SPECIAL REPORT The TRANSITION TO COUNTY GOVERNMENTS — Pages 14 & 19 SUPPLEMENT Enhancing governance for all THE PARTNERSHIP FOR PEACE Link PROJECT FUNDED BY THE EU APRIL 2012 Issue No. 090 Kshs 40/= — Pages 15 - 18 Land bills full of flaws, experts say By FAITH MUIRURI for the allocation and disposal of public land, including entrenching public participation pro- HE much hyped land reforms in cedures perpetuating the same legal order that the country are likely to stall if the has caused abuse to public land by those in au- proposed laws are enacted in their thority in Kenya. T “The Land Registration Bill is equally in- present form. consistent with the Constitution for instance The three major bills earmarked to jumpstart with regard to devolution, gender equity and the process are full of inconsistencies which systems for land registration that would pro- negate the spirit and letter of the National Land mote the constitutionally required resolution Policy and the land chapter of the Constitution of historical injustices for marginalized groups, in developing key steps and legislation. minorities, women and historically disadvan- The Land Bill for instance, runs contrary to taged groups,” she explains. the principles of devolution; does not bring out Nyokabi says that the Community Land Bill the tenure systems or attempt to offer any form on its part is completely unconstitutional and it of restitution to the long-standing tenure prob- appears to have been modeled from an existing lems associated with the landless poor, persons Act of a foreign country with no bearing what- in informal settlement in urban areas, or those soever on the demands of Kenya’s new consti- who have weak tenure claims such as the so- tution and the National Land Policy. called “squatters”. “The Bill is not even linked at all with the Priscilla Nyokabi, the executive director of mandate of the National Land Commission,” Kituo cha Sheria, says that the Land Bill also she avers. takes away the constitutional mandate of the Na- Similar glaring inconsistencies can be seen tional Land Commission and lumps them on the to exist in respect of all bills developed by the Cabinet Secretary (the executive) which makes the Bill no different from the existing system. The Land Bill does not offer the mechanisms 8 Turn to Page 2, Col. 1 Lands Minister James Orengo making comments on the Lands Bill at LDGI forum in Nairobi recently. Photo/Henry Owino ON OTHER PAGES Radical change Insecurity to blame EU to fund health for poor learning in services in the to education Turkana —Pg. 6 country —Pg. 22 IEBC’s election date Mombasa port system proposed raises legal issues registers impressive By HENRY OWINO Primary school education before moving to six —Pg. 8 growth —Pg. 23 years of Primary (3 years lower and 3 years A TASK force formed to carry out research upper), six years Secondary (3 years junior and on how best education system could be ap- 3 years senior), two years of middle level insti- Kibaki refusal to sign Milk shortage plied, taught, assessed and managed has come tutions, and a m inimum three years of Univer- up with a raft of proposals, which if adopted sity education. law praised blamed on prolonged will give every child opportunity to pursue a Among concerns raised by different stake- drought —Pg. 27 career of their choice according to their talents holder groups included failure by the current —Pg. 10 and abilities. system to adequately measure learners’ abili- The highly controversial 2.6.6.3 system ties; teachers are not adequately trained in test of education is however expected to serve the development and evaluation procedures. Lobby groups find Ngilu moves decisively current market and technological needs in line Due to the importance attached to exami- fault with land bills with Vision 2030. against climate The new system requires two years of Pre- 8 Turn to Page 2 Col. 1 —Pg. 20 change —Pg. 30 The Link, April 2012 2 GOVERNANCE Land bills full of flaws, experts say From page 1 on land laws must especially analyse and critique each of the Land bills Ministry of Lands under Article 68. from a poor, minorities, marginalized The Bills are complex and volumi- and historically disadvantaged groups nous thus need for a careful review perspectives. broadly and specifically on a clause The position by Kituo cha She- by clause basis. Such analysis would ria came as the Director Land De- also identify content gaps in the exist- velopment and Governance Insti- ing bills and propose concretely how tute (LDGI) Mwenda Makathimo those gaps can be filled. claimed that the bills have been origi- The pro-poor, marginalized, mi- nated by a private consultant hired by norities and historically disadvantaged the MoL to whom he is exclusively analytical perspective is required be- answerable as opposed to