Reform and resistance: The political economy of land and planning reform in Kenya

Abstract

Chinese

In August 2010, Kenyans voted to adopt a new Constitution. Amongst its many provisions was devolved governance, which established 47 independent counties each led by a directly elected governor and legislative assembly. The Constitution also sought to address the country’s ‘land question’ by radically reworking land institutions and administration. The Constitution introduced an independent body, the National Land Commission, empowered to oversee public land management and allocation. Constitutional provisions devolved significant powers and responsibilities in land management and planning to the county level. These reforms – stressing transparency, accountability and greater community participation in land planning and administration – were intended to halt endemic corruption at the Ministry of Lands, address land injustices, enhance tenure security, and facilitate better-functioning land markets. This paper examines the unfolding institutional reform around land pursuant to the 2010 Constitution. It explores the political economy of land in Kenya by examining incentives for and impediments to institutional change toward better land management and long sought-after land justice. As with many reforms adopted throughout the Global South, Kenya’s land reforms were premised on ‘getting the incentives right’. Incentivising behaviour is extremely complicated in a sector as complex, dynamic and profitable as the land sector. The research highlights the role of urban planners, actors rarely examined in the literature on Kenya’s land politics. Kenya’s faltering land reform is a result of the internal conflicting incentives of land actors and the fact that no legal reform will be sufficient to alter entrenched behaviour without renewed pressure from a broad-based land justice/human rights movement.

Keywords

governance informality land reform land use policy social justice

Introduction

At the 47th meeting of the International Society for City and Regional Planning in 2011, officials from three Kenyan Ministries – the Ministries of Housing, Lands, and Nairobi Metropolitan Development – issued a statement indicating that ‘the country must give top priority to sorting out the urban planning challenges in Kenya, as well as the construction of liveable cities across the country’ (Matua, 2011). An inability to create liveable cities is not a uniquely Kenyan problem – cities across Sub-Saharan Africa suffer from many urban ills including overcrowded and substandard housing; inadequate provision of health infrastructure such as potable water and sewerage; poorly maintained, congested roads; and severe degradation of air and water (e.g. Gandy, 2006; Myers, 2005; Bassett, 2017). While there are many culprits responsible for Africa’s dysfunctional cities, poor urban planning is undeniably part of the problem. Much urban development, particularly the growth of substandard housing, takes place without government oversight, while plans for future urban growth – when they exist – are largely ignored.

One critical obstacle to effective city planning is the institutional framework for managing land resources and planning their use. Like many other former colonies, Kenya inherited its planning and land laws from Great Britain. Colonial-era planning laws aimed at the orderly growth of cities were based on assumptions – control of population movement, well-resourced governments, highly trained technical staff, the legitimacy of a collective approach to urban development based on controlling private land use, and a shared belief that future city growth could be effectively planned and achieved (Watson, 2011). Many of these are no longer valid – population flows are uncontrolled, urbanisation is rapid, national and local governments are under-resourced in terms of money and staff, and a belief in the inviolability of private property and scepticism about planning as a governmental endeavour have strengthened as land scarcity and grabbing have increased (Klopp, 2000; Southall, 2005).

Although former colonial powers have long since revised their planning laws to meet new circumstances, the approach to urban development adopted in Kenya in the post-Independence period reflects the approaches and attitudes enshrined in British colonial law. Urban planning has been conceived of as physical planning and is viewed as a technical, not social, project. Powers of land administration and physical planning have been highly centralised – placed in the Ministry of Lands (MoL) in Nairobi. Municipal governments and local residents have had little control over public land allocation, planning, zoning or development approvals. Planning personnel, while situated at the sub-national level, have answered to the MoL and not to municipal officials. Participatory planning – processes that devolve powers of decision-making to residents – while extolled by many has not been widely adopted (Post and Mwangi, 2009).

Kenya’s institutional landscape has experienced a dramatic change because of the adoption of a new Constitution by national referendum in 2010 and the subsequent passage of a suite of decentralised governance and land laws. The 2010 Constitution, in particular, has important implications for urban development and the practice of planning throughout the country. The Constitution establishes a new body with oversight over public land, the National Land Commission. It devolves powers from the centre to sub-national units known as counties headed by directly elected governors. Counties, in turn, have been empowered to hire technical staff, including physical planners, economists and surveyors. The Constitution asserts power over private property by granting government the right to ‘regulate the use of any land, or any interest in or right over any land, in the interest of defence, public safety, public order, public morality, public health, or land use planning’ (Chapter 5, Section 66(1)). It also calls for public participation in governance at all levels, including in relation to the ‘management, protection and conservation of the environment’. If implemented fully, these changes should revolutionise urban management – bringing planning closer to affected populations, creating a cadre of planning professionals answerable to local officials and community members, enhancing opportunities for local input and buy-in to planning processes and outcomes, enhancing transparency in land administration, and creating sufficient regulatory muscle to ensure that development proposals conform to plans. A new day is seemingly dawning for planning in Kenya – an opportunity to become more effective, equitable and participatory.

This paper examines processes of institutional reform around land management and planning pursuant to the 2010 Constitution. It explores the political economy of land in Kenya by examining incentives for and impediments to institutional change to attain better land management and long sought-after land justice. As with many of the governance and market reforms adopted throughout the Global South in recent decades, Kenya’s effort to streamline and rework land institutions was premised on ‘getting the incentives right’ (Boone et al., 2019; Malpezzi and Mayo, 1997). Incentivising behaviour, however, is extremely complicated in a sector as complex, dynamic and profitable as the land sector, which is characterised by multiple stakeholders who have diverse and even conflicting objectives relative to land. The research pays particular attention to the role of urban planners, actors rarely examined in the literature on Kenya’s land politics. I argue that Kenya’s faltering land reform is a result of the internal conflicts of land actors and that no legal institutional reform will be sufficient to alter entrenched behaviour without renewed pressure from a broad-based land justice/human rights movement demanding real change.

