Lawyer Nicholas Opiyo: Land bill violates fair hearing provisions

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By Nicholas Opiyo

The bill before parliament is not a LAND AMENDMENT BILL. It is a CONSTITUTIONAL AMENDMENT BILL. A bill that seeks to amend a provision of the constitution that relates to property rights, particularly land rights.

The proposal, if passed (god forbid) will allow government to compulsorily take over your land before prompt, adequate compensation and before an opportunity to challenge it in court.

In other words, they will take over your land, offer you their valuation of its value, if you disputed it, they will deposit their assessment of the price of your land in court, while you challenge the same in court.

It means if the land is your only source of livelihood, you will be forced to leave it without a propose place to go to, and without compensation.

You and your families, including graves of your forefathers and mothers, if any, will be forced out. You will find a place to go, many times to no where. In the alternative, and because you will have been rendered destitute, you may be forced/compelled to take even a low compensation just to survive.

The law violates fair hearing provisions, reduces a disputed over your land to a monetary compensation only and whittles judicial independence by removing a possibility of a plaintiff winning a case and reversing a take over of his or her land.

It is an insidious and toxic amendment that will plunge the country into chaos, poverty and instability.

There are options government can take, other than amending the constitution, that can resolve what is an apparent problem of delayed compensation.

These are,

1. Expedite the land dispute resolution mechanisms. This will resolve the problem of delayed land utilisation arising from protracted litigation and disputes around ownership and land compensation. This is because even other citizens are suffering the same problem government claims to be suffering.

2. Related to (1) above, there are matters considered urgent and thus the law provides for their expeditious disposal by the courts. These includes election petitions, constitutional cases, matters relating to children etc.

The same can be extended to large government projects requiring the courts to hear them expeditiously. This will protect land owners against arbitrary and illegal actions of governments and their agents.

3. Reform the land administration system to return land survey in the hands of public office other than private surveyors, review the method of value assessment from the current government valuation to bring into into conformity with market rates.

4. Revisit the roles of district land boards, government valued and clamp down on speculative buyers and internal fraud in the land sector.

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