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{
"id": 275222,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/275222/?format=api",
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"type": "speech",
"speaker_name": "Mr. Orengo",
"speaker_title": "The Minister for Lands",
"speaker": {
"id": 129,
"legal_name": "Aggrey James Orengo",
"slug": "james-orengo"
},
"content": "what I have said about the Constitution and the National Land Policy. The National Land Policy lays down some very critical issues which the Constitution dealt with, and also the Land Bills have dealt with. I do not want to go through them in terms of clauses because that would take a long time. As I promised I just want to highlight some of those issues for purposes of debate. The National Land Policy addressed a number of constitutional issues, which are about seven. If you read the Constitution generally and the Bills you will find that we have made a successful attempt to deal with constitutional issues. Under the old order, property was not defined and it was not clear in the interpretation of the old Constitution as to whether, as was popularly believed, there was protection of all rights and interests over land. Land was never categorized especially under Chapter 5 of the old Constitution. This Constitution has actually defined what land is. The Land Bill has now carried forward that definition of land and secured the various tenure systems, or system of ownership of land as exists then and now; again, you will find that the Land Bill deals with quite effectively. One of those issues was what systems of land tenure were recognized at constitutional level, or using the constitution as a threshold. What is an interest or right to land? You find that under that old Constitution, it was very difficult to come up with the definition of property that would be protective of all interest in land under the various systems of land ownership. Those of you who have cared to look at Article 40 of the new Constitution have seen that under Clause 2, there is a recognition not just of land that its titled; which means that you do not need to have a title to land in order to enforce your interests on land. Generally, under the old law, there was recognition of customary interest in land. However, there was never really a general provision in recognition of, let us say, customary systems of land tenure. Under Article 40 of the Constitution, you will find, under the provisions that deal with deprivation of rights to private property that for purposes of compensation those persons who occupy land in good faith or have acquired rights of occupation under good faith, they will be entitled to compensation. How does the Land Bill address that issue? If you look at Clause 5 of this Bill, and this is important because during the Debate on the National Land Policy, time and again, a question was being asked that under the Kenyan law, what systems of land tenure are recognized? You could not take one piece of legislation or statute or any regulations or orders that have been made under the law and say that these are the systems of land ownership and tenure systems that are recognized under the law. I think this Bill addresses the issue of tenure. I think before we can begin to talk about land, right or interest in land, we need to have recognition of what systems of land tenure exist. Under Article 5, you will find that the freehold, leasehold and co-tenancy systems are recognized. This is an area that we will talk about a little bit more; what is called co- tenancy and spousal interest or rights over land. That is an area that is controversial. However, I think that as a starting point, to have this bold statement of the law that this system of land tenure is part of the law of the land is important. There are forms of partial interest as may be defined under this Act or any other law but not limited to easements. These easements, normally handled in the old law, were really what are described as equitable rights that were recognized by usage and practice. However, under the Kenyan law, we are saying that there are other interests of land which may not be registerable or may be registerable. Again, that is dealt with under the Land Registration Act. This form of tenure is also recognized under this Bill. We also have the Customary Land Rights and I think this is important because under the old Constitution, there was not such a bold statement even in the provisions that related to trust land. There was no provision making any statements about customary land rights. The position then was that customary land rights were held to be inferior to other systems of land tenure. Under Clause 5(i) of this Bill, you will see quite clearly that the manner in which this ownership is set out is not a ranking, but they are all systems of land tenure that are recognized in our law. There is yet another bold statement in this Land Bill which says: “There shall be equal recognition and enforcement of land rights arising under all tenure systems.” The emphasis is on “under all tenure systems” which as I have said will then include customary land rights. This is on the basis of non-discrimination in ownership because if you interrogate a lot of historical injustices, you will find that discrimination was many times the basis for an unfair system of land ownership. A fundamental principal which comes under Article 60 of the Constitution is the issue of access to land. Access to land as a constitutional right has been spelt out. What that access is, again, a proper reading of this Bill will clearly set it out. So, that was a fundamental issue that this Bill deals with. It was not just being dealt with out of the ordinary but it was dealt with because it was a gap in our law that when the formation of the National Land Policy came to the fore, there was no security of land ownership, if we can put it broadly. Therefore, this issue has not only been addressed by the Constitution but also by this Bill. If you read the Bill, you will see the regulation of property rights without necessarily endangering that particular constitutional right. You may own land but you are not required to endanger your neighbour or other persons in the enjoyment of that right. The other issue that has been dealt with very firmly regarding the Constitution was the compulsory acquisition. I think this Constitution, more than the old Constitution, wants a very fair system of compulsory acquisition of land that would not entail abuses that we have seen in the past, where land is acquired for public purpose or public interest and it ends up in private hands. The process of compulsory acquisition is used, merely, to have access to public land with the objective of ensuring that that right is bestowed on private individuals who use it for primitive capital accumulation and speculation. This Bill, in Part 7, deals exhaustively with that, I may say, and if it is not exhaustive---. It says that the Commission shall prescribe a criteria and guidelines for compulsory acquisition. This is something that we need to look at and consider greatly in relation to the fact that public land which will be acquired by the National Land Commission and not by the Commissioner of Lands, the Minister for Lands or the President will be acquired based on the criteria you will find in this Bill. That is found in clauses 121, 123 and 124. The land cannot be acquired unless it is required for public purpose. It must be demonstrably clear that the acquisition is in relation to a public purpose or for a public interest. This is a matter which generated a lot of debate and in the definition of what public purpose or public interest is, you will find that Members of Parliament contributed immensely in coming up with that criteria and definition of what is a public purpose or a public interest. We will ensure that if land is given for public purpose and it is not used for public purpose, then that agency will not have the possibility or the luxury of selling that land or transferring it to another entity, private individuals included. They either use it for that public purpose or surrender it back to the public. I think that is a very important distinction. If you look at the law governing land acquisition at the moment, it also gives additional protection to owners of property because even before that acquisition, this clause and, more particularly, Clause 123 says that: “If there is any damage made to your property or your land while this process of acquisition is going on, even by mere entry, the County Government or the National Government will have to pay compensation.” I think the distinction now which is important in this process of compulsory acquisition is that it firmly falls in the hands of the commission as the entity which will acquire and then, within the guidelines, to ensure that those properties that are so acquired are used for the purposes for which they were meant to be used."
}