center818008227695Onamu Iminza Audrey
B02/37164/2016941009200Onamu Iminza Audrey
B02/37164/2016center700007040880Submitted in fulfilment of the requirements of BAR 307 Elements of Law Assignment.University Of Nairobi.February 18, 2018
9410010000Submitted in fulfilment of the requirements of BAR 307 Elements of Law Assignment.University Of Nairobi.February 18, 2018
center300003017520The recent administrative and legal reforms of Kenya and the planning implications
9410036300The recent administrative and legal reforms of Kenya and the planning implications
I, Onamu Iminza, declare that the contents of this assignment are a result of my original contribution to the current body of knowledge in the field of “The Recent Administrative and Legal Reforms and the implications of these to planning in Kenya.”
Table Of Contents
I. Legal Reforms……………………………………………………………………………3
Origins of Previous Planning Laws and Their Implications……………………….. 4
Physical Planning Act………………………………………………………………. 5
The Environment and Land Court Act ……………………………………………. 7
The National Land Commission Act………………………………………………. 7
The Land Act………………………………………………………………………. 8
The changes brought by the new Land Acts……………………………………….. 9
Further Implications of the reforms of 2009 onwards……………………………… 10
II. Administrative Reforms………………………………………………………………. 11
Local Authority…………………………………………………………………….. 12
Devolved Government……………………………………………………………… 13
Further Implications………………………………………………………………… 16
THE RECENT ADMINISTRATIVE AND LEGAL REFORMS OF KENYA AND THE PLANNING IMPLICATIONS
Urbanization is an unavoidable world phenomenon, we as Kenyans feel its characteristic pressures, such as higher population, exchange in prior land and building uses, growth in density and spatial size which can lead to serious health issues, poor living conditions and many other negatives. In Kenya, the cities are poorly planned and majority of what has been erected is in total disregard of planning laws. This results in reckless spatial expansion and increase in informal settlements such as Kibera and deterioration as well as grabbing of social spaces, social services and public utilities. Furthermore, poor liquid and solid waste disposal systems which makes the cities both eyesores and environmental hazards. In all honesty, this continues to happen despite the existing laws made to combat various inefficiencies of Physical Planning. We must begin to discuss both the demerits and the inadequacies of these laws and reforms as well as their effects.
We must first revisit Kenya’s brief history of land planning. The British colonial administration in Kenya came up with an urban policy that was racist and exclusive, where white people were its beneficiaries. The government tolerated the migration into urban areas during the post-independence era, but the numbers quickly became overwhelming. The initiative ‘rudi mashambani’ was born, to urge people to move back to the rural areas. In the 70s and 80s, “legislation based on outdated and inappropriate models such as the UK’s 1947 Town and Country Planning Act was routinely used to carry out mass evictions and demolitions in informal settlements in Kenya”CITATION Nga13 l 1033 (Ngau 2013) Moi was less keen on this up to the 1982 military coup where in order to limit the growth of political opposition that was had majority of its supporters in the slums, the government rallied young, unemployed men into gangs in the guise of the Kenya African National Union (KANU) youth wing. Their purpose was to intimidate informal settlers, and evacuate them from the city. Successive governments in Kenya guide an urban planning discipline that is based, almost entirely, on a system reliant on exclusivity of people from social, political and economic life in cities. A more integrated approach is required in order for our cities to flourish.
Origins Of Previous Planning Laws and Their Implications
LAW DEFINITION MAJOR CONTRIBUTION IMPLICATIONS FOR LAND USE PLANNING
Common Law These are laws that were previously enacted in Britain and thus applied in Kenya that was a colony.
The first was Indian Transfer of Property Act (ITPA), 1870s for used to settle disputes regarding payments and contracts in the sale and development of land. •It allowed freedom of land ownership, use and disposal through private development. .There was blatant disregard for intervention in planning.
.Many land owners were able to develop land outside provisions of existing planning law.
Statutory Law The statutory law was introduced into Kenya in the form of ordinances.. Specifically, the laws were prohibitory, they serve the settlers’ interests and curbed the movement of Africans. •It creates and gives planning responsibility on the central government.
•The responsibilities are not allocated effectively but they satisfy legality of the government’s involvement in local planning.
• Planning applies to the government and trust land. .It created many conflicting organizations for planning.
.Resultantly led to weaker local authorities.
.It does not cater for community participation.
Customary Law These were based off of traditional Africa society. • It continued to permit subdivision of land for purposes such as inheritance even when resulting divisons could not be beneficial.
