Kenya pushes law on compensation to shield public projects from ‘land sharks’
All EAC states face similar challenges as property owners seek to cash in on need for land
By JAMES ANYANZWA
Kenya is pushing through a law that seeks to bar the courts from stopping implementation of public projects on compulsorily acquired private land whose owners are dissatisfied with the nature and amount of compensation from the government.
The Land Valuation Index Bill, 2018, which has gone through the first reading in the National Assembly, is meant to protect the government from inflated land prices and unnecessary delays in the implementation of public projects.
Other East African Community member states are also developing land policies aimed at securing public projects, as disputes over compensation stall implementation.
The Kenyan Bill was drafted by the National Land Commission (NLC) and the Ministry of Lands.
Abigael Mukolwe, acting chairperson of the NLC, told
that once the law is passed, no court will stop implementation of government projects.
The Bill provides for the establishment of a land acquisition tribunal to handle cases related to the process of compensation while project implementation is ongoing.
However an individual who is dissatisfied with the decision of the tribunal is allowed to appeal in the courts.
The demands for huge compensation by landowners and incessant court injunctions have frustrated the implementation of some large infrastructure projects in the country, resulting in additional costs to the taxpayers. Among these projects are the standard gauge railway, the Lamu Port-south Sudan-ethiopia Transport corridor, the 60MW wind power project at Kinangop and the titanium mining in Kwale.
Current property laws give landowners the right to contest prices offered by the government.
“The speculation issue is big and makes projects very expensive because those who buy this land create inflated value. There to implement infrastructure projects designed to boost economic and social progress.
In Uganda, the government recently withdrew from parliament a proposed constitutional amendment Bill that sought to allow compulsory acquisition of private land for infrastructure development.
Article 6 of the Ugandan Constitution provides that no person shall be compulsorily deprived of his property except after adequate compensation.
The Ugandan government also sought to change the law to ensure private landowners are compensated based on the value determined by a government valuer.
The Bill which was tabled in parliament last year (2017) has been resisted by opposition law makers, civil society groups, religious leaders and a cross-section of the ruling party MPS.
Uganda is looking for land for several infrastructure projects, including the standard gauge railway, industrial parks, power dams and transmission lines.
Tanzania’s natural gas project has previously been held back by a bureaucratic land acquisition process.
The country’s Land Act 1999 provides for the payment of full, fair and prompt compensation for private land owners whose lands are acquired by the state.
Tanzania’s Land Acquisition Act 1967, however, provides that compensation for private lands compulsorily acquired by the state could be in the form cash, land swap or both.
In Rwanda, the government is proposing to overhaul its land policy after the one in place since 2004 came under criticism for gaps curtailing some individuals’ land access rights.
The existing legal and policy frameworks regarding land use have been faulted for failing to address issues around expropriations in the public interest, management of unused or abandoned properties and those associated with resettlements during implementation of master plans, among others.
Rwanda is grappling with limited land to support rapid urbanisation, public and private sector investment.
“We need to devise mechanism to secure and demarcate land for strategic investments across sectors such tourism, agriculture, industry and real estate development,” said Florien Nteziryayo,
It is estimated that Kenya spends 30 per cent of project costs on compensating landowners.
Under the proposed law, private landowners will have to accept cash payment for their parcels or receive alternative land through what is referred to as land swap.
The government could also issue an equivalent worth of shareholding in a state-owned corporation to a landowner or even government bonds as alternative compensation.
The proposed law provides for the establishment of a national land price index, which will indicate the average price for land in different geographical areas in Kenya. The index is meant to cap land prices and deter speculation on lands selected by the government for infrastructure. Private landowners will be required to accept the prices determined by government valuers. a Ministry of Lands and Forestry official who sits on the land sub-sector working group that has been drafting the revised policy.
According to officials, they will map out and build a dynamic database for all land reserves that can potentially be assigned to investors in different development sectors and along various land use categories.
Masterplans and zoning
Rwanda successfully implemented land tenure regularisation and land registration, but continued to register loopholes with regard to guaranteeing the security of tenure as well as efficiency in the use and management of land.
This, experts argue, was due to the fact that master planning and zoning regulations of most urban areas usually failed to suit the needs and capacity of majority of land owners who, in most instances, find themselves forced to resettle.
These issues are also complicating the government’s recent move to relocate more than 1,100 families from one of Kigali city’s largest and infamous slum popularly known as Bannyahe, as families demand fair compensation terms.
Authorities want the slum demolished to make room for investment in modern high-end structures as per the city master plan.
Similar property-related stalemates surround the pending relocation of several other families in unplanned settlements and those residing on disaster-prone slopes across the country.
The much-awaited reforms could ease long and tedious processes for registering land in the country, alongside high cost for land related transactions as well restrictions of subdivision of smaller agricultural land.
The above have been cited as limiting individuals’ access and exercising full rights on land.
The World Bank shows that as many as 60 per cent of land transactions in Rwanda were informal as majority Rwandan tenants found it costly to do formal land transfers.
As a result, an assessment by the Ministry of Lands and Forestry pointed to an increasing trend of land-related disputes involving mainly vulnerable groups like women in polygamous and other types of informal marriages as the existing laws do not offer them proper protection.
The government argues that the proposed reforms have been informed by extensive policy issue analysis, and is committed to implement a well-defined and strengthened legal and institutional framework for the benefit of land users.
Residents of Changamwe constituency in Mombasa protest against a Kenya National Land Commission compensation package to make way for the standard gauge railway line.