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Four Reasons Why Ruto’s Cabinet is Unconstitutional

7 min read.

By creating “cabinet-level” portfolios, President William Ruto commits a subterfuge in an attempt to circumvent the two-thirds gender rule. Ruto’s cabinet also fails to reach ethnic and regional balance while including nominees who fail the leadership and integrity test.

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Four Reasons Why Ruto’s Cabinet is Unconstitutional

There are at least four reasons why President William Ruto’s cabinet is unconstitutional. First, the cabinet fails the foundational composition rule of not more than two-thirds of the same gender. Two, the cabinet fails the Article 130(2) test that requires the national executive to reflect regional and ethnic balance. Three, some cabinet members fail the Chapter Six of the constitution test on leadership and integrity, tainting the entirety of the cabinet. Four, and finally, the creation of two cabinet-level portfolios is not only illegal but also indignifies women, contrary to Article 28 of the constitution.

I will not discuss chapter six issues in this piece as they require acres of space on their own. I discuss the other three.

Two-thirds gender rule

It is unfortunate that, in 2022, a cabinet formed by a president who without end hollers about his belief in the rule of law, does not meet the bare constitutional gender minimum of not more than two-thirds. It is both a maths issue and a constitutional subterfuge issue.

First, the math issue.

Article 152(a) clearly defines and caps the membership of cabinet. Cabinet comprises of the president, the deputy president, not more than 22 cabinet secretaries and the attorney general. Essentially, the ceiling is 25 members. No more. But this number could be less, because the president can appoint as few as 14 cabinet secretaries. Ruto used all his 22 cabinet cards and more. The more—two positions—he christened “cabinet-level portfolios” on gender and national security and assigned women to superintend them.

Now, here is the problem. Article 27(8) establishes a two-third gender ceiling rule on the composition of any state or public body. The courts have said that the cabinet is a body for the purpose of Article 27(8) gender-capping. Ruto and Deputy President Rigathi Gachagua are men. Justin Muturi, AG-nominee, is also a man. Additionally, of the 22 cabinet secretary nominees, 15 are men. Hence, of the 25 cabinet slots, 18 are reserved for men and 7 for women. In the case of Marilyn Kamuru versus Attorney General decided by Justice Onguto in 2015, the Judge said that Article 27(8) math would require computing the number of the lesser gender against the entirety of the cabinet including the president, deputy president and the AG. For Ruto’s cabinet then, the 7 women would be the numerator against a denominator of the total and maximum 25 cabinet slots. This results in 72 per cent men in cabinet whereas the constitutional cap should, at the minimum, limit them to not more than 66 per cent.

Now, on to the subterfuge.

I know there are those who will ask what about the two cabinet-level portfolios and the secretary to the cabinet who are all women. Again, the comprehensive response is to be found in Articles 152(a) and 154 of the constitution. Article 152 caps the number at 25. In that capping it does not say that secretary to the cabinet is a cabinet member. Article 154 tells us who a secretary to the cabinet is. It is an office in public service but, unlike Article 152 which explicitly says that the AG is a member of the cabinet, Article 154 does not make a secretary to the cabinet a member of the cabinet.

And this is where Ruto commits a constitutional subterfuge. By explicitly naming the four positions—the two advisers, the secretary to the cabinet, and the AG—as cabinet-level portfolios, he was constitutionally mixing apples, oranges and tomatoes. But it seems the intention was to dangle a red-herring both regarding the two-third math and the legality of the two offices. In fact, his supporters misleadingly insist that in computing the two-third rule, the three portfolios—that is, the two cabinet-level advisers and the secretary to the cabinet—should be factored in.

This is how smart people try to circumvent the constitution. But the constitution is quite conscious that public officers will try such tricks so it says—and the court has confirmed—that its violation can be direct or through effect. Both levels of violations are present here.

Regional and ethnic balance

This is straightforward albeit controversial. Article 130(2) says that the composition of the national executive shall reflect the regional and ethnic diversity of the people of Kenya. Again, it is a little more than a bean counting exercise.

