Azimio slams President Ruto over NLC's land valuation powers

Raila Odinga's Azimio coalition has warned President William Ruto that it will not allow him to violate the Constitution he has sworn to defend and protect by announcing that the valuation of land for compulsory acquisition by the government will be transferred from the National Land Commission (NLC) to the Ministry of Lands.

In a statement, Minority Leader in the National Assembly Opiyo Wandayi said the Constitution and the Land Act of 2012 mandates the NLC to undertake the valuation of land, whether public or private, for compulsory acquisition by the government.

"We strongly believe that this directive will only reopen the door to the abuse of power and patronage that characterised land administration processes in Kenya prior to the 2010 Constitution," Wandayi said.

"We demand that the powers of the NLC be left intact as originally envisaged by the Constitution and other enabling legislation," he added.

Mr Wandayi accused the President of being hell-bent on stripping the NLC of its land valuation and compensation powers, noting that what he had said was only a suggestion and that he could only seek to do so by proposing amendments to the law for consideration by Parliament.

While attending a church service in Isiolo County on 21 May, President Ruto announced that the Ministry of Lands would be in charge of land valuation, effectively stripping NLC of the role it has played since its inception after the 2010 Constitution came into force.

In justifying the announcement, the President cited cases of widespread corruption in the determination of compensation amounts by the NLC, saying that his decision would help combat rampant corruption at the NLC.

"Regrettably, this move is an affront to the rule of law and an unwarranted interference in the work of the Constitutional Commissions. The Constitution provides that the commissions and the holders of independent offices shall be subject only to the Constitution and the law and shall not be subject to the direction or control of any person or authority".

In making this announcement, whether legal or illegal, the President may have violated Article 135 of the Constitution on how presidential decisions are made.

The article states: "A decision of the President in the exercise of any of the functions of the President under this Constitution shall be in writing and shall bear the seal and signature of the President".

Mr Wandayi reminded the President that the 2010 Constitution declares NLC as the relevant government body responsible for public land matters.

"President Ruto has no powers to transfer functions that are vested in him by law and the Constitution. There is no law that supports such a position," said Mr Wandayi.

The NLC is a creation of Article 67 of the Constitution with a mandate to deal with public land.

The other functions of the NLC are derived from legislation enacted by Parliament, including the National Land Commission Act of 2012 and the Land Act of 2012.

The Land Act gives the NLC the power to compensate in cases of compulsory acquisition by the government. Sections 112 and 115 of the Land Act, for example, mandate the Commission to carry out investigations into compensation and the payment of compensation to those affected by projects.

The Ugunja MP notes that in line with Article 249 of the Constitution, "it should be borne in mind that the NLC is independent and subject only to the Constitution and the law".

"NLC has the power of land valuation, which is an exclusive function for them and no other person or authority has the power to share in this mandate under the Constitution and the law," the Minority Leader said.

Land valuation is the process of determining the market value of land identified for acquisition.

The Land (Assessment of Just Compensation) Rules assign the role of assessing the market value of land to be acquired by the government to the NLC.

"There is no mention of the president or any other busy body or entity in this rule as passed by parliament. Therefore, what the president is planning to do should be called out and shamed with the contempt it deserves," Mr Wandayi added.

In 2015, while clarifying the relationship between the NLC's mandate and that of the Ministry of Lands, the Supreme Court in an advisory said, "There is a clear separation of roles between the body that provides oversight (NLC) and the body over which oversight is to be exercised (Ministry of Lands)."

This advice implies that each body should operate only within the limits of the powers "conferred on them by law or the Constitution".

"The relationship between the NLC and the Ministry of Lands, in line with the Supreme Court's advice, is one of checks and balances. The NLC should exercise oversight over the Ministry of Lands and at the same time the NLC is overseen and controlled by the public, other independent bodies and Parliament."

Yesterday, Mr Wandayi maintained that the Azimio coalition family cannot overemphasise the independence of constitutional commissions as a key feature in the country's governance system.

He noted that the NLC, like any other commission, should be able to freely enjoy functional or administrative independence "which entails the exercise of its autonomy in the discharge of its functions without receiving any instructions or orders from any other state organ or body".

Mr Wandayi said the President could not use graft allegations to strangle the NLC because "the Constitution provides a mechanism for annual reporting to Parliament and the President".

The Office of the Auditor General has the power to audit the accounts of the commissions, and that "these constitutional accountability mechanisms are adequate and therefore any arbitrary transfer of powers and functions from the NLC to the Ministry of Lands is totally uncalled for".