Mixed reactions taint Muhammad Swazuri's era at NLC

National Land Commission Vice-chairperson Abigael Mbagaya. She says they performed their duties to the best of their ability. PHOTO | FILE | NATION MEDIA GROUP

What you need to know:

  • Ms Mbagaya says they believe that Weston Hotel owners should pay restitution to the people of Kenya after the commission agreed that the allocation was illegally done.
  • Mr Khalif's biggest concern right now is that many more public and community land may fall into the wrong hands.
  • The NLC is mandated to advise the national government on a comprehensive programme for the registration of titles in land throughout Kenya.

As the tenure of the National Land Commission (NLC) members draws to an end, there has been varying feedback concerning their achievements and failures, as Dr Muhammad Swazuri, the chairman, battles abuse of office charges.

Vice-chairperson Abigael Mbagaya and commissioner Abdulkadir Khalif - a trained surveyor who was heading the ICT and Geoinformation Systems sub-committee - spoke to Gakuu Mathenge on a wide range of performance, lapses, challenges and their views on the way forward.

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Ms Abigael Mbagaya, vice-chairperson, National Land Commission

In the first years of the commission, a lot of time and effort was spent in the fights with the Ministry of Land. This has since changed to commissioners feuding among themselves. Is this a true reflection of the situation prevailing at the commission?
When we began, of course it is in the public domain that we had some fights with the Ministry of Land. But these were just teething problems.

You remember that we were having a new constitutional order that was establishing the National Land Commission (NLC) and the commission was coming to take over some of the functions that were predominantly performed by the ministry.

As we were doing this separation and creation of this new institution, of course there was bound to be those transitional issues, but we have since moved on.

Right now people are talking of some internal fights. There are no internal fights. The commission is intact.

The mere fact that my chairman was arrested and that some of us are prosecution witnesses in the matter does not mean there is an internal war. We have worked together for the better part of the six years.

The chairman (Prof Muhammad Swazuri) has specifically accused you and some commissioners of trying to usurp his powers …

I hope you heard how the court ruled on the matter. The judge ruled that institutions are larger than any single individual and must continue to function.

When that order was given, what was I, as the vice-chairperson, to do? I had to step in and ensure we steer the commission in the right direction.

The commission does not belong to individuals, but it is there for the good of the people of Kenya and there can be no vacuum.

National Land Commission Act Schedule Four says that in the absence of the chairperson, the vice-chair shall take up the responsibilities of the chair.

In this case, my chairman had been removed by an order of the court. What were the alternatives available to me as the vice-chair?

The only option available was to continue to chair meetings and ensure the commission continues to function.

The establishment of NLC was meant to address the endemic abuse of land allocation and historical land injustices. However, one of the criticisms that has been levelled against NLC is that for a good part of its term, the commission has focused more on compensation of land owners on whose land major capital projects like SGR passes through. Is this a fair assessment?

Actually, what people don’t understand is that compulsory acquisition is a core mandate of the commission. We are the managers of public land under Article 67.

If you look at Section 107 of the Land Act going forward, it says that the commission will carry out compulsory acquisition.

Those who are saying we are spending too much time on compensations are misleading the public. That is a core mandate, something we must do.

But this mandate is as important as any other. For example, on historical land injustices, when the Section 15 of the NLC Act said we shall look into this, the law also said we shall do a law, which we did and forwarded to parliament.

However, the law was not adopted. Instead, parliament in its wisdom decided to give us amendments to Section 15, just expanding it and telling us how to go about historical injustices.

This came on board under the Land (Amendment) Act, 2016 and that is when we started admitting complaints about historical land injustices.

We have received 510 cases of which we have listened to 215 in that short time. With those limitations, I would say we have done very well.

Speaking of the SGR compensation, the chairman has been charged and the entire NLC has been accused of mishandling the process, including inflating land prices or depriving other people of the compensation money …
As a commission, we have done what we could to the best of our ability.

Of course I don’t want to deny there have been problems here and there but we have tried to address most of them.

It is also important to understand that dealing with people whose land has been taken by force is not easy.

A point to note though, compulsory acquisition used to be done by the ministry but no one was talking about it.

But now in the current constitutional dispensation it is an open process and the NLC needs to be applauded for making it as open as it is.

When you open something to public scrutiny like we have done then more people get involved because of the interests.

Regarding Weston Hotel, what was the rationale of asking the owner to pay Sh350 million when NLC had determined that the land where the hotel sits was acquired illegally? Were you under pressure?

First things first, I do not know where the Sh350 million figure is coming from. NLC never set a figure and the one being peddled did not come from us.

The NLC made a decision. We said we believe that Weston Hotel owners should pay restitution to the people of Kenya. Many Kenyans have been asking why we did that.

When we sat and made this decision, we all agreed that the allocation was illegal and that the land belongs to Kenya Civil Aviation Authority (KCAA).

We also agreed that a mistake was made and we were able to apportion responsibility. We also noted that the Weston Hotel owner bought the land.

Under Section 6 of the NLC Act, we have the power to make recommendations to government unlike Section14 which requires us to revoke.

So we proceeded under Section 6 and we gave a recommendation that there should be restitution.

PUBLIC LAND

It is important for Kenyans to begin looking at other ways of how to recover what we have lost. Why do I say this?

