The mandate of the national land commission is terse. This 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 to our new constitution. It was largely unwelcome in some powerful quarters. Indeed, the land commission had been struck out of the Naivasha draft of the constitution, and was only restored after uncompromising stakeholder interventions as the process closed.

Privatization of public land

Often, this history, and the reason behind establishing an independent organ to manage public land in Kenya, is forgotten. The land commission was conceptualized and established following the gross mismanagement of the allocation of public land. Most biting was the casual privatization 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 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 stick or carrot for political expediency.

Recovery of KAA land

Last week ushered some good, but also some discomfiting news for the land sector. The good news. Through a judgment by the Environment and Land Court, our Airports Authority won a dispute over a 200 hectare piece of land which had allegedly been fraudulently acquired by individuals. The case lasted 16 years, enough time for the fortunes so held up to earn good dividends. Speaks quite badly of our land dispute resolution systems.

In the judgment, the Court made an indicting observation on the office of the Director of Surveys for authenticating conflicting survey records to the subject site. If this was indeed so, the reprimand was deserved. If the office of the Director of Surveys was keen enough to sieve out conflicting survey records before approval, messy overlaps would be avoided. This office must therefore up its game in quality control. So a big cheer to KAA for this major feat. This matter had a big bearing to public interest. The loss of the land would have dealt a big blow to the Agency’s asset portfolio, and greatly limited the future expansion of Jomo Kenyatta International Airport. The Agency should now move with speed to firmly secure the Airport land, complete with good fencing and regular field checks.

Heavy Political clout

With the assumption to office of land economist Hon Esther Murugi and Hon Tiyah Galgalo, Kenya’s land commission hit its maximum number of nine. Hon Murugi is a former cabinet minister and Member of Parliament for Nyeri Town. Hon Galgalo was the Women Representative for Isiolo County. The appointment of the two had suffered setback following a court petition over process issues. They now join Hon Kazungu Kambi, a former cabinet minister and Member of Parliament for Kaloleni in Kilifi County, to give the Commission a heavy political clout.

Two other commissioners are land economists. The chair and vice chair pack competencies in law. There are also commissioners with competence in agriculture, research and social sciences, all essential to land governance. Unlike the first commission, the second team has no surveying and planning professionals. But these are available within the technical staff. With this diversity, this second commission is set to oversee the management of Kenya’s public land.

Land commissions are rather recent inventions around Africa. Most were born out of post-independence land reform drives in an attempt to improve on colonial experiences with land administration and management. The commissions are aimed at complementing the existing state ministries responsible for land. Their mandates vary depending on jurisdictional history and experiences. The jury is still out for most, and only time will tell how well the institutions serve Africa.

Kenya’s land commission, anchored in the national land policy and constitution, assumed office on 27^th February 2013. In swearing it in, the then Chief Justice Dr Willy Mutunga shared some poignant advise. He appealed to the commissioners to have a stiff spine, cool heads and be guided by the constitution. He also cautioned about the powerful interests around land in Kenya. Among other things, he implored the commissioners not to let the national land commission be reduced to a theatre of the absurd. In retrospect, Justice Mutunga had a strong premonition about the commission’s six year journey which ends in February next year. The constitution provides that, unless they are ex-official, each member of an independent commission shall hold office for single term of six years and shall not be eligible for re-appointment. So come February next year, the men and women who constituted Kenya’s first land commission will exit to make room for the second.

From observations, Justice Mutunga’s words to the commissioners have turned out to have been prophetic. The commission’s journey has been chequered. It’s been rough and at times very unkind. The commissioners walked into an institutional environment that wasn’t the most welcoming. In fact, the Lands Ministry kept suspicious of their every move. But this should have been anticipated, given that the very assumption of duty by the commission diminished both mandate and stature of some officers in the Ministry. The ring fencing by the ministry notwithstanding, I guess that in retrospect, the commissioners can easily appreciate where they may have gone overboard.

Land commissions are fairly recent inventions in Africa. They are consequential to innovative attempts to improve land governance systems around the continent, whose majority states are yet to optimize on the exploitation of land and natural resources. The commissions are established under contexts and with mandates that are jurisdiction-specific. The history, the state of land administration, the politics and priority development issues of the day inform their scope. As with ours, their performance in various countries has been rather chequered.

What were the fundamental issues that influenced the establishment of Kenya’s land commission? Irregular allocation of public land, and the need to repossess the land that had been so allocated, was primary. Historical land injustices formed the other cross-cutting issue. The other major concern was that the Lands Ministry was mired in serious service delivery irregularities. Consequently, out of frustrations, most stakeholders wished that this new “magic organ” could somewhat assume office and upstage the Ministry. Obviously, this was a little far-fetched, given the very nature of government, its command and resource allocation structures. As fate would have it, the promulgated constitution and the subsequently enacted laws ended up giving us today’s land commission.

On assumption of office, our first land commission started on an unfortunate note. Supremacy battles with the line Ministry, and subsequent contests over mandate, became routine. Subsequently, technical processes in the Ministry got undermined and service seekers were caught up in process uncertainties and delays for a long time. Some of this still persists. The Ministry stood its ground though. Ultimately, the differences over mandate were raised for determination by the Supreme Court. Meanwhile, reports of irregularities by the new commission began to hit public space. Indeed, towards the end of the tenure of the first group of commissioners, the chair and some of the officers were charged in court. At the close of its tenure, public confidence in the first commission was at an unfortunate low. Citizens and stakeholders had got totally disillusioned about it.