By Harold Ayodo

Reality is sinking that the National Land Commission (NLC) might have no teeth to solve emotive land disputes.

It will require an amendment of Article 67 of the Constitution for the nine members of the commission to implement anticipated land reforms.

For starters, no Act of Parliament can override the Constitution — which ensured that the NLC remains a lame duck.

For instance, the functions of the NLC as stipulated in the Constitution are to recommend a national land policy to the national government.

Others are to manage public land on behalf of the national and county governments, advise the national government on a programme for registration of titles countrywide.

Research

The NLC should also conduct research related to land and make recommendations to appropriate authorities, initiate investigations on complaints on land and recommend appropriate redress.

It is also required to encourage the application of traditional dispute resolution mechanisms in land conflicts and assess tax on land and premiums on immovable property.

The commission should also monitor and have oversight responsibilities over land use planning countrywide, and perform any other functions prescribed by national legislation.

Legally, the provisions of the Constitution above restrict functions of the NLC is to merely advise, recommend and encourage — it has no implementation powers!

The functions of the commission as stipulated in the National Land Commission Act are similar to those provided for in the Constitution.

The NLC, however, hit the ground running after it was gazetted and its chairman Mohamed Swazuri recently said they were already receiving public complaints on land.

According to Mohamed, majority of the grievances were on land grabbing, degradation and boundary disputes.

He assured that the commission was also keen and working with the Transition Authority to ensure public land is not lost during transition to devolved governments.

Even as communities and investors peg hopes on the NLC to resolve historical land injustices and disputes, the constitutional body lacks legal powers.

And the NLC is not a stranger to controversy, as the High Court had to order President Kibaki to gazette the nine members to office.

The commissioners include Mohammed Swazuri (chairman), Tomiik Mboya Konyimbih, Silas Kinoti Muriithi and Rose Mumbua Musyoka.

Others are Samuel Kipng’etich Tororei, Abigael Mbagaya, Emma Muthoni Njogu, Clement Isaiah Lenachuru and Abdulkadir Adan Khalif.

pressure

Before the commission was gazetted, pressure piled on Kibaki as demonstrators staged a protest outside his office demanding that he respects a High Court order to swear in the members.

High Court Judge Justice David Majanja had earlier directed Kibaki on February 4 to gazette members of the NLC within seven days, which lapsed.

Amoni Amfry and Nagib Shamsa moved to court through lawyer Mbugua Mureithi seeking orders to gazette the nine commissioners.

But with the commissioners in office, property lawyers have raised the red flag that their hands would remain tied unless the Constitution is amended.

In the real sense, Parliament holds power to provisions that many investors and owners of land thought would be bestowed on the NLC.

Take the case of Article 68 of the Constitution, which bestows powers on Parliament to revise, consolidate and rationalise existing land laws and revise sectoral land use.

The Constitution also empowers Parliament to enact laws to prescribe minimum and maximum land holding in acreages and regulate conversion of land from one category to another.

It should also regulate recognition and protection of matrimonial property — especially matrimonial home during and upon termination of marriage.

Other functions and powers of Parliament are to protect, conserve and provide access to public land, enable review of all grants or dispositions of public land to establish their legality. It also protects the dependents of deceased persons holding interests in land — including interest of spouses in actual possession of land and provide other necessary provisions.