By Abraham Samoei
One of the key commissions formed by the enactment of the 2010 constitution was the National Land Commission (NLC) as part of land reforms initiatives in the country. Last week saw the curtain fall on the 6-year term of the first lot of commissioners. It is therefore prudent to look back and evaluate the Commission’s performance based on expected outcomes bearing in mind how critical and emotive land issues are in Kenya.
Upon its formation, the Commission was sought to be the answer in the bid to professionalize the management of public land through transparent and accountable mechanisms. The collective desire to have the Commission was borne out of the need to address the historical mismanagement of public land in Kenya. Previously, this mandate was vested with the Commissioner of Lands and the outcome was a trail of illegal/irregular allocation of public land to people with access to power.
The National Land Commission traces its origin from recommendation of Njonjo Land Commission for Inquiry into Land Law systems, which had been mandated in 1999 to develop guidelines and principles of a National Land Policy framework.
In defining the mandate of NLC, Chapter 67 of the Constitution provides that the commission shall manage public land on behalf of the national and county governments, recommend a National Land Policy to the national government, advise the national government on a comprehensive program for the registration of title in land throughout Kenya, conduct research related to land and the use of natural resources, and make recommendations to appropriate authorities, initiate investigations into present or historical land injustices, and recommend appropriate redress, encourage the application of traditional dispute resolution mechanisms in land conflicts, assess tax on land and premiums on immovable property in any area designated by law, and monitor and have oversight responsibilities over land use planning throughout the country. The National Land Commission Act, 2012 gave additional functions and roles to the Commission, which includes compulsory land acquisition. These are quite broad mandates and in assessing the performance of the commission, I shall seek to restrict my observation to the provisions of the Constitution and the statutes.
In the management of public land on behalf of the national and county government the commission was to carry out renewal of expired land leases as well as review of grants and dispositions to public land. The Commission was also to finalize the review of grants and dispositions to public land by May 2017. However, the reports in the public domain shows that they barely scratched the surface.
The National Land Policy of 2009 is set to expire before the end of this year and is to be reviewed. It is expected that by now, the Commission should have developed draft policy recommendations, in consultation with the stakeholders to ensure a new policy is in place on expiry. I am not aware of much has been achieved towards this end. Similarly, we are yet to see an advisory on the comprehensive registration of title to land. The Constitution envisaged that procedures and processes shall be formulated by which matters of ownership, possessions and land rights are recorded. This came from a background that less than 30% of the Kenya’s total area has been registered with approximately 4 million titles only issued.
Furthermore, we have witnessed piecemeal efforts to address historical land injustices without clear recommendations for redress. Cases of historical injustices are spread across the republic and a comprehensive plan ought to have been developed and implemented within 5 years of commencement of the Act in 2012. The commission missed this statutory deadline.
There is nothing to write home about with regards the other mandates given by the constitution. It so appears that the commission focused on Compulsory Acquisitions which in this case is referred to as any other functions assigned by law by the constitution leaving the core mandates stipulated in the constitution in the backburner.
The conduct of the Chairman and the commissioners has been under a lot of scrutiny especially on matters regarding lack of integrity, unethical and unprofessionalism in executing its mandate. There have been allegations of corrupt activities, overvaluations to obtain commissions from the landowners receiving compensation and is currently embroiled in a storm regarding compulsory acquisition of land for SGR which indicates poor internal coordination and implementation in executing its mandate. Kenya Railways has taken the commission to court to compel them to pay compensation when funds have been released to them to settle with the owners. The turf wars pitting the Chairman and his Vice are not helpful at all and there are media reports that there are factions within the commission that seriously hindered effective service delivery.
The expectation was an independent and professionally run public body that would inspire confidence in carrying out the mandate set out in the constitution. Did they meet this high standard? In my honest assessment, the Commission has not met public expectation as far as its mandate as outlined in the constitution and performed poorly in the key areas.
From where I sit, their failure to live up to expectation can be attributed to several factors. Key among was the numerous huddles were placed in their way at the onset as they were taking up some of the roles that were traditionally performed by the Ministry of Land resulting in fights with the ministry. This poor transition meant they wasted the first 2 years in needless wars. The two institutions play critical and complementary roles in their respective functions and this was affirmed by the advisory opinion by the Supreme Court sought by the commission.
Funding remained a limitation. With the big mandate, underfunding by the Treasury meant they were never going to deliver to our expectation considering the scope, extent and complexity of the issues plaguing land management systems in this country.
As a citizenry, we have also learnt what needs to be done for the new team deliver on its mandate. It is important that the recruitment is started in earnest to ensure there is no leadership gap that would further hinder the performance of the commission. In considering applications for the new team, the selection panel to be appointed by H.E. Uhuru Kenyatta in accordance with the NLC Act should pay special attention to professional standing in recruitment. The Institution of Surveyors of Kenya will actively participate in this process and provide reference when called upon by the panel.
There’s need to match our great expectation as country on the commission by providing adequate financial resources to enable them have the necessary technical and human resources to execute their mandate. Support from the Ministry and all stakeholders is critical. To start off the new team on a good note, the National Assembly should seriously consider extending the period given to the Commission to review grants and disposition to public land.
The writer is Institution Surveyors of Kenya (ISK) Chairman