It is worth noting that the mandate of control of public land is
constitutionally vested in the National Land Commission (NLC), with the
exception of incidental matters of historical injustices, with private land.
Thus, the determination of minimum and maximum acreage, individual or private
persons be they natural or juridical may own, is a preserve of the Chief Land Registrar.
Historically, control of land was compartmentalized into agricultural land
control and land planning control. There was no specific control of the amount
of acreage that a private person was entitled to or in the derivative
disentitled to. This is purely a new phenomenon that has been necessitated by
the phenomena of massive and threatening landlessness, which in the wider sense
is also a historical injustice in nature.
In
order to further control irresponsible usage and ownership of land, the
Government was further empowered through Land Acquisition Act (Cap 295). This
among other reasons would be done in the interest of public benefit. Public participation
has thus remained a prerequisite in matters related to land ownership though in
form, except for this time the law should entrench it in substance to accord to
Article 1 of the Constitution of Kenya 2010, all sovereign power belongs to the
people, and must be exercised in their name and interest. This legislation is
thus intent on curing the mischief occasioned by landlessness and secondly, the
senseless holding of productive land without putting it to use while multitudes
are deprived of the privilege of putting such big factor of production into
strategic economic use.
Taxation
Regime
In the
United States of America, the control of acreage has been constructively done
through the taxation regime. The bigger the land you own the higher the tax and
the idler it is the further the tax increases. This has had the effect of
discouraging hoarding the Land for speculative purposes. However, the bigger
question in the current Bill is the viability of the method of regulation
proposed in the legislation; this is the Part IV of the Bill. It does not
propose either the minimum size or the maximum size that a person is entitled
to. This is absurd since this part is the thrust of both the short and the long
title of the Bill.
The
foregoing notwithstanding, the Bill has made attempts in PART II at proposing a
method and procedure for determining minimum and maximum acreages, only falling
shy of placing an exact size that is discernable by the humble grassroots
farmers. It has prescribed a litany of methodologies that make the Bill user-unfriendly.
Instead of placing acquisition of property subject to satisfaction of an
individual’s democratic tax obligation, it proposes creation of abstract
mathematical formulae to be commissioned by the Cabinet Secretary as the basis of
determination. This is an extreme antithesis as it is neither a constant nor a
variable within the market forces of demand and supply that determine price
margin for commodity value.
Actually
it proposes several bureaucratic nuances that will only serve to move the
matter from a simpler comprehension to a more complicated and further
sophisticated process. This is done in the names of creation of Land Control
Committees in PART III of the Bill. In fact it provides us with the classic
example of the phrase the more things change the more they remain the same. It
is typical reintroduction of the land Control Boards under the defunct
provincial administration system. Is it the novel way of enhancing efficient effective
and economic land management process? I guess not, for new wine in an old wine
skin does not improve the broth. It will do well to consolidate Cap 318 Laws of
Kenya and Cap 302 Laws of Kenya and amalgamate it with the taxation aspects to
inject marginal diminishing appetite for land for its own sake.
Land
Control Bill
I
propose that the title of the Bill should be reviewed and renamed Land Control
Bill 2015 with inclusion of strategic and progressive aspects of Agricultural
Act (Cap 318) and the Land Control Act Cap (302) which of necessity should take
into consideration progressive provisions in the County Government Act as well as
the Urban Areas and Cities Act. Consequently, land whose owners may not meet
the democratically imposed tax obligation may be reversed to the Land
Commission upon prompt compensation. The compensation in this regard need not
be adequate but sufficient enough to cover the cost of any improvement placed
on the Land.
With
this approach the Bill will optimize the return of much misused private land to
the government for strategic future planning and use. Ultimately, it is my
humble thesis that the Bill should be withdrawn and relooked in light of the
progressive strategies that will encourage prudent, efficient, effective and
economic use that accord with the democratic principles of the Constitution.
-Mr.
Odhiambo is the Law Society
of
Kenya (LSK) Deputy Secretary (Parliamentary Affairs & Legislation)