The two critical operative elements are ethnic and regional. Regional is obviously geographic although the constitution does not delineate what a region is. It leaves that to common sense, practice, rhetoric and legitimate expectation. In this regard, and in our political rhetoric, there is a region christened Mt Kenya. While defined to some extent by proximity to the mountain (Mount Kenya), it also imports into its defining characteristic some ethnic component. So, while Isiolo may be closer to Mt Kenya than Kiambu, the majority of communities resident in Isiolo are not legitimately and in political rhetoric terms considered to be part of Mt Kenya. On the other hand, Kiambu people are, even though they are much further away from Mt Kenya than Isiolo is. But this is where it gets even messier: I believe if you are a GEMA community member living in Isiolo, you are considered Mt Kenya. The opposite is not true. You may wish to argue this point, but it is one of those facts that make political but hardly any logical sense; still, the constitution would recognize the argument in the context of Article 130(2).

Article 130(2) says that the composition of the national executive shall reflect the regional and ethnic diversity of the people of Kenya.

In this sense, it is possible that some of the members from the GEMA group who have been nominated to the cabinet may identify as hailing from the Rift Valley or from elsewhere in the country. But when Article 130(2) is purposively read, a question arises whether the numbers of those included in the cabinet who are from Mt Kenya region, or are from one of the pre-dominant Mt Kenya regional ethnic groups (when one considers the demographics and diversity of the country), disproportionately constitute the cabinet. My answer is yes.

Illegal cabinet-level portfolios

This is not about the attorney general or the secretary to the cabinet. As I have explained above, the constitution explicitly says that the AG is a member of the cabinet. Article 154 also creates the position of secretary to the cabinet, although it does not make the holder a member of the cabinet. Whether the position of secretary to the cabinet is a cabinet-level portfolio is a discussion for another day. What I am interested in here is the legality of the other two cabinet-level portfolios Ruto has created on gender and national security.

The constitution and the law are explicit on how state office or offices in public service are to be created. The constitution is also implicitly inundated with the logic of circumscribing a strict criteria and processes of creating such offices, among them to curb wastage of public funds by creating unnecessary or duplicative offices.

The agency with the power to create a public office is the Public Service Commission (PSC). True, the president may request the PSC to create a position in public service—but when he does so, the PSC is required to conduct a thoroughgoing needs assessment to determine whether the position is necessary. The constitution anticipates this and the courts have said as much. If, in fact, the two positions are offices in public service, the strict requirements of Article 234 have not been complied with.

The constitution and the law are explicit on how state office or offices in public service are to be created.

There are only two other avenues through which Ruto could have created the two offices. The first is under Article 234(4) which allows the PSC to create a position of “personal staff” to the president. We shall settle this quickly because it would be oxymoronic to argue that a “cabinet-level portfolio” is a “personal staff” position for the president. In any event, did the PSC sanction it?

The second avenue is to be found under Article 260, which provides that parliament can create a state office but even then only through legislation. Question: under which law are the two offices created?

Dignity

Constituting a cabinet is perhaps one of the most intense of boardroom wheeler-dealer activities. It is, for instance, hard to find the logic why, for example, Ababu Namwamba was assigned the sports and youth docket while Alfred Mutua was assigned foreign affairs. However, at times, the constitution is able to find logic in some of these nocturnal deals and I think, in this case it would easily discover the logic behind why the two tentative and illegal positions of cabinet-level portfolios ended up with women as nominees.

Article 28 is about human dignity. If there are two positions to be assigned, one that is constitutionally recognized and secured and the other constitutionally suspect and tentative, it is no secret that being appointed to the constitutionally secure position is more dignifying. Historically, and as Ruto has demonstrated with his list of cabinet nominees, women are always an afterthought when allocating consequential positions of leadership. This is not conjecture. Instead, it is a compelling argument under Article 259 of our constitution, a provision that requires the constitution to be interpreted in a purposive way. It is a position also supported by many other relevant and endless re-enforcing provisions of the constitution. So, the two most tentative positions are ultimately assigned to women, because, after all, in the animal farm context (but not under the 2010 constitution), all animals are equal but some are more equal than others.

