Kenya's Bill of Rights (Property Rights)

The Bill of Rights is the longest chapter in the constitution of Kenya 2010. It is the fundamental point of view this case. One of the characteristics of transformative constitutions is the doctrine of substantive equality. The bill of rights establishes rights of every person including the right to own property; sometimes this right tends to be limited in some way.

Article 40 provides for the right to property. Article 40(1) state that subject to article 65, every person has the right, either individually or in association with others, to acquire and own property. Sub-article 2 states that parliament shall not enact a law that permits the state or any person. Sub-article 3 the state shall not deprive a person of property of any description or of any interest in, or right over property of any description, unless the deprivation-results from an acquisition of land in accordance with chapter five .land may be taken or be converted by the government through eminent domain or what is referred to us compulsory acquisition of land.

In Kenya and throughout East Africa land reform has been the approach in solving unequal access of property. It has been the favored means of confronting contentious land issues since 1990s.However it has failed to confront the consequences of unequal access. New laws have not been transformative in a positive way. Lonstanding grievances and injustices have not been confronted or addressed .even after the adoption of a progressive national land policy and the new constitution, Kenya really missed to enshrine in law their radical principles for land reform .Kenya’s colonial and post colonial history indicates land issues as the major cause of violent conflict throughout the country.

In 2009, a national land policy was given approval by parliament. In 2010 the same became entrenched in a new constitution which has been widely regarded as being radical and potentially transformative. The 2010 constitution of Kenya confronted longstanding grievances over land, among of them being centralized, corrupt and inefficient system of administration as was identified in a series of reports of inquiry during the 2000s.

Article 40(1) sets out principles governing land policy. These principles include the following: equitable access, security of land rights, sustainable and productive management of land resources, transparent and cost effective administration, and elimination of gender discrimination in law, customs and other practice related to land and property. Translating the above principles into law was seen as an opportunity to redress Kenya’s grossly distorted structure of land management and end what may be termed as predatory land practices by government.

Despite optimism and anticipation drafting of the land law bills as characterized by a lack of genuine consultation and debate. The bills were flawed, weak and seemed to be almost completely cut off from their guiding documents. In first and second reading of the Bills in the National Assembly in February 2012, Kithure Kindiki and others drew concentration to illogical drafting in the new laws. The borrowing of the provisions of other African countries without due attention to their relevance or sustainability for Kenya, the inconsistencies between the National Land Policy and the constitution were some of the matters he highlighted.

Parliament neglected to scrutinize or amend the land bills adequately and disregarded its duty to heed the contents of the land and environment chapter of the constitution. Parliamentarians failed to grasp the enormity, gravity and urgency of the task of land reform.

In April 2012, the assent of the land act, the Land Registration Act and the National Land Commission Act marked continuity with the past and the basic tenets of neoliberal land policy, e.g. by promoting land markets, providing for the individualization of land tenure and enshrining in law a presumption against customary tenure.