The sight of government bulldozers demolishing homes in Syokimau has aroused public hue and cry compared with other recent demolitions in poorer neighbourhoods.
The victims of these demolitions who appear to be middle class has assertively demanded protection of their property rights on the land in question as evidence the court injunction recently issued to halt the demolitions.
These demolitions and their ramifications are likely to rekindle public debate on land reforms, which has been conspicuously missing. They also serve as an indictment of the institutional weakness of the land management system ,which has attracted fraudsters in cohort with the government officials.
Moreover the information asymmetry associated with land markets has made it difficult to verify land transactions and hence making any potential land buyer or seller susceptible to fraud.
The underlying policy question at the heart of the brewing political storm over these controversial demolitions that are yet to be investigated is the sanctity of title deeds embodied in the Constitution and national laws.
The policy question emanates from conflict over the ownership of the land in question.
On one hand, the victims claim that they acquired ownership of their respective plots through unadulterated land sale agreements and that their title deeds were perceptively authentic.
Moreover they relied on the perceived legitimacy of their title deeds to invest million of shilling to construct their dream homes.
On the other hand, the government claims that the land in question was public land and the victims acquired their plots illegally or irregularly.
Taking the government’s position as given, the fundamental policy question is to determine whose victims interest should be protected and in what circumstances.
There are two types of victims, first, the original allottees who knowingly built their homes on the land that was illegally acquired with or without the assistance of government agents.
The second group includes those victims who followed the legal procedures to buy their plots and invested their hard earned savings to build their home without the knowledge of any illegalities or irregularities.
Plots of the first types of victims do not enjoy constitutional protection. Section 40 of the Constitution does not confer constitutional protection to any property that has been acquired unlawfully.
The legal consequence of this provision is that illegally acquired public or private land is not constitutionally protected.
Under this provision, the government may repossess all illegally/irregularly allocated public land without prompt payment in full or just compensation.
However, the Bill of Rights as interpreted by a recent High Court case restrict the government from executing arbitrary evictions of informal setters of public and private land without adequate notice.
In this case, the High Court granted a conservatory order that barred the City Council from evicting without sufficient notice the residents of informal settlements on public land.
For plots belonging to victims without knowledge of illegality, governmental evictions may be inefficient and it may violate the Constitution as well as the registration laws.
In cases where the private interest of the victims outweighs the public interest, evictions without compensation may inefficiently impede on the land development.
Such evictions without compensation may as well be in violation of property rights as enshrined in the Constitution.
Similarly they might contravene the major registration laws, which protect the current title holder against future claimants as long as the proprietor had no knowledge of the omission, fraud or mistake.
Prof Kieyah is the Principal Analyst at KIPPRA.
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