In December 2009, the Kenyan Parliament approved the National Land Policy (NLP), which calls for an extensive overhaul of current policies and institutions to address chronic land tenure insecurity and inequity. It mandates land restitution or resettlement for those who have been dispossessed and calls for reconsideration of constitutional protection for the property rights of those who obtained their land irregularly. The policy reasserts customary land tenure rights and repudiates the focus on converting customary tenure into individual ownership. The NLP is supported by the Constitution of Kenya adopted in August 2010.
Since 2010, the Government of Kenya (GOK) has made significant structural changes and economic reforms that have contributed to economic growth and stability. The Constitution ushered in a new governance system that has been transformative and strengthened accountability and public service delivery at local levels. County governments have made considerable progress in implementing constitutional and legal provisions for transparency and accountability, and set up structures (websites, communication frameworks and forums) to facilitate public participation. The GOK has promulgated a new suite of legislation in the land, water, forest and mineral subsectors aimed at broadening and securing property rights of Kenya’s citizens.
The Government’s agenda is to deepen devolution, strengthen governance institutions, advance real land reform, promote a more equitable distribution of resources, and reduce extreme poverty and youth unemployment. With the increased competitiveness of its manufacturing sector, Kenya is emerging as one of Africa’s key growth centers and is poised to become one of the fastest growing economies in East Africa (World Bank 2015a and 2015b).
Despite these advancements, weak budgets, lack of administrative capacity and sometimes token participation continue to hinder effective citizen engagement. Land tenure reforms still lack traction in redressing historical injustices. Land related conflict continues in Kenya’s land, water and forest subsectors. Land conflict is particularly evident in land takings for public and private sector investment. Chronic water scarcity is contributing to violent conflict in drought-stricken areas while conservation programs and pastoralists compete for land and water resources near parks and protected areas. Kenya’s forests are threatened by encroachment and logging for charcoal and fuelwood. The degradation of critical resource areas, such as the Mau Forest Complex, negatively affects Kenya’s parks and wildlife reserves, which are the foundation of the country’s important tourism industry.
KEY ISSUES AND INTERVENTION CONSTRAINTS
- Secure urban property rights. The majority of slum-dwellers are rent-paying tenants without tenure security. There is acute housing shortage due to under-investment in low to middle-cost housing, an outdated legal and regulatory framework, and high cost of finance. Donors should support a property rights regime that encourages home or apartment ownership, formalizes leases, encourages low cost lending, and clarifies and enforces landlord-renter rights and obligations. They should further assist in developing a land information system that broadly informs the public of real estate offerings and prices, increases the security of transactions, and cracks down on speculation.
- Address land inequality. Land distribution is skewed by well-documented illegal appropriations of public land by elites during the 1980s and 1990s. The NLP and Constitution include key principles on redressing these illegal acquisitions. Cases are being brought to the courts for redress, and public takings are being increasingly scrutinized. Donors should provide support where needed with land inventorying, informing citizens of due process, negotiating return of assets to rightful owners, advocacy and caseload management, and with formal and informal conflict and dispute resolution.
- Secure land rights for the poor. Kenya in the past decade has taken great strides to overhaul colonial legislation. While more legal reform lies ahead, the emphasis will switch from drafting law to implementing regulations. The legal framework in urban contexts is complex and difficult to understand or enforce. Donors should assist with support for consultation, legal drafting, assessments, advocacy, impact monitoring in an effort to simplify and harmonize the legal framework and help people understand new laws and regulations, with a goal of improving tenure security.
- Assist with decentralizing land rights, survey and mapping. The land registry system makes it difficult to access land cadaster information; the system is still manual and highly centralized. Multiple registrations of single plots of land are common while the slow pace of land transactions encourages extra-legal payments. Donors should continue to help modernize Kenya’s land registries at a central level, extending outward to country level land record offices that require support with equipment, land record management, computerization, and capacity building. They should further support efforts to document and map communally owned land.
