“You must have a stiff spine and a cool head, guided by the Constitution. The intricate web and reach of interests around land is powerful and smart. The sheer struggle to have you sworn in today is a foretaste of the weight and perils of your assignment.”
These words were uttered by the
then
Chief Justice
Willy Mutunga, during the swearing-in of National Land Commission
members
on
February
27, 2013.
The nine-member team, chaired by Muhammad Swazuri, also comprised vice chair Abigael Mbagaya, Abdulkadir Khalif, Clement Lenachuru, Emma Njogu, Rose Musyoka, Samuel Tororei, Silas Kinoti and Tomiik Konyimbih. Tom Chavangi served as the CEO and secretary to the commission.
“My plea to you is not to allow the National Land Commission to be reduced to a theatre of the absurd,” Mutunga
urged.
But as the team exits after their six-year term, players in the land
sector say the commissioners dashed hopes of land reforms, sanitised land grabbing and cemented land fraud.
“Contrary to expectations,
after six years, they leave trails of absurdity,”
Pamoja Trust director Dr Steve
Akoth said.
Unlike when they got to office heads high and with cheers from the public, today they exit heads down with jeers from the public.
Observers term
the
commissioners
as men and women who turned
guns against
each other
because of greed. They were
embroiled in a vicious power struggle throughout their tenure,
using their positions to cut deals behind the scenes.
Ibrahim Mwathane, chairman of the Land Development and Governance Institute, said: “I really wished
I would be looking back
and lauding the commission for a job well done. That was always my interest.
But looking back today, there is nothing to laud them for.
“It is unfortunate they never met any expectations. After six years, they leave behind more confusion in land administration in the country. I wish they could have done better to bring clarity and end all the land feuds.”
And Kenya Land Alliance CEO advocate Odenda Lumumba termed the commissioners' performance disappointingly dismal. He called for legal action against each commissioner for earning for six years for work not done.
“This is a breach of contract. They should be forced to refund taxpayers, as well held accountable for any other impropriety on individual capacity,” he said.
EMOTIVE ISSUE
The commissioners were to steer the wheel of ensuring the emotive land issue that has kept the country on a rocky path since independence is put to rest.
The commission was set out to manage public land on behalf of national and county governments, recommend national land policy to the national government and advise on registration of titles.
It was also mandated with initiating investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommending appropriate redress.
A commission insider told the Star: “Surprisingly, they (commissioners) concentrated on leases, valuations and payments. To my own assessment, this took 95 per cent of their time. They also dealt partly with historical injustices, but used it to disinherit the poor to the advantage of the rich.”
Adding: “Your guess is as a good as mine. That is where money was and that explains why some of them have become overnight millionaires.”
Odenda said six years down the line, the commissioners have no inventory of public land, thus it is impossible for them to manage public land as set out in their mandate.
“With no inventory, what have they been managing on behalf of the counties and national government?” he said.
They were also supposed to ensure that public land was available, managed and allocated to contribute to public good. However, Odenda said allocations have been haphazard and opaque.
“We have not heard them openly auctioning land in Kenya. Allocations have been clandestine,” he said.
Even though they purport to have extended leases, Odenda said there has been no transparency.
“The 999-year leases, which they were supposed to capture in the inventory and reduce to 99 years, today there is no inventory. We don't seem to have clarity on leases of those whose leases they have extended and those that have been denied. The entire exercise was turned to rent-seeking by the commissioners, which explains how they have accumulated unexplained wealth," he said.
POLITICAL CLOUD
Land governance has often been used as a tender for patronage. It has been beset by land grabbing, ethnic clashes and proliferation of squatters. The commissioners were supposed to depoliticise it by addressing historical land injustice, regularisation and registration of land as captured in Ndung’u and TJRC reports.
But Akoth said in a departure from public expectations, the commissioners were attracted to roles that promised instant wealth and primitive accumulation, and concentrated on them.
They put their priorities on the renewal of grants and dispositions, valuation and compensation.
“Those who had illegally acquired land became the agents of patronage and conveyors in seeking to protect what had already been illegally acquired. They found ready and willing transactional persons in the name of some commissioners and section of staff,” he said.
