Push to amend land laws to strip NLC of powers
The National Land Commission (NLC) risks losing its enormous powers over the management of land in the country if the government succeeds in pushing through a number of amendments to the law.
The move follows the publication of the Land Laws (Amendment) (No.2) Bill which seeks to remove NLC from the management of public land and vest the same in the Lands Cabinet Secretary.
The Bill which was tabled in the National Assembly before it went for the Christmas recess, seeks to give the Lands Cabinet Secretary powers to compulsorily acquire public land on behalf of both counties and National Government, pay compensation to the affected owners, issue awards, inspect properties as well as take part in renewal of land leases.
Reads the bill: “The bill ….vests upon the Cabinet Secretary, the mandate of handling compulsory land acquisition, eliminate conflict of interests likely to occur when one entity is involved in valuation process and at the same time making compensation payments and eliminate delay in acquiring land since the acquiring public body has direct control in making compensation payments as opposed to when funds were being transferred to the commission and establish the land acquisition committee to replace the land acquisition tribunal.”
This is the second time the government is tabling amendments to land laws as a similar bill the land Laws (Amendment) bill was tabled in October published in October 19.
However, NLC has opposed the amendments terming them as unconstitutional and unacceptable.
The lands body argues that the amendments will claw back the gains made in land reforms as it will give room for irregular acquisitions besides raising issues such as lack of independence, transparency and subjective compensation assessments.
In a document tabled before the Lands committee of the National Assembly, the commission proposed the dropping of the proposed amendment allowing acquiring entities to submit a request for acquisition of land to the Cabinet Secretary on grounds that it affects the Constitutional Provision in Article 174 and 175 on the objects of devolution which promotes the autonomy of the national and county governments.
Land acquisition
Reads the document in part: “The proposed amendment of Section 107(3&4) of the Land Act No. 6 of 2012 offends the principle of separation of functions since it leaves the discretion on whether to accept or reject any land acquisition to the Cabinet Secretary in charge of Land who is an appointee of the President, limiting objectivity due to apparent political influence or interference.”
In the bill, the government seeks to repeal the entire section 107 of the Land Act 2012 that gives the commission powers to acquire land on behalf of the acquiring entry.
It instead transfers the powers to the CS who shall in turn prescribe a criteria and guidelines to be adhered by the acquiring public bodies when acquiring land.
Section 107 of the Land Act 2012 which the proposed amendments seek to repeal provides that whenever the national or county government is satisfied that it may be necessary to acquire some particular land, the respective Cabinet Secretary or the County Executive Committee Member shall submit a request for acquisition of public land to the Commission to acquire the land on its behalf.
Reads the bill: “Whenever the national government or county government is satisfied that it may be necessary to acquire some particular land, the respective Cabinet Secretary or committee members shall submit a request for acquisition of the land to the Cabinet Secretary to acquire the land compulsorily.”
To enable the Cabinet Secretary perform their duties, the new amendments seek to establish a Lands Acquisition Committee which shall comprise five members appointed by the minister.
The functions of the committee shall be to hear and determine appeals from the decisions of the CS relating to the compulsory land acquisition process, and hear applications made within 90 days.
It will also have powers to confirm, vary or quash the decision of the CS.
Statutory valuation
The committee will comprise a chairperson who should be an advocate of at least ten years and members including two registered valuers with at least ten years’ experience in statutory valuation in a public body, once licensed surveyor of at least ten years standing and one person with extensive knowledge and experience in the informal sector representing the public.
Reads the bill: “despite the provisions of sections 127, 128 and 148 (5), a matter relating to compulsory acquisition of land or creation of way leaves, easements and public right of way, shall in the first instance be referred to the committee.”
Land value
The bill also empowers the Cabinet Secretary to develop a land value index in respect of a particular county or counties and to immediately transmit the same to the National Assembly and the Senate without necessarily waiting to develop a land value index covering the entire country.
The land value index means an analytical representation showing the spatial distribution of land values in a given geographical area.
On compensation to be paid to affected persons, the amendments propose a deletion of section 111 (1A) that requires any acquiring authority to deposit to the Commission the compensation funds in addition to survey fees, registration fees, and any other costs before the acquisition is undertaken and instead has now directed the acquiring body to demonstrate to the minister that the compensation funds are available and deposit the funds to the minister.
The bill also seeks to delete the provisions empowering NLC to make rules to regulate how compensations should be done and hand the powers to the CS.