Plum as the positions may seem, in contextual terms they raise an Article 28 issue. An issue of human dignity.

What to do?

There are two ways to deal with these constitutional infirmities. One: Ruto can withdraw his list and amend it accordingly to comply with the constitution. If he is too married to this strange concept of “cabinet-level portfolios” he should at least push some of the Mt Kenya men there and move the women to the real cabinet portfolios. We can then deal with the illegalities of where the men end up later. But that may all be wishful thinking.

Historically, and as Ruto has demonstrated with his list of cabinet nominees, women are always an afterthought when allocating consequential positions of leadership.

Second: In the Marilyn Muthoni case, Justice Onguto chastised the national assembly for aiding and abetting Uhuru (gleefully, may I add) in violating the constitution by failing to conduct, during the vetting of cabinet secretary nominees, a “strict scrutiny” (the judge’s words) on the constitutional compliance of the composition of cabinet for gender, regional and other factors – but primarily gender because the pith of the case was the violation of the two-third gender rule.

Moses Wetangula and the national assembly will soon have a choice to make: whether their primary allegiance and loyalty is to William Ruto or to the constitution.

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Waikwa is a constitutional lawyer and co-founder of Katiba Institute.

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To Herd is Human

Those promoting veganism as a means of fighting climate change forget that in many parts of the world herding is the only realistic means of human survival and millions rely on it.

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To Herd is Human

The war against animal agriculture, now spearheaded by fundamentalist vegans, is an attack on human diversity. Were it to succeed, it would wipe out streams of detailed knowledge and expertise about how to thrive – self-sufficiently – in almost all the landscapes and climates on earth. This knowledge has been accumulated gradually over many thousands of years and is irreplaceable. It’s where we truly connect to our non-human relatives. Eradicating it would reduce everyone to dependence on processed, factory-produced “food” and additives, and on the corporations that make them.

This is because healthy human nutrition from plants alone is only approachable in particular climates and landscapes, and even then important food supplements are needed. If everyone were to be restricted to this diet, the elites in charge of the manufacturers and supply chains would control human life.

Whether the elites would themselves live off the stuff they make is open to question. They could ensure some healthy food is still grown normally, including from animals, but it would likely be priced well beyond the reach of ordinary folk. Bill Gates, for example, now invests heavily in fake meat and dairy, promoting it vigorously whilst tucking into the real meat he loves.

Predicting the end of animal agriculture is nothing new. It was initially a fundamentalist Christian ideology preached over 100 years ago with the objective of cutting sexual desire! Were it ever realised, it’s no exaggeration to suggest it could signal the end of human life. After all, our adaptability and inherited knowledge are the only reasons our species survived and spread over the world in the first place, including into many climates still viewed by urban dwellers as hostile. Animal domestication has been central to human societies for tens of thousands of years.

Healthy human nutrition from plants alone is only approachable in particular climates and landscapes.

Whilst expertise in mechanics, science and industrial processes can be acquired from books, the flora and fauna we depend on is so subtly and delicately interrelated that it’s best seen at least as much through generations of direct experience as through classroom skills. Those who depend throughout their lifetimes on their own herding or hunting often rely on something which leans as much towards the instinctual as to the learned.

