Ibrahim Mwathane: Diminishing land commission’s voice not good for public interest

Members of the public salvage what they could after houses were demolished at Kapseret in Uasin Gishu County

Members of the public salvage what they could after houses were demolished at Kapseret in Uasin Gishu County for the construction of Eldoret bypass on December 21, 2021. Erick Langat, one of the victims who claims he owns 11 plots at the section said there is a case in court over compensation and accused the National Land Commission of disregarding the order. 

Photo credit: Jared Nyataya | Nation Media Group

The mandate of the National Land Commission (NLC) is terse. That is, to manage public land on behalf of the national and county governments. The rest is sheer detail. 

The establishment of this constitutional organ was one of the most celebrated developments in the land sector. Clauses establishing it had been time and again struck out of drafts of the Constitution. It was largely unwelcome in some powerful quarters. Indeed, the commission had been struck out of the Naivasha draft of the Constitution and was only restored after uncompromising stakeholder interventions as the process closed.

Often, this history, and the reason behind establishing an independent organ to manage public land in Kenya, is forgotten. NLC was conceptualised and established following the gross mismanagement of the allocation of public land. Most biting was the casual privatisation of public land reserved for a wide variety of public purposes—including education, agriculture, infrastructure development and conservation. 

Land for these purposes had been so commodified that it had easily become a highway for the easy multiplication of wealth. The state, through the Executive, held sway over the allocation of public land, making it easy for the asset to be used as a stick-and-carrot bait for political expediency.

Since its assumption of office, NLC assumed some middle ground that has been quite useful in closing the gap which enabled the casual privatisation of public land. It has also had to deal with the compensation of land acquired for public projects and receiving and listening to claims on historical land injustices. These are quite heavy and diversionary. 

Legal clauses

It has also had to deal with the repossession of public land that had been irregularly allocated. This never went well, and the anchor legal clauses have since expired. Parliament will need to consider how to cure this.

Clearly, there is a great need for the continued presence of a strong and independent land commission. The first commission was so loud that it almost endangered its very existence. At one time, talk questioning its value-add was rife in executive and political spaces. Its pitch, particularly its antagonistic business style with other state organs, became counter-productive. But it remains credited for establishing the seed institutional structure and jump-starting business processes that the second team inherited. 

The second commission has a totally different business style. It is quiet, non-confrontational and won't to keeping away from media and any national controversy.

While this could be good for some of its deliverables, it may be counter-productive for others and may, indeed, end up undermining the public interest. If not careful, this vacuum will be quickly filled by the Executive and some business elites who still have a big appetite for public land. 

I have, for instance, watched with anxiety as controversies on public land in the counties of Nairobi, Machakos, Kiambu and Trans Nzoia, to cite just some, rage on. Indeed, the voice of the Executive on some of these is disproportionately loud, given that NLC holds sway in advising the national and county governments, and all public institutions, on the protection, exchange, allocation or surrender of any public land.

Unless NLC assumes—and is seen to assume—centre stage in advising on such matters, there will be a gradual weakening of its voice and, hence, a twisted public perception of its role. That could gradually undermine the management of public land. Indeed, its absence in the public psyche poses a threat to the Executive, which, in default, will occupy the gap but with the likelihood of abuse and the obvious political consequences. 

The commission need not come charging though but rather have its communications unit identify situations in which its voice is desirable, issue quick public advisories and then revert to the boardroom and inter-governmental consultations for solutions. 

Hoping to see a change in 2023.

Mr Mwathane is a consultant on land governance. [email protected].