When Prof Muhammad Swazuri was sworn into office as the first chairman of the National Land Commission (NLC) in February 2013, he promised Kenyans a new way of doing things on land administration.
Prof Swazuri and his eight commissioners took oath of office a few days after the second presidential debate ahead of the March 4, 2013 General Election.
One of the hot topics in that debate was the emotive land issue that has been blamed for the deadly clashes that continue to be witnessed in various parts of the country every few years.
All the candidates who participated in the debate placed great faith in the NLC, a creature of the 2010 Constitution, to remedy the situation by addressing historical land injustices and protecting public land.
The right people had been picked for the job, Kenyans believed. Prof Swazuri, a holder of a PhD in Land Economics, was leading a team of highly qualified individuals in land matters.
He did not disappoint in his first public statement after being sworn in by Chief Justice Willy Mutunga on February 27, 2013, telling Kenyans to worry about other important issues but not land since he was now in charge.
“You heard from the debate… each one of them saying that the NLC is there; so now that we have arrived we can tell them to remove it from their agenda and if Kenyans have other problems to do with land, they should not refer them to the politicians because they have referred it to the NLC,” Prof Swazuri said.
But six years down the line, the cautionary words of CJ Mutunga, who retired in 2016, to Prof Swazuri and his team during that swearing-in ceremony seem very prescient.
“You must have a stiff spine and a cool head, guided by the Constitution,” Mr Mutunga said. “The intricate web and reach of interests around land is powerful and smart. My plea to you is not to allow the National Land Commission to be reduced to a theatre of the absurd.”
No sooner had Dr Mutunga uttered those words than the opening act of the NLC theatre of the absurd began, through turf wars with then Lands Cabinet Secretary Charity Ngilu. The war crippled NLC operations for more than a year.
However, Kenyans, who feared that the elite who were not happy with the new commission were behind the wars, threw their weight behind Prof Swazuri and his team.
Soon the turf wars were resolved by the Supreme Court in favour of the NLC. But since then the faith that Kenyans had in the commission to deliver on its mandate has largely dissipated.
“The Land Commission had a good opportunity to serve this country and improve land administration,” said Mr Ibrahim Mwathane, the executive director of the Land Development and Governance Institute.
“At its assumption of office, most stakeholders had immense trust in it and, therefore, provided unwavering support. But now there is anxiety that the entry of the commission has ended up introducing more confusion into land administration in the country,” he said.
Mr Odenda Lumumba, the executive director of the Kenya Land Alliance while critical about the “disappointing” performance of NLC so far, reserved the harshest criticism for the NLC chairman.
“He is an indecisive character,” he said. “The commission generally lacked firm leadership. The commissioners are known to feud in public. Swazuri was a compromise candidate for the post and overtime he became pliant to the many vested interests in the land sector.”
The commission has reeled from one scandal to another and Prof Swazuri has been at the centre of them. Only last month the chairman was on the spotlight over a controversial compensation worth billions of shillings to a businessman for land in Ruaraka, Nairobi.
Our inquiries established that there are a total of 276 complaints filed against the NLC at the Ethics and Anti-Corruption Commission (EACC) with 71 specifically about compensation.
In the most recent case, the (EACC) is investigating how the NLC unilaterally gave ownership of land illegally hived off the Moi International Airport in Mombasa to a group of businessman when a corruption case touching on its acquisition is ongoing.
The resolution by NLC without the Kenya Airports Authority (KAA) being heard, has also resulted in dismissal of charges against some of the suspects seven years after the case was filed at the anti-corruption magistrate’s court in Nairobi.
The decision by NLC was contained in a Gazette notice dated July 17, 2017. The action by NLC means that the land is now rightfully owned by a private firm, the Gas Company Ltd.
The land is alleged to have been irregularly excised from the original land of the Kenya Airports Authority and transferred to the company on October 2, 1996.
After investigations by the defunct Kenya Anti-Corruption Commission, nine suspects were charged in court in 2010 over the illegal transfer and acquisition of the land.
The suspects were businessman Joshua Kulei, businessman Prakash Bundia, former KAA managing director Peter Lagat, former Lands Commissioner Wilson Gachanja, former Kenya Pipeline Company managing director Ezekiel Komen, The Gas Company Ltd, (owned by Bhundia) Ashar Company Ltd, Sian Enterprises Ltd, and Agrid Ltd.
The NLC purported to settle the matter through a public hearing when the criminal case against the nine was still pending in court.