•The concept of trust in customary law was intergrated into statutory provisions.
.It applied to local situations but not all the time. .Only some aspects of the law apply and does lead to discontinuities in the use of law.
.Management aspects in the law are not implemented in private land areas (company and cooperative societies), which could mean that inefficiencies in the law in terms of long term planning.
1. Physical planning Act, 1996 :One of the main aims of the enactment of the Physical Planning Act (PPA) in 1996 was to try to bring together the laws dealing with physical development in urban and rural areas. It repealed the Town Planning Act (TPA) and the Land Planning Act (LPA). It details zoning regulations, existing physical development plan, building lines, setbacks, plinth area, canopies, height of buildings, access and parking, loading bay, density, plot coverage, and li waste disposal methods, garbage collection and stipulates that sites must be environmentally friendly. The establishment of environmental management and coordination Act (1999) also requires that urban plans and projects be subjected to environment evaluation. To manage the environment in a holistic manner, the Act establishes two bodies: the National Environment Council (NEC) and the National Environment Management Authority (NEMA). Despite the existence of the above Act, urban areas in Kenya continue to face environmental degradation due to air pollution, poor garbage disposal, poor or lack of sanitation, noise pollution and poor waste disposal methods.
“Implementation of this plan became part of the district planning and local authorities did not have a specific role. By this arrangement, district administrative and sectorial planning officers controlled more resources compared to the local authorities. The presidential directive for decentralization identified district commissioners, and not local authorities as centres of authority in regional planning” (Cohen and Cook, 1986:40-43; Obudho and Aduwo, 1988:166, and Wallis, 1990).
There was an outcry for land reforms which led to the Kenya National Land Policy (NLP) in 2009, to address the treatment of land in the Constitution of Kenya put into effect in August 2010. Both documents had an effect on the utilization and management of land, spearheading sustainable management and utilization of land in Kenya. “Among the land policy principles are equity; security of tenure; access to land information; transparency; and good democratic governance.”CITATION Oko15 l 1033 (Okowa 2015) Between August 2010 and April 2012, the following land laws have been developed:
2. The Environment and Land Court Act, 2011: Establishing a court which will preside over cases and disputes on matters relating to land and environment. “It repealed The Land Disputes Tribunals Act No. 18 of 1990” CITATION Mwa12 l 1033 (Mwathane 2012) it described how disputes pertaining land were to be solved yet was inefficient in solving many of the cases.
3. The National Land Commission Act, 2012: It details the powers and functions of the National Land Commission established under Article 67 of the Constitution of Kenya 2010. It also provides for the qualifications and procedures for the appointment of the chair and members of the Land Commission. This Act was signed by the President on 27th April 2012 and put into place on 2nd May 2012.
4. The Land Act, 2012: This provides the body of Kenya’s essential law, earlier found in different pieces of legislation like the Indian Transfer of Property Act 1882, The Government Lands Act and the Registered Land Act. “It repeals the Wayleaves Act Cap 292 and the Land Acquisition Act Cap 295.”3The law holds the weight of most of Kenya’s laws on land and is comprehensive thus makes referencing easier for practitioners and scholars. It was also signed by the President on 27th April 2012 and put into place on 2nd May 2012. It recognises four categories of tenure; freehold, leasehold, customary and partial interest. Freehold gives the owner great interest as he/she can do whatever he pleases with the land including change of use and future succession. A leasehold gives interest to a tenant for a given period of time and in most cases requires payment to the grantor. It factors in the principles and components of the then newly devolved government.
5. The Land Registration Act, 2012: This law became the only law to guide the registration of title to land in Kenya, earlier done under various statutes like the Land Titles Act Cap 282 earlier appropriate to properties within the Coastal strip and the Registration of Titles Act Cap 281 earlier run under a Centralized Land Registry at Nairobi for properties prospected under exact boundaries “It also repealed the Registered Land Act Cap 300 which applied to most rural properties surveyed under general boundaries and some few urban properties surveyed under the “fixed boundary” provisions of the Act. This Land Registration Act also repealed the Indian Transfer of Property Act 1882 and the Government Lands Act Cap 280.”3This law resulted in a uniform land registration system and registries countrywide. This helped ease land transactions and land development in the country. It was also signed by the President on 27th April 2012 and put into place on 2nd May 2012. Years later this law was met with heavy opposition, as it heralded the issuance of title deeds by the ruling party did not solve the problem of historical injustice and exclusivity, powerful individuals and the state were found to be owners of almost 60% of the title deeds. The same issue plaguing post-colonial and pre-colonial Kenya, the elitism
The changes brought by the new Land Acts:
To have one registration system and one Land Registry – Note: this has not yet been implemented.
