Sh1b SGR payouts that made Swazuri and team go off the rails

National Lands Commission Chairman Dr. Mohamed Swazuri

The chairman of the National Land Commission (NLC), an independent body that was supposed to fix the land problems, is on his way down, and he appears to be taking the commission with him.

Muhammad Swazuri has fought incessant turf wars with the Ministry of Lands since he took office and when he was just about to win the battle, mountains of evidence show just how the commission could have wasted public funds.

The professor, whose commission enjoys protection by the Constitution, started off on an abrasive note with the Lands Ministry, and he wielded immense power to even cancel title deeds that were issued by President Uhuru Kenyatta at the Coast.

Swazuri’s Waterloo appears to be the compensation for the Standard Gauge Railway (SGR) which has put investigators from the Ethics and Anti-Corruption Commission (EACC) on his back. The investigations culminated in Thursday’s early morning raid at his home.

It came weeks after Lands Cabinet Secretary Jacob Kaimenyi claimed that Swazuri colluded with fraudsters to pay more than Sh1 billion in compensation claims for land that belonged to the government.

Kaimenyi said the commission may have used fake or non-existent letters of allotment, Part Development Plans (PDP) and Survey Plans as a basis for making compensation.

Lands commissioner Abdulkadir Khalif told the National Assembly Lands Committee that the payments were made in December last year.

Stagnation and confusion

The official, who in 2015 accused Swazuri and then Lands CS Charity Ngilu of presiding over stagnation and confusion in the land sector, said attempts to get information on the matter were frustrated by the secretariat of the commission.

Among the plots of land were at least five parcels in Embakasi all valued at Sh215 million. There have been cases of double compensation, payments to people who did not own land, bribes, among others that have marred the process.

Ironically, the institution’s core values as published on its website include integrity, transparency and accountability.

Its mission, ‘to implement an efficient land administration and management system in order to ensure equity in access to land’, has clearly collapsed.

Players in the sector now want the Commission to be disbanded, because it has shown its inability to deliver on its mandate while exposing taxpayers to losses.

“I would recommend that we go back to the old system until we perfect the current one. This National Land Commission problem started from day one,” said David Masika, a partner at Lloyd Masika Limited - a leading registered valuation and estate agency firm that deals in property.

“I understand that as the law was set up, it had some conflicting issues with the Commissioner of Lands. We should not continue suffering and cannot afford to wait. The Government must make the decision one way or the other,” Mr Masika said.

But lawyers reckon that it will be difficult to disband the Commission, given the powers and protection it enjoys under the Constitution.

“The Land Commission is an independent body and when it was being set up, it was given such a stature because of the many historical land problems that we have in Kenya. Many land laws were combined to form one law,” said Wahome Thuku, a city lawyer and journalist.

“But now with the current integrity issues at the institution, it is clear that we have not cured the land problem and this is a big problem for Kenya because it sets us farther back from where we were.”

A top lawyer at the Law Society of Kenya (LSK) who requested anonimity since he did not want his views to be construed as the position of the LSK, said Kenya is now exposed, given that it is hard to trust the work so far done by the commission, going by past events.

Questionable leases

“If officials administering public land are corrupt, the leases they have given may also be questionable. What does it mean for the title deeds they have given?” he posed.

The Land Development and Governance Institute (LDGI) has also on several occasions raised the NLC question. Through one of its directors, Mr Mwenda Makathimo, the institute has asked the National Assembly and the Senate to amend the current Land Act to address the ambiguities.

According to the institute, the anomaly was causing rifts between the National Land Commission and the Ministry of Lands, Housing and Urban Development.

Makathimo noted that the Act gives conflicting mandates to both the Commission and the ministry, fueling the ongoing differences between them.

He said since the NLC assumed office, there have been consistent differences over their mandates with that of the ministry. The differences, he noted, had slowed down the land sector programmes and undermined service delivery at both national and county levels.

The NLC’s mandate includes managing public land on behalf of the national and county governments. The Commission is also required to recommend a national land policy to the national Government and advise it (the government) on a comprehensive programme for the registration of land titles throughout Kenya.

The NLC is also mandated to conduct research related to land and the use of natural resources, and make recommendations to appropriate authorities.

It also has powers to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices and recommend appropriate redress.

It can also assess tax on land and premiums on immovable property in any area designated by law. It has powers to also, on behalf of and with the consent of the national and county governments, alienate public land and monitor the registration of all rights and interests in land.

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