Two methods were used to collect data for this analysis: key informant interviews and document analysis. Fieldwork was conducted from September to December 2013, with four additional two-week visits in July and October 2014, March 2015 and May 2016. Key informant interviews were conducted with approximately 60 individuals over that time. Informants included national-level elites, county government leaders, advocacy organisations, donor representatives and members of professional organisations. The interviews addressed: (1) the challenges facing Kenya’s cities, (2) past problems with land institutions and urban planning, and (3) the opportunities, challenges and performance of the new institutional framework. Owing to the sensitivity of land issues in Kenya, interviews were not recorded. I took extensive notes capturing short verbatim quotes. Notes were transcribed and analysed using content analysis procedures. Myriad governmental documents were examined.¹

In the next section, I summarise Kenya’s devolved governance and land sector reforms as passed by the Kenyan Parliament. I then briefly review the literature on land law and urban planning practice, drawing mainly from East African examples, and situate the objectives of the reform relative to urban land. I then develop an analytical framework that positions land actors by their objectives and how they relate to support for or opposition to the land reforms. I then depict the reality of what has happened in subsequent years and highlight one under-documented struggle in this institutional reform – namely contestation between planners at the National Land Commission and the Ministry of Lands. Finally, I discuss prospects for reinvigorating land reform in Kenya in light of successful resistance by land sector actors to the institutional changes ushered in by the 2010 Constitution.

Constitutional reform and land: The promise

In an accessible guide to the 2010 Constitution, Ghai and Ghai succinctly characterised the country’s ‘Katiba’ (Constitution) as ‘an instrument for change’ (Ghai and Ghai, 2011). Indeed the Constitution does lay out far-reaching institutional changes, including a new division of power between centre and periphery, reform of the electoral system, the strengthening of the independence of the judiciary and an articulation of a set of fundamental rights for Kenyan citizens, to name a few elements.² With its provisions for land tenure, public land administration, devolved governance and participatory decision-making, the Constitution has also ushered in a set of fundamental reforms that dramatically affect Kenya’s urban land administration and planning. Table 1 provides a chronological overview of the milestones leading to constitutional reform and the main laws enacted as part of the process.

Table 1.

Reforming land institutions in Kenya: Major milestones since 1996.

Year	Event: Report, policy or legislation	Main provisions
1996	Physical Planning Act, No. 6 of 1996	Laid out office of Director of Physical Planning, Liaison Committees, different types of plans; development control; enforcement of development control given to local authorities
1998	The Akiwumi Commission Report	Inquiry into repeated tribal clashes finds clashes politically motivated and linked to land grievances and ethnicity
2003	The Njonjo Commission Report	Established to address persistent land problem in Kenya; look at landlessness, land policy and land tenure insecurity. Called for a ‘National Land Authority’
2003; Report 2004	Commission on the Illegal/Irregular Allocation of Public Land (Ndung’u Commission Report)	Investigated and substantiated extensive corruption in public land allocation; identified myriad methods for land grabbing; catalogued instances with named public officials and others. Called for a National Land Commission; repeal of Govt Lands Act to remove executive branch from dealings with public land
2009	Sessional Paper No. 3 on National Land Policy (Republic of Kenya, 2009)	Sets framework for many constitutional changes: establishment of independent NLC, categories of land, rights of ownership, addressing historical injustices; lays out principles of land use planning. Casts Ministry of Lands as supporting agency in charge of land policy and registration of land professionals. Gives NLC jurisdiction over registry for all lands (public, private and community). Identifies District Land Boards as arm of NLC – later renamed County Land Management Boards in keeping with devolution
2010	Constitution of Kenya – Passed by referendum in August	Introduces devolved government (counties) and NLC; establishes right to land in Bill of Rights; identifies three types of land (public, private and community); calls for new law for local government (UACA below)
2011	Urban Areas and Cities Act (UACA)	Classifies urban areas and cities; sets threshold for cities and municipalities high (only four in country); former municipalities and towns reduced to sub-divisions of counties
2012	The Transition to Devolved Government Act	Sets up the Transition Authority charged with facilitating and coordinating the move to devolved government. Key actions: determining transfer of functions and resource requirements, inventorying and transferring assets and liability of district governments and local authorities; auditing and determining human resource capacity and needs
2012	National Land Commission Act	Establishes NLC pursuant to constitution. Expands the powers to include registration of land and oversight of land use planning. Requires the establishment of County Land Management Boards for physical planning oversight as well as land allocation, sub-division and change of user
2012	The Land Act	Replaces former categories of government and trust land; vests land in County and National Government, gives NLC right to administer on their behalf
2012	The Land Registration Act	Establishes detailed procedures for registration. Former government land renamed public land. Former Commissioner of Lands office in MoL loses power over public land allocation
2012	The County Governments Act	Establishes principles of citizen participation; lays out parameters and objectives for county planning; obligates counties to plan
2013	High Court of Kenya Petition 6 of 2013 Amoni Thomas Amfry and another v. The Minister for Lands & another	Ruling directing President Kibaki to constitute the NLC in accordance with Article 67 of the Constitution and under NLC Act of 2012
2014 (Oct.)	Supreme Court of Kenya Reference No. 2 of 2014 An Application by the National Land Commission for an Advisory Opinion under Article 163(6) of the Constitution of Kenya	First hearing of NLC and MoL dispute over various land acts, NLC Act, UACA, National Land Policy, etc. Host of questions posed. Court deals with objection of AG-Kenya regarding its power to render an advisory opinion as Constitutionally limited to ‘matters concerning county government’. Majority claims the right to conduct review. Require 90-day interlude for mediation; if fail return to the Court for a hearing on the proper relationship between NLC and MoL
2015 (Dec.)	Supreme Court of Kenya Reference No. 2 of 2014 NLC (et al.) v. Kenya AG, MoL, etc.	Advisory opinion on the relationship is rendered. Finds the NLC is valid entity that works in cooperation and interdependence with MoL; has power to alienate public land; does not have jurisdiction over registry (owing to private lands being in registry) or to issue land titles; NLC has no special claim to manage community land. CLMBs upheld as devolved arm of NLC
2016	Community Land Act	Replaces former Trust Land held in trust for communities by County Councils; unregistered community land held in trust by County Governments, rural land focus; recognises customary land rights; establishes procedures for registration and management for group-held land
2016	Land Laws (Amendment) Act	Reverses many aspects of Land Registration Act; gives powers of administration, declaration of land registration units, and preparation and maintenance of national land registry to MoL. Eliminates CLMBs from NLC Act
2017	Physical Planning Bill	Bill to update PPA, 1996 to be consonant with devolution. Retains basic approach from 1996 Physical Planning Act with few changes in names of officers and plans to reflect existence of counties. Maintains technocratic, centralised approach

