Power, politics and money: Inside battle for the soul of National Land Commission
National Land Commission Chairman Gershom Otachi when he appeared before the National Assembly’s Lands Committee on March 9.
Power, politics and the fight for control of billions in compensation funds are at the centre of the storm brewing at the National Land Commission (NLC).
Sunday Nation has learnt that investigators from the Ethics and Anti-Corruption Commission (EACC) have camped at the NLC offices in Nairobi’s Upperhill since Thursday, their focus being on the disbursement of compensation funds, particularly for projects in Lamu County that were handled by the previous commission.
The proposal to strip the Commission of valuation powers, which President William Ruto revealed last week, is just the tip of the iceberg in what insiders in the lands sector believe is a well-orchestrated scheme to take charge of billions under the control of the critical State agency. Sources say that even before the battle came to the fore, NLC had been starved of funds for its operations.
Others point to politics as some commissioners and senior secretariat staff are believed to have been close to the Azimio la Umoja camp during last year’s election campaigns.
President Ruto, while on a tour of Isiolo County last week, said NLC will no longer handle valuation of land for compulsory acquisition by the government. The mandate will now be transferred to the Ministry of Lands.
The President said the shifting of the crucial role from the Commission will promote accountability and ensure fairness in land compensation to all Kenyans.
He accused the land agency of widespread corruption during compensation, a vice he vowed to ruthlessly deal with.
Putting the Gershom Otachi-led entity on notice, Dr Ruto claimed the Commission had become corrupt, and that land was being overvalued or undervalued based on bribes.
He further described the agency as a “market” where land worth Sh100,000 is being valued at Sh1 million while those unwilling to pay bribes are having their land worth Sh1 million devalued to Sh100,000.
“That nonsense must stop. It is not fair for NLC to decide when compensation will be done, who will be compensated and how much they will get,” said the Head of State.
“I have already instructed the NLC that they will no longer conduct evaluations for land compensation. The Lands Ministry will carry out the valuations to ensure every Kenyan receives their fair share,” he added.
However, legal experts have questioned the President’s authority to issues such orders, especially after a Supreme Court decision gave the valuation and compensation powers to NLC during the Jubilee government’s first term after tussles with the Ministry of Land.
But Attorney General Justin Muturi says he sees nothing wrong with the plans for changes in the lands sector.
“A proposal to amend or make a law cannot be deemed as interference. Even you can make such a proposal,” said Mr Muturi.
Documents presented to the parliamentary committee on land indicated that the agency has been in charge of at least Sh98 billion meant for land acquisition compensation for various projects on behalf of government agencies. However, there is at least Sh6 billion still in the commission’s accounts due to delays in completing the processes due to court challenges and stalled projects.
The billions are spread across different sectors including water, roads and other infrastructures, and have been paid to those described in technical language as Project Affected Persons (PAPs).
Sh44.2 billion
Further, NLC is waiting to receive at least Sh44.2 billion for compensation of different PAPs, including Sh24 billion from the infrastructure sector, Sh15 billion from Kenya Railways for SGR phase 1, phase 2A, and ICD Longonot Meter Gauge Railway line.
There is also Sh4 billion yet to be received from the Ministry of Water from various water dam and pipeline projects.
This is in addition to Sh900 million from the infrastructure sector for payment surrendered to the National Treasury in the financial year ended June 2022 by NLC but is yet to be refunded.
“It is true there have been issues with some valuations, especially in the last commission, but these are not too many and such officials have been dealt with. Using that as a reason to take away the constitutional powers of the commission does not make sense. Before this, NLC had been starved of funds in a scheme to frustrate the commissioners and staff,” said a source in the lands sector who did not want to be named.
He claimed that senior officials in the Kenya Kwanza administration had declared after the last election that NLC would be next after the ejection of the so-called Cherera Four in the Independent Electoral and Boundaries Commission — in reference to the dissenting commissioners, led by then vice-chairperson Juliana Cherera, who were eventually forced out.
Another source who spoke in confidence said: “Apart from our salaries, there is no money for operations. Early this month, the Commission was almost being evicted from their office in Upper Hill over rent arrears before the matter was resolved by Treasury. Operations have literally been paralysed.”
Last year, the commission said it was cash-strapped and could not honour its financial obligations, including paying salaries after its bank accounts were attached over a Sh397.3 million debt owed to now Kisumu Senator Prof Tom Ojienda.
Things have deteriorated for the agency since then as budget cuts became the norm. In February, the Commission asked for Sh1.3 billion in the supplementary budget for critical services. Appearing before the National Assembly’s committee on Lands, Mr Otachi said NLC’s budget was cut by Sh146 million following austerity directive by President Ruto that was aimed at shaving off Sh300 billion from the current financial year budget.
Apart from the billions, politics is also at the centre of the battle, with the top leadership of the agency as well as the commissioners mostly seen as “remnants” of Azimio La Umoja-One Kenya Coalition and perceived to still be opposition sympathisers.
Mr Otachi, the NLC Chairman, had not responded to questions from the Sunday Nation by the time of going to press.
The NLC top leadership is made up of Mr Otachi, his vice Getrude Nduku, and chief executive officer Kabale Arero Tache.
The commissioners include Prof James Tuitoek, former Cabinet Secretary and MP Kazungu Kambi, Hubbie Hussein Al-Haji, Alister Murimi, ex-Isiolo Woman Representative Tiyah Galgalo, Reginald Okumu, and former Nyeri Town MP Esther Murungi.
The nine commissioners were appointed to office by former President Uhuru Kenyatta in October 2019 for a non-renewable six-year term, meaning they still have two years in office.
Since the Kenya Kwanza government assumed control of the country, there has been a systematic and sustained purge in different government agencies as the President seeks to get rid of senior government officers appointed by his predecessor.
Smarting from a hotly contested 2022 presidential election, Dr Ruto has replaced heads of various State corporations and agencies with his allies.
For the NLC, it was just a matter of when and not if, after the new administration swept clean the IEBC.
This is partly because some NLC officials were last year seen publicly engaging in campaigns for Azimio leader Raila Odinga.
The plan to strip NLC of valuation powers continues to draw criticism from both political and legal quarters over the legality of such a move.
Constitutional lawyer Shadrack Wambui pointed out that the President does not have the authority to make such changes at the NLC.
Constitutional review
He argued NLC is an independent commission with autonomous powers designed to prevent executive overreach, emphasising that any influence the President could have on the commission’s decisions would require a constitutional review.
“The president must have enough justification in law to have the commission under his control,” said Mr Wambui.
He said that if the President wished to pursue this course of action, it would necessitate amending the Constitution, as NLC is one of the constitutional commissions whose mandate is safeguarded by the Constitution.
Article 67 (g) of the Constitution grants the NLC the authority to assess taxes on land and premiums on immovable property in designated areas.
The Constitution stipulates that any revision of the mandate of a constitutional commission would require a constitutional amendment.
Article 67 further outlines the commission’s responsibilities, including managing public land on behalf of the national and county governments, recommending a national land policy, conducting land-related research, and investigating land injustices, among other tasks.
In 2014, NLC sought the Supreme Court’s opinion regarding its functions and mandate in relation to those of the Ministry of Lands.
A five-judge bench in December 2015 issued an advisory opinion that separated the roles between it and the ministry.
The bench said NLC has mandate in various land registration and management processes and the roles of the two entities do not overlap.
