Unless we right past wrongs, NLC will remain toothless dog

Former National Land Commission chairman Muhammad Swazuri. [Photo, Courtesy]

Following the expiry of the term for the National Land Commission (NLC), it is fitting to reflect on what it has achieved in the management of land.

The need to address land-related grand corruption, a feature of Kanu’s one-party rule, informed the agitation for an independent entity to manage Kenya’s land resources. The desire was to curb presidential power in the management of land resources and to shield the Commissioner of Lands, who was the formal authority in land matters, from the very significant political pressure to which this office was vulnerable. The eventual formation of the NLC was a culmination of that thinking.

The NLC became one of the many independent commissions established by the Constitution of Kenya 2010. The central features of the commission are a constitutional guarantee of autonomy, to be achieved through a recruitment process that involves legislative approval, so that it is not beholden to the executive, and procedures for removal from office that protect members of the commission from interference.

Although the constitution established the NLC as the sole constitutional entity to manage land, no steps were taken to bring an end to the pre-existing land management bureaucracy under the Ministry of Lands, and which the NLC was arguably established to replace.

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As a result, the country ended up with two political authorities in the management of land: a Cabinet Secretary appointed by the president and the independent commission that should have replaced the CS. Initially, it was assumed that this situation was temporary and the ministry would eventually be phased out. This, however, did not happen and the country has since become used to this duplication of roles, an incongruity that has long ceased to be an issue.

The continuing existence of the ministry alongside the NLC is an abiding source of difficulty for the commission, preventing clarity on roles. Further, the existence of the two together enables higher political authorities to play off the two against one another.

When, early in its life, the NLC evidenced a level of independence of the kind that would have been expected when the decision was made to establish the commission, it quickly ran into problems. There emerged clear political signalling that such independence would not be tolerated. In the circumstances, the fact that there existed a ministry that could take the place of NLC became a factor for undermining the commission.

By the time its term ended, the character of the commission had evolved. While, initially, the political establishment seemed to have little confidence in the commission, the relationship between the two gradually improved.

A unique jurisdiction of the NLC, one that the ministry cannot replicate, is its constitutional mandate to address historical land injustices. When Jubilee took power in 2013, a first item on the agenda was the report of the Truth, Justice and Reconciliation Commission (TJRC). In his book, The Kenyan TJRC: An outsiders View From the Inside, Professor Ron Slye, a former member of the commission, claims that under extreme political pressure, the commission altered its report to remove adverse references to dealings in land by the Kenyatta family and Deputy President William Ruto.

While this roughhouse treatment was directed at the truth commission, it would go on to become the watershed moment regarding the quest to address land injustice in the country. In its treatment of the truth commission report, the new government made it clear that the issue of land injustices would not be high on its agenda and that, in particular, attempted accountability against the ruling families would not be tolerated.

More recently, the NLC was presented with the opportunity to address ownership questions over the land on which Weston Hotel is built. In the long public debate on this issue, Ruto has prevaricated about his relationship with the land in question, initially setting up a proxy to falsely claim ownership as a way of deflecting pressure from himself, later making a qualified admission of ownership before finally admitting ownership but now claiming that he is an innocent purchaser and a victim of the person that had stolen the land from the government.

The decision of the NLC on this matter has been criticised, and seems to reflect the view that the NLC was operating within the political structures that were imposed on it in 2013.

The NLC’s decisions touching on the interests of the powerful, and the allegations of corruption in the acquisition of private land for public purposes, over which the chair and members of the staff of the NLC have been charged in court, is definitive of how the commission will be remembered.

The establishment of an independent commission to manage public land has not worked. The NLC is vulnerable to the same political pressure as the predecessor mechanisms. A moment now presents itself to question why the assumptions informing the establishment of the NLC have been proved so wrong. 

- The writer is the Executive Director at KHRC. [email protected]

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