By Dennis Ndiritu
Land is a very emotive issue that falls at the heart of the Kenyan people. Its management has vexed the country for a long time and has been the accelerator of post-election chaos leading to the development of a land management structure led by the National Land Commission (NLC), whose functions, apart from constitutional provisioning, have been judicially anchored by the courts through various landmark decisions such as ‘Republic v County Government of Kiambu & Others  eKLR’, ‘Serah Mweru Muhu v Commissioner of Lands & Others  eKLR’, ‘Hassan Hashi Shirwa & Another v Swaleh Mohamed & Others, Malindi ELCC Number 41B of 2012’ and ‘Safepak Limited v Henry Wambugu & 11 Others  eKLR Civil Appeal No. 8 of 2019’.
The commissioners of the inaugural National Land Commission took office in 2013. With the expiry of their term in 2019 and appointment of new commissioners, a review of tenure is timely. Coming into office against huge public expectations, I pose the question, how much did they achieve?
The commission has achieved great strides in recovering illegally acquired public land especially in riparian lands and along railway lines in areas such as Kisumu, as evidenced by the recent demolitions. However, this is just a drop in the ocean as the commission has miserably failed to go after the real beneficiaries of irregular allocation of public and community land, namely politicians who own large tracts of land. The Commission has performed dismally in the resolution of land disputes as even among the numerous cases of land injustices documented in the Ndung’u Report and the Truth Justice and Reconciliation Commission, the commission cannot be said to have successfully resolved any of these disputes. Neither have they put in place concrete structures for the resolution of these disputes to foster the implementation of these reports. The National Land Commission cannot be solely blamed for this, as a big chuck of this is attributable to the rigidity of Parliament through enactment of the Land (Amendment) Act, 2016.
Further, Parliament is yet to enact legislation on management of community land and on acreage limits for private land as required by the Constitution. These scenarios betray a lack of goodwill by both arms that may result in the hope provided by the current legal framework being watered down.
The commission has made great strides in land registration. While titling has been a major problem in Kenya’s land sector, the Government, through the NLC has issued numerous titles to otherwise landless citizens which has improved their livelihood and economic production. The commission has further performed well in recovering parastatal lands such that belonging to Kenya Railways which had been privately acquired. The recent issuance of titles to schools buffering their properties against illegal occupation is also a major milestone to the commission. But even with improved titling, little has been felt by the majority of the Kenyans who still grapple with forced evictions and being squatters in their own country. That NLC has not taken steps to investigate and legitimise previously acquired titles on public land such as government forests and parks which have resulted in recent forceful evictions of innocent purchasers for value and the regularisation of irregularly and illegally acquired titles to public land with buildings owned by influential government officials who are offered restitution as opposed to surrender remains a big blot on its part.
Perhaps it is time to publish guidelines on the invocation of National Land Commission powers of restitution, restoration, apology and compensation to prevent their use to sanitise irregularities. It does not help that the Commission does not have any guidelines on how its duties and powers should be undertaken and exercised, thus forcing it to draft ad hoc regulations for its operations which may change depending on the tasks at hand and thus creating an unsustainable method of operation. The legislature should formulate concrete regulations that will aid the commission in the effective performance of its duties.
The commission has further been embroiled in controversies involving cases of compulsory acquisition of public land such as the Standard Gauge Railway land some of which have resulted in massive loss of data through break ins and subsequent prosecution of commissioners. NLC also stands accused of instances of land grabbing, which points to a dereliction of the commission’s core mandate.
However, the Commission has battled myriad challenges during its tenure. The inaugural term of the commissioners will be remembered for the turf wars between the commission and the Ministry of Lands, Housing and Urban Planning. Prof Ambreena Manji and Smith Ouma in “A Lost Opportunity: Can the National Land Commission Reclaim Its Original Mandate and Regain the Public’s Trust?” notes that in spite of the high expectations and aspirations of people in the Commission, what we have witnessed in the short life of the NLC has been concerted resistance to the changes it might have brought about. The authors decry the fact that the national government has fought hard to retain its control over key land functions, including land registration through a powerful centralising effort by a state determined not to lose control of management of and access to land, including regional and central land registries.
Manji and Ouma further argue that the ministry of Land, Housing and Urban Development has been the prime actor in this struggle for control. An incumbent institution with vast experience, it has worked hard to keep the new National Land Commission in check through riddling the commission with infighting and uncertainty as those who wished to maintain the status quo sought to make the commission an appendage of the Executive. It is their assertion, rightly so, that the Commission quickly assumed a subordinate role to the Land ministry, struggling to take on new and distinct responsibilities; it was, at the same time, bereft of staff and a substantive office block thus absorbing administrative officials from the ministry at Ardhi House, which made it a tenant at the will of the ministry.
The supremacy wars finally culminated in a request for an advisory opinion from the Supreme Court in 2014 on what the relationship between the Commission and the ministry ought to be in light of the Constitution and the relevant land laws.
Manji and Ouma note that, regrettably, while the Advisory Opinion provided a detailed reasoning highlighting Kenya’s historical land debacles and connections between reform and the 2010 constitutional transformation, it failed to provide a detailed guidance on the meaning and impact of land administration and management, and thus despite its keen sense of the history of land in Kenya and its stated commitment to constitutional (land) transformation, the court failed to provide the judicial support the commission needed at this critical stage of the commission’s infancy and thus the opinion did not do much to delineate the function allocation envisaged in the constitution.
The authorslament that while the court understood the need to guarantee the independence of the NLC, it failed to build a sturdy and enduring architecture with detailed and carefully elaborated roles specifically set out.In particular, in relation to titling responsibilities, the court failed to grasp the unique jurisprudential opportunity presented by the case. The outcome of the judgment was therefore that the role of the commission was truncated with the resultant land commission, a far cry from that envisaged by the Constitution and the National Land Policy.
As the tenure of the inaugural National Land Commission commissioners drew to a close its chairman, Muhammad Swazuri, was charged with corruption and abuse of office, with his fellow commissioners procured as alleged prosecution witnesses. This does not augur well for its legacy.
A new crop of commissioners are set to take over at the NLC. From the onset, the shortlist was unimpressive. The list smirked of political patronage and raised doubt about its viability, especially with the permeation of vested interests deep within the commission.
As it is, activist Okiya Omtatah has moved to court to stop Parliament from vetting the recently nominated members because their appointment failed to follow due process. In particular, Omtata argues that the selection panel was incompetently constituted by omitting members (two persons of the opposite gender, nominated by the Governmental Organizations Council, who have demonstrated competence and capacity in matters related to natural resources) required to represent stakeholders under Paragraph 1(d) of the First Schedule to the NLC Act, 2012.
He also accuses the selection panel of conducting the recruitment exercise in an opaque manner including by failing to publish the results of the interviews conducted, by recommending to the president for appointment to the position of members of commission, persons who were neither shortlisted nor interviewed for those positions and failing to uphold regional balance while nominating the persons to be approved for vacancies on the NLC. The presence of a similar petition by Moses Kiptuma Sinanga challenging the process used by the selection panel to nominate former Nyeri MP Esther Murugi and Isiolo Woman Representative Tiya Galgalo Ali as commissioners dents a huge blow to the credibility of the selection process, and perceived skewed constitution of the commission.
As it stands, the NLC has lost public trust and its revered status as an independent organ. Whether the new commissioners can dig it out of its big hole, only time will tell. (