The implementation of the new constitution process - particularly enacting legislation concerning Women’s Rights to Land is being constantly dogged by a myriad of problems that are stagnating the entire process and women access to land.Some of the leading challenges dogging the process include problems such as the lack of or mere cosmetic stakeholder consultations by the institutions charged with the implementation
process, lack of a clear cut implementation framework, insufficient public education and poor service delivery by the ministry of lands.
The other critical stumbling block to the process is the marked delays in establishing a Lands Commission to bridge the transition vacuum and the urgent need for a National Lands Commission to drive issues relating to the implementation framework, reforms legislation, improved service delivery, public education including other urgent land reforms aspects.
This is further compounded by delays in reviewing institutional structures since the current structures to those proposed in the land policy and the new constitutional demands that are supposed to be the steering backbone of the whole implementation process.
A stakeholders team led by the Kituo Cha Sheria is therefore demanding that the government should immediately review and reorganize the country’s land administration structures in the ministry of lands, other related ministries and agencies in preparation for the setting up of the institutional structures provided for under the National Land Policy and The Constitution.
Kituo Cha Sheria has been undertaking civic education on the NLP and CoK chapter 5 around the country in the regions of Coast, Rift valley and Nyanza. The purpose of the civic education awareness is to educate the citizenry on their land rights and promote public participation in the implementation process of the NLP and other legislations on land and property. The awareness is also geared towards sensitizing the communities on women’s rights to land as stated in the CoK and International instruments ratified by Kenya.
The Kituo Cha Sheria Executive Director, Priscilla Nyokabi says: “Women form the largest part of the Kenyan population and are naturally charged with the responsibility of upbringing families yet they have been continually discriminated upon by the different cultural and religious practices that tend to favor men when it comes to ownership of land as property.”
Ms Nyokabi says that it is against this backdrop that Kituo seeks to push towards acceleration of enactment and implementation of legislations on land and property in view of Article 68 under the Fifth schedule of the constitution, to promote and protect women’s rights to land and property.
“We believe that this meeting is of outmost importance and therefore inviting you to come and participate in the advocacy process in passing gender sensitive laws and especially the matrimonial property bill that is not being given much focus yet it forms part of the legislations on land to be enacted within 18 months period after promulgation of the constitution,” she said.
So far Kituo Cha Sheria has invited members of the CIC and PSC among other land experts to come and lead discussions on, Matrimonial property bill- strengths and weaknesses, Women, land and environment Rights’ and Strategies of realizing gender equity and equality as envisaged in the constitution as we look forward 2012 general elections.
Says the Executive Director: “The immediate formation of an independent National land commission to manage public land on behalf of the national and county governments and implementation of the land policy as entailed in the new constitution has been termed as a possible permanent solution to land issues that have been and remain the most sensitive in Kenya.”
She says that the implementation of the new constitution and particularly the chapter on land and decentralization and the passing of the National Land Policy by Parliament in 2009 saying it is a key achievement that sets out a well laid out principle of safeguarding the land rights in the constitution
“The appointment process of the implementation commission is critical and more important to women is the gender representation.We must have women represented in the implementation commission. The entire 30 percent has got to be met if at all some of the regains of women rights have to be attained in the constitution.” said Nyokabi.
According to women right organizations, land issues remain critical, politically sensitive and culturally complex to many Kenyans, hence land reform process provided in the National Land Policy and the new Constitution creates an opportune moment in Kenya in addressing economic, social cultural and political ramifications of the land issue.
Kituo Cha Sheria, FIDA Kenya and WiLDAF (K) in collaboration with other Non-State Actors to engage policy makers, stakeholders and representatives from the land sector so as to share and inform them on what needs to be done concerning the implementation of land reform and decentralization, Legislator Rachel Shebesh emphasizes the need to see through the speedy implementation of the National Land Policy.
She says for the devolved governments to work effectively on land issues, the national land issues should be dealt with before 2012 when the county governments will come to effect adding that land issues have been law anchored in the constitution that allows people to deal with them through legal processes that will see some sanity restored in history in the way land issues have been dealt with in the country.
Says Ms. Shebesh: “Land can never stop being thorny because it is the basis on which our economy grows and so we must have a commission that can resolve land issues efficiently.”
During the stakeholders conference in Nairobi recently, speakers cautioned that the ministry of lands being the main loser under the new constitutional dispensation, particularly losing the power to allocate and manage land, as well as the presidency (the Executive) power to allocate public lands – technocrats in these areas could be major impediments in the implementation process, including beneficiaries of grabbed public land that is supposed to be re-possessed.
“Such losers can place serious barriers against the implementation process and it is therefore paramount that we must continuously monitor and mind as well as manage concerns raised as best as possible to effectively minimize opposition to the implementation process,” says a senior official from the CIC.
He says that some of the minimal gains achieved so far in the implementation process the initiation of the computerization process at the ministry of lands at the national level, but the process needs to be further devolved to all counties in the country to improve transparency, efficiency and accountability.
The official says the other area of minimal gains is legislation where there has been some output under the constitutional Chapter on Land and Environment, that has resulted in the Environment and Land Court Bill, draft Bills on National Land Commission and the Matrimonial Property Bill that is still with the CIC, raw draft Bills on Land Registration, Public Land, Land Act all with the ministry of lands.
“However, the review harmonization and enactment of further legislation is required under Article 58 and Schedule 5 will require a more robust and inclusive approach to ensure stakeholder support, quality of content and timely delivery,” he said.