The commission upheld titles in favour of the Gas Company despite written objections by the Director of Public Prosecutions through a letter dated November 27, 2017.
The commission blatantly refused to have the said titles revoked according to the DPP’s request, on grounds that the new owners, East Africa Gas Company Ltd, acquired the said parcels lawfully from GCL and thus deemed a bona fide purchaser for value without notice of defect in title.
As a result, part of the Moi International Airport has been hived off by the private developers.
Last July, the commission approved a Sh843 million compensation to Africa Gas after some of the parcels in contention were acquired for the Standard Gauge Railway project.
This week, Parliament was told how Prof Swazuri’s commission granted ownership of a prime piece of land in Upper Hill, Nairobi, to a company which NLC had said was acquired illegally in the first place.
The National Council for Population and Development told the National Assembly’s Public Investment Committee (PIC) that although NLC had established that Rosestar Properties Ltd, a company associated with a controversial politician, had irregularly obtained the 0.62 hectare land, it ruled that the firm should be granted ownership.
Furthermore, the PIC of the previous Parliament and the Ndung’u Report by the Commission of Inquiry into Illegally Allocated Land had both recommended the revocation of the title.
Rosestar’s directors had used the land, which is currently valued at Sh1.5 billion, to secure a Sh200 million from Trust Bank which went under.
In May last year, the anti-corruption agency raided the homes of Prof Swazuri and other senior NLC officials as part of a probe into claims that land owners in the Standard Gauge Railway project were irregularly compensated.
The EACC found Sh17 million cash in the home of an NLC commissioner during the raid. Prof Swazuri was grilled at the EACC headquarters at Integrity Centre.
Earlier in March last year, a former journalist, Mr Mugo Njeru, claimed that Prof Swazuri allegedly received a Sh1 million bribe from him to facilitate compensation for his land which had been acquired for the SGR project.
Mr Njeru petitioned Parliament to remove Prof Swazuri from office, but the latter was saved by a court order which stopped Parliament from deliberating on the matter.
This was not the first time Prof Swazuri was being accused of impropriety. In July 2014, a man recorded a statement with the police accusing Prof Swazuri of interfering with the ownership of a 10-acre parcel of land in Malindi.
Mr Joshua Kiptoo Toroitich accused Prof Swazuri of allocating the prime beach plot to other people using land documents allocated to him (Toroitich) on April 2, 1993, by retired President Daniel arap Moi.
The NLC boss is accused of endorsing the processing of titles using a forged signature of former Lands Commissioner Zablon Mabea. The land is estimated to be worth more than Sh300 million.
Prof Swazuri is also in the spotlight over his handling of the ownership of the Taj Shopping Mall in Embakasi, which has been renamed Airgate Centre.
He first revoked the title of the land the building stands on only to reinstate it later after reaching some sort of a settlement with the owner Ramesh Gorasia.
The decision forced engineers constructing the Outering Road to re-design the road to save the building. This is partly blamed for the poor design of the road that has led to several deaths.
In August last year, the Leader of Majority Aden Duale, said in a press conference that Jubilee’s first order of business in their second term will be the removal of Prof Swazuri and Auditor-General William Ouko, for allegedly undermining Jubilee programmes.
However, it seems these plans have since been put on the back burner. Asked about the issue yesterday, Mr Duale intimated that they dropped the plans since the term of Prof Swazuri and his team is almost coming to an end.
The term of the nine commissioners ends in February next year. The commissioners were appointed to office in February 2013 for a non-renewable six-year term.
Besides Prof Swazuri, the other commissioners are Abigael Mbagaya Mukolwe (vice chair), Abdulkadir Adan Khalif, Clement Isaiah Lenachuru, Emma Muthoni Njogu, Dr Rose Musyoka, Dr Samuel Kipng’etich Tororei, Silas Kinoti Muriithi and Dr Tomiik Konyimbih Mboya.
Yesterday, Prof Swazuri defended his record saying that he has “performed exceptionally well,” given the many challenges that he has faced steering the commission.
“We have faced a lot of challenges right from the start,” he said. “The government cut our budgetary allocation to just 20 per cent, the Ministry of Lands interfered in our work and laws have been changed severally against us. Given these circumstances, I trust we have performed very well —150 per cent.”
He said he is not worried by the negative analysis of his performance. Meanwhile, the term of NLC Chief Executive Officer Tom Aziz Chavangi has been extended by another five years. Mr Chavangi's term was to end this month.