The Constitution addresses many problems associated with land management and corruption. To address land tenure insecurity, the Constitution delineates three revised categories of land and mandates the passage of a suite of new land laws to rationalise land administration and the cadastre. Enhanced transparency in land transactions and accessibility to land records are key objectives. Pursuant to the 2009 National Land Policy, the Constitution creates a new national level body – the National Land Commission (NLC), whose charge is ‘to manage public land on behalf of the national and county governments’ (Kenya Constitution, 2010; Section 67(2)(a)). Creation of this body shifts power from the Ministry of Lands to an independent nine-member commission comprised of citizens with prescribed professional and university qualifications (National Land Commission Act; Republic of Kenya 2012a). The NLC Act and the Constitution (Section 67(2)(h)) give the NLC the right ‘to monitor and have oversight responsibilities over land use planning throughout the country’.

While a national-level institution, the NLC is required to work within the devolved government structure. The NLC Act of 2012 mandated the creation of County Land Management Boards (CLMBs). Comprised of land professionals along with appointed members from the community, these boards were intended to infuse greater transparency and accountability into land administration and planning. CLMBs were mandated with carrying out land planning actions including processing applications for the allocation of public land, renewing leases on already allocated land, overseeing the sub-division of public land, and ensuring that land actions met physical planning and survey requirements.

But if land administrators and planners were seen as problematic actors requiring oversight to prevent further land corruption, the Constitution and subsequent laws view planning as a tool full of possibility. Devolved government is plan-centric. Under the County Government Act, counties must establish county planning units, and officers in these units must prepare four mandatory plans. The most significant plan, the five-year County Integrated Development Plan (CIDP), should address all county government functions by sector (County Government Act; Republic of Kenya, 2012b). The plan serves as the basis for revenue allocations from the national government and should govern county expenditures. CIDPs represent a planning innovation drawn from the South African experience (Watson, 2009). As there is no lower tier of government than the county articulated in the 2010 Constitution, counties are also responsible for urban land use planning and zoning for all urban areas. The county is a controlling actor in land use decisions such as land sub-division, approval of development applications, and implementation of zoning and building controls. These latter actions were to be processed by the CLMBs – a collaborative partnership between the NLC and the counties. Figure 1 provides a summary of the institutional actors with land management powers pursuant to the 2010 Constitution.

Figure 1.

Land administration entities and powers in Kenya.

Land law and planning practice in urbanising Sub-Saharan Africa

The performance of institutions for planning and regulating the use of land in urban settings in Sub-Saharan Africa has been the subject of increasing scholarship (e.g. Arimah and Adeagbo, 2000; Boamah et al., 2012; Cirolia and Berrisford, 2017; Godswill et al., 2017; Goodfellow, 2013). The historical origins of these institutions are well documented (McAuslan, 1998, 2013). In Kenya, planning was intimately linked to the colonial project of land acquisition for whites and dispossession of indigenous peoples. Colonial-era planners were situated in the Colonial Office in Nairobi. Their approach to planning was top-down, technocratic and exclusively spatial in its conceptualisation. Colonial town planning was expressly intended to control indigenous populations and assure power over conquered territories (Njoh, 2008). Colonial town plans strictly segregated social groups into their own enclaves. McAuslan (2013) notes that for much of the colonial period, planners operated without formal town and country planning legislation. They simply justified segregation through the overarching rationale of public health and safety. But there was little need for legislation as urban plans became reality through the allocation of Crown Land.

After Independence, this basic approach to planning continued. Planning was the remit of the central government. It was technocratic with little analysis of social issues or concern for civic engagement or transparency in decision-making. Plans were drawn up for government land and guided land allocation. While the official rules for land allocation required the public advertisement of pending land allocations, in practice allocations at the Ministry of Lands were done irregularly – behind closed doors, often at the behest of the President and others who used public land as personal largesse and a way to reward supporters (Klopp, 2000; Manji, 2012; Southall, 2005; KI17, October 2013; KI19, October 2013; KI4, November 2013). The scope of ‘land grabbing’ has been extensively detailed in the Ndung’u Report, which estimated that 200,000 illegal land titles were issued in the decades after Independence (Ndung’u Commission, 2004).

Corruption and land grabbing not only undermined democracy and trust in the central government, it also subverted planning. Physical plans were drawn up by planners with the expectation that land owners would comply with land use designations, but illicit allocations, lack of regulatory capacity and complicity within local governments, and the speed of urban in-migration, rendered plans worthless. One informant (KI5, September 2013) characterised Kenyan planning as ‘just drawings. There were a lot of politics. The planner did his work but it wasn’t implemented. Under leasehold they were given conditions to follow, they were supposed to adhere, but people did not adhere.’ Another echoed this: ‘Planning has gotten more irrelevant. Part of the problem is corruption – physical planners played a role in corruption with their PDPs [part development plans] and that mess’ (KI4, September 2013).³ A planner with the Urban Development Department in the (former) Ministry of Local Government observed: ‘The physical planning department was stuck – they got stuck with the PDPs. Those are done at the initiative of the developer and don’t look at other things, don’t look at compatibility even. But it was lucrative for the physical planners. … The whole of the 1990s was like that’ (KI17, October 2013). A former ministerial leader opined: ‘The central government was overstretched doing the planning. But then came land grabbing. PDPs had a big effect on planning and planners. Put all thoughts into aiding land grabbing. For a long time, planning was abandoned. No one was interested in planning for the whole town’ (KI14, October 2014).

The poor performance of planning in Kenya is not atypical. Numerous studies have shown that planning in Africa has failed in multiple dimensions – producing irrelevant master plans, implementing repressive settlement policies, and failing to ensure compliance with rules for spatial development and building safety (e.g. Arimah and Adeagbo, 2000; Boamah et al., 2012; Goodfellow, 2010, 2013). While there are many reasons for this, including insufficient technical staff and funding, apathy and/or distrust of planning, corruption and the high monetary cost of permitting, a fundamental factor is the role of land in African society. Having access and control over land is a key marker of belonging in rural Africa. Increasingly having access to land is a chief determinant of the ability to flourish within an urbanising market economy as land remains the chief asset for wealth-building.