- Support gender reforms and empowerment. Constitutional reforms and development of progressive property, marriage and succession legislation have the potential to address gender discrimination. But only time will tell whether the current body of legislation will be successful in curbing discriminatory practices against women, and how the courts will apply the legislation in practice. While current law treats daughters and sons equally, women rarely inherit land, and inherited property or ancestral land is excluded from matrimonial property. Donors should assist legal reform, public information and awareness, legal aid, and advocacy that empower women’s groups and public defenders to ensure that law is acted upon in ways that tangibly secure women’s land and resource rights.
- Devolve authority for managing water, forests and minerals. The Constitution commits to safe and sufficient water as a basic human right; this will require governors and county leadership to drive reforms and decentralization, increase the role of well-performing water companies, expand financing for water service provision, and facilitate citizen participation. The Forests Policy 2014 emphasizes community participation in forestry management including the recognition of user rights, strengthening community forestry associations, and introducing benefit-sharing arrangements. New mineral legislation places the onus on newly established county governments to promote sustainable governance and benefit sharing in the oil and extractive industries. Donors should assist government in ongoing efforts to devolve authority to newly formed county governments, formulate regulations, build new partnerships, leverage private sector capital, engage communities in participatory management, ensure that benefit sharing is achieved and compensation is paid, and champion technical schools to train local youth in skills for the water, forest and oil sectors. They should further strengthen the capacity of county governments to undertake these massive reforms and change the way business is done consistent with the 2010 Constitutional mandate.
- Manage resources and secure rights to reduce conflict. Addressing historical land inequities and acquiring land for investment and infrastructure will require difficult and time consuming efforts to balance the interests of Kenya’s investors, communities and citizens for the public good. Facilitating beneficial land investment is difficult in an environment where historical injustices have undermined trust and generated conflict. Donors should assist in promoting full and transparent information, facilitating fair negotiations between investors and landholding individuals and groups, developing contracts that are pro-poor and pro-investment, paying fair and adequate compensation for land takings, and providing due recourse for those affected in disagreements or disputes.
Land and politics have long been entwined in Kenya. Insecure land rights and inequitable access to land and natural resources contributed to the 2007 election related violence. This violence, in part, reflected grievances related to decades of corruption in the land sector, forced evictions and use of land as an object of patronage to engender support and consolidate political power.
Kenya’s population of 45.5 m in 2014 is growing at 2.6 percent per year. Its economy grew by 5.3 percent in 2014 and is projected to grow between 5.4 percent and 5.7 percent in 2015 and 2016, supported by lower energy costs, a stable macroeconomic environment, strong infrastructure spending, an improved business environment, increasing exports and stronger regional integration. Economic growth was broad-based with all sectors (agriculture, manufacturing and service) contributing, with notable growth in infrastructure spending and strong consumer demand.
Kenya met some of its Millennium Development Goals (MDG) targets including reduced child mortality, near universal primary school enrollment and narrower gender gaps in education. Kenya has the potential to become one of Africa’s success stories due to its growing and youthful population, a dynamic private sector, and new constitutional and legislative reforms. Achieving this promise will require addressing challenges of poverty, inequality, governance, and low productivity (World Bank 2015a and 2015b).
Still, Kenya faces significant challenges. Nearly half its population lives below the poverty line or is unable to meet daily nutritional requirements. It ranks 145th among 187 countries in the UNDP’s Human Development index. Three-quarters of the population live in rural areas where agriculture is the mainstay of livelihoods, but that population is concentrated on medium- to high-quality land representing less than 20 percent of the country’s total land area. High population growth and land use pressure are increasing the vulnerability of young people and women to poverty. Only 46 percent of the rural population has access to clean water and the pace of deforestation, soil erosion and domestic and industrial population have intensified in recent decades. While the 2010 Constitution ensures the right to adequate food, 24 percent of the population is undernourished and cereal imports comprise one-third of the country’s needs. Climate change is a major challenge; drought and floods have increased in frequency and intensity over the past decade, dampening crop and livestock productivity (IFAD 2016).