a cross- cause it responds to the most of the sectoral multi-stakeholder team. challenges affecting the majority of This, he said had created diver- Kenyans and in the spirit of the new gence and caused unnecessary de- Constitution and the radical National lays. Currently, the bills are running Land Policy of 2009. Such perspec- behind schedule having surpassed tive must fully inform the land Bills the February 26 deadline set out in and should not be subservient to the the Constitution. The LDGI director pro-investment, pro-property perspec- says that although the long term land tive that seem to run across the exist- reforms have been entrenched in the ing land laws and the proposed Bills. National Accord, the two principals Moreover, land is at the core of have not been proactive on the land Kenya’s political, economic, social reform implementation debate. and cultural problems. The land re- He says that the lawmakers are lated ethnic clashes over the years that gradually switching to campaign culminated in the post-election vio- mode in readiness for the General lence in 2007/2008 support the view Priscilla Nyokabi, Kituo Cha Sheria Executive Director Elections and therefore they may not that unless there is radical land reform be able to give adequate attention to with a view to promoting land rights the Community Land Bill, the Matri- programme proposed in the National sion is recognized in each bill and that the important and fundamental land of the poor, marginalized, minori- monial Property Bill and the Law of Land Policy and the Constitution; the role of the commission is synchro- reforms. He says that although the ties and historically disadvantaged Succession Bill. l Entrench affirmative action in insti- nized with other Government agen- land reform implementation process groups, Kenya’s future stability is at So far the Ministry has only re- tutions that make decisions on alloca- cies that may have specific mandate has already taken off, it must move in stake. This view was underlined con- leased the first three Bills unconstitu- tion of land rights; on matters of certain public land such the right direction and at a desirable spicuously in the Kofi Annan media- tionally side-lining the gender friendly l Give full effect to the broad princi- as the Kenya Wildlife and Kenya For- speed so that the benefits can be real- tion agreements particularly Agenda Land bills. The proposed land laws ples that govern the issue of land un- estry Service. ized sooner rather than later. He also IV on long standing issues. must generally: l Translate the broad der Chapter Five of the Constitution, More public consultations and underscores the need to realign the Kituo urges for a review of the Bills constitutional principles in chapter 5 as well as the national values stated in participation and in particular engage- reform implementation process with and making of concrete proposals in (Land and Environment) and the Na- Art 10; ment of experienced and qualified per- the guiding principles as stated in the order to input into the process before tional Land Policy into tangible legal l Align the new laws with relevant sons in Land Law to review the vari- NLP & ensure policy enforcement. it is too late. In their present form the provisions promoting the land rights applicable international standards ous land Bills to analyze and critique “We urge the government play- bills stand the risk of being declared of the urban and rural poor, marginal- contained in treaties ratified by Kenya each of the Bills should be done. Such ers to put aside selfish political in- unconstitutional. The Bills that are ized, minorities and historical disad- and general principles of international consultations will be able to identify terests to work together at this time supposed to be enacted under Article vantaged groups; law pursuant to Art 2 (5) and Art 2 (6) gaps and propose amendments for of reform in the interests of poor and 68 and which should be reviewed are l Provide for mechanisms for the en- of the Constitution; consideration by the various entities marginalized Kenyans who have the Land Bill, the Land Registration visaged land re-distribution of irregu- l Ensure that the constitutional man- in the Constitutional implementation been ravaged by years of poor gov- Bill, National Land Commission Bill, larly acquired land and resettlement date of the National Land Commis- legislation-making chain. The experts ernance,” he concludes. Radical change to education system proposed From page 1 cy makers to design and improve on ers services and community outreach will be developed. In the middle level institutions, assess- the current and future education pro- programmes. There shall be a national upper pri- ment will be by KEAC and various nations, cases of malpractices have grammes.