How land rights are bestowed and how secure one feels in one’s rights is critical – and has implications for how land management and planning perform. Boone (2014) argues that land tenure regimes in Africa fall into two broad categories: neo-customary regimes in which land rights are linked to a specific place or ethnic group and are controlled by local elites, and statist regimes in which state agents confer the right to land through formal processes of application, allocation and regulation of use. Implicit in these systems are different notions of citizenship and allegiance. Neo-customary regimes foster notions of local citizenship and allegiance to local elites with whom one has a shared geography or ethnic identity. In statist regimes, the allegiance of the land possessor is to the state and its agents – and through national citizenship one can theoretically enable access to land anywhere within the nation-state, even on land that may have historically been viewed as belonging to another ethnic group.

Understanding this backdrop of citizenship and allegiance and its relationship to land access is particularly significant given the historic weakness of formal institutions – such as the judiciary, banking and police – in many developing countries. Khan (2010) and Goodfellow (2018: 203) argue that in societies in which formal institutions are weak, informal institutions play an often-overlooked role – doing ‘the “work” of maintaining stability by allocating benefits to the powerful’. In Kenya, informal relationship-based institutions play an outsized role in conferring advantage to certain ethnic subgroups. Nowhere is this more evident than in land relations. Access to public land occurs through patron–client networks. Land is allocated at the order of a high-level politician or administrator, rarely following mandated procedures (Manji, 2012; Ndung’u Commission, 2004). The land may be unclaimed public land, but grabbed land includes parcels set aside for public uses or claimed or even occupied by vulnerable social groups (Klopp and Lumumba, 2017). Informal institutions have enabled a national-level elite to amass extraordinary land holdings;⁴ in turn they use their land holdings to consolidate power and allegiance and distribute largesse to their own clientele (Kiai and Lumumba, 2015).

The impact of informal institutions operating underneath the veneer of formal institutions is not restricted to processes of land allocation – informality and clientelism permeate urban planning – from the awarding of planning consultancies, to vetting qualified contractors, to the selection of planning graduates for governmental positions (KI4 and KI17, September 2013). One deleterious impact of informality is seen in the lack of compliance with spatial plans and building codes by developers. In an insightful study of Kampala, Goodfellow (2013) posits that the plan implementation necessitates political bargaining. It is not really that ‘everyone does whatever they want’ – rather projects get built and approved in accordance with the power dynamics and shared/divergent interests of multiple actors in patron/client relationships including planners, developers and politicians. In the face of bargaining and informal approvals, planners in their formal role have only limited options – to try to halt construction or stop it from starting in the first place. Both have limited efficacy. Developers post armed guards on sites to deter inspections; when inspections take place and problems are found, planners find the limits of their formal power. Reflecting on a fatal building collapse in Nairobi in 1996, one key informant who was a Senior Urban Planner with the city intoned: ‘We knew that building on Moi Avenue was dangerous – we knew the cement wasn’t right. But a city councellor stepped in and stopped us from halting construction. Look what happened! And who gets blamed? The planner’ (KI25, October 2013).⁵

Given the inter-relationship between land access, power, belonging and economic opportunity, and the importance of patron/client relationships, it is unsurprising that reforming land institutions in order to ‘get the incentives right’ should prove challenging. Different land sector actors have a variety of expectations of land reform and perspectives about its possible impacts. Many actors are arguably ambivalent. Commercial developers may support institutional reform – anticipating expedited project approvals and lower costs. But they may also fear reform because it threatens lucrative relationships and preferential treatment by ministerial and local government officials. Planners may wish to have their schemes realised to advance public welfare – but at the same time their centrality to public land allocation provides benefits (e.g. illegal allocations) as well as patronage (e.g. serving powerful politicians). Politicians might gain politically with their constituents if they can provide tenure security and land access, but transparent land processes will reduce opportunities for personal benefit and graft. Even those most hungry for land – informal settlement dwellers – might hope that the reforms will avail access to land, but they also can reasonably fear displacement by those with validated legal claims. Table 2 lays out anticipated and conflicting perspectives toward institutional reforms by land sector actors.

Table 2.

Land stakeholders’ attitudes toward 2010/2012 land reforms (hypothesised).

Land actor/stakeholder	Positive or negative	Rationale
Key professional actors/political leadership
Land professionals (planners, surveyors, land officers, land lawyers)	+	Urban plans greater chance of efficacy and actual implementation; higher level of professional satisfaction and prestige; reduced political interference with professional activities; ethical standards of professions met
	−	Reduced prospect of personal benefit because of declining opportunities for graft (e.g. access to data, processing of forms) and curtailed illegal allocations to him/herself and family members; actors with previous participation in land grabbing face penalties and potential criminal conviction from past illegal activities
Infrastructure professionals (road engineers, utility providers)	+	Rationalised land use with effective public land set-asides for road reserves, utility easements and other linear infrastructure enhances efficacy and lowers costs of infrastructure provision; enhances network with positive public welfare impacts
	−	Reduces opportunities for graft/bribes related to infrastructure extensions to particular developments/households
County-level politicians (Governors; County Assembly)	+	Addressing land access, tenure security and housing provision raises standing with constituents, particularly important in counties with low levels of land registration (e.g. former Coast province); rationalised land registries and ownership leads to broader, reliable forms of local revenues (e.g. property taxation)
County-level politicians (Governors; County Assembly)	−	Reduced prospects of personal or constituent benefits from illegal allocations from MoL; disruption of systems of clientelism and patronage relative to local development approvals and oversight; politicians with previous participation in land grabbing face penalties and potential criminal conviction from past illegal activities
National-level politicians (Senators, Members of Parliament)	+	Addressing land access, tenure security and housing provision raises standing with constituents, both locally and nationally; enhanced leadership reputation with donors and international investors
	−	Reduced prospects of personal or constituent benefits from illegal allocations from MoL; disruption of systems of clientelism and patronage particularly with national/international property developers; politicians with previous participation in land grabbing face penalties and potential criminal conviction from past illegal activities
Private sector
Commercial developers	+	Streamlined registration, accessible and reliable cadastres help assured titling processes and surety of titles
Commercial developers	−	Reduced differential/deferential access through networks and personal relationships at MoL; enhanced implementation of permitting processes and fee payment affecting development approvals; potential time cost; more effective development control prevents deviation from plans (e.g. more intensive uses or cheaper/shoddy construction)
Banking/financiers	+	Accessible and reliable cadastres; assured titling processes and surety of titles; expansion of lending activity to different clientele because of enhanced land tenure security/land based collateral and better functioning land markets
Banking/financiers	−	Potential legal liability because of past financing of illegal land transactions and developments
Citizens
Formally titled land owners	+	Greater security of tenure because of clarified and accessible land registries; lowered fear of land loss/grabbing because of increased transparency at the MoL; better functioning land markets
Formally titled land owners	−	Reliable registries availed to local governments yields more effective implementation/collection of property taxes, land rents and fees; owners of ‘grabbed land’ face penalties and potential criminal conviction from past illegal activities
Untitled land owners	+	Greater prospects of obtaining title through official channels and transparent public processes of land adjudication and allocation
Untitled land owners	−	Possible prospect of displacement if location is deemed unsuitable for human habitation; potential negative impacts on household expenditure from better functioning land markets (development/gentrification pressures) and taxation regimes
Landless urban Kenyans/informal settlement dwellers	+	Greater prospects of obtaining title through official channels and transparent public processes of land adjudication and allocation
Landless urban Kenyans/informal settlement dwellers	−	Possible prospect of displacement if located on validly allocated land; possible prospect of displacement if location is deemed unsuitable for human habitation; formalisation of market could lead to increase in rents or housing values (if structure owner)
Landless rural Kenyans	+	Greater prospects of obtaining title through official channels and transparent public processes of land adjudication and allocation (especially for community land)
Landless rural Kenyans	−	Public land allocation processes open to non-local claimants

