Much hope and energy has been invested in recent years in building the architecture of Kenya’s devolved land administration in which county-level bodies were to play a major part, an important aspect of the 2010 Constitution.

This Katiba Corner reports the preliminary findings of a study that sought to analyse the early successes and limits of Kenya’s momentous attempt at institutional change. Would the new constitution and land laws produce equity-enhancing effects in the domain of land governance?

Why reform?

Tensions and conflicts over land, including historical grievances dating back to the early colonial period, have contributed to very high levels of pressure for land law reform, including a long struggle to formulate and publish a National Land Policy. There was an extensively documented and chronic pattern of land abuses of the executive branch which had led to, and fuelled, conflict. Presidential authority in the land domain was perpetually abused. The national executive had a carte blanche to use land as a patronage resource and to allocate land to favoured individuals.

The reforms

The post-electoral violence of 2008 gave much needed impetus to the movement for a National Land Policy (adopted 2009), and a new Constitution. In 2012 Kenya passed three important new land laws. A key objective of land law reform was to deal with that politicised and corrupt “den of thieves”, the old Ministry of Lands. Many important powers of that Ministry were transferred to the National Land Commission (NLC). The aim was to transfer real authority over land registries, management of public land, settlement schemes and other land allocations from the central government to the NLC and the County Land Management Board (CLMB), to be embedded in county-level government.

CLMBs would lead the drive to compile an inventory and repossess public land illegally or irregularly acquired by politically-connected persons and their associates, revoking ill-gotten land titles where this was necessary. The objective was indeed to achieve radical and progressive restructuring. It was hoped that a real dispersal and democratisation of control would bring land administration under the rule of law.

What the study shows

It soon became apparent that the ambiguities and limitations of the laws, combined with push-back from powerful interests at all levels of the political system (as well as the electoral considerations), would be obstacles to the kind of real land reform envisioned by those who had pushed for the National Land Policy and the Constitution.

Three problems were revealed almost immediately. Firstly, the new laws provided a poorly drafted legal framework that would be very hard to implement (e.g., the law evaded the question of the exact duties and responsibilities of the Ministry and the NLC). Secondly, implementing the laws and the new land machinery at both national and county levels depended crucially on the active support of many of the very persons and government agencies the reforms had targeted as perpetrators of past abuses. Finally county-level land politics were absorbed by electoral competition and the devolution of anti-democratic political practices to the county level.

After 2012 land became the key site of institutional struggle. At the national level, the Ministry of Lands and the executive branch battled against the National Land Commission in every conceivable way. It withheld funding, failed to turn over information and engaged in blatant obstructionism. The NLC could not get access to inventories of public land or land registries. It could not therefore identify titles or allotment letters that have been issued for holdings on public land, a key part of its mandate. Most problematically, some staff from the Ministry were transferred to the NLC without vetting. Some Kenyan observers criticised this as “spreading the rot.”

Between 2012 and 2015 the Ministry defied the constitutional provisions designed to transfer powers to the NLC. In 2015, the Supreme Court issued an Advisory Opinion that actually confirmed many of the Ministry’s powers, finding bases for its decision at least in part in loopholes, ambiguities, and contradictions embedded in the poor drafting of the laws. Then, the Land Law (Amendment) Act of 2016 significantly clawed back powers for the Ministry. As the Council of Governors has pointed out, it significantly threatens devolution of land matters.

The success of the land law reform was also compromised by the way the reform intersected with the growing intensity and complexity of party politics under devolution. Some scholars and observers predicted that devolution would actually produce land-grabbing at the county level, as a new “sub-layer” of elites was created and empowered. Devolution, in essence, would be “everyone’s turn to land grab”. Others predicted that county politicians would be strongly incentivised to use their local land powers to mobilise local voter support, rather than to implement the reforms. Some also predicted that county governments would be dominated by single ethnic groups claiming the counties as ethnic homelands. In land politics, one could expect that ethnic groups would seek to assert ethnic claims to county land against ethnic outsiders or “foreigners,” perhaps even moving to “take back” land previously acquired by outsiders.

We found evidence that all these forces were at work, compromising hopes for reform in the land sector. Land politics and government initiatives in the land domain remain deeply embedded in electoral politics, factional struggles, and the ongoing processes of land privatisation by politically well-connected individuals. Within the counties, the roles of the NLC and the CLMBs did not follow the blueprint of the 2012 laws. Those able to obstruct progress in the counties through sanctioning powers, “no” votes, or refusal to cooperate , starting with county governors who see the NLC and the CLMBs as threats, have been key in blocking effective formation and action of the CLMBs. The fate of the CLMBs at the county level was determined mostly by larger electoral struggles and calculations within counties, and by electorally-focused struggles between county- and national-level politicians. Devolution expanded, rather than contracted, the scope of politicised land politics, and often did so in ways not anticipated by land activists or law drafters.

The history of land politics in each county goes far in determining the importance of land issues in defining political alliances or cleavages between county government, national government, and the NLC. The study’s 2016 Working Paper tracks these battle lines in Kiambu, Machakos, Embu, Narok, Nakuru, Bomet, Siaya, and Isiolo.

Conclusion

As of 2016, the attempt to create a politically-neutral technocratic or “above politics” unit, the NLC, to control land and take it out of politicians’ hands appears, has not succeeded. Recent legislation, including the new Community Land Act, dismantled the CLMBs, tipped the balance back in favour of central government in relation to public land and non-registered community land, asserted central government control over settlement schemes, and in various other areas drained the NLC of powers granted to it under the Constitution and 2012 land laws. The new laws have been challenged in the press as unconstitutional, marking the beginning of a new phase of political struggle over land control in Kenya.

Note: The study was funded by the London School of Economics (LSE) International Inequalities Institute and hosted in Nairobi at the British Institute in Eastern Africa (BIEA). The project team comprised Catherine Boone, Alex Dyzenhaus (BIEA), Seth Ouma, James Owino and Karuti Kanyinga (all of University of Nairobi), Catherine Gateri (Kenyatta University), Achiba Gargule (University of Bern), Jackie Klopp (Columbia), and Ambreena Manji.

Catherine Boone is Professor of Comparative Politics, London School of Economics

Ambreena Manji is Professor of Land Law and Development, Cardiff Law School