The President has needlessly waded into an issue that he would have been better off avoiding

Last week, the President cancelled land titles for Lamu, a decision that has generated significant heat in the country but which has been defended on the basis that it is part of Jubilee’s effort to turn the land question into the land answer.

However, Jubilee could have easily legally had the desired effect if it had chosen to follow the law. If the land question is to turn into an answer, Jubilee must avoid careless mistakes of the nature displayed in the handling of the Lamu titles.

The first problem with the handling of the Lamu titles is that Jubilee decided to personalise decisions in the President rather than to institutionalise them in the National Land Commission.

The governance of land is the responsibility of the commission. Kenya’s land reform movement has, in part, been about checking the President’s massive powers over land and managing land through a more accountable mechanism, in this case the commission.

But Jubilee, which has all along ignored and fought the commission, chose to place responsibility for the cancellation of the titles in the President, a power he does not have, rather than in the NLC, which in principle has such powers.

By purporting to cancel land titles, the President has shown little regard for constitutional limits on his power, or the history that led to the removal of his role in the management of land.

Bypassing the land commission recalls the country’s past in which the Electoral Commission of Kenya, established as the constitutional body to manage elections, was supplanted through administrative arrangements, first under Jomo Kenyatta and then under Daniel Moi, until political pressure on the resumption of multi-party politics forced the government to involve the commission in the management of elections.

If Jubilee is to be taken seriously in its rhetoric about providing the land answer, it must do the small but important act of supporting the land commission, through which it must institutionalise all decision-making on land.

Secondly, it is now clear that no process preceded the decision to cancel the titles in Lamu. Once land is registered, it becomes private property and cannot be taken away without a legal process.

The NLC Act allows the commission to cancel land titles. It provides a simple process which obligates the commission “on its own motion or upon a complaint by the national or a county government, a community or an individual, [to] review all grants or dispositions of public land to establish their propriety or legality.” If such a review discloses that the land was acquired unlawfully, “the commission shall direct the registrar to revoke the title.”

However, the Act requires due process for any person its decision might affect. It provides that “in exercise of the powers under [the Act], the commission shall give every person who appears to the commission to have an interest in the grant or disposition concerned, a notice of such review and an opportunity to appear before it and to inspect any relevant documents.”

THE REMEDY

The legal provisions place the commission at the centre of any investigations over titles to land. Also, they provide the very remedy that the President desired for Lamu.

Therefore, the President could have requested the NLC to carry out the needed investigations with a view to arriving at the decision to cancel the titles in question. This would have been lawful.

Clearly, however, this did not happen and the President chose instead to take matters upon himself, exercising powers he does not have, but which a body within his reach could have lawfully exercised. Further, he exercised these powers in an arbitrary manner, giving no hearing to those affected, when the law requires due process.

What explains this conduct? Is it a feeling by the President’s handlers that it was beneath him to engage with the commission? Or is it that, having shunned the commission all along, the government cannot now get it to do its bidding?

Something needs to be said about the investigations that the government has ordered following its cancellation of the Lamu titles, which have been placed in the hands of the Directorate of Criminal Investigations (DCI).

Again, there are clear provisions of the NLC Act, which confer the lands commission with investigative powers. But the commission has been supplanted yet again, the DCI has been brought in to investigate.

Further, an investigation of this nature requires subject-matter knowledge which the DCI are unlikely to possess. However, they have been preferred over the body legitimately mandated to exercise the investigative mandate.

Available information indicates that all the titles for all 22 companies said to have been allotted land in Lamu have been ordered cancelled. This raises the question of third party interests that may have been lodged against those titles.

There were media reports about a bank that had issued a loan on the security of one of these titles, and now be deprived of its security. Again, the National Land Commission Act addresses this issue, stipulating that “no revocation of title shall be effected against a bona fide purchaser for value without notice of a defect in the title”.

LAND MARKET

Other than affecting the interests of innocent third parties, the actions by the government have a destabilising effect on the land market.

Land registration serves several socio-economic purposes including discouraging fraudulent dealings in land, making it possible to calculate and apportion risks arising from possible defects in land titles, and guaranteeing the security of business relationships that are reliant on land.

If it is possible for a person, even the President, to unilaterally cancel land titles, how can people have the courage to buy land, or to invest in land, whose titles may be taken away at the blink of an eye?

Not surprisingly, the President’s decision has already been challenged in court. The resulting delays, while the court case is sorted out, takes matters out of the control of everybody, and can only deepen the existing imbroglio in Lamu. The lesson is that the land answer must be provided within the institutional arrangements established to manage land in the country.

A remarkable feature of the Lamu issue is the pre-meditated and sensational coverage it received from the media, starting with a live coverage of the President’s announcement which, it turns out, was ill-advised on every possible point.

The performances of the Lands minister at the Coast, and the Majority Leader in the National Assembly, were also remarkable. It now appears that everything was calculated to blow the opposition, Cord, into smithereens by pinning the Lamu problems on them.

While nothing here suggests that Cord may not have questions to answer about Lamu, the handling of the Lamu issue, together with the fact that another former opposition minister, Otieno Kajwang, now also faces a criminal probe of his own, suggests that McCarthyism is now a tool of choice by Jubilee.

Given the position of his family regarding land, the President has needlessly waded into an issue he would have been better off avoiding, unless he earnestly wants the country to talk about land.

An inclusive criminal investigation on Lamu, of the kind he has ordered, would touch his own father, and not just the opposition figures on whom Jubilee has placed the problem.

My prediction is that the Lamu issue has served its purpose, and will now quietly recede.