Titles to be called certificates of lease or certificates of title.
3 categories of land have been created – public land, community land and private land
New laws have been introduced dealing with ownership of land by non-Kenyan citizens
Land and Environment Court
Several changes have been brought to laws on leases and the laws on charges.
Format of documents have changed that leaves the public with less than half the resources it rightfully owns.
Classification of Land
Under the new laws, land has been classified into; Public Land, Private Land and Community Land.
Public land is defined in agreement with Article 62 of the Constitution and “includes unalienated land, land occupied by a State organ, land transferred to the State, land to which no heir can be identified, minerals, forests, reserves, national parks, water catchment areas, sea, lakes, rivers, land between high water mark and low water mark, any land not classified as private land or community land.” CITATION Gov10 l 1033 (Government, Constitution Of Kenya 2010)The National Land Commission is responsible for administration of public land.
Community land is defined in agreement with Article 63 of the Constitution and “includes land lawfully registered in the name of group representatives, land lawfully transferred to a specific community and any land declared to be community land by an Act of Parliament.” CITATION Gov10 l 1033 (Government, Constitution Of Kenya 2010)4
Private land includes “registered land held by any person under freehold tenure, land held by any person under leasehold tenure and any other land declared private land under any Act of Parliament.” CITATION Gov10 l 1033 (Government, Constitution Of Kenya 2010)4 Land can be converted from one category to another.
Ownership of land by non-Kenyan citizens
A significant change under the new laws is that:
Freehold land cannot be owned by a non-Kenyan citizen; and a leasehold interest of over 99 years cannot be held by a non-Kenyan citizen. Therefore any freehold land owned by a non-Kenyan citizen is deemed to have been converted into a 99 year leasehold interest. The Constitution states that “a body corporate/company is deemed to be a Kenyan citizen only if it is 100% owned by Kenyan citizens. Therefore a company with even one shareholder who is a non-Kenyan citizen would only be entitled to own a leasehold interest of 99 years or less.” CITATION Gov10 l 1033 (Government, Constitution Of Kenya 2010)4
C. Expiry of leasehold term
Section 13(1) of the Land Act provides: “Where any land reverts to the national or county government after expiry of the leasehold tenure the Commission shall offer to the immediate past holder of the leasehold interest pre-emptive rights to allocation of the land provided that such lessee is a Kenyan citizen and that the land is not required by the national or the county government for public purposes.”CITATION Gov12 l 1033 (Government, Land Act 2012)On expiry or termination of a leasehold term held by a non-Kenyan citizen, the land will vest in the national or county government” pursuant to section 12(6) of the Land Act. The land then can be allocated by the National Land Commission.
Further Implications of legislation reforms of 2009 onwards
As a result of these changes, and despite the large amount of progress, most present and historical land injustices remain unresolved. Land Grabbing and illegal dispersal of public and communal land goes on without any bid to stop almost throughout Kenya. The rights of certain communities, especially vulnerable groups including women and young children continue to be trampled upon and violated, and the environment continues to be degraded. There are no provisions for the community or immediate society to participate in the planning of the city.
ADMINISTRATIVE REFORMS IN KENYA
The Physical Planning Act provides that each local authority shall have the power;
To prohibit or control the use and development of land and buildings in the interests of proper and orderly development of its area.
To control or prohibit the subdivision of land or existing plots into smaller areas and powers to consider and approve all development applications and grant all development permissions and ensure the proper execution and implementation of approved physical development plans.
To formulate bye-laws to regulate zoning in respect of use and density of development;
To reserve and maintain all the land planned for open spaces, parks, urban forests and green belts in accordance with the approved physical development plan. CITATION Gov96 l 1033 (Government, Physical Planning Act 1996)
The Local Government Act was repealed by the County Governments Act.399
The repealed Local Government Act was not very efficient since many buildings in Nairobi (and many urban areas in Kenya) are unapproved or are not up to proper building code, public land has been encroached showing inadequacy or failure to enforce these laws. The local authorities were, until the enactment of the Urban Areas and Cities Act and County Governments Act the bodies principally responsible for execution of planning policy and for local control of planning.
After the 2010 constitution the powers of urban planning rest on the county government.
Devolution in Kenya included dividing the country into 47 counties rather than the 8 provinces that were previously recognized. Government is no longer centralized, and in essence counties should be self-sufficient centres of development.
