Land Development and Governance Institute

Why the requirement to surrender private land may be unconstitutional

admin — Thu, 01 Feb 2024 04:31:40 +0000

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.

Look at the depth to which the Constitution goes in protecting private property. Then juxtapose these against a sub-sectoral law that 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 for 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 in 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 with compensation.

Moreover, in efforts to ensure that all land uses conform 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.

Proposed land law changes raising fees one too many for MPs, public

admin — Thu, 01 Feb 2024 04:31:30 +0000

The Lands Ministry has lately been on overdrive to amend land laws and regulations. Laws are dynamic and need occasional changes to keep them updated with contemporary realities and to eliminate gaps or overlaps.

However, making and amending laws helps to keep the load realistic, and carries practising professionals, and the user community, along.

Where the load gets overwhelming, State departments have difficulties managing multiple amendments simultaneously, and adequately involving the professionals and the user community.

Moreover, the capacity of Parliament to provide quality oversight gets overstretched.

For instance, look at what the State Department of Lands has tried to handle lately. The Land Laws (Amendment) Bill, which, in the words of the Leader of Majority Kimani Ichung’wa, was withdrawn, had been shaped to amend six statutes. It took Mr Ichung’wa to step in and calm Kenyans following protests against this Bill, perhaps evidence of inadequate public involvement.

Among others, the Bill proposed to tax freehold land in urban areas and cities. This proposal, along with another to strip the National Land Commission of its powers to value private land identified for compulsory acquisition, will amend the Land Act. The bill will also amend five other laws, including substantive ones like the Land Registration Act, the Community Land Act, and the Sectional Properties Act. Even seasoned professionals have difficulties reviewing such vast amendments. The lay public will be at sea.

The ministry also proposed to amend regulations on the government fees chargeable for various services and documents. The Cabinet Secretary published proposals in April, and the National Assembly Committee on Delegated Legislation approved them in May. They cut across seven land laws, including the Survey Act, Valuers Act, Land Act and the Community Land Act.

Fees charged under the Land Registration, Physical and Land Use Planning, and Land Adjudication Acts, have been reviewed too.

Professionals and routine service seekers may wish to familiarise themselves with the new fees, contained in Legal Notices Nos 69-77 of 2024.

Increments for regularly sought services will impact a wide cross-section of Kenyans. These include fees for official searches, raised to Sh1,000, and the application for determining a disputed boundary, which will now be Sh3,000. Communities applying for registration under the Community Land Act will need to pay some Sh5,000 while applying for an interest or claim on Community land will cost Sh5000. Applications for consent by Land Control Boards will now cost Sh3,000.

Ironically, a fee of Sh10,000 chargeable for special land control board consents, has been introduced.

However, this service, which I recall attracted objections from some stakeholders, is yet to obtain legal force. It had been proposed under the Land Laws (Amendment) Bill, which, as mentioned above, was withdrawn.

This is good evidence of the gaps and contradictions that come with moving too many amendments simultaneously. The ministry needs to address the anomaly quickly.

Source: https://www.businessdailyafrica.com/bd/opinion-analysis/columnists/proposed-land-law-changes-raising-fees-one-too-many-4709138

Time for sobriety, reflection and action on Gen Zs reforms push

admin — Thu, 01 Feb 2024 04:31:15 +0000

It’s not business as usual in Kenya. We are living through unprecedented times. Our Parliament was raided, business stopped, and its members sent scampering. Many of these MPs are yet to regain their confidence and footing in public.

The Cabinet has been disbanded, and sector leadership left to Principal Secretaries. Gen Z, they who have branded themselves “tribeless, leaderless and partyless”, have maintained the pressure. They are unhappy with our governance and are out to force fundamental changes.

Let’s be honest, it was only a matter of time before we got here, only one couldn’t figure how it’d come. We’ve been living in challenging times, with fundamental issues begging action.

Indeed, my most humbling moments come when I see leaders in government, political, religious or business spaces carry nonchalant attitudes in our circumstances. Because the weight of the challenges we face should be seen to weigh heavily and humble them.

Our population growth, against the growth of our economy, has led to some very disturbing trends, and challenges. The absence of a strong value system and work ethic has aggravated this. Look at our urban centres. All appear to have a common growth pattern, with many residents confined to informal settlements either without, or with inadequate services. In these spaces, poverty, struggle and hopelessness have been normalised.

Unfortunately, political leaders appear more interested in exploiting the plight of these “trapped” residents, instead of exploring and committing to long-term solutions. Our education system, at the basic and high levels, has been churning out graduates at rates far above what our markets can absorb.

Many of these roam our rural and urban spaces without meaningful employment. You can then imagine their frustration and anger when they see cronyism and nepotism, and not merit, become the bridges to any employment available. Let’s grow jobs, and fair practices.

Our remuneration structure is skewed. We’ve reversed priorities. For instance, it’s intriguing why our political and other elite office holders, in a poor country, should earn super salaries. They earn much more than doctors, engineers, and other skilled workers responsible for production, service delivery, research and knowledge generation. Our remuneration system calls for reforms to reflect the value of work and production.

Then corruption! Why have we normalised and tolerated this vice, making it look vogue and rewarding? It diverts public resources that’d otherwise support services, innovation and incentivise production. Corruption fuels anger and frustration that can consume our nation.

Leaders should therefore be seen to fight it, not nurture or benefit from it.

We must also amplify the paradigm that success in life isn’t about quick wealth and high life on the fast lane. Legitimate wealth is earned, unless inherited. And earning takes intellect, labour and time. Moreover, wealth so earned is stable and good for our nation. Let’s therefore respond to the Gen Z pressure in humility and action.

Source: https://www.businessdailyafrica.com/bd/opinion-analysis/columnists/time-for-sobriety-reflection-and-action-on-gen-zs-reforms-push-4693724