We have a lot of pending applications for people who have land in Upperhill.

Many of the beautiful developments there sit on land belonging to Kenya Railways and the national government. In some cases land was actually grabbed or illegally acquired.

Some of those properties are already in the Ndung’u report. Owners of those beautiful developments too are asking that they want to be regularised.

But how are we going to regularise? Will we go around demolishing everybody? Can there be another way of addressing these land issues?

Yes, the Land (Amendment) Act provides for avenues like restitution, restoration, apology and compensation.

WESTON

Those are some of the options provided for addressing historical land injustices. On the Weston Hotel, please remember the land has not become a freehold property of the hotel owners.

The land remains a leasehold and the owner will continue to pay annual rates to the government.

But Kenyans should remember that the law allows us to let you to stay with your big building but you must pay restitution to the people of Kenya.

Every case is determined on its own merit and each claim has a different treatment depending on the situation and status.

What do you say to suggestions that NLC could have been under some external political pressure when you were determining the Weston Hotel matter?

What kind of pressure would still allow you to ask somebody to pay restitution at open market value? If there was pressure we could have succumbed and given him for free. We made an independent decision.

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Mr Abdulkadir Khalif, NLC ICT and Geoinformation Systems sub-committee chairperson

You are on record saying NLC regrets it failed to implement the Ndung’u report. Kindly comment on pending review of grants and dispositions and implications for failure to secure extension of timelines to complete execution of this key mandate.

The law required the commission to review all past grants or dispositions of public land to establish their propriety or legality.

The law granted five-year window between 2012 to May 2017 for this critical task. NLC petitioned parliament for extension of period in 2017 but this was not granted.

The significance of non-extension of this period is that the threat to public land by fraudsters remains rampant.

The commission did not have the entire five years because it came into existence just under a year from the commencement of the NLC Act, 2012.

Many public purpose plots and environmentally sensitive areas still remain in private hands, and the commission no longer has the powers to direct the chief land registrar to revoke those titles.

There are no legal mechanisms for revoking titles in the current laws.

TITLE DEEDS
At no time in Kenya’s history was an institution given the powers to revoke titles except through a court process.

The short period the commission had those powers was hardly enough to correct a 100-year problem.

The commission however directed the revocation of thousands of public parcels.

We can only hope that those illegal titles will not find their ways back into the register which is in the custody of the Ministry of Land and Physical Planning.

My biggest concern right now is that many more public and community land may fall into the wrong hands.

Fraudulent titles may still be used to fleece the public during this period of massive infrastructure projects in the process of acquisition and compensation.

Briefly highlight key areas NLC feels it delivered on public expectations.

The NLC spearheaded and delivered on key policy mandates given to it by the constitution and enabling legislations.

The law requires the commission to recommend a National Land Policy to the national government. We delivered on that function.

The NLC is mandated to advise the national government on a comprehensive programme for the registration of titles in land throughout Kenya.

We have just completed that and will deliver it to the Cabinet Secretary for Land before February 19 when our term ends.

The law requires the commission to initiate investigations into present or historical land injustices, and recommend appropriate redress.

We lobbied for the legislation for this function and were able to have a whole section on historical land injustices inserted into the NLC Act.

GUIDELINES
The NLC is mandated to have oversight responsibilities over land use throughout the country.

We have developed a framework, process and procedure manual on land use planning for use by both the national and county governments.

The NLC also developed a framework on how to harmonise the management of our wetlands and riparian lands and reserves.

We have developed user guides in land administrations, land information management systems.

The process of developing legislation in ways and means of safeguarding electronic land records and lays the groundwork for an effective Spatial Data Infrastructure, which is ongoing.

What about failures?

When, at the request of President Uhuru Kenyatta, we initiated the review of grants in the whole of Lamu County, we discovered that the entire mainland portion of Lamu County was curved into massive ranches clandestinely shared between few individuals.

We moved swiftly to condemn most of those allocations and directed the chief land registrar to expunge them from records.

We did not however work with the county government re-plan the confiscated ranches and settle the dispossessed people in properly planned zones that to serve the development needs of the people and their government.

Sadly, we walked away from it before doing this.

NDUNG'U REPORT
There is a danger that our efforts will be an exercise in futility because those ranches could still revert into illegal hands and get back into the register again.

Another lapse I can think about is that we did not deliberately act on and follow the recommendations of the Ndung’u report on the illegal/irregular allocation of public land.

We should have gone down the list, county by county, and recovered as much public land as possible.

We got distracted by current crises and went on firefighting escapades instead of using a systematic approach that would have proportional impact throughout the country.

We were overwhelmed by the multiple massive infrastructure projects throughout the country.

These are just a few of many other lost opportunities, most of which we cannot be blamed for.

There are some who now ask if the NLC was really necessary …

Those of us who have been in the land sector for long believe that the existence of the commission is necessary, if only to reclaim lost public land as listed in the Ndungu Commission.

The need to devolve land administration to the county level is in the constitution just as the existence of the NLC is.

We cannot wish them away. But if devolution really takes root, and the counties take control of their land resources, the need for both the Ministry of Land and Physical Planning and the National Land Commission in their present forms shall not be necessary.

We may need to restructure the NLC make it more like the Bureau of Land Management of the US.