As the March 2013 elections were approaching, civil society groups were jittery about the decision by then President Mwai Kibaki to delay gazetting the appointment of inaugural commissioners of the National Land Commission (NLC).
There was palpable fear that some of the presidential candidates at the time may not support land reforms and would use the opportunity afforded by the delay to frustrate and cripple the commission at its infancy.
“We, as civil society, supported the petition to compel the President to gazette the commissioners,” said Pamoja Trust executive director Steve Ouma.
Pamoja Trust was among the civil society groups which supported the petition by Amoni Thomas Amfry and Nagib Mohamed Shamsa to have the inaugural commissioners sworn in. The petition No 6 of 2013 was determined in favour of the petitioners by Justice David Majanja on February 4, 2013.
“With the benefit of hindsight, we now think the President might have known something we didn’t know because these commissioners have been a disappointment. No doubt these people were qualified on land matters but, given what we have witnessed, there is a big question mark about their integrity. Perhaps that is why President Kibaki had been hesitant,” Mr Ouma added.
With little to show for the six years NLC has been in existence, the jury is still out about why the solution to land problems in the country remains elusive, in spite of new constitutional, policy, legal and institutional tools at the disposal of the NLC, not to mention billions of shillings of taxpayers' resources sunk into the search for an answer.
Mr Ibrahim Mwathane, the former chairman of a ministerial Task Force for Investigating Processing and Extension of Leases, said NLC is to blame for busying itself with extraneous distractions at the expense of delivery of its mandate.
“NLC has wasted enormous public goodwill it enjoyed when it assumed office, and let down the expectations of many. It cannot escape accountability for not mobilising Parliament and stakeholders in good time to discuss extension of review of grants and disposition timelines before they elapsed. The workload was enough trigger that they needed extra time but waited too late,” he said.
Prof Johnstone Kiamba, the Multi-Media University Council chair and former chair of Kenya Institute of Planners, said only legal amendments to re-open the review of grants and disposition process would salvage the situation and conclude it in a neat manner.
“Whatever NLC achieved or missed, the public needs to see the processes concluded in a neat manner. The successor team should lobby Parliament for amendments to the NLC Act (2012) to re-open the process,” Prof Kiamba said.
Kenya Land Alliance CEO Odenda Lumumba said NLC had made the work of the successor body harder than should have been the case.
“The outgoing team leaves behind a shaky and messy foundation for successors to take off from. The hope now is that individuals of integrity and competence will be recruited and not characters of unknown backgrounds, experience and credentials like was apparent with the first team.”
Mr Ouma is more scathing in his assessment of the last six years of the inaugural NLC commission. According to the Pamoja Trust boss, NLC’s fights with the Ministry of Lands earlier in their tenure was not genuine and was never for the good of the country, much as civil society and majority of Kenyans stood by the commission.
“You may want to ask yourself why that was so. The reason is that these are transactional obligations. When people’s leases were due for renewal what would happen is that NLC — commissioners and secretariat staff — would approach these people to extort from them for their leases to be renewed. There was no objective look at the leases. Rather, NLC became a market. But the biggest scam was around compensation,” he said.
But, in an interview, NLC vice- chairperson Abigael Mbagaya said NLC’s critics were unfairly judging the outgoing commissioners.
“This kind of generalisation is very unfair to us. For people to say that NLC is serving the interests of cartels, I would want to know who the cartels are because we don’t allocate land and we don’t print titles. Instead, we have revoked titles of those cartel masters,” said Ms Mbagaya.
The NLC vice-chair also maintains that those criticising their handling of compensation do not understand the law or have simply ignored it.
“Those who are saying we are spending too much time on compensations are misleading the public. It has been given the same importance as any other mandate. However, you know many Kenyans want to follow where the money is,” she said.
According to Ms Mbagaya, NLC should be congratulated for opening up the process of compulsory acquisition and compensation. “Compulsory acquisition of land in this country has always been there and 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 NLC needs to be applauded for making it as open as it is,” said Ms Mbagaya.
The inaugural NLC commissioners are leaving as the country marks the 10th anniversary of the enactment of Kenya’s first ever National Land Policy (Sessional Paper No 3, 2009). Siaya Senator James Orengo is credited with driving the process that came up with the policy when he was Lands minister during the Grand Coalition government.
If things go by the timelines provided in the NLC Act (2012), President Uhuru Kenyatta should constitute a panel within seven days from February 19 to start the process of recruiting the next NLC that could take at least two months to complete, barring any hiccups.
As Kenyans reflect on the last six years of the inaugural NLC, the reality in the land sector remains that influential individuals continue to frustrate reforms.
In its 20th Land Watch scorecard released two weeks ago in Nairobi, the Land Development and Governance Institute (LDGI) was diplomatic in profiling the insidious role this category of stakeholders plays in stalling and derailing reforms.
“When it came to recruitment (by NLC) , there was a seeming block migration of the previous land administration staff in the Lands department from the ministry (Ardhi House) to the commission, an eventuality that may have ended with a block shift of the old culture and attitudes too. This may explain why the commission appears never to have brought in a semblance of new business methods and culture to land administration, much as it was a new institution,” the report observed.
The LDGI, which monitors land reforms through field surveys since 2010, makes interesting conclusions. “Along the way, the process of acquisition and compensation of private and community land for public use by various sectors of development seemed to have become a key activity of the commission. Depending on the number and magnitude of the projects for which land must be acquired, compensation for compulsorily acquired land can exert a lot of pressure on the commission and its technical officers.”