5 - The New Institutional Framework for Land Governance

Summary

The existing institutional framework for land administration and management is highly centralized, complex, and exceedingly bureaucratic. As a result, it is prone to corruption and has not been able to provide efficient services. In addition, it does not adequately involve the public in decision making with respect to land administration and management and is thus unaccountable. (Sessional Paper No. 3 of 2009, National Land Policy)

Introduction

In this chapter, I consider the main constitutional and legislative provisions which lay out the architecture of land governance in Kenya. I argue that three major and interrelated forms of restructuring were attempted in the period after the ratification of the 2010 Constitution. These were: to anchor land law in clear public law values, emphasising the role of good administration and first creating and then increasing the powers and status of institutions that might control the Executive's interference in the land domain; to decentralise or deconcentrate (Boone et al. 2019) land administration and management; and finally, to embed land law reform in wider efforts at devolution. I explore each of these three interrelated aspects in this chapter in order to show the complexity and ambition of what was being attempted.

The concern of the previous chapter was with the political and constitutional context from which Kenya's present suite of land laws emanated. As I have shown, getting the institutional arrangements for land governance right was a major preoccupation of the constitutional review process. The period 2012 to 2016 was one of legislative plenitude as new land laws were passed and amended. This was the culmination of many years of pressure for reform during which institutional change was held out as a solution to Kenya's land problems. As the extract from the National Land Policy provided above shows, the ways in which land had been administered and managed was seen as too bureaucratic and untransparent, too removed from citizens, prone to manipulation and corruption and serving only the powerful. The new land policy laid out that a reformed system of land administration must be more accountable. By bringing land institutions closer to the people and involving the public in decision making, administration would be done in a more accountable manner.