The risks in losing this vast body of expertise should be obvious. In spite of endless predictions, no one knows what the world will look like in a century or two, and wiping out knowledge of animal agriculture, as well as the myriad breeds it has produced, is bound to severely limit the options open to our descendants. There are many parts of the world where herding is the only realistic means of human survival and millions rely on it. The dependence on camels in the Sahara, reindeer in north Eurasia, horses in Central Asia, llamas and alpacas in the Andes, and goats and sheep in many environments, is well known. Areas that are unsuitable for crop growing, where agriculture is impractical or impossible – particularly in upland and arid regions – can support herding. Human life in vastly different climates can also depend on hunting, from tropical forests to the Kalahari to the Arctic, and of course more millions throughout the world rely on fish. Those who think that crops can replace these ways of life seem unaware of the reality in such places. As the climate changes, there may be many more zones in the future where humans can only survive if they live at least as much off animals as from plants.

In spite of all this, ending animal agriculture is now vigorously promoted by the mainstream media. Paradoxically, this is especially noticeable in apparently progressive forums, and where the propaganda is heavily funded by corporations and foundations, including by Bill Gates. The UN and the World Economic Forum support Gates’ dystopian dream and, as with most “good causes” nowadays, it’s inevitably presented as key in fighting climate change. Studies, and especially headlines, are routinely trotted out to support this highly dubious claim, often funded by corporate interests or their foundations, repeating one-sided or massaged data that can seem convincing at first sight.

Lots of people, particularly the young, swallow all this as an article of faith, and embrace the notion that ending all animal agriculture is about compassion for animals, as well as fighting for the climate. They rightly cite the undeniable horrors of massive industrialised agriculture but seem unaware or unconcerned that in much of the world animal agriculture is a very different thing indeed, practised on a much smaller scale and in the hands of local people who have derived sustainable livelihoods from it for millennia, and all this with little or no reliance on a polluting industry.

As the climate changes, there may be many more zones in the future where humans can only survive if they live at least as much off animals as from plants.

Those local people are, luckily for all of us, the real key to why the end of animal agriculture is unlikely ever to be realised. However much the elites seek to manipulate people and agendas, human beings remain individuals with their own beliefs and dreams just as much as they are conditioned social creatures who can, sometimes all too easily, succumb to short-term fashion and peer pressure.

Even the most vigorous and violent attempts at imposing total control over any population inevitably foster a resistance where, eventually, a plurality of belief and action is rekindled. Such human spirit, or whatever one calls it, proves time and again the overwhelming and resilient strength in human diversity.

The key lesson of history is that there is no single right way to live and be, and there is nothing in history to suggest any single way of life is ever likely to become totally dominant. That simple fact will save humankind from the dream of those who want to end all animal agriculture. It’s really a nightmare which points not towards an innocent and childish Garden of Eden of healthy plant-based diets and compassion for all creatures, but to the end of most human life. Indeed, that may well be what some campaigners seek. Fundamentalist environmentalists of the 1980s Earth First! movement believed that “Billions are living that should be dead,” and concluded,  “Fuck the human race.” Perhaps the original stimulus, a fear of and disgust with human sexual desire and reproduction, is not so alien to the campaign being waged today by fundamentalist vegans.

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GMOs: Entrenching Kenya’s Food Insecurity

The decision to lift the GMO ban undermines our food and seed sovereignty and delegates the control of our food production systems to profit-driven multinational corporations.

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GMOs: Entrenching Kenya’s Food Insecurity

Kenya has lifted its 10-year ban on Genetically Modified Organisms (GMOs). The World Health Organisation (WHO) defines GMOs as organisms (plants, animals or microorganisms) whose genetic material (DNA) has been altered in a way that does not occur naturally through mating and/or natural recombination.

Proponents of GMOs are lauding this as a good move towards addressing the issue of food insecurity at a time when 4.1 million Kenyans are facing hunger. While it is clear that food insecurity threatens the life of millions of Kenyans, lifting the ban on GMOs is not the solution.

Since the production of the first GMO crop in 1983, there have been significant environmental and health concerns regarding these crops. A joint statement published in a scientific journal in 2015 by over 300 independent scientists and researchers states that the scarcity and contradictory nature of the scientific evidence published to date prevents conclusive claims of safety, or of lack of safety of GMOs. These scientists further state that rigorous assessment of GMOs has been hampered by lack of funding that is independent of proprietary interests. Echoing the sentiments of these scientists is another scientific study that shows that the majority of studies concluding that GMOs are safe and nutritious are those undertaken by associates of the biotechnology companies producing GM foods and seeds.