Ambivalence about Constitutional reforms and their potential efficacy was evident amongst my informants. When asked to assess the reform relative to urban planning, a few key informants interviewed in 2013 were sanguine about the future. One academic celebrated that the proposals for county-level planning had finally overcome the silos that had long characterised Kenyan planning. ‘We are seeing a whole new conception of planning here. It used to be physical planning without funding, economic development plans without spatial plans and environment wasn’t done at all!’ (KI4, September 2013). Another was excited by the NLC’s mandate to address public land allocation and historic injustices created by corrupt practices. ‘There’s this whole pressure of giving gifts of land to the people. And the Coast land question is intense. It was really prominent in the last election. I am glad it (NLC) is there’ (KI10, October 2013). That informant added ‘Counties are here – they can’t kill those entities. The challenge is to make devolution happen and stop national government meddling. […] Devolution should help lower income people like slum residents. We need to have civil society be active on land’ (KI17, October 2013). A local authority planner exclaimed: ‘I’m optimistic about devolution. Planning is now a devolved function – they need to recruit and get them [planners] in place!’ (KII5, September 2013). Another equivocated: ‘I’m more pessimistic than optimistic. No, I’m 50/50. There’s hope, especially in terms of planning. Counties need to increase competition. The first to plan will get more resources’ (KI10, October 2014).

But relative to legal reforms affecting land administration – a critical precursor to more effective urban planning – informants were more cautious. A governance specialist with a bilateral aid agency noted ‘Land is the thorniest reform under the Constitution. There are a lot of vested interests – some families have vast tracts of land’ (KI5, September 2013). He added that ‘capacity is a big challenge. There are an inadequate number of technical officers. No one is a guru – there is so much legislation and they need to understand the new legislation.’ A university-based governance specialist noted that ‘Some key things to prioritize in the transition have not been done. First action should have been the recruitment of personnel. If you hire competent people that is good, but the issue of physical planning and land needs monitoring as the manipulation of land is not going to go away’ (KI10, October 2013). KI4 (September 2013) agreed: ‘Where does the national government end? Where do the counties begin? Not much change in land – physical planners still report to the Director [of Physical Planning], surveyors the same. District officers should apply and shift to the counties, but many decisions needed for a smooth transition were not made.’ The mind-set of professionals and community members was identified as an obstacle to the reform. ‘People don’t want to be part of the counties. … Still think it is the old days of local authorities when local authorities were weak and empty’ (KI10, October 2013). ‘A lot of people don’t understand devolution. People are happy we had a referendum, we have a new Constitution. People still believe the central government is in charge’ (KI9, October 2013).

Constitutional reform and land: The reality

Although the Constitution was adopted in 2010, it took several years for the suite of laws required for its realisation to make their way through Parliament. The legislation central to devolved government, urban planning and land administration is captured in five main pieces of legislation passed in 2012 and one major amendment passed in late 2016. The processes used for drafting the constitutionally mandated legislation and the resultant laws have been heavily criticised.⁶ The land acts have been derided as rushed and inadequate efforts – poorly drafted and falling far short of what was really needed. As Manji (2015: 3) summarises:

The central concern of the laws is bureaucratic power and its control. … they [the laws] did not embody the prescriptions of the constitution and the National Land Policy. They were neither equitable nor transformative of land relations, nor was the ‘deep’ redistribution envisaged by the constitution and the National Land Policy upheld. This failure cannot be dismissed lightly. One expert commentator observed that ‘upon the outcomes of these deliberations may well hinge the future stability as well as the democratic quality of the Kenyan state’.

The 2012 land laws were reviled on both sides: dismissed by land advocates for being too weak, but feared by vested land interests for being too strong. As such, they were vulnerable to evisceration at the hands of a legislature dominated by President Kenyatta’s Jubilee Party, which is commonly viewed as hostile to land reform efforts (Bassett, 2017). Three notable actions have taken place that have undermined Kenya’s land reform process and diminished the promise of more effective land management and inclusive planning.

