Why the requirement to surrender private land may be unconstitutional

In the first part of this discussion, I highlighted that the 2021 regulations to the Physical and Land Use Planning Act require that land be surrendered for open spaces, amenities and recreational facilities at no cost in development proposals submitted on subdivision and amalgamation.

The regulations further require that the land surrendered be utilized for the planned purpose and be registered in the name of the County Government, or the Cabinet Secretary responsible for matters on finance, where the national jurisdiction pertains.

Looking at the related constitutional provisions and those in the Land Act, highlighted earlier, one gets the impression that the planning provisions requiring a proprietor to surrender land for free may not be justifiable.

They look more of a legacy carried over from past practice under the repealed Land Planning Act, without regard for compliance with our current constitutional provisions. Why? With due respect to the importance of planning our spaces, the surrender of private land for free is a substantive issue. Think about its cost implications in today’s land market.

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Look at the depth to which the constitution goes in protecting private property. Then juxtapose these against a sub-sectoral law which overtly seeks to oblige a proprietor or investor to surrender part of their land for free just because they have submitted a development proposal.

I doubt that the drafters of our constitution would have failed to address a requirement with such fundamental implications to private tenure rights. It not only negates the constitutional principle not to deprive one of their property without due compensation, but also serves as a disincentive to development.

If anticipated during the constitution making process, such a punitive requirement would have raised a major red flag in discussions on chapter five on land and environment. I suppose that no one expected such a provision to be introduced through sectoral or subsidiary legislation.

One will for instance notice that, in appreciating the continuous need for land for public purposes at both levels of government, the constitution specifically provided for compulsory acquisition on compensation.

Moreover, in efforts to ensure that all land uses are in conformity with public interest, the constitution specifically provided for the state to intervene and regulate land use.

One of the reasons given for such regulation is land use planning. In the same spirit, nothing would have prevented the drafters of the constitution from providing for the free surrender of land in the interest of development control, if deemed foundational. It’d suffice to require proprietors and investors to reserve land for purposes such as schools, hospitals, recreation and open spaces.

Government would then provide oversight mechanisms to ensure that such spaces are committed to the designated purposes, without requiring their surrender. This wouldn’t contravene the constitution.

The line ministry, and planning experts, may need to revisit this legislation and formulate how to recast the pertinent legislative provisions. Else, it will soon come up for judicial determination.

Ibrahim Mwathane is a consultant on land governance email: [email protected]