its execution may as well be unconstitutional, which calls for a constitutional amendment to cure the potential discrepancy between Article 68 and Article 40.
Prof Kieyah is acting programmes co-ordinator at the Kenya Institute for Public Policy Research and Analysis.
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