To date there are no epidemiological studies on the  potential effects of GMO food consumption on human health despite claims from GMO proponents that GMO meals have been consumed in countries such as the United States of America with no impact on health. There is also no scientific consensus regarding the environmental risks associated with the growing of genetically modified crops.

In line with the UN’s Cartagena Protocol, the National Biosafety Authority is the state corporation in Kenya mandated with ensuring the safety of human and animal health and providing adequate protection of the environment from harmful effects that may result from GMOs. The Cartagena Protocol requires a careful case by case assessment of each GMO by the national authority to determine whether the GMO crop or food satisfies the national criteria for being “safe” and ensures that any environmental health concerns and risks are addressed before its introduction.

Based on this understanding, it is unclear whether the National Biosafety Authority carried out any independent research on the safety of these crops and foods regarding their effect on the environment and on human health before the ban was lifted in Kenya.

Safety aside, GMOs aggravate food insecurity and threaten food and seed sovereignty. They do so by holding farmers in debt cycles that reduce their ability to produce more food for consumption. More than 80 per cent of the food consumed in Kenya is produced by smallholder farmers. Lifting the ban on GMOs will expose farmers to the exorbitant prices of GM seeds and they are likely to be locked into debt cycles as they try to pay for seeds acquired through loans.

Farmers in Burkina Faso abandoned the cultivation of Bt cotton that was introduced by Monsanto, now Bayer, citing the higher prices of Bt cotton seed and its poor quality compared to their indigenous cotton seed which produced a superior quality of cotton. Their adoption of Bt cotton caused them to lose their niche in the international cotton markets. Yet the same Bt cotton (MON 15985) that failed in Burkina Faso has been introduced in Kenya following national performance trials undertaken by the Kenya Plant Health Inspectorate (KEPHIS) with the approval of the National Biosafety Authority (NBA). This begs the question whether the Kenyan government is trying to enslave its people to biotechnology companies.

In November 2021, cotton farmers in Busia were asking the Kenyan government to subsidise the price of Bt cotton seed which was retailing at KSh2,200 a kilo. In March 2022, there was an outcry from cotton farmers in Kenya because of the unavailability of Bt cotton seed, which the chief executive officer of the National Biosafety Authority attributed to the multiplication challenges experienced by the sole company given the task—companies fronting the GM crops, such as Mahyco, in which Monsanto has a 26 per cent stake, control the production and multiplication of these crops.

This begs the question whether the Kenyan government is trying to enslave its people to biotechnology companies.

Maize is Kenya’s staple crop and farmers are currently being persuaded to grow Bt maize, based on the argument that it is resistant to pests. However, since farmers will not control the supply and multiplication of the Bt Maize seed, they are likely to face the same seed scarcity that is being experienced by Bt cotton farmers when the suppliers of these seeds pull out of the market.

Companies such as Monsanto (now Bayer) are among the world’s largest seed companies and  have been known to push GM innovations on key crops such brinjals, maize and potatoes across the world, their major interest being profits. Allowing these companies to dominate the production and importation market of key crops such as maize is likely to affect the livelihoods of the farmers who, in Kenya, produce about 40-45 million bags of maize every year. These farmers will certainly be competing for market against imports of cheap GM maize from the US which has been pushing to expand its exports of genetically modified food crops into the Kenyan market.

Kenyan imports of GM foods and food crops will also affect our East African neighbours such as Tanzania and Uganda who export their surplus produce to Kenya. With the loss of market comes the loss of interest in farming and the abandonment of land, which in turn could lead to rural-urban migration by populations in search of alternative livelihoods, leaving the door wide open for multinational corporations to buy abandoned land to grow commercial crops for export.