Overvaluation of properties was the norm, he said, and those landowners who didn't play along could wait for ages to be compensated.
“Instead of land valuations promoting equitable land distribution, NLC commissioners turned it to a tool of disposition and primitive accumulation,” Akoth added.
As per their mandate, Odenda said they were also required to recommend a national land policy to national government. But as they exit today, Kenya still has an old land policy that has not been reviewed in 10 years.
“What they seem to have is only a concept upon which a policy will be formulated, which they claim is for the ministry, contrary to what was envisaged,” he said.
“They were to look at the current policy implementation, point out loopholes and recommend review.”
They also failed to carry out any research to inform land management and exploration and exploitation of natural resources, as well
as
reduce land conflicts.
At the end of their six-year term, they were also expected to recommend a comprehensive system of titling or registering titles to curb rampant land frauds, double allocation and grabbing.
“As we speak there is no system in place on community land registration, which is the biggest land that is due for registration. Whatever they claim to have done is too little too late,” Odenda said.
BOUNDARY DISPUTES
As per their mandate, they were also expected to establish a framework to prevent and resolve land-related disputes, including alternative justice system.
“The biggest conflict currently between communities is not specifically about their titles but the borderlines between the counties, such as between Kambas and Taitas, Nandis and Luos,” Odenda said.
“There are over 19 disputes over community land boundaries. Those are the things NLC was to look at. This is under community land law. But it seems it is not lucrative to give them direct benefits. Therefore, they ignored it.”
They also failed to monitor land use planning, and this explains why our counties and national towns are unplanned, he added.
Haki Africa executive director Hussein Khalid said the commissioners were a disgrace.
Initially, when they started, they were quite promising, they addressed issues and were responsive whenever approached, Khalid said. Then came the tussle over control of land matters with the then Land CS Charity Ngilu, and they appeared to be struggling.
“Since then, they have allowed themselves to be controlled by state operatives. Major land scandals have come and gone, including SGR and Lapsset,” he said.
“Titles have been issued to undeserving persons all under their watch. They have not been able to effectively implement the Ndung'u Land Report, which had identified grabbed land.”
Mwathane
said the commissioners
mixed up matters of technical and policy driving probably for reasons
of having too much time.
To stop that, he suggested the number of commissioners be reduced and they serve strictly on part-time basis.
“They veered and wanted to do titling more than helping in the recovery of grabbed land and creating an inventory of public lands to be protected. Nothing was done on historical injustices. I will plead with the next commissioners to fast-track those components of land reforms,” he said.
To avoid the pitfalls of the outgoing team, Mwathane called on those who will take over to believe in independence and consultation.
“I was dismayed they were not humble enough to do progressive discussions with the ministry and other state organs. I thought it is the most obvious thing that every commission must do, its independence notwithstanding,” he said.
“One gets a feeling that those guys have been more about themselves than the country, trying to reap from allowances and any other opportunities that come. Some have been joyriders, hiding under the chair or the vice chair. It’s time each one is evaluated individually.”
The National Assembly Lands Committee returned a harsh verdict on the commissioners' performance, saying despite failing Kenyans the commission had a poor working relationship with the committee.
Committee chairperson Rachel Nyamai said: “They failed to address over 388 complainants from the public touching on historical injustices. They also failed to fulfil Kenyans’ aspirations to conclusively deal with land matters."
SWAZURI SATISFIED
However, NLC chair Muhammad Swazuri said he is satisfied with many achievements they have made.
“The Kenyan citizen now understands very well that the commission is the independent constitutional institution established to oversee the much-needed land reform in the country, a breakthrough that clears the way for the incoming team of commissioners and their chairman,” he said in a self-assessment captured in their exit report.
Swazuri said at its inception, the commission encountered a lot of resistance, reluctance and outright objection from several interested parties in the land sector that were sceptical of change and the land reform agenda. It took more than two years for the commission to find its proper footing, he said.
“From changes in the relevant land laws to disagreements over detailed procedural technicalities, the commission endured continuous hurdles that threatened its very existence. I am happy to state that the commission, through my leadership, managed to overcome the challenges, grounded itself in its specialisations, and offered the necessary guidance on all matters relevant to its constitutional mandate,” he said.