State in land reform stand off with the civil society

Sharp differences have emerged between the Ministry of Lands and civil society groups over the composition of the team reviewing land laws, setting up the long-awaited reforms for further delay.

The acrimony between the parties hit a new peak last week with the resignation of the chairman of one of the technical committees.

The resignation came as the drafting of three key pieces of legislation reached the critical review stage. (Alsso Read; State plans to take over land from foreigners)

Mr Mbage Ngaga quit the position claiming that the lands office no longer has the mandate over key areas such as the issuance of title deeds in the absence of the National Land Commission — its term having expired on August 26, a view shared by the Land Sector Non-State Actors Alliance (LSNSA).

Autonomous

Civil society groups want the ministry’s Land Reform Transformation Unit (LRTU) reconstituted to make it autonomous from government bureaucracy and the Bill to establish the National Land Commission speeded up.

LRTU is made up of Ministry of Lands officials, representatives of other ministries and civil society-dominated Land Technical Working Group (LTWG), whose chairman resigned. The NGOs said that the deadline for setting up the commission had long passed — citing it as one of the offices that were to be filled within one year of coming into force of the new Constitution.

But the Constitution also gives the ministry the power to draft legislation in the absence of the commission.

“(The land principles) shall be implemented through a national land policy developed and reviewed regularly by the national government and through legislation,” says Article 60 of the Constitution.

The Cabinet has authorised the line ministries to prepare legislation for forwarding to the Attorney General before they are tabled in Parliament for debate – giving the Ministry of Lands authority to draft land-related laws.

The standoff has the potential of delaying land-related legislation, especially if the ministry’s opponents choose to challenge the process or the drafts in court. LSNSA is made up of the Law Society of Kenya (LSK), Institution of Surveyors of Kenya (ISK), Kenya Alliance of Residents Association (Kara) and the Federation of Kenya Women Lawyers (Fida).

The group has decided that it will only participate in the process after the ministry has handed over the drafts to other implementing agencies.

The three pieces of legislation that the ministry is required draft are the Land Bill, the Registration Bill and the Community Land Bill.

All have to be handed over to Attorney General by October 18 in time for passing before the expiry of the deadline set in the Constitution.

Lands permanent secretary Dorothy Angote said that all stakeholders were invited for the Kenya School of Monetary Studies (KSMS) meeting and participated in the drafting of the Bills.

Only 10 of the 30 invitees attended the meeting, according to Perris Mang’ira, the LRTU acting co-ordinator. As the ministry held its forum last Thursday, the civil society groups working under the Land Development and Governance Institute posted a statement on online dismissing the talks.

“The Land Development and Governance Institute (LDGI) reiterates that the Ministry of Lands cannot be trusted to drive land reforms, given that the institutional structure it oversees has been largely responsible for many of the problems that Kenyans experience on land today,” said the statement signed by Mwenda Makathimo and Ibrahim Mwathane.

The group wants Parliament, the Kenya Law Reform Commission and the Charles Nyachae-led Commission for the Implementation of the Constitution (CIC) to take over the process and set up the National Land Commission as provided for under Article 67 of the Constitution. But Ms Angote said the ministry was focused on beating the constitutional deadlines and will not abdicate its responsibility.

“We have set timelines and will not be derailed by mischief,” she said.

The ministry is rushing to beat the February 27, 2011 (18 months after promulgation) constitutional deadline for passing of the relevant land sector laws.