Lifting the GMO ban will also expose farmers to draconian intellectual property laws related to patents held by GMO multinationals. GM seed is patented and this could land the farmers on whose farm GM crops have grown without their knowledge into intellectual property disputes. These farmers are likely to be forced to pay royalties for GM crops that contaminate their farms through pollination or cross breeding. In the US Monsanto (now Bayer) sued hundreds of farmers to protect its GM seed patent rights. In Brazil, Monsanto won a US$7.7 billion lawsuit after a court ruled that farmers cannot save and replant Monsanto’s patented Roundup Ready soybeans. In India, PepsiCo, the manufacturer of Lays Potato Chips, had sued four farmers for an amount of about KSh15 million for illegally growing its potatoes. The case was withdrawn.

Lifting the GMO ban will also expose farmers to draconian intellectual property laws related to patents held by GMO multinationals.

Environmental concerns associated with lifting the ban on GMOs include the loss of our agricultural biodiversity and interference with our country’s ecological balance. GM crops are likely to contaminate non-GM crops through pollination. This could lead to the loss of indigenous varieties of crops such as millet, sorghum and spider plant (sagaa) that are grown in many parts of the country.

While the Biosafety Act of 2009 provides for risk assessment measures in order to protect human health and the environment from the possible adverse effects of GMOs, in the case of Bt cotton the NBA stipulated that once it was released for commercialisation, the NBA and government agencies would monitor it for 20 years “to assess whether there are post release adverse effects”. Aren’t 20 years too long a period to wait to address any possible effects on human health and the environment? Shouldn’t the risk assessment have been done before the introduction of GMOs in the country for cultivation and commercialisation? There are also no clear liability and redress mechanisms for damage resulting from transboundary movements of the genetically modified living organisms. What happens to the farmers who might be caught up in lawsuits regarding patent rights? Is there any clear legislation on their protection?

Fronting GM seeds as a solution to food insecurity equates to the Kenyan government admitting that Kenya has a seed problem, which is untrue. For all the crops cultivated in Kenya,  more than 78 per cent of the seed used comes from informal seed sources controlled by smallholder farmers. This is despite their existing a law that makes it illegal for farmers to share, exchange and sell indigenous seeds. The lifting of the ban on GMOs in Kenya is therefore ill-advised. Food sovereignty and security lies in farmers controlling and breeding their own seeds and having access to proper area-specific storage facilities and appropriate infrastructure.

Access to water is a key factor in addressing food insecurity. Kenya’s fresh water bodies are already choking with chemicals. An exposé aired by the Nation Media Group showed that Lake Victoria, Kenya’s largest freshwater lake, is contaminated by pesticides and fertilizers. Why can’t the government prioritize safeguarding such resources from contamination so that Kenyan farmers can have access to clean water for food production? Or provide water to farming communities for easier food production?

In addition, access to agricultural extension services that provide agro-ecological information is critical to providing information on sustainable farming practices such as ecological and organic farming. Having access to this information is invaluable in that it teaches the farmers to produce more safe food while conserving natural resources such as soil and water.

These practices also minimize the use of harmful agrochemicals and ensure that Kenyans have access to safe and adequate food. Ecological farming practices also minimise soil degradation, including widespread soil acidification due to overuse of chemical fertilisers. Most importantly they help farmers save and share indigenous seeds which is a key aspect of food sovereignty. Therefore, the move to lift the ban on GMOs is only going to send more farmers deeper into debt and poverty, limiting their ability to produce more food and increasing our dependency on imported processed foods that are low in nutrients. It is a move to undermine our food and seed sovereignty and delegate the control of food systems to multinational corporations whose motives are driven by profit. A seed is the lifeline of a generation, those who control seed control the entire generation.

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Land Governance Priorities for the New Administration in Kenya

The new administration should invest in enhancing service delivery by improving management of land information, developing and ensuring adherence to land use plans and spatial plans, and supporting continued implementation of land and environment laws and policies.

