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Why Land commission critical to unlocking reforms in Kenya

By Dann Okoth | Dec 12th 2014 | 3 min read

Kenya: Land is one of the core reasons Kenyans fought for independence.

The mzungu (white man) had taken the land and was loading it upon Kenyans to toil as labourers.

More irking, though, was the fact that the mzungu took our most productive land — the so-called white highlands — mostly in central Kenya and parts of the Rift Valley.

So when the Union Jack came down and the Kenyan flag went up for the first time on December 12, 1963, Kenyans were more than just free as they had clawed back their heritage as well.

But celebrations would be short-lived. The political class would soon embark on a lopsided land adjudication process that further alienated the common man.

This gave rise to parochial, even archaic land policies and legislation that blighted the nation for decades.

However, the promulgation of the new constitution in 2010 brought new hope as it offered provisions on equitable access to land and security of land rights.

Since 2004 when the Land Policy formulation process began, effective and meaningful stakeholder involvement and input was ensured through a structured and accountable framework. This continued up to the time when the land chapter was being debated during the constitution-making process.

One of the key institutions that were seen as being critical to unlocking land reforms was the National Land Commission (NLC). Indeed the National Land Policy clearly acknowledged that the existing institutional framework for land administration and management was not only highly centralised and exceedingly bureaucratic, but was also prone to corruption as it lacked accountability and public participation.

The National Land Policy therefore recommended that NLC be set up to, among other things, ensure devolution of land administration and management as well as ensure adequate stakeholder participation and accountability.

This was re-affirmed by the Constitution that established NLC, among the other commissions. This did not go well with some senior officials in the ministry who employed ingenious strategies to delay the operationalisation of the commission.

Even after it was finally operationalised, the commission has constantly been at loggerheads with the ministry of Lands. This is not surprising since a number of the current bureaucrats in the ministry have lots of vested interests.

This dithering was caused partly due to arguments regarding whether or not the land commission should be an executive institution.  The Constitution gives NLC extensive powers over minerals, forests, water catchment areas, rivers, lakes and other water bodies, the continental territorial sea, exclusive economic zone and sea bed.

Recently, the commission and the ministry agreed to work together, which is a welcome relief.

"It is great that we have a working agreement between the commission and the ministry. Now that brings assurance and hope. At the end of the day, the people of Kenya want service and not differences between us," said President Kenyatta when he reconciled the two last month.

It was for this reason that the National Land Policy and the Njonjo and Ndung'u reports were very clear on the kind of commission required.

The Njonjo Commission recommended the establishment of a national land authority to operate at national and local level and be responsible for originating policies and legislation on the administration of all land in Kenya and to also hold and administer all public land in Kenya.

The Ndung'u Commission recommended the establishment of a national land commission to deal with all land matters in the country and be vested with powers to allocate public land and supervise the management and allocation of Trust Land.

Considering the foregoing — and given the experiences of ordinary Kenyans while dealing with Lands Ministry — it is clear that Kenya cannot have an advisory land commission while leaving the Ministry of Lands to continue the status quo. The two must work in tandem to deal with the emotive issue of land.

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