When we were young, we used to play a game called “the broken telephone”. In this game, players sit in a circle. They need to be close enough that whispering is possible, but not so close that players can hear each other whisper. The first person in the line or circle whispers a word or phrase into the ear of the person sitting to their right.
Players whisper the phrase to their neighbours until it reaches the last player in line. The last player says the word or phrase out loud so everyone can hear how much it has changed from the first whisper at the beginning of the circle. The word shouted loud by the final person is almost always different from the original.
Of all the lessons one can learn from this game, by far the most important is that what the next person whispers is only as good as the previous one in the chain. If someone mishears or miscommunicates what they hear, there is no chance that the outcome will be similar to the original word.
This is primarily how governments work. No matter how good an officer you are in government, your outputs or outcomes can only be as good as those of the other people in the rest of the system. If a junior officer in procurement makes a mistake, the accounting officer is very likely to make the same mistake, unless the people in internal audit catch it before it gets far. The system is only as good as the individual officers involved in the action or the internal checks and balances established to mitigate the risks.
At the national government level, especially on an issue that involves as many and as diverse players as the so-called Ruaraka Land Saga, the problem is even worse. In this particular case, there is such a huge multiplicity of players that it may not even be possible to name them all.
The ones on record include the schools’ management, the Ministry of Education (through the State Department for Basic Education), the National Land Commission, the State Law Office and the Judiciary.
All these institutions had a role to play in this saga, each of them important. All of them played a role in one way or another. The Judiciary even declared the land private and ordered the ministry to compensate the private developer over Sh4 billion-plus costs of the suit in 2012, long before Jubilee came to power.
INDEPENDENCE OF NLC
Section 6(2)(a) of the National Land Commission Act, 2012, gives the commission powers to “gather, by such means as it considers appropriate, any relevant information, including requisition of reports, records, documents or any information, from any source, including any State organ, and to compel the production of such information where it considers necessary.”
One would, therefore, imagine that the commission would be an authority in the determination of land ownership in the country. In fact, on numerous occasions, the commission has lawfully revoked title deeds for land it determined to have been issued irregularly.
If there was to be doubt in the commission’s ability to perform this function, there would be total anarchy in the management and administration of land matters in this country. It is for this reason that the framers of the Constitution by whatever name, from Bomas 1 throughout our Constitution-making history, were clear in their minds that the commission needs to be independent to perform its functions.
Now that the commission is independent and properly resourced, one would expect that they would do this work with utmost care and diligence. Where this “one” is a public entity, the element of trust is even more onerous. A government official or institution should have trust in the ability of other government institutions, especially independent ones, to perform their constitutional duties.
Where there is doubt as to the legality of an action, there is always the Office of the Attorney General (State Law Office) to offer a legal opinion on a matter. Any government official who has taken all these steps to address a matter should be satisfied that their cause of action was correct.
Back to the Ruaraka Land Saga. It is clear that all the people named here played a role. One curious player in this saga is the Cabinet Secretary for Education, under whose docket the schools in question belonged (Ruaraka High School and Drive-Inn Primary School).
Via a letter dated February 16, 2017, the NLC chairman, invoking Section 107(1) of the Land Act, 2012, asked the Principal Secretary for Basic Education to “advise his Cabinet Secretary to make an official requisition to the commission to acquire the land for the schools”.
The Cabinet Secretary was by Law (Land Act, 2012) required to perform an administrative function before any private land is acquired by the NLC for public use.
“107(1) Whenever the national or county government is satisfied that it may be necessary to acquire some particular land under section 110, the respective Cabinet Secretary or the County Executive Committee member shall submit a request for acquisition of land to the commission to acquire the land on its behalf.”
He performed this administrative function via a letter dated March 17, 2017, where among others, he told NLC that “the procedure for the acquisition is well within your purview…” The CS expected NLC, as the experts on these matters, to apply their expertise to determine the best course of action.
Section 107(3) of the same Act makes it clear that “The commission may reject a request of an acquiring authority to undertake an acquisition…” In essence, NLC was not under any obligation to acquire the land, even after the Cabinet Secretary had made that request. However, as is now public knowledge, they indeed went ahead to acquire the land.
Despite all this, the Ministry of Education still sought the opinion of the Attorney General on the process and compensation, to which the AG responded in support on July 7, 2017. It would be difficult to establish a better process for due diligence on the part of the ministry, particularly the Cabinet Secretary.
I am not a judicial officer but anyone looking at this issue with an open mind would not find fault on the part of the then Cabinet Secretary for Education, now at Interior and Coordination of National Government, Dr Fred Matiang’i. Let the proper responsibility holders bear their own burden, if any mistakes of omission or commission were committed in the land transaction in question. In this case, I have the National Land Commission in mind.
The writer is a land economist and a scholar based in Georgia, Atlanta, in the United States of America