Resolve land compensation stalemate

A few days ago as I was watching the news, I came across coverage of demolition of buildings in Nkoroi in Kajiado County. The report, which has dominated television coverage for several days since then involved owners of houses on land that had been earmarked for the construction of the Standard Gauge Railway to Naivasha.

Watching scenes of hard-earned investments come down into a rubble in a few seconds and leave families without shelter was disheartening. What is unacceptable is the circumstances under which the destruction took place.

Compulsory acquisition of land is a power that the State has in situations where public interest demands. Construction of a railway line is a legitimate reason for taking away citizen’s property rights. It is therefore not wrong for Government to seek to demolish houses on land that they intend to use for the construction. However, this must be done while respecting the rights of every citizen as guaranteed by the Constitution.

The right to property is constitutionally guaranteed. Land is one of the most important property in Kenya. Every Kenyan aspires to own a piece of land. The contestation over land has gone on for long. It was the subject of the 2007 post-election violence. Therefore, any interference with ownership of land by citizens is a failure to appreciate the attachment that Kenyans must land, the guarantee of the Constitution and the history of the country.

Additionally, the process of compulsory acquisition is elaborate and regulated by the Constitution and land laws. Before the State takes away people’s land and the property it must ensure that it compensates the landowners for the loss. The Constitution requires that the compensation be prompt and adequate.

In this instance, compensation for several residents in Nkoroi was not processed due to complaints by the Ethics and Anti-corruption Commission that the figures in question were exaggerated. All the Constitution requires is that the amounts to be paid be adequate. Determining adequacy requires a valuation process. Unfortunately, the National Land Commission has had controversy regarding its compensation figures. There are cases in court involving former commissioners and staff of the commission relating to various compensations across the country. The gist of the complaints relate to allegations of corruption in the manner in which the figures to be paid were arrived at and that some of the amounts may have found their way back to those at the commission.

This may be the background against which objections were raised about the award to landowners by the National Land Commission, who were then advised not to process the compensation. The problem arose from the fact that despite this freeze of payment, the acquisition process still went ahead.

Owners who were waiting for money for their land and property that was being taken over by government, instead were greeted by bulldozers flattening their homes. The purpose of compensation is to enable one to look for alternative accommodation. If you make someone homeless before you compensate them you are violating several of their rights guaranteed by the Constitution. First you are not adhering to the constitutional requirement for prompt compensation.

As it is, they are left without any clarity as to whether and when such payments will be effected. This offends their rights to security of property. In addition, by destroying their houses without providing them with a means to make alternative arrangements, the State is further violating their constitutional rights to housing.

Even those to be evicted in land that is contested are expected to be given notice and for the eviction to happen in a humane manner. In this instance, the land was not even contested. The ownership was clear.

It also defeats logic for citizens to suffer because of government. The need to pay compensation is not in dispute. The dispute is between two government agencies as to the amount to be paid.