Action #1: Defanging the NLC

An independent NLC was central to land advocates’ drive to eliminate endemic land corruption at the MoL and obtain redress for communities suffering historical injustices. The prospect of a powerful NLC with investigative and allocation powers presented a threat to the Kenyan ‘land cartel’ – so it is not surprising that almost immediately the NLC faced an escalating series of problems that threatened its efficacy, if not existence (AFRICOG, 2009). Initial challenges were legal and pecuniary. President Kibaki refused to sign the order establishing the council until forced to do so by the High Court in 2013. The Kenyatta administration tried to starve the organisation by depriving it of resources and personnel. Public tangles occurred between the Permanent Secretary of the MoL and the leader of the NLC over the right to manage the registry and allocate public land (Bassett, 2017). Lack of clarity over roles reached the courts in December 2016 when the Supreme Court issued a decision that clarified some responsibilities between the two bodies (Kenya Supreme Court, 2015). It confirmed the NLC as the lead agency for public land management, but gave responsibility for the general land registry to the MoL as it covered all categories of land, not just public land. Registry control is central to battling land corruption – as doctored records, false title deeds and missing files are part of the repertoire of methods used by land grabbers and corrupt officials. Lack of registry control clearly undermines the ability of the NLC to achieve its anti-corruption mission.

Additional weakening of the NLC came as a result of the Land Laws (Amendments) Act of 2016 (Republic of Kenya, 2016), which effectively casts the NLC as a passive actor. While it is in charge of managing public land, it cannot initiate public land allocations – it can only respond to a request from national or county government. The amendments constrain the NLC’s constitutionally granted role as the lead actor in investigating historic injustices. The NLC can only look at actions that took place between the time of the British East Africa Protectorate (1895) and 27 August 2010, the date of the constitutional referendum. But its role there is also secondary as the claim must be one that ‘has not or is not capable of being [addressed] in the ordinary court system’. Its actions are time-limited – all claims to be investigated must be brought within five years of the passage of the amendments, with the entire section of the law detailing NLC’s right to conduct investigations sun-setting in ten years. Making NLC’s role in corruption investigations retroactive and time-limited presumably frees contemporary land grabbers of one nagging worry.

Action #2: Eliminating CLMBs

County Land Management Boards were the decentralised arm of the NLC at the county level. They were intended to infuse transparency and accountability into public land decision-making and oversight in keeping with the principles of devolved governance. They were charged with reviewing and approving planning actions such as change of user, lease renewals and land sub-division. Attitudes toward the CLMBs at the county level varied. Once NLC rules regarding the CLMB were drafted, most counties moved forward to approve the CLMB Secretary (appointed by the NLC) and the other nominated members in addition to those serving ex-officio (e.g. the physical planning officer). In some counties, however, CLMBs languished. In two Nairobi-adjacent counties the governors refused to form CLMBs. In Kiambu County, the executive cited a lack of need for a decentralised NLC office as the county was in close proximity to Nairobi. In Machakos County, conventional wisdom held that the governor worried that a CLMB would impede his desire to build a new city on public land (Watson, 2014). In other counties, governors and their assemblies failed to agree on the membership, with these fights being proxy battles related to political rivalries within the county (Boone et al., 2019). The unpopularity of CLMBs with some elected officials was coupled with lack of understanding by land professionals. A planner working in a Rift Valley county asked: ‘What are they to do? We already have land control boards’ (KI7, October 2014).

The 2016 land law amendments have made such wrangling and worrying moot. Starting with the deletion of the definition of ‘Board’ through the complete erasure of the section enabling their formation, composition and powers in the original 2012 NLC Act, CLMBs were eliminated as an entity in land administration. The impact of this change relative to compliance with provisions for public participation is unclear – but as this serves to lessen oversight at the county level it compounds fears that rather than reduce corruption, devolution may just serve to decentralise it. An anti-land grabbing activist predicted this: ‘History does matter – most of them [the governors] haven’t come from the heavens. They come from the system. Scratch them and you’ll find land grabbing’ (KI23, October 2013).

Action #3: Controlling the physical planning function

The final front in the battle to reform land management relates to the physical planning function. The county is the legal locus for most planning activity. Physical planning officers are to work with county-level lands officers, surveyors and economists to make up an effective, integrated planning unit. As many – if not most – of the counties and their main cities do not have any updated or realistic physical development plans (KI6, September 2013; KI17, September 2013; KI25, October 2013), there is a backlog and real need for planning documents to guide growth and manage land use change.

Chapter Five, Section 67 of the Constitution assigns the NLC the power ‘to monitor and have oversight of land use planning throughout the country’ and to that end the NLC created a directorate and appointed a Director of Land Use Planning. This unit has produced useful publications related to county spatial planning, including guidelines explaining what monitoring and oversight entails and the principles (e.g. engagement) that must be integrated into plans. The NLC also established a GIS land inventory to aid in planning and land administration. While the Constitution is silent on ministerial roles, the National Land Policy (NLP) identified the MoL as the chief policy-maker charged with giving policy direction to the NLC, making policies and coordinating policy implementation, mobilising resources to support the land sector and regulating the licensing of land sector professions. Nowhere in the NLP was the planning of land designated as MoL’s responsibility – planning was to be devolved to lower tiers of government.

The competition over the control of physical planning has manifested itself in at least two competing drafts of a new physical planning act – one prepared by the Ministry of Lands and the other by the NLC. Not surprisingly, the NLC’s proposed bill to reform physical planning – which has disappeared from the NLC’s website in the last year – was different, relative to the locus of power over planning actions and oversight, from the bill currently before Parliament. The NLC bill was premised on the broadest powers for the NLC, as well as an advisory role for the MoL as envisaged by the NLP.

In contrast, the 2017 Physical Planning Bill (Parliament of Kenya, 2017), which has been languishing in various drafts in Parliament for over two years, does little to alter the former ministerial structure, its objectives or the technocratic nature of planning. The bill continues the office of the Director of Physical Planning, but now dubs the office the ‘National Director of Physical Planning’. While this office is oriented toward national- and regional-level coordination and policy, the proposed legislation continues a central role for the ministry by defining the allowable types of plans and allowing the ministry to amend said plans.⁷ The legislation adds layers to the county planning establishment by creating a County Director of Physical Planning, who has the same qualifications as those of the national director.

