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.

Since its assumption of office, the land commission assumed some middle ground that has been quite useful in closing the gap that enabled the casual privatization of public land. The commission 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 two are quite heavy and diversionary. It has also had to deal with the repossession of public land which had been irregularly allocated. This never went well, and the anchor legal clauses have since expired. The current parliament will need to consider how to cure this.

Clearly, there is 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 of commissioners inherited. The second commission has a totally different business style. It’s quiet, non-confrontational and wont to keeping away from media, and any national controversy.

Commission voice necessary

While this could be good for some of its deliverables, it may be counter-productive for others, and may indeed end up undermining public interest. If not careful, this vacuum will be quickly filled by the executive and some business elites who still have 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 the commission holds sway for advising the national and county governments, and all public institutions, on the protection, exchange, allocation or surrender of any public land.

Unless the land commission assumes, and is seen to assume center stage in advising on such matters, there shall be a gradual weakening of its voice, and a twisted public perception of its role. This may 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, but rather have its communications unit identify situations in which its voice is desirable, issue quick public advisories, then revert to boardroom and inter-governmental consultations for solutions. Hoping to see changes in 2023. Happy holidays to all.

Dated: 20^th December, 2022