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Land Governance Priorities for the New Administration

On Tuesday, 13 September 2022, H.E. Dr William Ruto took his oath of office and began his term as the fifth president of the Republic of Kenya. In his inauguration speech, the president purposed to hit the ground running and lead Kenyans on a path of economic transformation and in the days following he confirmed his intention with action. The new administration introduced policy changes that gave us an idea of how the next five years will be. The new economic direction appears to be one of subsidizing production, and not consumption, with the latter being deemed unsustainable and harmful to the economy in the long run.

The president’s campaign focused on economic transformation and empowering Kenyans at all income levels to be able to earn a decent living. The plan to achieve this as detailed in the Kenya

Kwanza manifesto is heavy on investing in capital (Hustler’s fund, subsidizing production, bringing down the cost of living), and labour (job creation) but not as detailed in the other two factors of production: entrepreneurship and land.

Among the basic factors of production, land is the only one that is finite and as such, the success and efficiency of the new administration’s plans for economic transformation will also depend on how the state will manage and administer land to support investments as well as individual and communal property rights.

The Kenya Kwanza manifesto lists landlessness, insecure land tenure, the squatter problem in the Coast region, land fragmentation, and encroachment of forests and other ecologically sensitive areas among the top land-related challenges the country faces.

To resolve these challenges, the new administration pledged to establish a settlement fund to acquire land and resolve landlessness, and to stop land fragmentation and make optimal use of agricultural lands. The manifesto also included a commitment to establish 5 million acres (20,000 km²) of agroforestry woodlots in drylands. In addition, the coalition pledged to take administrative measures to ensure 100 per cent enforcement of the spousal consent legal provisions in land transactions to cushion women and children from dispossession of family land.

Beyond the solutions listed above, the new administration should invest in enhancing service delivery by improving management of land information, developing and ensuring adherence to land use plans and spatial plans, and supporting continued implementation of land and environment laws and policies. Overall, sufficient budgetary support and political goodwill will be the main factors that can ensure progress in the plans the new administration will have to improve land administration.

In the coming days, the president will name a cabinet and the fourteen to twenty-two individuals will be the executors of the government’s plans for a prosperous Kenya. For the incoming Lands Cabinet Secretary, here are five main things he or she can deliver on to create the right conditions for growth in investments and economic empowerment for individuals and communities:

Digitization of records and automation of services

The new administration should continue investing in the process of digitizing land records and automating processes for the whole country. Digitizing land records and automating lands services will not only improve service delivery by improving turnaround times for information requests such as land searches, but it will also significantly reduce cases of fraud.

The previous administration, which the current president was a part of, showed that full and efficient automation is achievable through the success of platforms such as eCitizen and NTSA TIMS. Kenyans will expect this level of efficiency when it comes to digital land records and automated services. The new administration should continue to deliver on this promise of automation by supporting the continued rollout of ArdhiSasa.

Institutional support for land administration

The foundational steps to reform the land sector have been taken through the new laws that have been enacted since the promulgation of the 2010 Constitution, and the new institutions we have introduced in the framework of land governance. For these institutions to undertake their mandate to the full extent envisioned when enacting the laws, we will need to continually invest in them. This investment should come in the form of financial and human resources to implement programmes such as the national titling programme, registration of community lands, digitization of land records, and adjudication and titling of public lands. Implementation of actions to resolve historical land injustices, including addressing issues of landless families and squatters in the coastal region and other parts of the country, will require adequate budgetary allocation and political goodwill. The new administration had listed the squatter problem in the coastal region among the main land issues the country faces, and this acknowledgement is an indicator that this matter will be a priority.

The new administration should continue to deliver on this promise of automation by supporting the continued rollout of ArdhiSasa.

Additionally, institutional support will come in the form of political goodwill to ensure more judges can be appointed to the Environment & Land Court, as well as national government support to county governments in developing county spatial plans. The swearing in of two more judges to the Environment & Land Court in the president’s first full day in office, for example, demonstrates the kind of goodwill that will guarantee continued progress in land governance.

