• Services have been paralysed at the commission since the exit of the first batch of commissioners
• A staff says power tussles between the NLC and the ministry have been emboldened and now the ministry is salivating to take over leases, valuation and compensation mandate.
President Uhuru Kenyatta's dragging feet in appointing a selection panel to search for next National Land Commission bosses is scuttling land reforms.
Observers see President's reluctance to kick start the hunt for next commissioners at the NLC as not only a violation of the law, but also show off non-commitment to land reforms.
“There is no doubt that whoever is in charge is in violation of laid down constitutional procedure,” Odenda Lumumba, Kenya Land Alliance CEO, said.
“The deliberate delays have set a worrisome trend. They are building bridges to nowhere if they can’t build bridges within the organs of the state and stop bastardising some of the key pillars of these bridges like the NLC,” he added.
This comes as staff at NLC intimated to the Star that services have been paralysed at the commission since the exit of the first batch of commissioners.
“We can't do valuations, listen to disputes, compensate or acquire land for new projects,” a staffer said, adding that this has been compounded by budget cuts and Ministry of Lands overtures to take over some of the commission's constitutional functions.
The staff said power tussles between the NLC and the ministry have been emboldened and now the ministry is salivating to take over leases, valuation and compensation mandate.
“We are in limbo. The past commissioners left us limping because of their vested interests that saw illegal secretariat promotion and creation of posts, which they awarded to cronies and relatives. Worse, the majority of senior positions are held in acting positions,” another source added, saying speedy appointment of commissioners could have helped bring the commission to its footing.
The inaugural commissioners left office on February 19, after serving their six-year non-renewable term.
Unlike other commissioners who handed over their exit reports to the President, the Muhammad Swazuri-led a team unceremoniously ended their tenure without a farewell appointment with the head of state.
The first schedule of the NLC Act mandates the President to within 14 days to constitute a selection panel once vacancies arise in the office of member and chair of the NLC.
The selection panel within seven days put out an advert calling for applications for the position. Within 21 days after the expiry of the dateline, consider the applications, publish the shortlist and interview. Afterwards, shortlist two qualified applicants for the position of chairperson and 16 for members.
Upon the receipt of the names of successful applicants, the President within 14 days nominates the chairperson and members and forwards them to the National Assembly.
The National Assembly vets and considers the names for approval or rejection within 21 days. If the National Assembly approves the names within seven days, they are forwarded to the President, whom within seven days approves the nominees through a gazette notice.
The entire circle of having new commissioners, if strict timelines are followed as outlined in the law, is expected to take at least 77 days.
It’s now over 50 days since they exited.
"Unfortunately I don't have a comment as far as that is concerned. But once a decision is made, it will be communicated to the media," State House spokesperson Kanze Dena said when reached for comment on the delay.
Attorney General Kihara Kariuki, on the other hand, was unavailable for comment as he didn't respond to our calls nor responded to texts on the matter.
The Institution of Surveyors of Kenya recently officially wrote to the President reminding him of his mandate on the matter.
“To date, we have had no response. But we still urge him to urgently constitute this panel and have new commissioners in place, so that NLC can discharge its constitutional mandate,” ISK chairman Abraham Samoei said.
Delayed filling of the positions, he said, is derailing the little strides made in land reforms.
He said the vacuum had far-reaching effects of exposing public land to grabbing, stalling registration and titling of public land, stifling effects to address historical injustices as well acquisition of land for government's infrastructure projects.
“The decision that requires commissioners to consider and approve cannot be done. The commission is now rudderless. It’s just there. This is very dangerous for our land sector,” he said.
He noted that crucial land transactions such as land compensation, property allotments and lease renewals can’t be undertaken without commissioners in place.
“The way the commission is envisioned the commission is the commissioners. The secretariat is a support structure to the commission. Anything they undertake without commissioners is null and void,” Odenda said.
President's lacklustre approach when it comes to the NLC is not new, it had to take court action to have the inaugural team of commissioners gazetted and sworn in office after parliamentary approval and months of waiting.
“We see vested interests which is the cardinal sin of the past created by the colonial British and perpetuated over by successive regimes. They treat anything that will right the wrongs in the land sector as suspect,” Odenda said.
“So I am not surprised that when dealing with the NLC there is always these disdain behaviours like it is that bastard institution. This should not be encouraged because it challenges the foundation upon which we can address all our historical land injustices,” he added.
“Does it mean the President has more faith in alternative power centres that are constitutional, for instance, the security commission, which he has embraced for whatever ulterior motives and others are treated as lesser commissioners,” he posed.
Land Development and Governance Institute in its scorecard released on January 1 had urged the government to urgently put in place measures to recruit the new commissioners.
LDGI scorecard provided an assessment of the progress implementing institutions are making in the implementation of land reforms.
The programme involved issuing periodic scorecards on implementation to ensure land reforms remain on track. Through this, the institute empowers the public with the information necessary to hold the implementing institutions to account.
LDGI had argued in its score that the recruitment process needed to be kick-started urgently to avoid a prolonged period between the lapse of the term of office of the current members and the assumption of office of the new team.
“Any extension of the recruitment period will occasion gaps in the delivery of critical services to the public and adversely affect implementation of development projects,” LDGI said, calling for a smooth transition.
LDGI said the commissioners had left crucial lessons after a six-year stint.
It said the commissioners worked hard to establish an institutional structure around which it recruited its secretariat and technical officers.
However, there was the general perception that the commission established far too many directorates, leaving speculation that some of its senior officers are under-deployed.
LDGI said the structure may need to be audited, and a rationalisation of the available staff against their duties done.
On recruitment, LDGI said, there was a seeming block migration of the previous land administration staff in the Lands Department from the Ministry to the Commission. This eventuality may have ended with a block shift of the old culture and attitudes too. This led to the deterioration of services in the ministry, rather than improvement.
LDGI warned that as the commissioners left office, there was no clarity on the process of preparation of leases, a move that caused confusion and delays for landowners and investors.