According to Chap 11. Article 174 of the constitution, “the objects of the devolution of government are—
to promote democratic and accountable exercise of power;
to foster national unity by recognising diversity;
to give powers of self-governance to the people and enhance the participation of the people in the exercise of the powers of the State and in making decisions affecting them;
to recognise the right of communities to manage their own affairs and to further their development;
to protect and promote the interests and rights of minorities and marginalised communities;
to promote social and economic development and the provision of proximate, easily accessible services throughout Kenya;
to ensure equitable sharing of national and local resources throughout Kenya;
to facilitate the decentralisation of State organs, their functions and services, from the capital of Kenya;
to enhance checks and balances and the separation of power.” CITATION Gov10 l 1033 (Government, Constitution Of Kenya 2010)4
Furthermore its principles include, from Chapter 11 article 175 of the Kenyan Constitution,
County governs shall be based on democratic principles and separation of powers.
Shall have reliable sources of revenue to enable them to govern and deliver services effectively.
No more than 2/3 of the members of representative in each county government shall be of the same gender. CITATION Gov10 l 1033 (Government, Constitution Of Kenya 2010)4
The County Government Act provides” inter alia that for each city and municipality there shall be the following plans;
city or municipal land use plans;
city or municipal building and zoning plans;
city or urban area building and zoning plans;
Location of recreational areas and public facilities.”
The Act further states that a city or municipal plan shall be ” the instrument for development facilitation and development control within the respective city or municipality.” However the counties in Kenya are yet to arrange the necessary structures and have continued to rely on the older systems that were previously in place, hence the risk of continuing past mistakes and dealing with the same weaknesses is realized.
The county government consults any or all of the following officers or authorities when it receives a development application, namely “the Director of Survey; the Commissioner of Lands; the Chief Engineers (Roads), Ministry of Public Works and Housing; the Chief Public Health
Officer of the Ministry of Health; the Director of Agriculture; the Director of Water
Development; the Director of Livestock Development; the Director of Urban Development; the Chief Architect, Ministry of Public Works and Housing; the Director of Forests; and such other relevant authorities” as the county government deems appropriate. CITATION Gov l 1033 (Government, County Government Act n.d.)
Upon receiving the comments the application is forwarded to the technical committee of the county government for approval. The comments from the various officials form the foundation for approval of the development permission application. The county government is required when considering a development application to be bound by any relevant regional or local physical development plan approved by the Minister; have regard to the neighbouring
community generally and to the proper planning and density of development and land use in the area; have regard to any comments received from the Director, officers or authorities, and in the case of a leasehold, have regard to any special conditions stipulated in the lease. The law states that the county government must have regard to the provisions of the development plan so far as it is material to the application and also to any other considerations. However in actual sense, the development plan is probably non-existent, outdated or has been disregarded, this results in mushrooming of buildings and poor haphazard constructions coming up.
Implications of Devolved Government
Technically, boundaries in the country had to be redrawn, as the counties were to be 47.
Furthermore many of the changes are technocratic in nature and thus eschew citizen involvement. A key accomplishment is the central government reducing its control over local authorities. Significant measures have been put in place to help in generation of revenue for local governments, one of these ways has been through property rates, increasing these may fund the authorities, but may also deplete the common folk. Devolution has intensified inequalities among communities in Kenya since some regions are better endowed with natural resources than others. It has also resulted in transfer of the evils and injustices committed at the central system of government like corruption and embezzlement of funds to devolved systems.
The role of the government in the formulation of the national development policies is ambiguous, considering its uninvolvement in day-to-day activities of the county government, in planning jurisdictions. The administration is yet to tackle the problem of poor community involvement in the planning process.
Conclusion: The need for a new approach in urban planning
Towns and cities are centres of social development and cultural importance, they are offer national and regional services, they are hubs of life and vibrancy, and they need to be ordered this way. Urban planning and governance in Kenya has failed to provide orderly and sustainable development resulting in numerous unapproved buildings, informal settlements and poor infrastructure and in extreme cases loss of life. The problem therefore with Kenya’s planning and regulation isn’t the absence of good laws, but an unwillingness to properly enforce existing ones as well as underperforming bodies appointed to serve the public. For urban planning law to be effective, enforcement must be credible and repetitively consistent. The Constitution of Kenya 2010 and the County Governments Act have addressed some of these concerns but a number of issues continue to loom over us.
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—. n.d. County Government Act. Nairobi: Government Of Kenya.
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