The physical planning bill identifies two functions for the NLC: monitoring and overseeing physical planning and preparing status reports on the preparation and implementation of these plans. But the draft legislation goes on to establish confusing layers of bureaucracy that appear to undercut NLC’s oversight and advisory role in planning. The first body is called the National Physical Planning Consultative Forum (NPPCF). The Cabinet Secretary of the MoL chairs this council and provides secretariat services; the NLC chair is a member. Cast as an advisory body, it claims the right to coordinate and integrate physical and sectoral planning. There are also two layers of ‘liaison committees’. At the national level this committee is to advise the Cabinet Secretary on ‘policies, strategies and standards’ as well as act as an appeals board for decisions made by the NPPCF. The liaison committee structure is replicated at the county level in the County Physical Planning Liaison Committee, whose responsibilities include hearing complaints against the county planning authority related to approvals and code/plan enforcement. The Physical Planning Bill, in short, represents the central government preserving the status quo by asserting powers over land use planning, undermining the autonomy of counties and challenging yet another role of the NLC.

Discussion and conclusion

The extreme difficulties land reformers have faced in effecting reform that truly transforms the political economy of land and planning practice are disappointing, but more understandable when viewed through the individual incentives of key land actors. The National Land Commission and its County Land Management Boards threatened long-standing patron–client relationships – comprised not just of ministerial leadership, politicians, lawyers and developers, but planners as well. Had the NLC performed as envisioned by reformers – open and independently, with integrity, in observance of the formal institutions, and with full access to the registry and land records, the inner workings of these networks could have been laid bare. Greater information would have enabled more aggressive pursuit of wrongdoers in cases of land grabbing and historic injustices. Even actors who should have the greatest stake in successful land reform – the landless or those without formalised land rights – could face potential threats to their status quo with a more effective land administration and planning. Relative to urban development and unplanned growth, competent CLMBs – as an extension of NLC – might have brought daylight to problems of non-compliance, corruption and uneven enforcement that facilitate the continued development of sub-standard, dangerous structures in the country’s urban areas.

This is not to say these bodies were a sure-fire antidote to these problems – D’Arcy and Cornell (2016) have suggested that devolution might just serve to shift the locus of corruption to the county, a proposition with great import for land given that so much untitled land is rural community land under county control. The performance of the NLC has been sub-par as well, with continuous accusations of corruption being levelled against its Chair, Mohammed Swazuri (Mwathane, 2018). The fact remains that the reforms as originally written presented a real danger to the national-level elite accustomed to using their informal networks to obtain cheap land and build without interference. Dialling back the powers of these entities and asserting firm power over planning and development oversight were critical to maintaining patron–client relations and continuing processes of political bargaining facilitating lucrative illegal urban development. The Kenya case, in short, provides a cautionary tale to land reformers showing how difficult it can be to dislodge entrenched interests and promote social justice through formal institutional change.

The faltering of Kenya’s land reform and with it diminished prospects for more responsive, participatory and effective planning has been met with noticeable silence from most of the country’s professional planners.⁸ This is not entirely surprising since planners were not highly engaged in or publicly committed to land reform or reforming planning practice in the first place. Planners and their professional organisations were not major players in the reform deliberations that took place in the country in the run up to the 2009 National Land Policy or the 2010 Constitution. The groups that were in the forefront of the anti-corruption/land reform agenda, such as the Kenya Land Alliance, the Kenyan Human Rights Commission, Kituo cha Sheria and the Law Society of Kenya, were dominated by lawyers. And while, as Manji (2012) has rightfully argued, the legal profession was complicit in land corruption, there were members of the legal community who were ‘clean’ and able to push with integrity for reforms. Physical planners, in contrast, were so intimately tied to land corruption that they had little credibility as change agents. There was no position paper representing the view of the country’s planners on land reform objectives produced or adopted by the Kenya Institute of Planners (KIP). When asked about the absence of planners in pushing the reform agenda a key informant summarised the views of many when he argued that few planners wanted change: ‘At the [physical planning] department they had a willing clientele – willing to pay. Planning supports the titling of land – that’s all they do. Why change?’ (KI17, October 2013).

It seems unlikely that any resurgent activism on the land reform agenda will come from the planning community. Kenyan planners understand the gravity of the urban challenge and the needs of city dwellers and when supported (as in donor-sponsored projects) they embrace citizen participation and inclusive processes. But, as McAuslan (2013: 232) points out, these ideas have failed to displace the dominant discourse of technocratic, modernist planning:

Within the region, there is no public writing or public thinking about the ‘just city’ or ‘the right to the city’ or how to develop a democratic city in which all citizens regardless of their social class or economic or tenure status have an equal role in the planning and management of the city. … path dependency reigns supreme and for the same reason as of old: at best an unwillingness to accept that the urban poor have any right to the city; at worst a fear of the dangers of the urban mob.

To close, a critical question is how might the quest for land reform and land justice in Kenya be reinvigorated? Thinking about the future is perhaps best informed by the past. The demand for land reform and land justice – and milestones such as the 2009 National Land Policy – occurred because the imperative for addressing the land question was evident to all, including human and land rights activists, the broader legal community, business leaders, civil society groups including religious leaders and anti-corruption crusaders, policy think tanks, the academy, affected communities and international organisations. These groups worked tirelessly toward that goal. Although they anticipated resistance to Constitutional changes and instituted safeguards and oversight organisations,⁹ momentum toward land reform has been lost for myriad reasons – chilled by intimidation of civil society actors by the state following charges against the country’s political leaders at the International Criminal Court, undercut by self-interested governors set on augmenting their new powers, and distracted by political stagecraft between President Kenyatta and his chief rival, Raila Odinga. A new coalition needs to emerge to reinvigorate the cause and make clear just what is at stake – maintaining peace, advancing economic opportunity, protecting wildlife resources and tourism employment, and formulating effective responses to challenges such as climate change and rapid urbanisation. Without effective land reform, current sores – extreme highly concentrated land ownership, acute income inequality, profound levels of urban deprivation and simmering inter-ethnic tensions – will fester and ultimately explode. This will surely impede progress toward national goals for social and economic progress and undercut aspirations for achieving middle-income status within the next decade (Republic of Kenya, 2007).

Footnotes

Acknowledgements

Special thanks to Professor Francis Wambalaba and the United States International University for hosting me during this year.

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: The research was supported by the US Department of State Bureau of Education and Cultural Affairs through a Fulbright Scholarship in 2013–2014.

Notes

ORCID iD

Ellen Bassett

References

African Center for Open Governance (AfriCOG) (2009) Mission Impossible? Implementing the Ndung’u Report. Nairobi: AfriCOG.

