Intrigues behind delay in implementing land reforms

By Nicholas Waitathu

KENYA: The controversial land question is far from getting an adequate answer, following President Kibaki’s delay in gazetting the new National Land Commission.

Despite advice from Attorney General Githu Muigai that delaying or failure to gazette the commission was illegal, Office of the President Permanent Secretary Francis Kimemia ignored the possibility of facing contempt of court charges.

Powerful and influential people in Government are allegedly frustrating the commission, whose mandate is to investigate past and present land injustices and institute corrective measures.

The National Land Commission Act 2012, section 15, states that the commission must correct historical land injustices.

Campaign agenda

“The Commission shall, within two years of its appointment, recommend to Parliament appropriate legislation to provide for investigation and adjudication of claims arising out of historical land injustices for the purposes of Article 67(2)(e) of the Constitution,” states the Act.

In the last two weeks the land debate has been in the public domain with presidential candidates making it their agenda in the campaigns. 

CORD presidential candidate Raila Odinga has put his Jubilee archrival Uhuru Kenyatta on the spot over land.

Land experts, constitutional lawyers, and civil societies have argued failure to gazette the land commission would be propagating impunity by the ruling class in Kenya.

“The High Court has given the President seven days. If he does not gazette the commission by Monday through a special gazette notice, it will be the last act of impunity,” said Kenya National Land Alliance Coordinator Lumumba Odenda.

On Monday, Justice David Majanja ordered the President to gazette the land commission.

Frustrations

The commissioners approved by Parliament in August last year are Dr Mohammed Swazuri, Dr Tomiik Mboya Konyimbih, Mr Silas Kinoti Muriithi, Dr Rose Mumbua Musyoka, Dr Samuel Kipng’etich Tororei, Mrs Abigael Mbagaya, Mrs Emma Muthoni Njogu, Mr Clement Isaiah Lenachuru and Mr Abdulkadir Adan Khalif.

Land Development and Governance Institute chairman Ibrahim Mwathane says for more than a century the country has had no land policy. He argues during that period, land was a political weapon by the ruling class to punish and reward those who oppose and support the State.

“These people are fearful that the commission will execute the outlined mandate of investigating irregularly and illegally acquired land and repossess the same,” said Mwathane claimed.

The former Chairman of the Constitution of Kenya Review Commission Prof Yash Pal Ghai concurred with Mwathane that the delay by the President demonstrates attempts by the ruling class to frustrate full implementation of the Constitution.

“This is not the first attempt to frustrate Constitution implementation. Those behind the delay fear to be properly scrutinised by the new commission especially if they illegally acquired land. The President has no business  delaying the process but adhere to the constitutional provisions,” says Yash.

Odenda warns that unless Kenya resolves the land question, it will have difficulties sorting out other issues.

“Land is at the core of Kenyan problems. Be it security, jobs, food, poverty. The fear and the move to gag is that those who acquired land corruptly or were given for free are fearful of the debate. If you bought your land in a clean manner, why can’t you defend it?” he says.

Opposing reforms

Lawyer Paul Ndung’u, who spearheaded the Report of the Commission of Inquiry into the Illegal and Irregular Allocation of Public Land in 2004 asserted that certain groups and personalities who have not been comfortable with reforms in the land sector still want to maintain the status quo.

“The law is clear once the nominees are approved by Parliament the President is supposed to gazette the names to give the reform process in the land sector a new face. We are wondering why gazettement has taken so long even after vetting,” says Mr Ndung’u.

The Ndungu Land Commission discovered more than 200,000 illegal or irregular title deeds created and registered between 1963 and 2002, which represents conservative estimates for the land ownership documents.

“It is not in the interest of the President or any particular group and personalities to have the commission in place but it is provided in the new Constitution as Kenyans decided,” he says.

He adds: “This is a worrying situation and based on the fact land is an emotive issue. President Kibaki needs to ensure the commission is in place before the March 4 General Election.”

Institution of Surveyors of Kenya chairman Collins Kowour claims the action by the President to delay naming the commission demonstrates resistance to change.

“Constituting the commission implies a lot of benefits to the country, for example, by the commission sorting out all historical land related injustices, it will be easy to guarantee peace especially in areas where there has been numerous land disputes,” he added.