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"content": "constant breach of the terms and conditions of the lease and yet, the State does not have sufficient mechanism to repossess such pieces of land. So, public land is not sufficiently protected in the law to enable the State recover the land for use for purposes of development. As I speak today, within Nairobi, it is not easy to find space for development. That is because public land is in the hands of individuals who are not putting it into good use. If you take a walk or drive in Nairobi, you will find that a lot of land which belongs to the public is being held for purposes of speculation. In every grant or lease, you will find that there are special conditions given to the leasee or tenant of that land. The violations are a myriad that even if you were to file cases in court, it would take a very long time in the absence of sufficient protection within the Constitution, to determine what is public land. So, it is important that some of these issues are constitutionalized so that there is a balance between public and private interest and community interest and private interest. If you read the South African Constitution as it exists today, there is efficient equilibrium between those various interests which are in conflict sometimes. Yet, in our situation, there is no mechanism at all on how to proceed when public/community/private interests conflict over the right to or interest in land. Mr. Deputy Speaker, Sir, why is this document before the Constitution? This document was formulated to inform the Constitution-making process. Indeed, if you look at the Harmonized Draft Constitution by the Committee of Experts and compare it with the Wako or Bomas Draft, we are happy to report that the former, which you will have a basis of discussing--- You may agree with it or not but, at least, we are happy that this National Land Policy has informed sufficiently and to a large extent, what is now contained in the Harmonized Draft Constitution. That is why we felt that in the Constitution-making process, it was important that this document be available. The Cabinet, in its wisdom, even before this Government came into place, had already released this document as a public document. It was, therefore, possible to use it as a point of reference. Mr. Deputy Speaker, Sir, it is not only in the constitution-making process, they are going to be consequential legislation, after the new Constitution has been put in place. So, as we pass consequential legislation or implementing or enabling legislation, after proclamation of a new Constitution, this document is going to inform us on what type of land laws we should have. It is good always not to look at any legal regime in isolation, including the Constitution. You must look at the whole picture. When it comes to a land law regime, you do not look at the Constitution itself; you look at the whole land law regime in the country to know what kind of land law exists in that country. That has been part of the problems that we have today that, if you look at the Constitution and the various legal statutes, there is tremendous conflict and disharmony in many areas, including the philosophy behind a lot of legislations. So, I would wish and I persuade you that, it was necessary to have this document in place before the Constitution is proclaimed. Even in terms of the Harmonized Draft Constitution, I am grateful that the Minister for Justice, National Cohesion and Constitutional Affairs has stated very clearly that, even that document is not cast in stone. So, by looking at this document in its entirety, not just the constitutional question; we, as a Parliament or the public as a whole, may be able to have a more informed debate on the issue of land and the constitution- making process. That document is still with us for some time, at least, two months - if"
}