High Court directs Kibaki to gazette land commissioners

The High Court on Monday directed President Mwai Kibaki to gazette members of the National Land Commission within the next seven days.

Justice David Majanja ruled that the grounds raised by the Attorney General to justify the delay in gazetting the commissioners was of no basis and upheld arguments by the Kenya Land Alliance that the president’s failure to gazette the nine members is causing unnecessary panic and public anxiety.

The judge ruled that the Constitution requires the president to appoint commissioners in accordance with legislation and since the National Assembly had done its part in passing the National Land Commission Act and what remained was for the president to exercise his mandate.

“The president be and is hereby directed to comply with the provisions of paragraph 8 to the First Schedule of the National Land Commission Act and officially appoint the chairperson and members of the commission within seven days of this judgment,” ruled Majanja.

He ruled that the delay in setting in motion the operation of such a key institution in land reforms cannot be allowed to go on given the common history of Kenya where the emotive issue of land has caused sufferings leading to loss of lives.

The ruling gives way for Dr Mohammed Swazuri to take charge of the land commission.

Other commissioners are Dr Tomiik Konyimbi, Dr Rose Musyoka, Dr Samuel Tororei, Silas Kinoti, Abigael Mbagaya, Muthoni Njogu, Clement Lenanchuru and Adan Khalif.

The civil society group sought to compel the president to gazette the commissioners arguing that the delay had caused unnecessary panic and public anxiety among stakeholders interested on land issues.

They argued that the land commission had already been constitutionally appointed and legal cases challenging their nominations dismissed by court so it was illegal for the president to delay their formal appointment.

A suit challenging the commissioners’ appointment was in October last year dismissed giving the president the go ahead to gazette them.

The lobby argued that since then, the president had failed to perform his statutory duty and that the delay had caused loss of time needed to tackle land reforms and address injustices occasioned by previous land grabbing.

They accused the president of breaching the constitutional time limit allowing him to make the formal appointment adding that the continued delay is preventing the members from carrying out their mandate as outlined in the Constitution.

Justice Majanja agreed with their submissions, ruling that the appointment of the chairperson and the commissioners is imperative and no cause had been shown as to why the president cannot implement as per the provisions of Article 67 and 250 of the Constitution.

He ruled that failure to complete the appointment of the commissioners undermines the value of good governance since the body mandated to carry out land reforms remained in limbo for indeterminate period.

He said that all state officers including the president are required to abide by the law and dismissed arguments that the president was waiting for the establishment of County Land Management Boards before gazetting the commissioners.

He ruled that the argument was not tenable since the National Land Commission was a creation of the Constitution and cannot be equated to those created through legislation and that the Lands Act is clear in its provision that county land management boards does not in any way interfere with the commission.