From the grabbing of land by the colonialists, through the resistance (notably through the Land and Freedom Army) to the supposed “willing buyer willing seller” solution after Independence and the gross distortions of that scheme, land remains a central political issue.

The issue extends through ethnic and election violence in the 1990s and 2007-08, which was to a considerable extent about land, to the present day when somehow land grabbing and evictions seem to be reaching a new depth.

And the courts can testify that land is the underlying factor in a high proportion of both civil and criminal cases in the courts, with murder and lesser violence all too often reflecting land disputes.

Land was a major concern of the constitution makers. The National Land Alliance made a major contribution to the issue. One of their suggestions was for a National Land Commission.

Every official draft constitution did include a commission.

Why commissions?

Most government decisions and activities are carried out by government agencies that are supposedly accountable to the people because they are headed by elected officials. Those officials may be rejected by the electors, or sometimes can even be removed by Parliament (just as Cabinet Secretaries in Kenya could be removed if the National Assembly votes for this, the President then has no choice).

Sometimes functions may be given to a parastatal, which is less tightly controlled by government. And a more recent trend has been to appoint bodies that are expressly supposed to be independent of control of government. These are often called commissions. There are eleven of these under the Kenyan Constitution.

The constitution says that these commissions are not to be subject to direction by anyone. Their funding is supposed to be guaranteed, and their members are very hard to remove, so that they are not tempted to subordinate their judgement to the whims of others, especially politicians.

A commission will be led by a group of people with relevant expertise and experience (the commissioners) – again intended to ensure that their decision making is not a political matter but more based on sound reasoning and knowledge. Their collective expertise may be varied, whereas there is some risk that decisions made by a particular ministry may be rather narrow.

And commissioners generally hold office for a limited period – most for a single term of six years. The idea is that they can focus on the work to be done and not be affected by considerations of standing for re-election, so they should be able to think more long term and in the interests of the body and the nation, rather than in their own or their party’s short-term interests.

Another factor is devolution. Commissions should not be viewed as part of the national government. They perform functions that are very important not just for the national government but for counties and their governments. So the Commission on Revenue Allocation deals with distribution of funds to and between counties. The Salaries and Remuneration Commission fixes the salaries of some county, as well as national officers and advises on others.

The IEBC conducts elections for governors and county assemblies as well as President and members of Parliament. Every piece of land is in one county or other. And the NLC is responsible for managing a good deal of land including public land not allocated to anyone. That land is held by the Commission in trust for the counties in which it is situated.

A lot of new laws on land were passed in 2012. An important provision in the Land Act is that the process of acquiring land by the national or a county government for a public purpose is to be done through the Land Commission.

Resistance

Vested interests fought back very soon. Some definite benefits have remained – such as the abolition of the old power of presidents to allocate public land, which many people had corruptly benefited from, including Presidents. A few constitutional requirements have never been enacted – notably the requirement for law setting the maximum amount of land anyone may hold.

The Ministry of Lands did everything it could to obstruct the commission from the beginning, and effectively continuing with its work. Eventually the NLC went to the Supreme Court. The court tried to get the two agencies to sit down together and resolve their difficulties – to no avail. So in the end the Court had to deal with the issue and give an interpretation of the Constitution.

Professor Ambreena Manji in her book, The Struggle for Land and Justice in Kenya, says that the Court’s opinion was disappointing, and that the Commission is “a far cry” from what was envisaged in the Constitution and the National Land Policy.

As early as 2015 a bill to amend the new land laws was introduced. Manji says, “It was immediately apparent that the objective of the draft bill was to remove key functions from the National Land Commission and instead to vest them in the Cabinet Secretary for Land.”

And now it seems that there is a wish to continue that process. A bill introduced from government would take the compulsory acquisition powers away from the NLC and give them first to the CS.

So even a county government would apply to the national CS for Lands.

The amendment shifts the process for acquiring and from a body that is supposedly at least independent and experienced to a national ministry, part of a government that has an interest in the matter.

When the idea was first mooted by the President early last year, the Institution of Surveyors wrote that this would reverse “the gains made in land reforms”, be “an affront to the commission and undermine its independence and role in the discharge of its constitutional mandate”. It would return the country to the “politicisation of land management that is prone to patronage, favouritism and abuse of office in public land management”.

The President had said that the intention was bring “to an end the unfair and corrupt era of the Commission in land compensation”. And that it was wrong for the commission to both value the land and pay the compensation.

Comment

This issue is generally one that arouses greed, passion and sometimes violence, and not just in

Kenya. Here is a bill presented to Parliament purportedly to deal with a problem. But, as tends to be the Kenyan style, the bill does not, in its Explanatory Memorandum that summarises the Bill, explain what is intended. Indeed, the summary does not even say what the bill will do. Still less does it explain why.

Why do we allow MPs our MPs allow themselves to be presented with important draft laws almost without explanation, without any discussion of the underlying reasons, or possible alternatives? Will the public be given a week-long opportunity to comment on the bill in the standard travesty of public participation?

Here is a piece of proposed law that fits into a pattern of undermining counties and independent commissions. And that immediately arouses suspicions of corrupt intentions (as one can see from the Institution of Surveyors’ comments).

If there is a problem with the way the NLC has conducted evaluations and compensation, which involve a complex set of principles and institutions, including a committee chaired by someone nominated by the JSC, then should we not try to fix that instead of setting up a whole, and suspect, system? There seems very little sense that major administrative changes are expensive.

The bill- by the way – includes a proposal that seems fraught with risk. If there is an urgent need for land, there is the possibility of it being taken over only 15 days from the date of the notice of an intention to procure the land.

A bright spot is that the bill extends in time and in scope the role of the NLC in investigating historical land injustices.

This article was first published by the Star Newspaper https://www.the-star.co.ke/siasa/2024-01-14-ghai-the-land-the-ministry-the-commission-and-the-court/

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