Legal and Institutional Mapping for Public Land Management in Kenya: Since the 2010 Constitution and Devolution Ellen Bassett, University of Virginia World Bank Conference on Land and Poverty Washington, DC - March 2016

Overview Background 2010 Constitution – Two main provisions of interest: Devolved governance Land law/administrative reform Prevailing Legal Framework for land under devolution (Constitution + 3 key acts) Discussion

Background: Land in Kenya Land ownership and access—critical issue in Kenyan society Highly emotive issue Post-colonial era: continued utilization of highly centralized land management institutions Issues arising: ineffective and inefficient land administration, inequitable land distribution, high risks of corruption Politically explosive Photos from Kenya Burning on public display, Source: nakedchefs.com.

2010 Constitution Long time in the making Adopted through public referendum Myriad objectives: – Reigning in “imperial presidency” – Enhancing democratic participation, self governance, and national unity – Installing checks and balances Kimzy, Landtoons. Source:

Devolution: Key Facets Legally: Constitution + County Governments Act, 2012 Establishes 47 county governments – County executive = Governor – County legislative = County Assembly – Own Public Service Commission Wide-ranging powers and obligations Land use planning function and development approvals – Implementation through control of sub- division, change of user, lease extensions, land survey, mapping. Gov. Irungu, Laikipia County. Chief Justice Mutunga speaking to Governors: at 3 rd Annual Devolution Conference. Source:

Constitution’s Land Management Provisions Chapter 5: Land and Environment – Drew partially from 2009 Land Policy (Sessional Paper #3, 2009) Establishes principles of land policy, reclassifies land (3 types), gives power of regulation over any type of land to state. Establishes new body: National Land Commission – 8 enumerated functions – Must operate within the devolved framework Artist unknown, Landtoons. Source:

Framework: 3 New Land Laws National Land Commission Act, 2012 Land Act, 2012 Land Registration Act, 2012 The Land Act rationalized and re-categorized land tenures in the county. Source: today.comwww.kenya- today.com

Ministry of Lands Constitution: Silent on CS with land portfolio and land registrar NLC Act: CS to present estimates for NLC to National Assembly; serve on appointment body (1 st Schedule) Land Act: CS to develop policies, facilitate land policy implementation, coordinate national spatial data infrastructure; regulate service providers; request NLC for compulsory acquisition of land; role in creation of public right of way; sets fees; must commission study on max/min acreages; shared power on regulation with NLC Land Registration Act: consulted in constitution of land registration units; “in establishing land registry,” CS guided by devolution principles; prescribes conditions for land disposition/sale (private too?); entitled to recover costs related to registrar irregularities; can make regulations to better effect the purposes and provisions of the act taking into account NLC advice NLC Constitution: to “manage” public land on behalf of national and county governments + 7 other functions; “may perform any other functions as proscribed by national legislation” NLC Act: 6 additional functions; including land info system at national and county levels Land Act: Identify public land (database), evaluate land capability, shall “cause a register to be kept” on public land converted to private; make rules for conversion; prescribe guidelines for management by public entities; may (on behalf of govt and county) allocate land via enumerated means; ; make regulations on public land allocation; reserve public land; acquire land on behalf of governments; implement settlement programs; administer Land Settlement Fund. Land Registration Act: constitute registration units in consultation; determine form of registry; depository for cadastral maps; create regulations for dealing with irregularities in registrar County Government Constitution: planning and development control NLC Act: establishes CLMBs; County Land Registrars; act as “linkage” between NLC, counties and other institutions; manage land on behalf of counties; shall work in consultation and cooperation with counties Land Act: allocated public land reverts to county if terms/conditions unmet; consulted over reserved public land; submit request to NLC for compulsory acquisition on its behalf; counties apply for communal right of way Land Registration Act: establishes office of county land registrar, powers; consulted re: land registration units; each county to have registry for “reasonable access” County Land Mgmt Boards NLC Act: “shall est. offices”; “shall establish CLMB for purpose of managing public land” Appointed citizen commission with tech advisors; scrutinize land relative to physical planning requirements; allocation of land oversight; approved by county assembly Separate Regulations apply County Land Mgmt Boards NLC Act: “shall est. offices”; “shall establish CLMB for purpose of managing public land” Appointed citizen commission with tech advisors; scrutinize land relative to physical planning requirements; allocation of land oversight; approved by county assembly Separate Regulations apply Land Registry NLC Act:: manage and administer all unregistered trust land and unregistered community land on behalf of counties; ensure all unregistered land is registered within 10 years Land Registry NLC Act:: manage and administer all unregistered trust land and unregistered community land on behalf of counties; ensure all unregistered land is registered within 10 years

Evaluating the Framework Since 2013, contestation between NLC and MLHUD over legal framework 2 main issues: control of public land allocation function and management of the land registry/registries – Critical to achieving transparency, trust and controlling corruption in the land sector – Contestation problematic for functioning of land markets, undercutting investor confidence, negative impact on public optimism about reforms But recently more heightened cooperation Sign at Ardhi House. Source:

Ministry of Lands Constitution: Silent on CS with land portfolio and land registrar NLC Act: CS to present estimates for NLC to National Assembly; serve on appointment body (1 st Schedule) Land Act: CS to develop policies, facilitate land policy implementation, coordinate national spatial data infrastructure; regulate service providers; request NLC for compulsory acquisition of land; role in creation of public right of way; sets fees; must commission study on max/min acreages; shared power on regulation with NLC Land Registration Act: consulted in constitution of land registration units ; “in establishing land registry,” CS guided by devolution principles; prescribes conditions for land disposition/sale (private too?); entitled to recover costs related to registrar irregularities; can make regulations to better effect the purposes and provisions of the act taking into account NLC advice NLC Constitution: to “manage” public land on behalf of national and county governments + 7 other functions; “may perform any other functions as proscribed by national legislation” NLC Act: 6 additional functions; including land info system at national and county levels Land Act: Identify public land (database), evaluate land capability, shall “cause a register to be kept” on public land converted to private; make rules for conversion; prescribe guidelines for management by public entities; may (on behalf of govt and county ) allocate land via enumerated means; make regulations on public land allocation; reserve public land; acquire land on behalf of governments; implement settlement programs; administer Land Settlement Fund. Land Registration Act: constitute registration units in consultation; determine form of registry; depository for cadastral maps; create regulations for dealing with irregularities in registrar; County Government Constitution: planning and development control NLC Act: establishes CLMBs; County Land Registrars; act as “linkage” between NLC, counties and other institutions; manage land on behalf of counties; shall work in consultation and cooperation with counties Land Act: allocated public land reverts to county if terms/conditions unmet; consulted over reserved public land; submit request to NLC for compulsory acquisition on its behalf; counties apply for communal right of way Land Registration Act: establishes office of county land registrar, powers; consulted re: land registration units; each county to have registry for “reasonable access”

Evaluating the Framework Current framework—largely consonant with devolution – “Manage” – an active—not passive—verb. Indicates technical/implementing role for NLC – Multiple registries (particularly at county level) represent devolved services and local oversight – County Land Management Board (CLMB): citizen board, aided by technical officers, harmonious with focus on transparency and citizen participation values of Constitution

Evaluating the Framework Issues: – Role of Ministry as policy actor undeveloped in law (developed in National Land Policy) Proposed amendments do not embrace this role – Duplicative institutions at county level need resolution – Budgetary costs—envisaged institutional framework is costly (an issue with devolution in general) Streamlining / reduction of duplicative efforts positive for national budget