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

The East African - - NEWS -

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.

In­ces­sant in­junc­tions

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 case

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’s ex­pe­ri­ence

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.

Full rights

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.

Pic­ture: File

Res­i­dents of Changamwe con­stituency in Mom­basa protest against a Kenya Na­tional Land Com­mis­sion com­pen­sa­tion pack­age to make way for the stan­dard gauge rail­way line.

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