Just who is fooling whom in Charity Ngilu and Muhammad Swazuri turf wars over land?

Lands Cabinet Secretary Charity Ngilu and National Land Commission chairman Muhammad Swazuri had pledged to end all hostilities between them in a confidential memorandum they both signed in the presence of President Uhuru Kenyatta.

In the memo signed on November 10 last year, Mrs Ngilu and Dr Swazuri had identified six key issues that are strikingly similar to the contents of the report by the Joint Technical Implementation Committee that the Cabinet Secretary has since disowned.

The memo states that “both parties will have access to the registries and other connected documents subject to the agreed Document Requisition Process-flow and tracking system.”

“That a framework to ‘RESTRICT/CONTROL ACCESS and not DENY ACCESS’ to Ardhi House was unanimously agreed upon,” the memo states.

Mrs Ngilu and Dr Swazuri had also resolved to have the Land ministry “expeditiously” attend to all grants approved by NLC without undue delay.

The ministry was also required to surrender to the commission survey maps (Registry Index Maps) that had been one of the causes of the dispute between the two leaders.

NLC, it was agreed in the memo, would continue to manage public land “as envisioned in the Constitution with the consent of the national and county governments.”

Mrs Ngilu and Dr Swazuri agreed to form a Joint Technical Implementation Committee of six members, drawing equal membership from the ministry and NLC.

The technical committee that was eventually formed had the ministry’s Director of Physical Planning Augustine Masinde. The ministry was also represented by the Senior Deputy Director of Surveys Washington Abuto, acting Land Secretary Peter Kahuho and Senior Deputy Director of Surveys Polly Gitimu.

NLC, on the other hand, was represented by commissioners Silas Kinoti, Abdulkadir Khalif and Emma Njogu and Director of Land Administration Mercy Njamwea.

All representatives of the ministry were appointed by Principal Secretary Mariamu El Maawy with the approval of Mrs Ngilu.

Mrs Ngilu on Tuesday disowned the report and called for more talks with NLC instead of leaving the dispute to be solved by the Supreme Court.

“The Land CS wants the talks to continue, but it is the NLC (that) is pushing the court to resolve the dispute through introduction of a strange document not agreed upon by all parties. The ministry is being dragged into the court process without its wish,” said lawyer Paul Muite for Mrs Ngilu.

Mr Muite argued that the committee’s report was one-sided as it recommended only the views presented by NLC, and that it was illegally constituted without three representatives nominated by the CS.

SHOW LEADERSHIP

But a look at the memo the two signed at State House reveals that Mrs Ngilu and Dr Swazuri had even agreed on the terms of reference for the committee, raising the question of who could be fooling whom over the report.

Following the signing of the memo on November 10 last year, Head of Public Service Joseph Kinyua had called on Mrs Ngilu and Dr Swazuri to show leadership in implementing the resolutions.

“These unanimously accepted resolutions represent the foundation for an amicable, concerted and productive mediation process that shall be conducted in an environment of good faith, honesty and with the overriding objective of reaching a settlement that is in the best interest of the nation,” Mr Kinyua reminded Mrs Ngilu and Dr Swazuri in the letter.

The deal was followed by a joint committee report by the Ministry of Land and NLC.

The committee comprised Mr Masinde, Mr Silas Kinoti, Mr Khalif, Ms Njogu, Ms Njamwea, Mr Abuto, Mr Kahuto and Ms Gitimu. Its technical members included Mr Tom Abuta, Mr Brian Ikol and Mrs Elizabeth Njoroge.

That report marked the end of talks between Ms Ngilu and Dr Swazuri as the three months granted by the Supreme Court to resolve their disputes expired.

The Constitution Implementation Commission (CIC) has called for the sacking of Mrs Ngilu and Dr Swazuri for causing paralysis in the land sector.

When they appeared before the top court on Tuesday, Mrs Ngilu wanted more time for dialogue.

The report, which was tabled before the Supreme Court and immediately rejected by Mrs Ngilu, captures the magnitude of disagreement between the two organs of government tasked with tackling the land question in the country.

Mrs Ngilu claimed the report, which gives immense powers to NLC, captures misleading views from the commission.

The eight-member joint technical implementation committee called on the ministry and the commission to embrace collaboration, consultation, co-operation, information sharing and participation.

BAD BLOOD

Access to registries was the first factor identified by the committee as causing bad blood between Mrs Ngilu and Dr Swazuri.

“There was difficulty experienced by NLC in accessing registries and records office. There was also a problem of lack of clarity on the custodianship of shared land records,” says the report.

According to the committee, both the ministry and the commission agreed to maintain and have custody of land records connected to their mandates.

It recommended that the ministry maintain title, physical planning, survey and boundaries registries. The commission, on the other hand, would take care of correspondence, settlement and adjudication registries.

Another thorny issue identified by the committee was the collection of land taxes, rates and rents. The committee agreed that the function belonged to commission and that the ministry should immediately relinquish it.

Speaking through lawyer Muite, Mrs Ngilu was adamant that collection of land rates was the prerogative of the national government and could not be delegated.

“The requirement that all land rates the ministry has collected be remitted to NLC is illegal and unconstitutional. The ministry stand is that commission has no power to collect rates and, in any event, that is the duty of Kenya Revenue Authority,” said Mr Muite.

The report also details how the two organs spent the better part of last year jostling for space at Ardhi House, which has caused  a rift between Ms Ngilu and Dr Swazuri.

It recommended that both institutions appoint a team of administrators to make the place accessible.

Management of public land was another issue the committee said was causing misunderstanding and wrong perceptions between the ministry and the commission.

“The agreed settlement was that the commission will administer dealings in leasehold land and finalise amendments to the Land Act and the Land Registration Act,” said the report.

ACTIVELY INVOLVED

On private land, the committee said there has been a perception that the commission has no role in dealings in private land. The reverse is true, the members agreed.

The committee agreed that the commission should be actively involved in reviewing grants and leases, investigating complaints regarding historical land injustices and administering conditions for leasing private land.

Registration of land was a function the committee agreed should be performed by the ministry, but that the Lands Registration Act should be amended to remove the perceived conflicts between Mrs Ngilu and Dr Swazuri.

“Both institutions should set up a team to review and propose amendments to the laws in consultation with stakeholders and allow commission to continue performing its functions,” the committee agreed.

The committee blamed the ministry over the stalemate in settlement and land settlement fund, saying it has refused to transfer the functions to the commission even when the law demands so.

According to the committee, implementation of settlement is the mandate of land commission and all assets and liabilities should be transferred to it.

It further blamed existence of two separate laws regarding management of community land and failure by the National Assembly to merge the two laws and come up with Community Land Act. Other laws it wants enacted relate to community land, physical planning and resettlement.

“The ministry should continue adjudicating on community land. There should be no new adjudication until enactment of the Bill,” said the committee.

They also proposed a comprehensive audit of assets, liabilities, obligations and agreements.