Arimah

Adeagbo

(2000) Compliance with urban development and planning regulations in Ibadan, Nigeria. Habitat International 24: 279–294.

Banchiri

(2016) Why are buildings in Kenya collapsing? The Christian Science Monitor, 20 April. Available at: https://www.csmonitor.com/World/Global-News/2016/0430/Why-are-buildings-in-Kenya-collapsing (accessed 9 March 2018).

Bassett

(2017) The Challenge of Reforming Land Governance in Kenya under the 2010 Constitution. Journal of Modern African Studies 55; 4: 537–566.

Boamah

Gyimah

Nelson

JKB

(2012) Challenges to the enforcement of development controls in the Wa municipality. Habitat International 36: 136–142.

Boone

(2014) Property and Political Order in Africa: Land Rights and the Structure of Politics. New York, NY: Cambridge University Press.

Boone

Dyzenhaus

Manji

, et al. (2019) Land law reform in Kenya: Devolution, veto players, and the limits of an institutional fix. African Affairs. Epub ahead of print 14 March 2019. https://doi.org/10.1093/afraf/ady053

Cirolia

Berrisford

(2017) ‘Negotiated planning’: Diverse trajectories of implementation in Nairobi, Addis Ababa, and Harare. Habitat International 59: 71–79.

D’Arcy

Cornell

(2016) Devolution and corruption in Kenya: Everyone’s turn to eat? African Affairs 115(459): 246–273.

10.

Gandy

(2006) Planning, anti-planning and the infrastructure crisis facing metropolitan Lagos. Urban Studies 43(7): 371–396.

11.

Ghai

(2011) Kenya’s Constitution: An Instrument for Change. Nairobi: Katiba Institute.

12.

Godswill

Nnaemeka

Ukachukwu

(2017) Property development and land use planning regulations in Nigeria. International Journal of Environment, Agriculture and Biotechnology 2(4): 1694–1707.

13.

Goodfellow

(2010) ‘The bastard child of nobody’? Anti-planning and the institutional crisis in contemporary Kampala. Crisis States Working Papers Series No. 2. London: London School of Economics.

14.

Goodfellow

(2013) Planning and development regulation amid rapid urban growth: Explaining divergent trajectories in Africa. Geoforum 48: 83–93.

15.

Goodfellow

(2018) Seeing political settlements through the city: A framework for comparative analysis of urban transformation. Development and Change 49(1): 199–222.

16.

Khan

(2010) Political settlements and the governance of growth-enhancing institutions. SOAS Working Paper. London: School of Oriental and African Studies.

17.

Kiai

Lumumba

(2015) Unjust Enrichment: The Making of Land-grabbing Millionaires. (Volumes 1 and 2). Nairobi: Kenya National Commission on Human Rights and Kenya Land Alliance.

18.

Klopp

(2000) Pilfering the public: The problem of land-grabbing in contemporary Kenya. Africa Today 47(1): 7–26.

19.

Klopp

Lumumba

(2017) Reform and counter-reform in Kenya’s land governance. Review of African Political Economy 44(154): 577–594.

20.

McAuslan

(1998) Making law work: Restructuring land relations in Africa. Development and Change 29(3): 525–552.

21.

McAuslan

(2013) Land Law Reform in Eastern Africa: Traditional or Transformative? London: Routledge.

22.

Malpezzi

Mayo

(1997) Getting housing incentives right: A case study of the effects of regulation, taxes, and subsidies on housing supply in Malaysia. Land Economics 73(3): 372–391.

23.

Manji

(2012) The grabbed state: Lawyers, politics, and public land in Kenya. The Journal of Modern African Studies 50(3): 467–492.

24.

Manji

(2015) Whose Land is it Anyway? The Failure of Land Law Reform in Kenya. London: Africa Research Institute.

25.

Matua

(2011) ISOCARP pledges to assist Kenya in urban planning. Standard Digital, 27 October. Available at: https://www.standardmedia.co.ke/business/article/2000045690/isocarp-pledges-to-assist-kenya-in-urban-planning (accessed 2 September 2017).

26.

Mwathane

(2018) Land commission has failed, it’s time for soul searching. Daily Nation, 14 July.

27.

Myers

(2005) Disposable Cities: Garbage, Governance and Sustainable Development in Urban Africa. Burlington, VA: Ashgate Publishing.

28.

Ndung’u Commission (2004) Report of the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land. Nairobi: Republic of Kenya.

29.

Njoh

(2008) Urban planning as a tool of power and social control in colonial Africa. Planning Perspectives 24(3): 301–317.

30.

Post

Mwangi

(2009) Constraints on neighbourhood activism: Experiences in services upgrading in Nakuru, Kenya. Urban Studies 46(3): 665–686.

31.

Southall

(2005) The Ndung’u Report: Land and graft in Kenya. Review of African Political Economy 32(103): 142–151.

32.

Watson

(2009) ‘The planned city sweeps the poor away…’: Urban planning and 21st century urbanization. Progress in Planning 72(3): 151–193.

33.

Watson

(2011) Changing planning law in Africa: An introduction to the issue. Urban Forum 22(3): 203–208.

34.

Watson

(2014) African urban fantasies: Dreams or nightmares? Environment and Urbanization 26(1): 215–231.

35.

World Bank (2008) Kenya Poverty and Inequality Assessment. Volume 1: Synthesis Report. Washington, DC: The World Bank.

36.

Kenya Supreme Court (December 2015) Advisory opinion reference 2 of 2014. Available at: http://kenyalaw.org/caselaw/cases/view/116512/ (accessed 1 January 2016).

37.

Parliament of Kenya (2017) Physical Planning Bill. Available at: http://kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2017/PhysicalPlanningBill_2017.pdf (accessed 31 July 2017).

38.

Republic of Kenya (2007) Vision 2030.

39.

Republic of Kenya (2009) Sessional Paper No. 3. National Land Policy.

40.

Republic of Kenya (2012a) National Land Commission Act. Kenya Gazette Supplement, No. 36 (Act No. 5), 2 May, 1012.

41.

Republic of Kenya (2012b) The County Governments Act.

42.

Republic of Kenya (2016) The Land Laws (Amendment) Act.