By Kelvin Njuguna Mugwe
Desperate times call for desperate measures, so the saying goes. The honchos of the ruling coalition ascended into power exceptionally desperate to win over residents of the Coast region of Kenya. This was after they received lukewarm support from the residents of the region in the 2013 elections. The UhuRuto partnership had been derided by the opposition throughout the campaign period for being the reason the region is engulfed by numerous land problems.
Much to the chagrin of the President Uhuru Kenyatta, the Coalition for Reforms and Democracy (Cord), skilfully advanced the notion that the land problems of the Coast were as a result of historical injustices that were allowed to thrive under the watch of the President’s father – the land issue was extremely emotive during that electioneering period.
Despite ambitious and spirited attempts from different players to tone down debate relating to land matters, the issue refused to go away. The President was hard-pressed to justify the legality of the land that his extensive family owns in the Coast. This sensitive issue, though extremely salient, eventually resulted in the Jubilee coalition getting unpleasant returns in terms of votes from the coastal region.
It was against this backdrop that Jubilee, upon been bequeathed with the instruments of power, embarked on a mission to issue out three million title deeds within five years. The process kicked off in earnest and was characterised by politically inclined pronouncements to the effect that Cord was only capable of posing the land question, and that it is Jubilee that has the solution. The President and his deputy presided over issuance of title deeds in a desperate move to endear themselves to the residents of the Coast and gain political mileage.
In fidelity to their rhetoric nature, the opposition settled on throwing tantrums and making a mockery of the President by stating that he was demeaning the office he held by doing a clerk’s work. Other than this tepid protest by Cord, Jubilee enjoyed an enviable success, free from genuine legal or political impediments – so they must have believed.
However, it is not on lost on the keen that the Constitution 2010 heralds far-reaching shake-ups in the previously existent legal structure. Key among those changes was the focused resolve to achieve land reforms. The Constitution, under Article 67, provides for the establishment of the National Land Commission (NLC), which is bestowed, with salient and unique functions previously absent. Further, Article 68 demands that Parliament ought to enact legislation for purposes of revising, consolidating and rationalising existing land laws, inter alia.
It is in light of this that the enactment of National Land Commission Act No. 5 of 2012 (NLAA) and the Land Registration Act No. 3 of 2012 (LRA) sufficed. These two legal instruments are of paramount importance in regard to all matters touching on issuance of title deeds, with the LRA in particular having the effect of repealing five other land law statutes. As a result, the actions of government had to be carried out within the strict confines of the Constitution, the NLAA and the LRA.
The legality, or lack thereof, of the title deeds issued was exceptionally and ingeniously settled in Petition No. 54 of 2015, Anthony Otiende Otiende vs. Public Service Commission and 3 Others. It is important to note that the issuance of title deeds by the head of state is not the actual reason that the petition sufficed. The petitioner was challenging the appointment of the Chief Land Registrar by the Public Service Commission.
The promulgation of forms and guiding rules to be used by land registries and the public in completing land transactions, which had a bearing on issuance of title deeds, by the Cabinet Secretary in charge of lands was also contested. It is during the determination of the latter issue that Judge Onguto issued a declaration that the title deeds issued were unconstitutional, and therefore null and void. In reaching this significant decision, the judge commendably expounded on three major factors that rendered the issuance illegal.
Firstly, the court dealt with the issue parliamentary approval. Section 110 of the LRA mandates the Cabinet Secretary in charge of lands to make regulations prescribing the forms to be used in connection with the LRA. However, in making those regulations, the Cabinet Secretary shall take into account the advice of the Commission as required under the Constitution, and such regulations or rules shall be tabled before Parliament for approval.
The Court made reference to Section 11 of the Statutory Instruments Act No. 23 of 2013, which enshrines the need for Parliamentary scrutiny when dealing with regulations, rules and forms. The Interpretation and General Provisions Act, which preceded the Statutory Instruments Act, also encompassed this relevant requirement that such forms should be laid before Parliament for approval. There was no evidence of the tabling of the regulations before Parliament to obtain approval, in blatant disregard of statutory provisions.
Secondly, the Court interrogated whether NLC input was sought as Section 110 (2) of the LRA demands. That provision brought into focus the matter of delegated legislation. It was the Cabinet Secretary’s contention that strict adherence to the foregoing provision would be contrary to the principle of delagatus non potest delegare (a delegate cannot delegate). The Court rejected this argument averred that the express provision of Section 110(2) of the LRA that retained Parliament’s superintending role of approving such regulations and safeguarded the requirement for NLC to give its contribution, served as an exception to this principle.
The Court frowned upon the reliance of this principle by the Cabinet Secretary in justifying why they never consulted the NLC. Section 110(2) of the LRA that provides for consultations stems out of Article 67(2)(c) of the Constitution, which tasks the NLC with the function of advising the national government on a comprehensive programme for the registration of land titles throughout Kenya. It was the Court’s solemn opinion that the limitation of the role of the NLC to only offering advice, which may not be even binding, does not amount to sub-delegation.
Finally, the Court delved into the sine quo subject of public participation. It is clear that the need to allow public participation is an important tenet of the Constitution. Article 10(2)(a) lists public participation as one of the national values and principles of governance. The Court, while correctly noting that the discourse about land in Kenya is a sensitive issue, was categorical that the public ought to be notified about processes that lead to private ownership of land and their input “ingested or appreciated”. Justice Onguto called upon the adoption of a policy that embraces inclusion rather than exclusion of the public from affairs of the government that directly affect them.
The Court found the failure by the Cabinet Secretary to obtain parliamentary approval, the disregard to seek and consider the advice of the NLC and the ignoring of the laws providing for public participation upon coming up with the regulations, to be an affront to the Constitutional and statutory provisions, thus rendering all Title Deeds issued null and void.
The blushes of the government, which has endured a calamity of failures, were ingeniously saved by the court, albeit temporarily. Under paragraph 78 of the judgment, the learned judge noted that the outright declaration of invalidity of the Title Deeds issued would result in unnecessary disruption and place titles already issued in doubt. This observation led to the Court to suspend the order issued and gave the Cabinet Secretary twelve months to initiate meaningful engagement with the public, seek and take into account the advice of the NLC and seek Parliament’s approval.