Supporting investments in land

Kenya’s economic blueprint, Vision 2030, recognizes land as a critical resource for the socio- economic and political developments that the country is undertaking. Vision 2030 also identifies respect for property rights to land, whether owned by communities, individuals, or companies, as a prerequisite for the economic transformation the country is targeting. Having a formal registration and documentation process is the basis of recognizing land and property rights and facilitating enjoyment of those rights. We also have the Environment & Land Court to ensure access to justice in resolving disputes over land and property.

The Constitution of Kenya 2010, and the land laws enacted in 2012 (the Land Act, the Land Registration Act and the National Land Commission Act) and thereafter, provide for timely and fair compensation in the event of compulsory acquisition of land. This will only be possible once the land value index has been developed for the whole country. The land value index is a representation showing the spatial distribution of land values in a given geographical area at a specific time. The land values in the index should guide compensation matters when the government or a private entity is acquiring land for investment.

All these policy and legal developments are geared towards establishing an enabling environment for investments to thrive. In the same regard, county governments need to align their policy and legal frameworks to support investments on land. In 2015, the Ministry of Lands and the National Land Commission approved the National Spatial Plan. This plan guides the implementation of strategic national projects, and specifically the flagship projects spelt out under Kenya Vision 2030, by indicating their locations and providing a framework for absorbing the impacts of these projects.

The National Land Commission has also developed guidelines on how counties can undertake spatial planning. The NLC’s Directorate for Land Use Planning is on hand to support counties in developing spatial plans in adherence to the national spatial plan. Counties should therefore prioritize developing these plans and begin identifying solutions to reconcile community livelihoods with the impacts development and infrastructure projects will have on the communities they serve.

Registration of community land

Community land accounts for an estimated two thirds of the total area of Kenya. However, the majority of community lands were former trust lands and have never been adjudicated or registered. The communities in Turkana, Marsabit, Isiolo, Garissa, Mandera, Wajir, and Tana River, for example, have never undergone the process of adjudication to have a formal claim to their land. Yet a lot of investments are happening on these lands. We are undertaking oil exploration in Turkana County and in Marsabit County we have the largest wind power project in the country. The Lamu Port South-Sudan Ethiopia Transport Corridor (LAPSSET) goes through Lamu, Garissa, Tana River, Isiolo, Samburu, Marsabit and Turkana Counties.

The majority of community lands were former trust lands and have never been adjudicated or registered.

The communities in the counties mentioned above are among the most vulnerable groups due to a history of marginalization, and by being in areas that are categorized as arid or semi-arid. While the constitution and the land laws provide for fair and timely compensation when land is acquired for investment or public purposes, rightful beneficiaries of compensation can only be ascertained once the land has been registered. Registering community lands will also contribute to national food security. For communities to maximize the output of their land, they will need to undertake land use planning in accordance with the provisions of the Community Land Act. However, effective land use planning can only take place once communities have a formally registered claim to their land.

Environmental conservation and landscape restoration

Kenya is a party to several international conventions that are addressing environmental issues. While we have an obligation to conserve and restore the environment, we also have an obligation to ensure Kenyans are food secure and have an income to depend on.

In 2019, the United Nations Convention on Combatting Desertification (UNCCD) adopted a Land Tenure Decision which encouraged parties to recognize tenure rights and improve tenure security as they implement measures to combat land degradation and desertification. The new administration should align with this position and reconcile communities’ livelihood and food security needs with the country’s land restoration and environment conservation priorities. Neither should be achieved at the expense of the other. The next administration should take the opportunity presented by the Land Tenure Decision to centre Kenya’s restoration efforts and national environmental action targets on Kenyans. There is a need to ensure communities remain on board the framework of environmental management, so that they can become both stewards and beneficiaries of sustainable land use.

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