Enough talk, act on Ndung’u report

A year after promising to begin the implementation of the Ndung’u Report on irregular and illegal allocations, Minister for Lands James Orengo has ‘reasons’ for why this has not yet happened. This raises fears little will come of the Commission’s work and there will be no further investigation to verify and uncover more looting.

Having studied the explosive report, Orengo had assured us he did not need to consult President Kibaki and Prime Minister Raila Odinga — or form another commission. "I will take action on the Ndung’u Report from next week," he told us on July 24. "Those who were allocated public land with impunity will have themselves to blame." This raised hopes Orengo intended to defy powerful and politically connected groups in a bold effort to resolve "one of the most pronounced manifestations of corruption in our society".

But only for a moment.

The Ndung’u Commission, in place for just 18 months, recommended hundreds of land allocations be revoked or investigated. These are not so many that a new National Land Commission with the right political backing could not sit in judgement over process and appeals. Orengo’s ruling out of this option (which the Ndung’u team suggested) in favour of court battles and now a tribunal do not help resolve this problem.

Time Wasted

Reading his excuses, we feel a sense of disappointment at what can only be a lack of political will. At a public forum organised yesterday by Africa Centre for Open Governance, Orengo argued that the ‘untrustworthy’ Judiciary had failed him in the fight. Slow progress has forced him to rethink the approach with his ministry creating new legislation to address the issue through a tribunal.

But does it make sense to insist on obtaining a constitutional amendment from a House that is filled with beneficiaries of the looting? Is this not needlessly delaying the quest for restitution to, at the very earliest, the completion of constitutional review?

There is a sense of time wasted in the year since the minister’s pledge. Apart from Cabinet’s approval of the National Land Policy three weeks ago — no mean feat, we concede — he has little to show on securing public land for the year gone by.

"We have made progress," he assured us yesterday. "We want to make a law that is anchored in the Constitution to avoid legal upheavals in the courts. We want to lay a mechanism that will expedite the cases and address the issues of the report."

The reasons for this cautious belt-and-suspenders approach to the Ndung’u report are clear. The minister and his colleagues seem to have in mind the 2006 ruling by Justice Joseph Nyamu that the Ndung’u proposal to create a tribunal was unconstitutional. This dead end, Nyamu had said, could only be gotten round by amending or replacing of the Constitution. Orengo’s suggestion that the mechanism be anchored in the Supreme Law, unlike the quasi-judicial Land Titles Tribunal that failed to fly in 2005, addresses a key problem. However, we do not buy the argument that this is the only route or that the push for land reforms will be derailed if Parliament does not play along.

The list of political beneficiaries involved in the land grabs, most of which "took place before or soon after the multiparty elections of 1992, 1997 and 2002", are prominently placed in the Grand Coalition Government. Thus, issues such as the possibility of political interference, lack of trust in local courts and so on come into play. While MPs will help Orengo ‘close the barn door’ by limiting powers on allocation of public land and thrashing out issues to do with the use of trust land, they will not be as keen on a tribunal. They can help with land reform, but to reverse illegal allocations he must look to other measures.

Implementation Options

The only partial victory of the Ndung’u report has been prompting the surrender of some parcels of public land. To achieve more, it may be necessary to consider options such as a special division of the High Court or the sort of commission Ndung’u’s team had imagined. A tribunal, on the other hand, may be a ‘Mission Impossible’ compared to other implementation options.

 

 

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