What next for the National Land Commission after court ruling?
Lands Cabinet Secretary Prof. Jacob Kaimenyi (left) and National Land Commission (NLC) Chairman Prof. Mohammed Swazuri during a meeting over the ongoing allocation of plots inside the controversial Waitiki land in Likoni Mombasa on December 7, 2015. The NLC has spent much of their time struggling for power with the Lands ministry. PHOTO | KEVIN ODIT |
What you need to know:
- Like all commissions covered by Article 249 of the Constitution, NLC must be independent financially but still is accountable.
- The Supreme Court says that independence must bring operational benefits to the public and there must be genuine public participation by way of civic education, engagement and consultations to guarantee the rights of communities to manage their own affairs.
- The National Land Commission has spent much of their time struggling for power with the Lands ministry.
On Monday last week, I shared a platform with Lands Cabinet Secretary Jacob Kaimenyi and National Land Commission (NLC) chairman Mohamed Swazuri.
It was all palsy walsy between the two gentlemen three days after the Supreme Court (SC) interpretation of the functions and powers of the NLC.
The occasion was a week’s training conducted by Haki Yetu, Muhuri and NLC for the County Land Management Boards (CLMB) of five coastal counties.
I presume that Mr Kaimenyi was aware that if the Omnibus Land Bill were to pass in Parliament then the CLMBs would be dissolved immediately and all matters pertaining would be reassigned to the lands ministry.
His presence, therefore, could be interpreted as a sign that he would honour the role of CLMBs as described in the Supreme Court ruling.
However, Mr. Kaimenyi did not respond to my suggestion that CSOs would like him to immediately withdraw the Omnibus bill as a sign of good will and ‘cooperation’ resulting from the SC advisory.
He was not at all pleased either with the proposal that if NLC was to properly carry out its mandate then it would require much more than the paltry Sh1.8 billion set aside in this year’s budget.
The SC ruling may have been covered in 100 words by the media but the 79-page advisory covered everything from an historical analysis of the land question to interpreting the role of all commissions with regard to independence and public participation.
Everyone should read this ruling but the first should be the CS and NLC.
NEW APPROACH
The ruling demands a whole new approach to land reform and resolution.
The NLC should not attempt to supplant the government, but it is not a state organ either.
Like all commissions covered by Article 249 of the Constitution, NLC must be independent financially but still is accountable.
Commissions might be viewed by some as the fourth arm of government but they lack the powers of the other three arms.
However, their critical role is that of watchdog, ensuring that line ministries are observing policy and law.
They are not to take orders from the CS, but must cooperate on functions and operations.
That is a hard point to grasp as observed this week when AG Githu Muigai complained bitterly of KNCHR’s criticism of the government.
The SC says that independence must bring operational benefits to the public and there must be genuine public participation by way of civic education, engagement and consultations to guarantee the rights of communities to manage their own affairs.
WATCHDOG ROLE
While NLC do invite the public in the review of titles, little civic education is done and the watchdog role is rarely witnessed.
In fact NLC has spent much of their time struggling for power with the Lands ministry.
However, in their quest for recognition and control, they have often appeared more government than the government itself.
That explains why the commission spends much time complaining about squatters invading land while remaining silent on the political land grabs.
The message from SC is for NLC to urgently rediscover its oversight role and if cooperation means anything, Mr Kaimenyi must withdraw the Omnibus bill and financially support the NLC.
