- The President's unwarranted criticism and attempts to undermine the credibility and authority of the commission is alarming.
- Under the new constitutional dispensation, requisite processes are clearly outlined thus the President is not mandated to amend constitutional provisions.
The recent pronouncements by President William Ruto on the constitutional mandate of the National Lands Commission are unconstitutional and were made in bad faith.
Kenya Land Alliance highly considers the attacks on the NLC as unconstitutional and a direct move to undermine the principle of checks and balances, erode democratic norms, and pose a threat to the integrity and independence of crucial land governance institutions. The President, while speaking at Isiolo Boys High School during Sunday mass, purported to strip the NLC of its land valuation mandate powers.
The President's unwarranted criticism and attempts to undermine the credibility and authority of the commission is alarming. Under the new constitutional dispensation, requisite processes are clearly outlined thus the President is not mandated to amend constitutional provisions.
It is reported that the President said, without rendering any evidence, that the NLC is corrupt and that the Ministry of Lands will henceforth take up the role of evaluating and valuing land for compensation to ensure fairness and accountability.
It is worth noting that the NLC, as currently constituted, has not conducted any major valuation for compensation in which corruption was perpetrated and maybe specifics should be clearly cited and the law allowed to take its course.
It is also public knowledge that the Ministry of Lands has an unrivalled reputation as the haven of land cartels who collude with state and public officials to fraudulently acquire public and private land for speculative disposal by individuals. Besides that, the history of the current top custodians at the Lands ministry does not inspire so much public confidence in their capacity to protect communities from land grabs and irregular allocations.
Recently, Lands Chief Administrative Secretary Kimani Ngujiri was captured in the dailies in a shoot-out incident over land in Nakuru and the incumbent PS Nixon Korir has been overly mentioned in the attempted fraudulent acquisition of the historic Uhuru Memorial Garden on Langata Road.
Notably, there are many cases arising from this impropriety pending in various courts throughout the country. It is not lost to us that the roadside decree coincides with media reports that the National Treasury has set aside Sh 816 million for four financial years (to 2025-26) to buy land for Nairobi-Mau Summit mega road.
As with budgeted corruption, legislation can be enacted to facilitate impropriety. We see the President’s roadside decree as a continuation of the weakening of state institutions which began with the first elections under the Constitution in 2013.
In particular, we have noted a worrying trend where constitutional commissions and independent offices have been denied adequate budgetary allocations so as to be able to discharge their mandates as prescribed by the Constitution. There are instances where even if there is a budgetary allocation, the National Treasury either refuses to release allocated funds or do so close to the end of a financial year.
While KLA acknowledges and commends the President’s effort to fight corruption and maintains that the corrupt officials within NLC be investigated and held to account, we would like to reiterate that the President does not have the authority to unilaterally strip the NLC of its constitutional mandate as is stipulated in the constitution and enabling statutes.
KLA notes that ambiguity of roles between the Ministry of Lands and the NLC was addressed extensively through the Supreme Court ruling advisory number 1 of 2014. The apex court was very clear on the roles and responsibilities of each institution. And this was done after several attempts to usurp NLC constitutional mandates.
Articles 62(2) and (3) and 67 (2) of the Constitution of Kenya 2010 provides the mandate and functions of the NLC as that of administering and managing public land on behalf of the national and county governments, recommend a National Land Policy to the national government and, monitor and have oversight responsibilities over land use planning throughout the country among other national responsibilities.
The constitution further prescribes that the NLC may perform any other functions prescribed by national legislation; not the Executive. The President’s action is in total disregard of the Land Act Legal Notice (6 of 2012) that outlines the requisite NLC processes on dealing with assessment for just compensation for project impacted persons.
Ruto's statement makes ill-informed assumptions on the internal activities within the NLC and undermines the internal operations of the NLC regarding the criteria used in hearing issues of propriety and claims for compensation by the persons affected.
As a Chapter 15 commission, the NLC is an independent agency. Article 249 (2) (a) (b) of the Constitution, which the President swore under solemn oath to uphold and defend, provides as follows; “The Commissions and the holders of independent offices— (a) are subject only to this Constitution and the law; and (b) are independent and not subject to direction or control by any person or authority.”
We are accordingly on high alert and on the lookout for any legislation that might be proposed to give effect to this unconstitutional directive. Such legislation, if enacted, will be litigated against under Article 2 (4) of the Constitution of Kenya 2010. Legislation is supposed to give life to the provisions of the Constitution and be facilitative of and/or enabling institutions established under it to discharge their mandate unfettered, not inhibited.
Attempts to amend Constitutional and statutory mandates of the NLC are completely illegal and in bad faith. The requisite processes to address any arising misconduct by any constitutional commission and indeed NLC are entrenched in our laws and policies, thus the need for due process. The directive by the President is intrusive, unlawful and sets a precedent of external influence and pressure on independent government bodies by the Executive - including NLC.
This is a downward spiral whose outcome will be the hijacking and abuse of the autonomy of independent agencies in Kenya.
Chief Executive Officer, Kenya Land Alliance